APPEAL from the Circuit Court of Will County; the Hon. MICHAEL
A. ORENIC, Judge, presiding.
MR. PRESIDING JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendant was charged by information in the Circuit Court of Will County with unlawful possession of a controlled substance (LSD). Also charged in the same information were George Wolff, who was tried together with defendant, and Steven Bean, who entered a plea of guilty. Prior to trial defendant filed a motion to suppress evidence which she claimed was illegally seized from her purse. The motion was denied and the evidence admitted at trial where the jury found defendant guilty. She was sentenced to two years probation.
At approximately 10 p.m. on September 13, 1976, five officers of the Metropolitan Area Narcotics Squad, armed with a search warrant for the apartment of George Wolff, went to a building in Bolingbrook where Wolff resided with defendant. With the officers was Steven Bean, a friend of Wolff, who had agreed to purchase LSD for one of the agents from Wolff. Bean entered Wolff's apartment with $1,000 he had received from the agent and came back out about five minutes later with 1,000 orange tablets. Bean was immediately arrested. The officers then knocked on the door of Wolff's apartment, twice announcing that they were police officers and had a search warrant. Upon hearing furtive sounds from within, the agents forced open the door and entered the apartment where they found and arrested Wolff and another man. In searching the apartment the officers recovered a number of large bags of orange and pink pills, later determined to be LSD.
During the course of the search defendant, accompanied by another woman, opened the apartment door without knocking and entered the residence. One of the agents saw defendant and yelled, "That's Lorna, grab her." Defendant and her friend were detained in the living room while one of the officers searched their purses. In defendant's purse the agent found the 25 pink pills which were the subject of defendant's motion to suppress.
The trial court upheld the search of defendant's purse on the basis of section 108-9 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 108-9), which provides:
"Detention and Search of Persons on Premises.) In the execution of the warrant the person executing the same may reasonably detain to 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." Ill. Rev. Stat. 1975, ch. 38, par. 108-9.
The defendant contends that the search in this case is a violation of the Fourth Amendment. Does the officer's right to detain and search any person on the premises at the time of execution of the warrant extend to persons who enter the premises during the course of the search?
This precise question was answered in People v. Pugh (1st Dist. 1966), 69 Ill. App.2d 312, 217 N.E.2d 557, appeal denied (1966), 33 Ill.2d 628, a case strikingly similar to the one at bar. In Pugh police had a warrant to search the apartment of Jessie Pugh for narcotics. While the search was being conducted Raymond Pugh, Jessie's brother, rang the doorbell and was admitted to the apartment. Raymond was not named in the warrant, and there is nothing in the opinion to suggest the officers conducting the search had any prior knowledge of Raymond's involvement with narcotics. Nevertheless, the officers searched Raymond Pugh and found 42 foil packages of heroin in his pants pocket. Raymond was charged with possession, and he moved to suppress the evidence. The motion was denied and Raymond was convicted.
On appeal the sole issue raised in the case by Raymond Pugh was as to the search of his person. In that respect the court stated, in interpreting section 108-9 of the Code of Criminal Procedure:
"We agree with the State that the execution of search warrants in narcotics cases is a risky business at best, and unless the police search all the persons present on the premises they endanger both themselves and the search they are making. Furthermore, the entry of the defendant onto the premises where the police have reason to believe narcotics are concealed provides further grounds for his search. The United States Constitution prohibits unreasonable searches (U.S. Const. amend. IV); the search of Raymond Pugh under the circumstances of this case cannot be so classified." (69 Ill. App.2d 312, 316, 217 N.E.2d 557, 559.)
In this connection the comments of Illinois Revision Committee are pertinent, viz.,
"In addition, it is clear that the purpose of the warrant would be thwarted were not the officer given the second power found in subsection (b), i.e. to search the person for the things to be seized. The need for this power arises most often in ...