Appeal from the Circuit Court of DuPage County; the Hon. L.L.
RECHENMACHER, Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
Rehearing denied and supplemental opinion November 19, 1970.
The defendants, Leonard Ricketson and George Artin, were charged by indictment with the crimes of burglary, possession of burglary tools, theft and bribery. Each entered a plea of not guilty. At the trial, the jury found Ricketson guilty of all charges, and found Artin guilty of all charges except bribery. The court thereafter sentenced Ricketson to a term of from five to ten years in the penitentiary, and sentenced Artin to a term of from three to eight years.
The defendants jointly prosecute this appeal and contend that the trial court erred: (1) in denying the defendants' motion to suppress evidence allegedly seized in violation of Article II, section 4 of the Illinois Constitution and the Fourth Amendment to the United States Constitution; (2) in denying the defendants' motions to suppress statements made by them while in custody; (3) in summarily denying a motion for rehearing on the motion to suppress, allegedly based on newly discovered evidence not previously available to the defense; and (4) in denying the defense, at the hearing on the motion to suppress, the opportunity to examine the arresting officers as adverse or hostile witnesses, and in refusing to permit the defense to cross-examine the officers without being bound by their testimony. The defendants did not testify either at the trial or the hearing on the motion to suppress and, thus, the facts of this case were developed solely by the testimony of the arresting officers.
At approximately 5:00 a.m., on July 8, 1968, while on patrol, Officer Militell of the Itasca Police Department, observed a 1960 Oldsmobile pass his squad car several times. He noted that the rear license plate was hanging less than a foot from the pavement in violation of the state motor vehicle law, and he began to follow the Oldsmobile. He radioed to the other Itasca squad car that was in the area, and that car, driven by Officer Farina, also moved into position behind the Oldsmobile. After following the Oldsmobile for six or seven blocks, Officer Militell turned on his revolving red light and spotlight, and the three vehicles pulled over to the side of the road.
The defendant Ricketson and Officer Militell got out of their respective cars, and Ricketson, upon request for identification, produced a traffic ticket which listed his name and address. He also exhibited a registration certificate for the car, which indicated that he owned it. The officers did not mention the license plate violation.
Upon noting that Ricketson lived in Chicago, Officer Militell asked him what he was doing in the area at that hour of the morning, and Ricketson replied that he was visiting a friend (whom the officer did not know) in a nearby apartment. Officer Militell then observed a briefcase on the rear seat of the car with initials stamped thereon which did not correspond with those of Ricketson, and he asked him what it contained. Ricketson replied by asking the officer whether he wanted to look inside the case, and Militell said that he did. Both men reached for the briefcase and opened it together. It contained what appeared to be two, 9-millimeter lugers and a 35-millimeter camera, as well as a large pair of channel lock pliers, a pry bar, some silk scarves, two pairs of gloves, a small transistor radio, a letter opener, and a couple of small boxes and rolls of nylon tape.
Officer Farina called Militell's attention to some objects beneath a blanket on the rear floor of the defendants' car. Militell pulled back the blanket, which revealed a television set and a portable radio, and he asked Ricketson to whom these items belonged. Ricketson said that they were his. Militell then asked Ricketson if he could look in the trunk. Ricketson said that he could, went to the driver's side of the car and got the car keys; however, neither Ricketson nor Officer Farina could open the trunk with the keys.
At this point, Ricketson offered to give the officers the items in the car if they would let him and Artin, the passenger in the car, leave. Militell then arrested the defendants for the possession of burglary tools. At no time, while the car was stopped, does it appear that any mention was made to the defendants of the offense for which they were allegedly stopped.
The defendants were taken to the Itasca police station, and their car was taken to the police garage, where the trunk was later opened with the keys which were taken from Ricketson at the station. Various items were found in the trunk, which, along with the television set and radio, were later identified as stolen property, and were introduced into evidence against the defendants at the trial.
The defendants were initially stopped for an alleged violation of the state motor vehicle law. A search, incidental to an arrest, is authorized when it is reasonably necessary to protect the arresting officer from attack, to prevent escape, or to discover the fruits of a crime. The People v. Machroli, 44 Ill.2d 222, 224, 225, 254 N.E.2d 450 (1970). However, the extent of the search without a warrant, as an incident to a lawful arrest, must be limited, and persons must be made secure against unreasonable warrantless searches. The United States Supreme Court in Chimel v. California, 395 U.S. 752, 23 L Ed2d 685 (1969), recently delineated the boundaries of a permissible "search incident to arrest," stating that the Fourth Amendment proscribes searches incidental to an arrest once they go beyond the area from which the person arrested might obtain weapons or evidentiary items. (395 US at 766, 23 L Ed2d at 695).
An arrest for a traffic violation does not, itself, warrant nor justify a search of the driver, and portions of his vehicle, unless surrounding circumstances reasonably indicate that the police may be dealing with more than an ordinary traffic violation. The People v. Reed, 37 Ill.2d 91, 94, 227 N.E.2d 69 (1967); The People v. Thomas, 31 Ill.2d 212, 213, 201 N.E.2d 413 (1964). Initially then, we must determine whether Ricketson consented to the search of the briefcase or whether there were factors to justify any search of the defendants and their vehicle.
Neither defendant testified, and the evidence stands unrefuted that Ricketson freely and voluntarily consented to the search of the briefcase. Thus, on the consensual basis, the search incident to the traffic arrest may be sustained. After discovering the guns and burglary tools in the briefcase, Officer Militell was then fully justified in making a further search of the car. The People v. Barbee, 35 Ill.2d 407, 411, 412, 220 N.E.2d 401 (1966). Since we find that Ricketson consented to the search, we need not determine whether, under the circumstances of this case, there were sufficient factors to otherwise warrant the search of the defendants and the car in question.
Under the standard set forth by the United States Supreme Court in Chimel, supra, the search of the entire passenger section of the car was proper, as within the area of the defendant's reach, and ...