APPEAL from the Circuit Court of Randolph County; the Hon.
FRANCIS E. MAXWELL, Judge, presiding.
MR. PRESIDING JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
This is an appeal by the State from an order of the Circuit Court of Randolph County granting the motion of defendant-appellee Andrew G. Sanders to suppress evidence seized from the trunk of his car pursuant to a warrantless search.
The defendant was indicted for possession of more than 30 grams but less than 500 grams of cannabis, in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 704(d)). A preliminary hearing was held at which only one witness, the arresting officer, testified. At the conclusion of the testimony, an oral motion by the defense to suppress the evidence was denied, on the ground that the defendant had consented to the search. The trial court did, however, grant defense counsel's request to reconsider the issue upon submission of briefs. No additional evidentiary hearing was held on the motion to suppress; the parties agreed that the evidence adduced at the preliminary hearing could be considered along with the briefs in determining the motion. After consideration of the motion and the briefs, the court entered an order granting the motion on the grounds that the defendant had a right to revoke his consent to the search, and any search after revocation of consent was illegal and in derogation of the defendant's rights under the State and Federal constitutions. This appeal pursuant to Supreme Court Rule 604 (Ill. Rev. Stat. 1973, ch. 110A, par. 604) followed.
The relevant facts, as adduced at the preliminary hearing, are not in dispute. Michael Thomas Korando, Jr., a patrolman in the Chester police department, testified that in the early morning hours of June 29, 1974, he was on patrol in a marked squad car with two other police officers. About 1:30 a.m., Patrolman Korando observed the defendant in a telephone booth on State Street in Chester. When the defendant finished his conversation, he returned to his automobile and drove to Reaban's parking lot, some 3 1/2 blocks away. Just as the defendant was leaving the phone booth, according to Korando's testimony, "we received a call from our dispatcher that there had been someone made a report by phone to her that Andrew Sanders was carrying three lids of grass and some beer in the trunk of his car." Therefore the police officers followed him to the parking lot, at which time, according to Korando, the following sequence of events occurred:
"I walked over to the car and I said, Andy did you call the police station just then. I saw you were on the phone there. And he says, no, I didn't call the police station. I was talking to a girl. If you want to check, call and ask him [sic] and at that time I said I believed him and asked if we would [sic] look into his trunk.
Q. What did the defendant do or say at that time?
A. At that time the defendant took the keys from the ignition of his car and walked to the rear and opened his trunk.
Q. Did he say anything to you prior to opening the trunk?
Q. After he opened the trunk what did you do, if anything?
A. He opened the trunk and opened the beer cooler and I looked in the beer cooler and I started moving towards the right and I picked up the top of the air cleaner that was laying there and I started moving over to the right side further yet, and I went to reach for a paper sack that was sat on top of the styrofoam cooler
Q. Officer, let me interrupt you for a minute. What did that paper sack look like, if you recall?
A. Brown paper bag like you get in stores.
Q. And go ahead, and you started, you reached for the paper sack.
A. Whenever I reached for the sack, the defendant stated I couldn't look at everything. He grabbed it from me and ...