APPEAL from the Circuit Court of Shelby County; the Hon.
DANIEL H. DAILEY, Judge, presiding.
MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant Charles Richard Kelly was charged with unlawful possession of more than 30 but less than 500 grams of marijuana. He was convicted following a bench trial in the circuit court of Shelby County, and sentenced to the five months he had served in jail while awaiting trial, conditional discharge, and a $1000 fine payable over a two-year period. Kelly appeals, alleging only that the search which disclosed the cannabis was invalid.
At approximately 1:30 a.m. on December 18, 1976, defendant was driving his car north on Route 51 through the village of Moweaqua. Officers McLearin and Parker testified that at a four-way stop in the village they thought defendant's brake lights had not released and they began to follow him. They followed him to the edge of the village and then stopped him. McLearin approached defendant's car and told him that his brake lights were stuck in the "on" position. He then asked the defendant for his driver's license, which Kelly did not have with him at that time, although he did have one. Kelly testified that McLearin said something to the effect that "while he had me pulled over, why didn't he just check my driver's license."
From this point, the description of events varies with the parties. McLearin claimed that on shining his flashlight into the car, he saw a tire tool protruding from under the driver's seat, between the defendant's feet. He told defendant that the tire tool should not be in the passenger compartment, and to put it in the trunk. McLearin felt that to have such an object under the seat was illegal, although he knew of no law prohibiting it. Defendant got out of the car, and when he removed the tire iron, McLearin said an iron bar came into view. He told the defendant that this, too, might be considered a weapon and it should go into the trunk as well. When Kelly pulled this object from under the seat, McLearin saw a kitchen knife, which prompted him to search the car. McLearin claimed that he asked Kelly if there was anything else of that nature under the seat, and that Kelly subsequently consented to a second search request, saying, "Go ahead, but you won't find anything." Officer Parker who was with McLearin at the time, corroborated most of McLearin's testimony.
The defendant, on the other hand, testified that after McLearin asked for his driver's license, he then asked if he had been smoking pot, which defendant denied. McLearin then told him to get out of the car, he shined his flashlight into the car and when he stooped to look at the floor, only then did he see the tire tool. The defendant was instructed to remove it and the iron bar. The kitchen knife did not come out at that time. It was found only after McLearin undertook a search of the car. After removing the bar, defendant was asked if there was anything else of that nature under the seat. He replied that there was not and that there was no need for a search. McLearin said that if there was nothing to feel guilty about, there was no reason he could not look. Defendant denied saying that he did not care if McLearin searched the car because he would not find anything, or that he gave consent for the search in any fashion. In denying that he said anything that could have been even remotely considered consent, he stated that "At 1:30 in the morning in the cold I would not agree to a search of my car. I would just as soon got gas and went on home."
It is undisputed that McLearin eventually entered the car and searched it. It is undisputed that he removed the ashtray from the dashboard and confronted Kelly with its contents, which included what appeared to be cannabis residue and seeds. McLearin re-entered the car (for the second time according to him but for the fourth time according to the defendant) and found a bag of what he thought was cannabis in the glove compartment. Defendant was then put under arrest for the first time.
The trial court found that defendant had consented to the search and that the cannabis was admissible into evidence. Defendant denied that he consented to the search of his automobile, and contends that even if he did consent, the consent was not knowing and voluntary. He further contends that the search was made without probable cause or reasonable suspicion, and that the trial court erred at a second suppression hearing in refusing to admit evidence that Officer McLearin regularly stopped young drivers on a pretext, then searched their automobiles without consent.
The State initially contends that defendant has waived any issue on appeal because he failed to file a post-trial motion. Such contention is frivolous, because the law is well settled in Illinois that defendant need not file a post-trial motion if, as here, he is tried before the court and has raised the issue at the trial level. People v. Tobin (1938), 369 Ill. 73, 15 N.E.2d 687; People v. Ford (1974), 21 Ill. App.3d 242, 315 N.E.2d 87.
1, 2 It is undisputed that both the Illinois and the United States Constitutions protect an individual from unreasonable searches and seizures. (People v. Felton (1974), 20 Ill. App.3d 103, 313 N.E.2d 642; People v. Billings (1977), 52 Ill. App.3d 414, 367 N.E.2d 337.) The fourth amendment to the United States Constitution does not require that every search be made pursuant to a warrant. It prohibits only unreasonable searches and seizures. The relevant test is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts. (Coolidge v. New Hampshire (1971), 403 U.S. 443, 509-10, 29 L.Ed.2d 564, 608, 91 S.Ct. 2022, 2060; People v. Jefferies (1972), 6 Ill. App.3d 648, 285 N.E.2d 592.) However, all searches conducted without a valid search warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. As we shall discuss further in our opinion, the defendant did not voluntarily consent to the search; therefore, the search must be justified, if at all, as incident to an arrest, or as a search made with probable cause and under exceptional circumstances as might exist when the object of the search is a motor vehicle. (People v. Hering (1975), 27 Ill. App.3d 936, 327 N.E.2d 583.) In any event, a search cannot be justified only by what it produces, nor an arrest justified only by the fruit of an illegal search.
3 Probable cause is required for any warrantless search and that is a reasonable belief that a search of a particular place or thing will disclose evidence, fruits of the crime, or is necessary for the protection of the police officer. (People v. Hering; People v. Jefferies.) Probable cause exists when the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a man of reasonable caution to believe that an offense has been committed and that the person arrested has committed the offense. Fact sufficient to establish probable cause need not be sufficient to establish guilt beyond a reasonable doubt, and probable cause may be founded upon evidence which would not be admissible at trial. People v. Blitz (1977), 68 Ill.2d 287, 369 N.E.2d 1238, cert. denied (1978), 435 U.S. 974, 56 L.Ed.2d 68, 98 S.Ct. 1622.
4-6 In this case, Officer McLearin, who observed that defendant was driving with defective brake lights, a traffic law violation (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 12-208), had probable cause to stop defendant and investigate his conduct within permissible limits. (See People v. Lichtenheld (1976), 44 Ill. App.3d 647, 358 N.E.2d 694.) Here the initial stop and detention of defendant was reasonable for the police to require identification. However, just as a search which is reasonable at its inception may violate the fourth amendment by virtue of its intolerable intensity and scope, so may an investigatory detention exceed constitutional bounds when extended beyond what is reasonably necessary under the circumstances which made its initiation permissible. (Willett v. Superior Court (1969), 2 Cal.App.3d 555, 83 Cal.Rptr. 22.) In this case defendant was not initially arrested for a serious traffic violation or for any criminal offense, nor were there any circumstances which would indicate that the police were dealing with a criminal rather than a mere traffic offender. (People v. Reed (1967), 37 Ill.2d 91, 227 N.E.2d 69; People v. Jordan (1973), 11 Ill. App.3d 482, 297 N.E.2d 273.) Since the defendant was out of his car when McLearin searched it, the search could not have been predicated on McLearin's fear for his safety. (People v. Myers (1978), 66 Ill. App.3d 934, 384 N.E.2d 516.) Also, there is nothing in the record to indicate that defendant was likely to escape. Finally, there are seldom fruits of a crime in an ordinary traffic stop. (See Amador-Gonzalez v. United States (5th Cir. 1968), 391 F.2d 308, 315-16 n. 8.) Therefore, we conclude that there was no probable cause to search defendant's vehicle or to ask him to remove the tire iron from the passenger compartment, since there was only probable cause to believe that defendant was a mere traffic violator. Further, where the reasons for stopping the defendant involved mere passive, nonculpable conduct on his part, we hold that it was an impermissible intrusion on defendant to require him to place the tire tool in the trunk.
7 Two recent appellate court cases have addressed the same issue. In People v. Myers (1978), 66 Ill. App.3d 934, 384 N.E.2d 516, defendant was stopped because his motor vehicle had only one operational headlight. After turning on his spotlight, the officer noticed the driver bend over as if he were placing something under the car seat. The officer approached the vehicle, advised the driver of the headlight violation, and asked for his driver's license. After the driver produced his license, the officer asked him to step out of the vehicle, and as he did so, the officer observed a brown paper grocery sack lying on the floor, partially beneath the driver's seat. While the driver was standing outside the car, the officer opened the sack and observed six clear bags containing a green vegetable-like substance which was subsequently determined to be cannabis. Defendant was escorted to a squad car and given Miranda warnings after which he made an incriminating statement concerning the contents of the sack. The trial court suppressed the cannabis and the statement, and the State appealed. The appellate court affirmed the suppression of evidence and ruled that there were insufficient suspicious circumstances or specific information known to the officer to justify a limited search. Likewise in this case, there were insufficient suspicious circumstances or specific information known to the officer to justify a limited search.
In People v. Nally (1979), 71 Ill. App.3d 238, 389 N.E.2d 262, defendants were stopped for driving in excess of the speed limit. Watson, the driver, walked to the squad car and exhibited his driver's license which appeared to be in order. One of the officers proceeded to the front of the van to determine if there was a front license plate, shined his light into the windshield area, and noticed Nally, Sykes, and a motorcycle in the van. The officer ordered Sykes and Nally out of the van and asked them for identification, which they supplied. In response to the officer's inquiry, Watson stated that the motorcycle belonged to a friend in Wisconsin and that they were taking it to him. When the officer asked Watson if he could look at the motorcycle, Watson replied, "Well, you are going to look at it anyhow." Although a check of the engine number did not reveal that the motorcycle was stolen, the officer ordered defendants to accompany him to the police station, because defendants had no proof of ownership and one defendant was a convicted burglar. The appellate court ruled that there was a search and that under the plain-view doctrine, in addition to an initial lawful intrusion which affords the authorities the opportunity for the plain view, it is necessary to establish that the incriminating nature of the evidence in plain view was immediately apparent to the arresting officers.
In this case there was also a search. The incriminating nature of the evidence, the tire tool, could not be immediately apparent to the arresting officers, because the possession of a tire tool under the driver's seat is not a violation of the law. (Ill. Rev. Stat. 1975, ch. 38, par. 24-1.) Therefore, there was no justification for asking defendant to put the tire ...