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People v. Breitweiser





APPEAL from the Circuit Court of Whiteside County; the Hon. JOHN DONALD O'SHEA, Judge, presiding.


Defendant Robert Breitweiser appeals from a conviction for unlawful possession of cannabis in an amount in excess of 30 grams but not more than 500 grams. Defendant was found guilty in a jury trial in the Circuit Court of Whiteside County and after a sentencing hearing, defendant was sentenced to 13 to 39 months imprisonment.

From the record it appears that on March 13, 1975, a police officer of the Sterling Police Department observed defendant's car being driven with an illegal suspension system. The officer had stopped defendant's car on two prior occasions and had instructed defendant to make the proper changes. The officer turned on the revolving red lights on his patrol car and shined the patrol car's spotlight directly into the rear window of defendant's car. Defendant, however, did not stop his automobile but proceeded directly to his residence. The officer followed defendant's automobile at a distance of two car lengths, and when the defendant pulled his automobile into the driveway of his residence, the officer blocked the driveway street exit with his squad car. Defendant hurriedly left his automobile, locked the car door and ran into the house. The officer continued to pursue defendant and although defendant slammed the door and sought to block the officer's pursuit, he ran upstairs and was apprehended by the officer.

The officer noticed a strong odor of burned cannabis coming from defendant. Upon searching the defendant, the officer found a plastic bag in defendant's pocket which contained a green vegetable substance which, in light of the officer's past experience, he believed contained cannabis. The officer also found, clipped to defendant's waistband, a metal clip device of the type commonly used to hold hand-rolled cigarettes containing cannabis. The officer also inspected defendant's locked vehicle from the outside and observed a large bread-wrapper bag, approximately one-half full of a substance. The officer, in his experience, noticed that cannabis is commonly carried in plastic bags.

The officer then prepared a statement relating the facts referred to and secured a search warrant for a search of defendant's automobile. The subsequent search of defendant's automobile produced a brown paper bag, which contained three plastic bags. Testimony at the trial revealed that the three plastic bags contained 56.2 grams of unlawful cannabis. No testimony was presented at the trial as to the nature of the green vegetable matter which was found on defendant's person.

Defendant was represented at the trial of the case by the public defender. Prior to the trial, the public defender moved to suppress all items seized from defendant's automobile, and alleged a technical defect in the search warrant and the lack of probable cause in issuing the warrant. After hearing arguments of counsel and representations of fact on the motion, the trial court reserved its ruling until trial, at which time it denied the motion.

As we have noted, the jury found defendant guilty of the offense of unlawful possession of cannabis in an amount in excess of 30 grams but not more than 500 grams. At the sentencing hearing, the State requested that defendant be sentenced under the enhanced penalty provision of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 704(d).) The State contended that this was proper since defendant had been previously convicted for unlawful possession of cannabis. The indictment of defendant, however, did not contain an allegation of defendant's prior conviction. The presentence report showed that defendant had received a previous 1- to 3-year sentence on March 1, 1974, for possession of cannabis, and a 1- to 5-year sentence on July 1, 1974, for burglary. The trial court sentenced defendant to a term of imprisonment of not less than 13 months nor more than 39 months, a sentence which would be authorized only if the enhanced penalty provision was applicable. Defendant has been released on parole on June 23, 1976.

On appeal in this court, for the first time in the course of this proceeding, an argument is raised that the contraband discovered in the search of defendant's car is inadmissible for the reason that the warrantless arrest of defendant in his home was illegal and that, therefore, the elements of probable cause upon which the automobile search was predicated were tainted. Defendant concedes that this ground for exclusion of the evidence was not included in his motion to suppress at the trial and that this court has rejected attacks upon the denial of a motion to suppress wherein grounds raised on appeal were not presented to the trial court. Defendant contends that the waiver rule should not be applied in this case and that relief should be accorded defendant under either the plain error doctrine or because of ineffective assistance of defendant's appointed counsel.

Defendant's assertion that it was plain error for the trial court to admit into evidence materials discovered in the search of defendant's automobile rests largely on Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022, and United States v. Santana (1976), ___ U.S. ___, 49 L.Ed.2d 300, 96 S.Ct. 2406. In Coolidge, the Supreme Court stated:

"It is clear, then, that the notion that the warrantless entry of a man's house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man's house without warrant are per se unreasonable in the absence of some one of a number of well defined `exigent circumstances.'" 403 U.S. 443, 477-78, 29 L.Ed.2d 564, 589-90.

In view of the language in Coolidge, defendants seeks to distinguish the more recent case of United States v. Santana, where the Supreme Court upheld the warrantless entry of a dwelling to make an arrest. In Santana, police officers, after making an undercover drug purchase, proceeded to Santana's house, intending to arrest her for supplying drugs to the immediate seller, who had already been arrested. As the officers arrived at the house, Santana was standing in the doorway, and, when the officers shouted "police", she retreated inside. The police followed her through the open door and arrested her. The Santana opinion first established that, when the officers first sought to arrest her, Santana was in a public place, where, under United States v. Watson, 423 U.S. 411, 46 L.Ed.2d 598, 96 S.Ct. 820 (1976), her warrantless arrest upon probable cause would not violate the Fourth Amendment. In Santana, the United States Supreme Court stated:

"The only remaining question is whether her act of retreating into her house could thwart an otherwise proper arrest. We hold that it could not. In Warden v. Hayden, 387 U.S. 294, 18 L.Ed.2d 782, 87 S.Ct. 1642 (1967), we recognized the right of police, who had probable cause to believe that an armed robber had entered a house a few minutes before, to make a warrantless entry to arrest the robber and to search for weapons. This case, involving a true `hot pursuit,' is clearly governed by Warden; the need to act quickly here is even greater than in that case while the intrusion is much less. * * * Once Santana saw the police, there was likewise a realistic expectation that any delay would result in destruction of evidence. * * * Once she had been arrested the search, incident to that arrest, which produced the drugs and money was clearly justified." ___ U.S. ___, ___, 49 L.Ed.2d 300, 305.

• 1 In the cause before us, defendant, at the time he ran from his car, was subject to traffic charges regarding the illegal suspension in his automobile and possible charges of flight or attempting to elude a police officer and resisting or obstructing a peace officer. At that time, defendant had subjected himself to a possible custodial arrest and, accompanying arrest, a search. Due to the nature of the issues raised in the trial court, the events occurring after defendant left his car, are not fully detailed. The officer's affidavit upon which the search warrant was obtained, however, states:

"The defendant Breitweiser slammed the door of the house in my face and held it as I pursued. He then ran upstairs in ...

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