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People v. Roberson





APPEAL from the Circuit Court of Ogle County; the Hon. F. LAWRENCE LENZ, Judge, presiding.


Rehearing denied April 15, 1977.

The State appeals from an order which suppressed evidence and statements.

The State first contends that a search of the defendant's car including the locked trunk (where yarn was found which became the basis of a theft charge against the defendant) was lawful and that therefore the motion to suppress evidence should have been denied.

At the combined hearing on defendant's motions Officer Larry Myroth of the Rochelle Police Department testified that on November 21, 1974, at about 12:20 a.m. he arrived at the Del Monte plant in response to a call from the plant security guard. He stated that the security guard "* * * advised me that he and a number of other employees had seen an individual in the plant * * *" and that the security guard further advised him "that he and a number of other employees had seen an individual in the area by the office. As they approached the front door, the individual ran, employees gave pursuit and caught the individual in back of plant 110 as he was approaching a white `71 Plymouth. The employees brought the individual back to the front part of the building where he was when I arrived. * * *." The officer testified that he asked whether defendant was employed at Del Monte to which the security guard replied that defendant was not an employee. Defendant was then placed under arrest. The officer stated that the defendant was charged with burglary since the warehouse at the time was closed and there were no employees working there.

The officer then ran a license check on the car and found that it was registered to a Patricia Bonnell. The car was under a water tower approximately three-fourths of a block from the plant and not in a parking area. He looked inside the vehicle to determine if there was anybody in it and found that it was not occupied. He called an officer to stand by the vehicle and then called for a tow truck. The officer returned to the station, took the car keys which were in defendant's personal belongings, went back to the car, and found that one of the keys fit the ignition. The officer stated that he then had the car towed in to a private garage "for the protection of the property and for the departmental policy of inventorying * * *." In the course of the "inventory" at the garage the officer went into the trunk and found a rifle and two sealed cardboard boxes which he opened, and found that they contained yarn. The officer stated that the inventory was made pursuant to departmental regulations which authorized a complete inventory, including the trunk.

On November 21, 1974, another officer entered Patricia Bonnell's house where defendant had been living. Patricia Bonnell consented to a search in which the officer found additional boxes of yarn. Patricia Bonnell told the officer that defendant had brought the yarn home.

The defendant was indicted for the offense of theft over $150 based on the value of 180 skeins of yarn allegedly taken from a firm identified as Caron International, Incorporated.

The State argues that the search of the trunk was reasonable either on the basis of probable cause or as a search incident to a lawful arrest. *fn1 Defendant does not question his arrest but contends that the search may not be viewed as incident to the arrest since the defendant was not near the car when placed under arrest and, in fact, the police did not know who the car belonged to at the time of the arrest. He argues that the police did not know it had been in defendant's custody until later when the keys were taken from defendant while he was in the police station.

• 1 We agree with the contention of the defendant that the search of the trunk of the car which took place some time after the arrest and at a time defendant was in the police station cannot be justified as a search incident to an arrest. See Preston v. United States, 376 U.S. 364, 11 L.Ed.2d 777, 84 S.Ct. 881, 883-84 (1964). See also Cardwell v. Lewis, 417 U.S. 583, 41 L.Ed.2d 325, 94 S.Ct. 2464, 2470 (1974).

However, a warrantless search of an automobile may be based upon probable cause to believe that the car contains articles that the officers are entitled to seize.

The trial court in a memorandum opinion considered only the People's attempt to justify the seizure of the yarn on the grounds that it was obtained as the result of an inventory of defendant's property. As we have stated we agree with the trial court's opinion that the search may not be justified as an inventory search under the facts of this case. In the context of that single issue the trial court in the memorandum opinion stated the facts in general terms, that the police "were advised by a company security guard, that they had seen a person running by the warehouse buildings." While the specific findings of fact which would show the circumstances upon which the officer could rely in the search were not material to the court's resolution of the issue as a matter of inventory search, they do become important if the matter is to be resolved as a question of probable cause.

• 2 From the record it appears that the officers were advised by the company security guard not merely that he and other employees had seen a person "running by" the warehouse buildings but more specifically that they "had seen an individual in the plant." This was later more particularized by the statement that the security guard told the police officer that he and a number of other employees had seen an individual "in the area by the office." It therefore becomes apparent from the record that the police officer had reasonable cause to believe that the defendant who was not an employee, was seen in a closed part of the plant after midnight, in the area by the office; that he ran when security employees approached the front door of the building; that he was running towards a white 1971 car parked some distance in the rear of the building; and, that prior to approaching the vehicle the officer knew that the car was not registered to the defendant. Thus, the officer had probable cause to search the vehicle at the scene either on the belief, which would be entirely reasonable under the circumstances, that the car contained burglary tools, the fruits of the burglary, or was itself stolen. See People v. Powell, 9 Ill. App.3d 54, 57-58 (1972); People v. Davisson, 35 Ill. App.3d 887, 90-91 (1976).

It follows that if the search could have been made without a warrant at the scene of the crime based upon probable cause, the probable cause still existed at the place where the car was taken for safekeeping at the direction of the police. See Texas v. White, 423 U.S. 67, 46 L.Ed.2d 209, 96 S.Ct. 304, 305 (1975); Chambers v. Maroney, 399 U.S. 42, 26 ...

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