APPEAL from the Circuit Court of Kane County; the Hon. JOHN A.
KRAUSE, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 7, 1978.
Defendant Ventura E. Ybarra, in a bench trial, was found guilty of unlawful possession of a controlled substance and sentenced to two years probation under the condition that he continue with his treatment under the Drug Abuse Program. Pursuant to leave granted, the Illinois State Police, Department of Law Enforcement, has filed an amicus curiae brief herein.
The sole question presented is whether the search of the patrons of a bar was in violation of the Fourth Amendment.
On March 1, 1976, agents of the Illinois Bureau of Investigation, together with police officers from the city of Aurora, pursuant to a search warrant, went to the Aurora Tap seeking "evidence of the offense of possession of a controlled substance to be seized therefrom: heroin, contraband and other controlled substances, money, instrumentalities and narcotics, paraphernalia used in the manufacture processing and distribution of controlled substances." When the officers arrived at the Aurora Tap, described as a dismal, drab and shabby type establishment consisting of one room, there were 12 patrons present. The premises were searched, as well as the patrons. In the first patdown of the defendant at the bar a cigarette package with objects in it was felt by the officer. Within a few minutes the officer again searched the person of the defendant and found six tinfoil packs of heroin.
No objection is made to the warrant itself. The issue raised by the defendant is that, in the execution of such warrant, the persons in a public place such as this may not be searched. The defendant argues that the heroin found upon his person was the fruit of an illegal search since he was not named in the warrant and was in a public place and, therefore, it was erroneously admitted into evidence. The motion to suppress this evidence was made prior to trial and denied. The authority for the search herein is found is section 108-9 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 108-9), which reads as follows:
"In the execution of the warrant the person executing the same may reasonably detain the search any person in the place at the time:
(a) To protect himself from attack, or
(b) To prevent the disposal or concealment of any instruments, articles or things particularly described in the warrant."
In substance, the defendant contends the provision of this statute providing that the person executing the warrant may search any person in the place at the time to prevent the disposal of articles or things described in the warrant is a violation of the Fourth Amendment. A similar statute is found in Arizona, Kansas, Georgia and the District of Columbia.
In support of his position, defendant has cited United States v. Di Re (1948), 332 U.S. 581, 587, 92 L.Ed. 210, 216, 68 S.Ct. 222, 225. We do not find that case applicable to the situation before us. The police officers in that case located, in an automobile, a party previously named by an informant, who allegedly had counterfeit gas coupons. The defendant Di Re was a passenger in the vehicle and was searched and convicted upon the evidence seized from his person. The court in Di Re held that the warrantless arrest and search of defendant's person when he had committed no offense and was merely present in the vehicle was not justified. This case, involving a warrantless search of an automobile passenger, has no real bearing upon the proper application of section 108-9, which deals only with situations involving warrants. Defendant also has cited Stanford v. Texas (1965), 379 U.S. 476, 13 L.Ed.2d 431, 85 S.Ct. 506. In Stanford the court considered a "general warrant" which the federal courts> have repeatedly held to be invalid under the Fourth Amendment. In Stanford the officers went to the defendant's residence and seized about half of all the books in his house and all of his personal papers, 14 cartons in all. The court held, and rightly so, that no official of the State shall ransack a person's house and seize his books and papers under the unbridled authority of a general warrant. That is not the situation in the case before us as the officers here were conducting a search in a small bar or saloon under a specific warrant for the discovery of heroin and allied paraphernalia.
The defendant has also cited State v. Mendez (1977), 115 Ariz. 367, 565 P.2d 873, which involved a statute virtually identical to ours. Defendant, who was not named in the search warrant, and not linked to the premises being searched, entered while the search was in progress. The subsequent search of his person, which revealed heroin, was found to be unreasonable. Our case is different because defendant was present when the police first arrived and thus had an opportunity to acquire or conceal the contraband, which police were searching for, upon his person.
In further support of defendant's position, counsel has cited Willis v. State (1970), 122 Ga. App. 455, 177 S.E.2d 487, which involved a Georgia statute analogous to the Illinois statute. Defendant argues the Georgia courts> do not allow the persons of those present to be searched, pursuant to a warrant for the premises, but that other facts and circumstances making it likely that the items are being concealed by them must be present to justify the search of their persons. In Willis the peace officers had a search warrant for an apartment and, in executing the same, the court held that any person present who might reasonably be involved in the crime of possession of illegal drugs was the proper subject of the execution of the warrant. The court observed that the drugs were pills in a small container which might easily be passed from person to person. The court there stated, "we hold the search not unreasonable under Fourth Amendment standards, and authorized by the terms of the warrant." (122 Ga. App. 458-59, 177 S.E.2d 487, 489.) The court's further general observation was that such a warrant would not authorize the search of someone in another part of the house; or the search of a person entering the premises such as a postman; or the search where there was no reason to believe the house was being frequented by persons illegally purchasing drugs. The latter is particularly interesting because in the complaint for the search warrant before us the allegation was made that the bar was frequented by persons illegally purchasing drugs. We find Willis is actually supportive of the search of the defendant herein.
In this connection the observations of the Supreme Court of Washington, in Olympia v. Culp (1925), 136 Wn. 374, 377, ...