APPEAL from the Circuit Court of Sangamon County; the Hon. J.
WALDO ACKERMAN, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
The defendant appeals from convictions entered on jury verdicts of guilty to each of 10 counts charging possession, and possession with the intent to deliver, 5 quantities of various unlawful drugs, and from the sentences imposed thereon. The defendant contends that the initial search of his automobile on the highway which disclosed a relatively small quantity of marijuana under the front seat was unlawful, and that, accordingly, the subsequent search of his trunk disclosing a larger quantity of various dangerous drugs was also unlawful as a fruit of the poisonous tree, and, in the alternative, was conducted pursuant to an invalid search warrant. Defendant also complains that the prosecutor's conduct during the trial and especially in closing argument was improper and prejudicial. Defendant contends that he should not have been sentenced on the 5 charges of simple possession because they were lesser included offenses of the 5 charges of possession with intent to deliver pertaining to the same quantities of drugs, that the trial judge imposed excessive sentences, and that the defendant is entitled to the sentencing changes of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-1 et seq.) which are beneficial to him.
At approximately 1 A.M. on September 1, 1971, an Illinois State trooper noticed that one of the headlights on defendant's automobile was not functioning. The defendant was not violating the speed limit or any other traffic laws and immediately pulled over to the side of the road when the officer turned on his flashing red light. After the defendant satisfactorily explained that his automobile had Wisconsin license plates and registration while he had an Illinois driver's license because the defendant was a student in Wisconsin, the officer told the defendant he would only issue a "written warning." The officer took the defendant's driver's license back to the squad car, and while filling out the warning ticket, looked up to see the defendant driving away and just disappearing over the top of a railroad overpass. The defendant was not traveling fast so the officer soon caught up with him and again the defendant pulled to the side of the road as soon as he saw the flashing red lights. The officer testified that when asked why he left while the officer still had his driver's license and was writing out the warning ticket, the defendant gave no explanation. The officer testified that he thought the defendant might have been drinking, which could be the reason for driving away, and that defendant appeared to be a little nervous and somewhat incoherent, even though he did not really seem to be intoxicated. The officer testified that he was not satisfied with the defendant's answer that he had not been drinking, and so told the defendant to get out of the car and step away; and after the defendant did so, the officer squatted down and looked under the driver's seat with his flashlight. The defendant never gave permission to search his automobile. As the officer walked around the car to the other side, he saw that the door was locked and told the defendant to get in the car and unlock it for him, which the defendant did. The officer shined his flashlight under the passenger's side of the front seat, and found several plastic bags which the officer believed to be marijuana.
The defendant testified that when the officer initially stopped him and told him about the defective headlight, the officer returned his registration papers and said he was only going to give the defendant a warning, and that the defendant thought that he had gotten his driver's license back and did not know that there was such a thing as a written warning or ticket, so drove away. The defendant's version of the search under his front seat when the officer stopped him the second time corroborates the testimony of the officer.
At the trial, the officer testified that he had the impression the defendant might have been drinking because of his nervousness and incoherence, but that he did not arrest the defendant for intoxication, and that he did not consider a warning ticket to be an arrest. As to the second stop, the officer testified that he did not know the defendant's reason for leaving while the officer was writing out a warning ticket, but felt there must be some reason, and "I didn't know if he was just committed a felony or what was taking place. I didn't know if there was a gun or booze, or what was underneath the car or in his possession." When asked why he looked under the front seat, the officer testified that normally when a driver has been drinking, he slides the bottle underneath the passenger side, thinking that that is the last place a police officer will look.
After finding the cellophane bags which he believed to contain marijuana, the trooper placed defendant under arrest and asked permission to search the trunk of the car which defendant refused to give. After defendant was removed from the scene, his automobile was impounded, and the next day after laboratory tests confirmed that the material found under the seat was marijuana, a search warrant for the entire car was obtained. When the trunk was opened, the officer found the four plastic bags containing a quantity of capsules containing white powder, loose white powder, and small aluminum foil packets of white powder, as well as 56 small plastic bags of marijuana. Chemical tests disclosed that the various quantities of white powder were drugs commonly known as LSD, MDA, PCP, and cocaine.
From those 5 groupings of drugs, 10 counts were brought against the defendant, 5 for the knowing possession and 5 for the knowing possession with intent to deliver, and convictions were entered and sentences imposed on all 10 of the guilty verdicts returned by the jury.
• 1 All searches conducted without a valid search warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. (Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856.) The defendant clearly did not consent to the search in the instant case, so it must be justified, if at all, either as incident to arrest (Chimel v. California, 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034), or as a search made with probable cause and under exceptional circumstances such as may exist when the object of the search is a motor vehicle. (Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280.) In any event, a search cannot be justified by what it produces, nor an arrest justified by the fruit of an illegal search. Sibron v. New York, 392 U.S. 40, 20 L.Ed.2d 917, 88 S.Ct. 1889.
An oral argument, the State cited People v. Ricketson, 129 Ill. App.2d 365, 264 N.E.2d 220, for the proposition that the initial stopping of the defendant may have been an arrest thus triggering the recent Supreme Court opinions in United States v. Robinson, 414 U.S. 218, 38 L.Ed.2d 427, 94 S.Ct. 467, and Gustafson v. Florida, 414 U.S. 260, 38 L.Ed.2d 456, 94 S.Ct. 488, regarding the scope of searches incident to custodial arrests for minor traffic offenses. We find these cases to be inapplicable here. Arrest is defined as the actual restraint of the person or submission by the person to custody. (Ill. Rev. Stat. 1973, ch. 38, par. 107-5.) The officer's testimony in the instant case makes it clear that even though he was suspicious that the defendant was under the influence of something in a vague sort of way because of his speech and action, and those suspicions were bolstered by the driving away while the officer had defendant's driver's license, the officer stated that he did not think there was reasonable cause to arrest the defendant, and that he did not consider a warning ticket to be an arrest. Therefore, the search in this case was not conducted pursuant to a valid search warrant nor incident to a custodial arrest, so must find its support under Carroll since the object of the search was an automobile on a public highway.
The defendant contends that since the officer testified that he had not arrested the defendant at the time of the search, and had no intention of doing so because he felt there was no probable cause before the search, that the search was invalid because section 108-1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 108-1) provides that a search may only be made pursuant to a warrant or a valid arrest. The defendant recognizes the authority of Carroll and does not disagree that the circumstances of this case might fit into that exception to the search warrant requirement, but rather cites People v. Collins, 49 Ill.2d 179, 274 N.E.2d 77, holding that States may give more protection than the Federal constitution or the United States Supreme Court minimum protections, and that the Illinois legislature has done so in the area of search and seizure by the above provision in section 108-1 of the Code. However, nothing in that statute or the Comments thereto suggests that it is to be exclusive. Rather, it authorizes searches incident to arrest within prescribed bounds as to area and purpose.
• 2 Of course, probable cause is required for any warrantless search and that is a belief which is reasonable that a search of a particular place or thing will disclose evidence, fruits of the crime, or is necessary for the protection of the police officer. (Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022.) The test is whether the search was reasonable (People v. Wright, 42 Ill.2d 457, 248 N.E.2d 78), and the burden of showing that a search without a warrant was reasonable is on the prosecution. People v. Bussie, 41 Ill.2d 323, 243 N.E.2d 196.
• 3 In the instant case, the second stopping of defendant's automobile was not directly concerned with the defective headlight or any traffic offense, but rather was because of the defendant's conduct in driving away while the officer was writing out a warning ticket and still possessed the defendant's driver's license. It is well established that valid searches not incidental to an arrest may be made without a warrant so long as they are based upon probable cause, which is defined as knowledge of facts justifying a reasonably prudent person in believing that a crime has been or is being committed, and that evidence thereof is contained in the automobile. (Carroll.) Because of its inherent mobility, the warrantless search of an automobile can be upheld on the theory wholly different from that justifying a search incident to arrest. People v. Powell, 9 Ill. App.3d 54, 291 N.E.2d 669.
• 4 The focus is not on whether the original stopping of the defendant on account of his defective headlight was an arrest, because it was the defendant's subsequent behavior which caused the officer to stop the car the second time and make the search. The defendant's act of driving away and then saying that he did not know why he did so could be interpreted in several ways: it could reasonably be believed that the defendant was attempting to escape in order to avoid the discovery of contraband or weapons or evidence of other crimes in the car, or it could be believed that the defendant was so under the influence of alcohol or other narcotics that he was not aware of what he was doing either of which would give the police officer probable cause to believe that a crime had been or was being committed and that evidence thereof was contained in the car.
Defendant also argues that the search warrant for the entire automobile acquired after it was determined that the plastic bag found under the front seat of his automobile contained marijuana was a fruit of that illegal search. There was no intervening independent facts to justify a search warrant, and it was completely based on the finding of two bags of marijuana under the front seat of the defendant's car, so it clearly was a fruit of the original search, but ...