Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Champaign
County, the Hon. Roger H. Little, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
This case involves a motion to suppress evidence as being the fruit of an unreasonable search. The circuit court of Champaign County denied the motion to suppress, and the defendant was convicted at a bench trial of possession of heroin, in violation of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1402(a)). The appellate court, with one justice dissenting, reversed the conviction, holding that the evidence should have been suppressed (56 Ill. App.3d 196). The issue before this court is whether the heroin, which was found in the defendant's closed briefcase, should have been suppressed. We hold that the evidence was obtained in violation of the defendant's fourth amendment rights and affirm the holding of the appellate court.
The defendant, George Hamilton, was injured when his motor vehicle (a van) left the highway late at night and rolled down an embankment. Hamilton received cuts and bruises but remained conscious. Officer Clark of the State Police arrived at the scene of the accident and summoned an ambulance. When the ambulance arrived, Hamilton was taken to the hospital; a briefcase that had been found on the front floor of the van was also taken to the hospital. Officer Clark then began an examination of the wrecked vehicle and its contents. During the course of his examination he found three .38-caliber bullets but found no gun. A wrecker subsequently towed the wrecked vehicle to a storage area at a gasoline station.
When Hamilton arrived at the hospital, his clothing was removed and placed in storage bags. Hospital procedure required that an inventory of the patient's property be made, which was done in this instance. No police officer suggested or participated in this inventory. The nurse and orderly attending Hamilton found numerous keys, a watch, some rings, a wallet, $1,200 in cash, several bullets and, also, the locked briefcase. Curious because of the large amount of cash and the bullets, the orderly unlocked the briefcase with one of the keys found in Hamilton's possession. He sifted through the papers in the briefcase and found a brown bag wrapped with a string or a rubber band. He opened the bag and, after briefly examining its contents, told the nurse that he thought it contained heroin. He then rewrapped the bag and put it back in the briefcase. Both he and the nurse testified that after doing so he again locked the briefcase. The keys, the valuables, and the wallet were put in a storage locker. The briefcase, apparently because it was too large for the locker, was left on a counter at the foot of the defendant's bed or cot in the emergency room.
Later, Officer Clark arrived at the hospital to interview Hamilton and to complete his accident report. When he arrived, Hamilton was being X-rayed. The officer talked with the nurse outside of the emergency room and was told about the hospital procedure for safekeeping valuables. In response to a statement by Clark concerning bullets, the nurse told him that some bullets had been found in the defendant's clothing. She also told him about the money and other valuables. Later, Clark spoke to the defendant in the emergency room in order to complete the accident report. He told the defendant that his briefcase would be returned to the van and that his property would be inventoried. Hamilton was not told that his briefcase would be opened. He made no response to the officer's statement, nor did he consent to the opening of his briefcase. The wallet and other valuables which had been brought to the emergency room from the locker were to remain at the hospital. At one point the nurse stated to the officer, "You better check the briefcase," but said nothing specific about its contents. Also, she did not tell the officer that the briefcase had been opened. The officer testified that shortly before leaving the emergency room, he opened the briefcase, noticed a small plastic envelope containing what he thought was marijuana, and then examined the contents of the brown bag in the briefcase. He said nothing to the defendant about his suspicions but left the room with the briefcase, went to the gasoline station where the wrecked van had been taken, completed the inventory of the van, and later gave the brown bag to a detective who confirmed that the substance it contained was heroin.
The testimony at the hearing on the motion to suppress sharply conflicted as to whether the briefcase was locked or unlocked when the officer opened it. The officer stated that he merely opened the unlocked case in order to sweep the keys off of the counter into it. Both the nurse and the orderly testified that the orderly used one of the keys found on the defendant to unlock the briefcase before inspecting it, and that the orderly again locked the briefcase. The nurse testified that the officer unlocked the briefcase before he opened it. Officer Clark's testimony also varied as to the circumstances surrounding the opening of the briefcase. Although at one point he stated that he opened the unlocked case to sweep the keys off of the counter into it, at another time he stated, "After talking to Mr. Hamilton and finishing my business there, I picked up the case, opened it and noticed the contents of the case." At other times, he referred to "looking into the briefcase." When he was being questioned as to whether discovering the bullets caused him to look for a gun in the case when he opened it, he replied, "Oh yes, I looked for a gun in there." When the question was again stated, "You did look for a gun?" The officer answered, "Yes, sir, I looked for anything."
In this court the State contends that (1) the heroin was legally seized during an inventory of defendant's possessions following a traffic accident, or (2) alternatively, the heroin was discovered during a private search to which the requirements of the fourth amendment do not apply.
There are several exceptions to the warrant requirement of the fourth amendment: these include the discovery of evidence as a result of a search by a private person (People v. Heflin (1978), 71 Ill.2d 525), and evidence seized which was in "plain view" (People v. Berg (1977), 67 Ill.2d 65). Another exception to the warrant requirement involves the discovery of evidence as a result of an inventory, a procedure which has not been conclusively established by the courts> to constitute a search (People v. Clark (1976), 65 Ill.2d 169). See generally Sikma, Collateral Search: A Survey of Exceptions to the Warrant Requirement, 21 S.D.L. Rev. 254 (1976).
In considering the first contention which the State urges in this court, that the heroin was found pursuant to an "inventory," we need not determine whether the officer had probable cause to believe that a crime had been committed, or that the briefcase contained evidence of a crime, because an inventory is not the same as an "automobile exception" search. An established exception to the warrant requirement permits the search of an automobile under circumstances which would not render permissible the warrantless search of a home. It has been established that the expectation of privacy in an automobile is significantly less than the traditional expectations of privacy existing at the home. However, under the automobile exception, a warrantless search is not justified unless the officer has probable cause to believe that the vehicle contains articles which the officer is entitled to seize. (Chambers v. Maroney (1970), 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975; United States v. Martinez-Fuerte (1976), 428 U.S. 543, 49 L.Ed.2d 1116, 96 S.Ct. 3074.) Also, under proper circumstances, an automobile may be searched without a warrant as incident to a lawful arrest. See Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022.
Unlike the "automobile exception," an inventory of a person's automobile need not be based on any belief of probable cause by the officer, nor is it necessary that it be made in conjunction with a lawful arrest. An inventory does not in the true sense constitute a search for evidence, but is a mere listing of items of property which have come into the possession of the officer.
In South Dakota v. Opperman (1976), 428 U.S. 364, 49 L.Ed.2d 1000, 96 S.Ct. 3092, the court upheld the seizure of evidence discovered in a motor vehicle during an inventory of its contents after it had been impounded. The court noted, first, that the State courts> have overwhelmingly concluded that, whether or not an inventory is characterized as a search, the intrusion is constitutionally permissible by applying the fourth amendment standard of reasonableness, and, second, that the majority of the Federal courts> of appeal have likewise sustained inventory procedures as reasonable police intrusions. (428 U.S. 364, 370-72, 49 L.Ed.2d 1000, 1005-07, 96 S.Ct. 3092, 3097-99.) In People v. Clark (1976), 65 Ill.2d 169, relying on Opperman, this court held that evidence was properly seized following its discovery during a routine inventory of a vehicle that had been towed from the street. The justification for such a warrantless intrusion into the automobile was stated in Opperman and in Clark to be threefold: protection of police officers from potential danger; protection of the owner's property while his car is in police custody; and protection against claims that the property has been lost or stolen.
The State urges that the evidence in our case was discovered as a result of an inventory of the briefcase or shortly prior thereto, and was therefore properly seized. We first note that in Clark this court found that inventory searches were, as a matter of procedure adopted by the police department in that case, routinely made in all cases where it was necessary to tow the car away, "and there [was] no hint whatever of any improper motive * * * on the part of the arresting officer." (65 Ill.2d 169, 175.) The facts of this case do not so clearly establish such an innocent intrusion into the defendant's property as was apparent in Clark. As noted above, the officer in this case made various statements, not entirely consistent, as to why he opened the briefcase. He also stated that it was unlocked, whereas other testimony, by the orderly and by the nurse, indicated that it had been locked and that the orderly locked it again after he had searched it. The nurse testified that the officer unlocked it before he opened it. The officer also stated that as he opened it he immediately saw a plastic bag containing what he believed to be marijuana, thus causing the further investigation; neither the nurse, nor the orderly who had gone through the briefcase, mentioned anything about seeing the plastic bag of marijuana or any other questionable material except that contained in the brown paper package (heroin). It should be noted that the orderly, whose curiosity had been aroused by the finding of bullets and a large amount of cash on the defendant's person, made a rather thorough inspection of the interior of the briefcase. All of these facts cast serious doubt on the contention that the discovery by the officer was in any way related to an inventory or preparatory thereto. The initial opening of the briefcase, even by the officer's own testimony, was not for the purpose of inventorying its contents, and it was at this initial opening of the briefcase that he saw the suspicious material which led to the further inspection. However, having seen the suspicious contents, he did not then inventory the briefcase but took it with him to the service station to which the defendant's van had been towed, where he placed the briefcase on a counter and did not further inspect it until after the van had been inspected and inventoried. Only then did he reopen the briefcase and give the substance which he thought was heroin to another officer who was present for the purpose of testing. The purpose of opening the briefcase at this time was not to make an inventory of its contents but was to search for contraband which he believed to be contained in the briefcase because of the original discovery at the hospital.
Though discussing the State's contention that this was a seizure of evidence during an inventory, we do not imply by that discussion that such inventories may be made of the contents of any and all containers which may come into the custody of the police. In fact, just the opposite is true. The inventory exception to the search warrant requirement has primarily been applied to motor vehicles (Opperman; Clark). The inventory exception is of rather recent origin and is supported by reasons entirely different from those which support the warrantless search of an automobile under the "automobile exception," where there must be a showing of probable cause. The reasons for an inventory search also differ from the reasons which support the search of an automobile as incident to a lawful arrest. (Sikma, Collateral Search: A Survey of Exceptions to the Warrant Requirement, 21 S.D.L. Rev. 254 (1976).) The question remains open in the Supreme Court. That court has recently granted certiorari in Arkansas v. Sanders (1978), 439 U.S. 891, 58 L.Ed.2d 236, 99 S.Ct. 247, wherein the question is whether a warrantless search of an unlocked suitcase based on probable cause was authorized. ...