APPEAL from the Circuit Court of Cook County, Criminal
Division; the Hon. GEORGE B. WEISS, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
James Lewis, the defendant, was tried in the circuit court of Cook County before a jury for attempted burglary. He was found guilty and sentenced to a term of not less than 3 nor more than 7 years in the penitentiary. Defendant appeals directly to this court alleging a violation of his constitutional rights by reason of an illegal search and seizure.
On May 28, 1963, at 8:30 P.M. the defendant, driving a 1959 Cadillac sedan, was stopped by police officers for going through a red traffic light. One of the officers then noticed that the defendant and a similar 1959 Cadillac bearing defendant's license number were listed in the daily police department bulletin as being wanted in connection with a burglary. While defendant was kept in the squad car, one officer then searched defendant's car, opening the trunk with the ignition key, and found screw drivers, a butter knife, an auger bit, a brace for an auger bit, a hand drill, small socket wrenches and some locks. These items were seized without an arrest warrant or a search warrant. Defendant was then taken to the police station where he was given a traffic summons.
Thereafter defendant was indicted for attempted burglary and possession of burglar tools. Defendant filed a timely motion to suppress the items seized from the trunk; the motion was denied and the items were introduced into evidence before the jury.
Defendant contends that the search of his car incident to his arrest for a minor traffic violation was unreasonable and invalid and that he was denied due process of law by the admission into evidence of the fruits of an illegal search and seizure.
The sole issue on this appeal is whether or not the search of the trunk of defendant's car without a warrant was unreasonable in light of the facts and circumstances of this case.
The applicable general principles of law are well settled. In Preston v. United States, 376 U.S. 364, 366, 11 L.ed.2d 777, 780, the Supreme Court, in a unanimous opinion, stated: "Our cases make it clear that searches of motorcars must meet the test of reasonableness under the Fourth Amendment before evidence obtained as a result of such searches is admissible. E.g., Carroll v. United States, 267 U.S. 132, 69 L.ed. 543, 45 S.Ct. 280, 39 A.L.R. 790 (1925); Brinegar v. United States, 338 U.S. 160, 93 L.ed. 1879, 69 S.Ct. 1302 (1949). Common sense dictates, of course, that questions involving searches of motorcars or other things readily moved cannot be treated as identical to questions arising out of searches of fixed structures like houses. For this reason, what may be an unreasonable search of a house may be reasonable in the case of a motorcar. See Carroll v. United States, supra, 267 U.S., at 153, 69 L.ed. at 551. But even in the case of motorcars, the test still is, was the search unreasonable. Therefore we must inquire whether the facts of this case are such as to fall within any of the exceptions to the constitutional rule that a search warrant must be had before a search may be made.
"It is argued that the search and seizure was justified as incidental to a lawful arrest. Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. Weeks v. United States, 232 U.S. 383, 392, 58 L.ed. 652, 655, 34 S.Ct. 341, L.R.A. 1915B 834 (1914); Agnello v. United States, 269 U.S. 20, 30, 70 L.ed. 145, 148, 46 S.Ct. 4, 51 A.L.R. 409 (1925). This right to search and seize without a search warrant extends to things under the accused's immediate control, Carroll v. United States, supra, 267 U.S., at 158, 69 L.ed. at 553, and, to an extent depending on the circumstances of the case, to the place where he is arrested."
In the Preston case the United States Supreme Court held it unreasonable for the police to search the trunk of a car after the defendants had been taken into custody for vagrancy and the car taken to the police garage.
We held a similar search after an arrest for traffic violations invalid in People v. Catavdella, 31 Ill.2d 382. The search of the trunk held invalid in People v. Erickson, 31 Ill.2d 230, also took place after the car and its occupants had been taken to the police station.
It is true, as the State suggests, that these cases are not decisive of the merits of this appeal because of the factual differences with respect to the time and place of the search. This court has sustained a search of the interior of an automobile at the time and place of arrest where circumstances indicated that the driver was more than an ordinary traffic violator. (People v. Davis, 33 Ill.2d 134.) We also upheld the search of the trunk of a car in People v. Faginkrantz, 21 Ill.2d 75. There defendant was found next to his car parked in an alley behind a plumbing supply firm at 4:30 A.M. He could show no evidence of ownership of the car and there had been a recent history of burglaries in the alley. Defendant also admitted to the officers that he had a prior record for burglary. We held that these facts made the search without a warrant a reasonable one.
The present case falls between the foregoing decisions. It was well stated in United States v. Rabinowitz, 339 U.S. 56, 94 L.ed.2d 653, and People v. Watkins, 19 Ill.2d 11, that a determination of the reasonableness of any given search must be made upon the facts there present. Perhaps the guidelines for reasonableness were set forth as clearly as possible in the Watkins case where we said, at 19 Ill.2d 18:
"A search incident to an arrest is authorized when it is reasonably necessary to protect the arresting officer from attack, to prevent the prisoner from escaping, or to discover fruits of a crime."
In the present case defendant was lawfully arrested for a traffic violation, and we believe that the police bulletin gave the officers reasonable basis for the belief that they were dealing with more than an ordinary traffic offender. However, the particular search complained of was accomplished after the defendant was taken into custody and was therefore totally unnecessary to protect the arresting officers or to prevent escape. Nor was it possible for the defendant to dispose of evidence before a search warrant was obtained, since the police took possession of the car at the time they took custody of the defendant.
The circumstances were similar in People v. Jeffries, 31 Ill.2d 597. Defendant was implicated in an auto theft and after the stolen car was recovered and the owner had described certain missing items from the car, a warrant was issued charging defendant with larceny of a motor vehicle. He was thereafter arrested while stopped for a traffic signal, taken into custody, and the police searched the interior and trunk of the car which ...