Appeal from the Circuit Court of DuPage County, Eighteenth
Judicial Circuit; the Hon. L.L. RECHENMACHER, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
Dallas Erb and John Weiss were convicted by a jury of the offense of possession of a narcotic drug, marijuana. (Ill Rev Stats 1967, c 38, § 22-3.) Each appeals from the judgment of conviction and the sentence imposed. Defendant Erb was sentenced to a term of two years probation, the first fifteen days to be served in the county jail; defendant Weiss was sentenced to three years probation, the first ninety days to be served in the county jail.
Both defendants urge that their arrests were unlawful and that the court erred in refusing to exclude evidence thereby seized. In addition, both defendants claim prejudicial trial errors, and defendant Erb claims that she was not proven guilty beyond a reasonable doubt.
The occurrence testimony presented by the State consisted of the testimony of Deputies Neuman and Ory: At about 3:00 a.m. on October 8th, 1968, they were on routine patrol when they observed a car parked on a bridge in the east bound lane of Roosevelt Road. There appeared to be no lights showing on the car. As they approached, they observed two persons alight from the vehicle, and stand to its right talking to persons in the car. They pulled their squad car behind the parked vehicle and approached. Deputy Ory, upon asking for the driver's identification, said that he smelled what he thought to be the odor of marijuana emitting from the car. He said he noted the same odor from the two persons in the car and later from the two who were standing at the side. He placed the driver and the other occupant of the car under arrest and searched them. A pistol was discovered on the passenger, and he was subdued after a short scuffle.
Deputy Neuman, meanwhile had been watching the two persons outside the car, later identified as the defendants. The defendants were observed getting out of the car and standing on the grassy shoulder of the road.
Deputy Ory testified that after he had placed the occupants of the parked vehicle in the squad car, he motioned defendant Weiss to come over and asked him to empty his pockets. After Weiss had finished, Deputy Ory placed his hand in Weiss's jacket pocket and found a packet which appeared to him to contain a compressed form of marijuana. He then placed Weiss in the squad car.
Deputy Neuman testified that he then told Ory that he had seen Miss Erb appear to throw something to the ground some eight to ten minutes earlier. Ory testified that up to that time he did not intend to arrest Miss Erb, but when Neuman told him that he saw her throw something into the weeds, he placed her under arrest, before finding the packet in the weeds. Ory went to the designated spot and found the packet which was later identified as containing marijuana. He testified that the packet was not weather-beaten or dirty.
Defendant Erb testified that she did not see anyone pick a packet from the ground and that she saw the packet, which Ory alleged he found, for the first time at the trial. She testified that she did not throw any object from her purse at any time.
Defendant Weiss denied that he had a packet of marijuana in his jacket. He testified that he saw an object in Ory's hand at the scene but had not seen it before and that he saw the packet for the first time at the trial.
Upon a later search of Miss Erb's purse at the police station, a corncob pipe and cigarette papers were found, which were introduced into evidence. A search of the glove compartment of the parked vehicle made after all four had been placed under arrest and put in the squad cars, revealed evidence of particles of marijuana, later collected at the police station by vacuum.
A motion to suppress evidence was filed prior to trial and was denied after a hearing in which Deputies Ory and Neuman testified for the State. Defendants argue that the motion to suppress should have been allowed on the theory that there was no probable cause to arrest either defendant, and that the alleged evidence against them was the product of an unlawful arrest.
We do not agree. Defendants seek to separate themselves from the occupants of the vehicle on the theory that they were merely standing outside and "doing nothing" prior to the arrest and search. Defendant Weiss suggests that the sole reason for his arrest and subsequent search was, as Deputy Ory testified, the alleged fact that the odor of both smoked and unsmoked marijuana was present in the car which Weiss and Erb had exited some minutes before. Defendant Erb argues that she was placed under arrest at a time when she was doing nothing at all and at a time before the alleged finding of the packet in the weeds.
The defendants argue that their mere presence in or at the car containing other passengers, which car and/or its other passengers gave evidence that a crime had been committed, did not give the deputies probable cause to make a valid warrantless search of their persons, and the defendants rely on United States v. DiRe, 332 U.S. 581, 92 L Ed 210, 68 S.Ct. 222 (1948), and The People v. Bowen, 29 Ill.2d 349, 194 N.E.2d 316 (1963) as support for their contention. In DiRe, a warrantless search of DiRe, one of the passengers, was made solely on the statement of another passenger. The passenger was in possession of some counterfeit gas ration cards which he said he had received from still another passenger. (Not DiRe) The subsequent search of DiRe was properly held to be without probable cause. In Bowen, the police, acting on information that a woman was carrying a gun on the street concealed in a newspaper, secured a surrender. They then searched her husband, the defendant, who was standing nearby, for weapons and found nothing. A more thorough search of the defendant was later made and heroin was found on his person. The court held that the later search was not incidental to the original arrest of defendant's wife and that there was no probable cause that defendant was guilty of a crime prior to the search. Both cases are distinguishable on their facts from the one before us.
[1-3] The entire circumstances confronting the officers must be viewed to determine whether they had reasonable cause to arrest the defendants. The arrest and subsequent search proceeded directly out of an investigation pursuant to apparent violations of traffic laws prohibiting stopping or parking on a public highway or bridge (Ill Rev Stats 1967, c 95 1/2, §§ 185, 187) and operating a motor vehicle on a public highway without proper lights (Ill Rev Stats 1967, c 95 1/2, § 200). Testimony of the "odor of marijuana emitting from the vehicle and from all of the persons," justified the further belief that more than a traffic violation was involved. Where the smell of contraband is established to the satisfaction of the court, it is a sufficient basis under proper circumstances for officers to believe that a crime is being committed in their presence. See United States v. King, 305 F. Supp. 630, 633 (1969) and cases therein cited; People v. Jackson, 241 Cal.App.2d 189, 50 Cal Rptr 437, 438 (1966); and People v. Christensen, 2 Cal.App.3d 546, 83 Cal Rptr 17, 19 (1969).
Defendants argue that "smell has been held insufficient as the basis of an arrest," citing Johnson v. United States, 333 U.S. 10, 92 L Ed 436, 68 S.Ct. 367 (1948), and Chapman v. United States, 365 U.S. 610, 5 L.Ed.2d 828, 81 S.Ct. 776 (1961). In Johnson, narcotics officers entered a hotel room upon invitation after smelling burning opium. A warrantless search which uncovered opium was held to be without probable cause (the court indicating, however, that the smell would have been sufficient cause for a magistrate to issue a search warrant). In Chapman, entry into private premises, based upon federal agents smelling a strong odor of mash, was held an insufficient ground for an entry without a search warrant. However, the opinions in both cases are premised upon the conclusion that there were no exceptional circumstances, such as threat of destruction or removal of evidence or danger of flight, requiring an immediate search of private premises.
The courts, moreover, have long distinguished between an automobile and a home or office in terms of circumstances justifying a warrantless search. See Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 426, 90 S.Ct. 1975, 1979 (1970), holding that "automobiles and other conveyances may be searched without a warrant in circumstances which would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize." Here, the mobility of the car, the fact that the occupants have been alerted, and the danger that evidence may never be found again if a warrant must be obtained, support the reasonableness of the search of the car after the apparent traffic violation and the detection of the odor of marijuana.
Other cases cited by the defendants as support for their assertion that herein the warrantless searches were invalid and illegal, such as Beck v. Ohio, 379 U.S. 89, 13 L.Ed.2d 142, 85 S Ct 223 (1964), and United States v. Henry, 259 F.2d 725 (1958), are similarly distinguishable on the basis that in those cases, there was no basis for the initial arrest of the defendants and, therefore, the subsequent search and findings of evidence were unlawful.
It was reasonable for Deputy Ory to arrest and search the occupants of the car, and it was reasonable for Deputy Neuman to meanwhile keep defendants, Erb and Weiss, under observation, as persons who had alighted from the car just previously and remained in the vicinity of it. While it is true that the finding of a weapon on the person of one of the other passengers justified a pat-down search of Weiss, Officer Ory was not confined herein to such a limited search because the smell of marijuana that he observed to emanate from the car and Weiss's person afforded him sufficient probable cause to believe a crime had just been or was being committed. The officers were not obliged to assume that Weiss had emptied everything from his pockets and were reasonably ...