APPEAL from the Circuit Court of Montgomery County; the Hon.
GEORGE W. KELLY, Judge, presiding.
MR. PRESIDING JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
This case comes to us on appeal from an order entered by the Circuit Court of Montgomery County. The order granted the motion of the defendant to suppress evidence seized from a search of defendant's automobile. The appeal by the State is pursuant to Supreme Court Rule 604 (Ill. Rev. Stat. 1975, ch. 110A, par. 604).
On March 22, 1975, an Illinois State Trooper stopped the defendant Randall W. Jones for erratic driving. The defendant stepped out of the car, and after some discussion was placed under arrest for driving while intoxicated. The arresting officer then searched the car, apparently for alcoholic beverages or weapons, looking in the back seat, under the front seat and in other areas of the car. Finding no alcoholic beverages, weapons, or contraband, the officer ceased searching, and radioed for assistance. The officer also called Blatter Motors in Litchfield for a tow truck. Trooper Garwood arrived at the scene in response to the call for assistance. Since the tow truck did not arrive, the State policemen drove to Blatter Motors in Litchfield where they turned over the keys to defendant's car to Paul Blatter. Mr. Blatter was to have someone drive the car to the garage on behalf of the defendant. At no time did the police seize or impound the car, or instruct Mr. Blatter as to who was to have access to the defendant's automobile.
The officers and the defendant then proceeded to the Hillsboro Police Department where preparations were made for a breathalizer test, which defendant subsequently refused to take. As part of a routine search, now some 1 1/2-2 hours after his arrest, the assisting officer found a small bag in the defendant's jacket containing 22.3 grams of marijuana, a violation of section 4(c) of the Cannabis Control Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 704(c)), a Class A misdemeanor.
After the defendant had been charged and taken to the Montgomery County Jail in Hillsboro, the arresting and assisting officer returned some nine miles to Litchfield, and without a warrant or defendant's permission, searched the defendant's car in the presence of Mr. Blatter. In order to find the vehicle identification number, which the officers claimed was the purpose of the search, the officers opened the glove compartment and discovered a bag containing 110.5 grams of marijuana. The defendant was subsequently charged with a violation of section 4(d) of the Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 704(d)), a Class 4 felony.
After a hearing upon a motion to suppress the evidence, the Circuit Court of Montgomery County granted the defendant's motion to suppress evidence illegally seized from the second search of defendant's automobile at Blatter Motors. The court granted the State's petition for rehearing, and pursuant to this proceeding, found again for the defendant.
The court ruled that said search was not incident to a lawful arrest; that said vehicle was not impounded by the police and under their control; that said search was too far removed from the arrest; and further, that there was ample opportunity to obtain a search warrant. The search was therefore unreasonable and defendant's motion to suppress was granted.
The State, in its appeal to this court, contends that the second search of defendant's automobile was reasonable because the police had probable cause to search the car after finding marijuana on his person following his arrest for driving while intoxicated. The State also contends that the search of defendant's car to obtain the vehicle identification number was likewise reasonable as part of thorough police procedures. There is no attempt to justify the search as an inventory search as the car was not in police custody. Cf. South Dakota v. Opperman, 428 U.S. 364, 49 L.Ed.2d 1000, 96 S.Ct. 3092, (1976).
• 1 The law of automobile searches has had a somewhat checkered past, with the courts making various advances and retreats from their positions. While circumstances under which warrantless searches of automobiles upheld as reasonable under the Fourth Amendment have been varied, there is a recurring theme in all cases: A warrantless search of an automobile can be justified only under the existence of "exigent circumstances." Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975 (1970); Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (1971); Preston v. United States, 376 U.S. 364, 11 L.Ed. 777, 84 S.Ct. 881 (1964).
Exigent circumstances are those that are so compelling that a search without a warrant is reasonable under those conditions. The courts have found exigent circumstances to exist in a variety of fact situations; many of these have included probable cause to believe that contraband was being transported in the vehicle searched on the roadside (Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280 (1925)); a threat to public safety by the presence of a weapon police had probable cause to believe was in the automobile searched (Cady v. Dombrowski, 413 U.S. 433, 37 L.Ed.2d 706, 93 S.Ct. 2523, (1973)); and probable cause to believe that the fruits of a crime, and weapons used in the crime for which the arrest was made were within the vehicle searched (Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975 (1970)). Although not a sole test (United States v. Rabinowitz, 339 U.S. 56, 94 L.Ed. 653, 70 S.Ct. 430 (1950)), another consideration in determining whether circumstances were so compelling as to justify a warrantless search is whether it was practicable or reasonable to obtain a search warrant.
In the case at bar, we find, as did the court below, that this search cannot be justified as reasonable under the Fourth Amendment. The search certainly was not incident to an arrest, the car being some nine miles from the scene of defendant's arrest for possession of marijuana. There were no exigent circumstances compelling the Illinois State Troopers to search the defendant's car without a warrant. There was no danger that the defendant would move the car from the jurisdiction because the defendant was in custody, could not make bond, and was too intoxicated to drive. The police had not impounded or otherwise taken control of the automobile, as evidenced by fact that it was left unlocked on private property, and that defendant could have taken the car at any time; had he been able to post bond and had he been sober enough to drive. There was no threat to public safety in that there was no probable cause to believe the car contained a weapon. Also, a warrant would not have been difficult to obtain at 9 a.m., the time of the defendant's arrest at the Hillsboro Police Station for possession of marijuana.
The State claims that People v. Wolf supports its contention that the finding of contraband in an automobile creates probable cause to search without a warrant other areas of the car for additional contraband. This is easily distinguished from the instant case in that the first marijuana found was discovered on the defendant's person, some nine miles from his car. In Wolf, the marijuana was found in the car's ashtray, and the subsequent search was conducted immediately and on the roadside. Also, in the case at bar, there was no danger from the nature of the car's mobility, as there was in Wolf, because the defendant was in custody.
People v. Jones and People v. Hanna can be distinguished in that evidence in the cars, in plain view of the officers, indicated that there would be further fruits of the crime discovered in the automobile. In both Jones and Hanna the cars had been seized by the police and taken to the stationhouse. In both these cases there was probable cause to believe that the vehicles were used to transport stolen goods and that the majority of these goods were still in the cars when impounded. Again, in both cases, the search was definitely related to the crimes for which the original arrests were made. In Jones, there was the additional fact that the defendant had abandoned the car when he fled from the scene of the crime.
The State has also cited Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975 (1970), in support of its contention that probable cause existed to search the defendant's car, and thus justified the warrantless search. The circumstances in Chambers, however, were different from those in the case at bar in that the officers had probable cause to believe that the fruits of the crime for which the arrest took place were in the car; there was also probable cause to believe that a weapon was in the vehicle. Due to the late hour and the ...