APPEAL from the Circuit Court of Cook County; the Hon. JACK C.
STEIN, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
The State appeals from an order suppressing evidence against defendant, Douglas DeRusha, who had been charged with possession of a sawed-off shotgun. (Ill. Rev. Stat. 1977, ch. 38, par. 24-1(a)(7).) The State contends that the police acted properly in seizing the weapon under the automobile exception to warrantless searches and because a passenger in defendant's car gave permission to search the car after defendant's arrest.
On December 13, 1977, Officer Frank Murphy of the Wheeling Police Department observed defendant pushing his car into a gasoline station; a female passenger, Anna Marie Malock, was in the car. Officer Murphy entered the service station office, arrested defendant and placed him in handcuffs. *fn1 At this juncture Officer Kaminski arrived and intervened when Miss Malock tried to assist defendant. Miss Malock then returned to defendant's car. Before being taken to the police station, defendant was asked what he wanted done with his car. The police said that they would drive the vehicle to the police station, it could be towed or his passenger could take the car. He indicated that he wanted Miss Malock to have the car and was allowed to speak to her about the matter. Officer Murphy overheard defendant say to her, "get rid of it," as he glanced toward the back seat, but he did not relate defendant's statements to Officer Kaminski. Officer Murphy then placed defendant in a police car and was driving to the police station when he was requested by radio to return to the gasoline station.
Police Officer Bert Kaminski testified that he was in plain clothes when he arrived at the gas station and intervened between Miss Malock and Officer Murphy. He confirmed that defendant wanted his car, which had the keys in the ignition, turned over to Miss Malock. After defendant and Officer Murphy departed, Kaminski went into the gas station office. Shortly thereafter, Miss Malock came into the station office to use the telephone. She then remarked to the station owner, "You know, the guy they just arrested has a sawed-off shotgun in his car." Two station employees were also present. She again repeated this statement directly to Officer Kaminski and said the gun was in the suitcase. He then summoned assistance. When Officer Rivera arrived, Miss Malock gave permission to look for the gun. Officer Rivera opened the suitcase located on the back seat, and a sawed-off shotgun was discovered. The record does not indicate that any force was utilized in opening the suitcase.
Officer Kaminski also stated that, when he became aware that a gun was in the car, he would have prevented the removal of the vehicle, and he did not fear for his safety upon learning of the weapon. Miss Malock was taken to the police station to give a statement after the gun was recovered.
Anna Marie Malock, defendant's fiancee, testified that after defendant's arrest Officer Kaminski asked her for identification to "run a check" on it. She went into the office area of the service station and asked the attendant what she should do with the gun. Apparently Officer Kaminski overheard her remark and replied, "What gun?" When she indicated the gun was in the suitcase, he went back to defendant's car and seized the weapon. She claimed that defendant did not give her custody of the car after his arrest, nor did she give police permission to search the car.
On the day of defendant's arrest, Miss Malock had given a written statement to police in which she indicated that she told them of the gun and gave police permission to search the car but not to remove the gun. In her statement she also said that she was confused and had denied giving permission to police to remove the gun from the automobile.
Defendant testified that his car was out of gas when he was arrested, and he did not give Miss Malock authority to permit anyone to search his car.
The State initially argues that the police acted properly when they seized the sawed-off shotgun from defendant's car because the search falls within the automobile exception to the proscription against warrantless searches. Defendant claims that his vehicle was immobile, that he had already been arrested and taken from the scene, and that no exigent circumstances existed to justify the search of his car without a warrant.
The record irrefutably establishes that, after defendant was arrested and was taken from the gasoline station, Miss Malock voluntarily informed the police and the service station owner that a gun was in the car. We also believe that a sufficient basis exists in the record to credit Officer Kaminski's statement that she described the weapon as a sawed-off shotgun. This information clearly provided probable cause for the search, and defendant does not contend otherwise in this regard.
In evaluating the validity of the warrantless search in this case, we consider the fact that the weapon was in defendant's automobile, yet also in a suitcase. Instructive in resolution of the appeal is the case of United States v. Chadwick (1977), 433 U.S. 1, 53 L.Ed.2d 538, 97 S.Ct. 2476. In Chadwick Federal agents, acting upon probable cause, arrested respondents, impounded their automobile and seized a locked footlocker which had been placed in the trunk of the automobile after respondents had removed the luggage from a railroad station. The footlocker was taken to the Federal facility, opened about one hour later without securing a search warrant and found to contain marijuana. The Supreme Court rejected the argument that the lesser standards for the warrantless search of automobiles be applied. In this regard the court commented:
"* * * [T]his Court has recognized significant differences between motor vehicles and other property which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts. [Citations.]
Our treatment of automobiles has been based in part on their inherent mobility, which often makes obtaining a judicial warrant impracticable. Nevertheless, we have also sustained `warrantless searches of vehicles * * * in cases in which the possibilities of the vehicle's being removed ...