APPEAL from the Circuit Court of Montgomery County; the Hon.
DANIEL H. DAILEY, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 30, 1979.
Defendant, Ronald L. Smith, was charged in the circuit court of Montgomery County with the offenses of illegal transportation of alcoholic liquor, unlawful possession of more than 30 grams but less than 500 grams of cannabis, and unlawful possession of less than 30 grams of a substance containing amphetamine. Defendant was found guilty as charged following a jury trial. From the judgment entered, he brings this appeal.
The following issues are presented for review: (1) whether the evidence of the drugs herein was illegally seized in that there was no probable cause to initially stop defendant's automobile and no justification for the resulting search thereof; (2) whether it was error to deny defendant's motion to suppress the evidence without a hearing on the merits; (3) whether the State failed to prove defendant's guilt beyond a reasonable doubt; (4) whether there was improper communications with the jury during its deliberations; and (5) whether it was error to refuse an instruction tendered by defendant.
At trial, Police Officer Roger Land testified that around midnight on September 25, 1976, he was parked at a certain location and was operating a speed radar device. A car traveling 50 miles per hour passed by heading northward. Land recognized the car as being defendant's. Land did not then attempt to stop the car. However, ten minutes later, he again saw the same car heading in the opposite direction. Although it was now traveling within the speed limit, Land stated that it was being driven in an "erratic manner." Land consequently proceeded to follow the vehicle. At a point at which the speed zone changed from 30 to 35 miles per hour near a local Dairy Queen, Land observed defendant's car accelerate "hard." Land therefore turned on his flashing lights and soon brought defendant to a stop. On the basis of his own speed while in pursuit, Land judged that defendant had reached a speed of approximately 70 miles per hour before pulling over.
After stopping, defendant immediately exited from the driver's side of the car, leaving the door open, and approached Land's squad car. Land also exited and the two met between their respective cars. Land stated that he asked defendant for his driver's license, which was produced, and that he asked him why he had driven so erratically. Defendant responded by denying that he had been speeding. Land testified that he then noticed a passenger in defendant's car, so he walked over to the open door and bent down to ask the passenger for his name. However, as he did so, he smelled the odor of burned marijuana and of alcohol emanating from the interior of the car. Furthermore, he saw a glass containing liquid on the front seat. Land then reached into the car and took the glass, smelled it, and determined that it contained alcohol. He asked the passenger whether the glass was his and the passenger said, "no." Land placed the glass on top of the car and then looked back in and noticed a metal box on the floor directly in front of the driver's seat. Land opened the box and saw a bottle of pills and a bag appearing to contain marijuana. Land also placed the opened box on top of the car, he informed defendant not to leave, and he went to the squad car and radioed for assistance. While he was doing so, he saw defendant close the metal box, causing it to lock.
Defendant and the passenger were taken to the police station and the car was towed in. Once at the station, a search was conducted of the interior of the car. Further, on orders by Land, defendant unlocked the car's trunk and the metal box. The evidence at trial showed that in the metal box was found a bottle containing 65 pills consisting of 3.1 grams of a substance containing amphetamine, and two bags of marijuana; one weighing 15.8 grams and the other weighing 2.5 grams. In the trunk, 116 grams of marijuana were found. In the interior of the car, additional small amounts of marijuana were found, specifically; 0.4 grams on the front seat, 0.2 grams within a pipe, and 0.05 grams apparently within an ashtray. In addition to the glass of alcoholic beverage found on the front seat, a bottle of rum with its seal broken was found in a cooler on the back seat.
Land testified that various papers belonging to defendant were also found in the metal box and that these and the box were returned to defendant following the search. Defendant was then charged with careless driving and with the charges herein.
On behalf of defendant, several witnesses testified that defendant's car and the metal box had been in use in connection with a service station managed by defendant; that employees of the service station had access to the car when conducting service station business; and that the box was used to hold important business papers. Defendant himself did not testify at trial.
In this appeal defendant's first two contentions involve the propriety of the search and seizure and of the hearing held thereon.
Prior to trial, defendant filed a motion to suppress evidence illegally seized, pursuant to section 114-12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114-12). A suppression hearing was thereafter held before Associate Judge William H. Spitler, wherein defendant was represented by John Ess and the State was represented by the State's Attorney, Kelly Long.
At the hearing, defendant testified on direct examination relating the events surrounding Land's search of the automobile and metal box, and seizure of the evidence therein. He further stated that he had not violated any traffic regulation, and that Land had conducted the search without a warrant and without consent by him. At the close of direct examination, the following cross-examination ensued between defendant and the State's Attorney:
"Q. What was removed from your automobile, Mr. Smith?
Mr. Ess: Objection, your Honor, that's been answered.
A. A substance allegedly containing cannabis. And a substance allegedly ...