APPEAL from the Circuit Court of Champaign County; the Hon.
ROGER H. LITTLE, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
While driving a van at approximately 1:15 a.m. on August 14, 1975, defendant was involved in an accident on interstate 57 near Pesotum, Illinois. An ambulance soon arrived and took defendant to the Burnham City Hospital in Champaign. Still conscious, defendant carried a locked attache case with him in the ambulance.
State Trooper Forrest Clark gathered information at the scene and noted that the wrecked van contained a large amount of personal belongings including several .38-caliber bullets. He attached no particular significance to them. It was not illegal to have ammunition. The van was towed to a garage for safekeeping and the officer went to the hospital to gather more information for his report.
At the hospital an attendant placed defendant's attache case on the cart used to transport defendant to the emergency room. There defendant was attended to by Nurse Mary Waters and Orderly Jeff Olson. They removed the defendant's outer clothing, examined him for injuries and treated him for minor cuts. When he was later taken out of the emergency room for X rays, the nurse and the orderly inventoried the defendant's possessions. They found a wallet, a watch, 10 or 12 keys, 3 bullets, and over $1,200 in cash including one $500 bill and several $100 bills. While defendant was in X ray, Orderly Olson opened the attache case with one of the keys. In it he saw a large number of papers, a pocket calculator and a brown paper bag with a string around it. He removed the band and looked inside observing a powdery substance. He told Nurse Waters that he thought it was heroin, but she did not see the powder herself. He then closed the case and locked it.
When Trooper Clark arrived at the hospital around 3:30 or 4 a.m. to interview the defendant and complete his report, he was advised that the defendant was still in X ray. A nurse at the desk outside the emergency room told him that Hamilton had a large number of keys, an attache case and a considerable amount of money. He was further advised that the hospital would lock up the money and the wallet. He was asked if he was going to take the attache case or leave it and he said he would take it to the vehicle with the rest of defendant's belongings.
After he was advised that the defendant had returned from X ray, the trooper went to the emergency room and talked to him about the cause of the accident and the large amount of personal property in the van. He advised the defendant about the accident reports that were necessary, where the van was located and where his personal property would be. The trooper told him that his wallet and personal effects would be at the hospital, together with a copy of the trooper's report, but that he would take the attache case and keys which would be inventoried with all his other personal property and locked in the van.
Nurse Waters and Trooper Clark had a brief conversation pertaining to the items of personal property. She told the trooper to go through the defendant's briefcase but did not indicate that she knew what it contained or that it had been opened. Orderly Olson testified that he was scared to be the one who found the heroin or turned it over to the police and he said nothing to the trooper. Trooper Clark then testified he picked up the case, opened it, preparing to rake the keys upon the counter top into it, when he noticed a clear, plastic envelope containing what appeared to him to be marijuana. He then saw the brown paper bag and looked inside, discovering what he thought was some kind of opium. Thereupon, he took the attache case from the room. Later, Trooper Clark turned the briefcase and its contents over to a detective who then field-tested the two bags and determined that one contained opium, the other cannabis. The detective signed a complaint against defendant later that day and he was arrested on August 15, 1975. Several days later, the Illinois Bureau of Investigation lab in Springfield determined that one bag contained 74.2 grams of heroin.
Prior to trial defendant filed a motion to suppress the evidence as being the fruit of an unreasonable search. The trial court denied defendant's motion and following a bench trial, defendant was convicted of possession of more than 30 grams of heroin in violation of section 402(a) of the Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(a)). He was sentenced to serve 4 to 5 years' imprisonment and fined $2,500 and costs.
1 The sole issue raised on appeal is whether the heroin found in defendant's briefcase should have been suppressed as the fruit of an unconstitutional search and seizure. The trial court found:
"There was no governmental participation to any degree in the initial discovery of the evidence. The Fourth Amendment is not applicable under these circumstances and the Motion to Suppress the Evidence in question is denied."
While relying on that rationale for its decision, the trial court also found that, in the alternative, the evidence would have been admissible under the "plain view" doctrine. In addition to these two theories, the State contends that the evidence was admissible, having been discovered in the course of a standard inventory of an impounded vehicle. We shall consider each of these theories, since the judgment may be sustained on any ground warranted in the record, irrespective of whether the particular reasons given or specific findings of the trial court are correct. City of Rockford v. Maxwell (1968), 92 Ill. App.2d 336, 234 N.E.2d 563.
2 First of all, we recognize that the fourth amendment was intended to be a restraint upon governmental authority and not a limitation upon private persons. Evidence of crimes obtained as a result of searches by private individuals are not subject to the bar of the fourth amendment. (Burdeau v. McDowell (1921), 256 U.S. 465, 65 L.Ed. 1048, 41 S.Ct. 574.) However, Burdeau is not in point since there the police took no part in the wrongful seizure of the incriminating papers and they came into the possession of the government without a violation of defendant's rights by governmental authority. Here Trooper Clark was not handed the narcotics by the orderly or the nurse. Rather, the seizure was the direct result of a second search conducted by the officer himself. Hence, we have a situation where the government agent recovered the incriminating evidence pursuant to his own efforts.
The People rely on United States v. Winbush (6th Cir. 1970), 428 F.2d 357, cert. denied (1970), 400 U.S. 918, 27 L.Ed 2d 157, 91 S.Ct. 179, and United States v. Diggs (3rd Cir. 1976), 544 F.2d 116, in support of their argument. Neither case is in point.
In Winbush, a hospital employee discovered contraband while routinely inventorying the contents of defendant's clothing. Unlike here, the hospital employee then handed the evidence to the arresting officer, obviating the need for, or any inference that there was, participation in the search by the governmental authorities. Diggs was concerned with the validity of the consent to a warrantless search given by a custodian of defendant's property who had been unwittingly involved by the defendant in his alleged crime. Diggs held that the unwitting bailee of a box suspected of containing stolen money had a right to exonerate himself from the crime which prevailed over defendant's fourth amendment right and justified a warrantless search. This problem is not present in the instant case and there is no indication that the hospital personnel were even arguably implicated in defendant's activities by virtue of their possession of his briefcase. Unlike Diggs, here it cannot be reasonably argued that defendant surrendered possession of his briefcase to the hospital employees as bailees implicitly authorizing a search of its contents.
3 We believe that the trial court's opinion is in error and misinterprets the private search cases. The finding that "there was no governmental participation to any degree in the initial discovery of the evidence" (emphasis added) misses what we believe to be the critical point. Here there were two searches and we cannot be concerned only with the initial one. The evidence was seized after the second search, conducted by Officer Clark. The first search was unrelated to and not suggestive of the second search. His reasons for opening the briefcase are totally irrelevant since defendant had a reasonable expectation of privacy. This reasonable expectation was afforded the protection of the fourth amendment. Defendant did not waive these rights either expressly or impliedly. Consequently, the search made by the policeman without a warrant ...