APPEAL from the Circuit Court of Johnson County; the Hon.
DUANE T. LEACH, Judge, presiding.
MR. JUSTICE KUNCE DELIVERED THE OPINION OF THE COURT:
On Saturday afternoon, October 15, 1977, defendant-appellant Jeffrey Bayles was involved in a one-car accident in Johnson County. His vehicle left the highway, rolled over several times, and came to rest on its top in a field. His fiancee was thrown from the car and killed, and the defendant, though not seriously injured, was trapped inside the vehicle. Several items which had been in the car were scattered around it on the ground. Officers of the Johnson County sheriff's department subsequently discovered marijuana inside a cloth bag and a suitcase found in the vicinity of the automobile. The defendant was charged with possession of more than 500 grams of cannabis, his motion to suppress evidence was denied, a jury found him guilty of the offense charged, and he was sentenced to 3 1/2 years in prison.
On appeal, the defendant contends that his conviction must be reversed because it was based solely on the use of evidence obtained in violation of his constitutional rights. More specifically, the issue is whether the court below erred in ruling that the cannabis discovered in the defendant's suitcase, and inculpatory statements made by the defendant after he was confronted with the evidence against him were fruits of a legitimate "inventory search," and thus could be used by the State at trial.
At the hearing on the defendant's motion to suppress, Greg Carlock, who had been visiting his parents just down the road at the time the accident occurred, testified that he had arrived on the scene 15-20 minutes before the police or the ambulance. The defendant told Carlock that there was something valuable in the suitcase lying on the ground at the rear of the overturned vehicle, and asked Carlock to shut it, which he agreed to do. Carlock found that a sweater and a shirt were sticking out of the corners of the suitcase keeping it from closing. He tucked the clothing inside, shut and latched the suitcase, and rolled the tumbler on the combination lock. At this point, according to Carlock, the suitcase appeared to be closed and latched. It felt as if both sides latched. He did not open the suitcase to see what was in it. To the best of his knowledge, no one else came in contact with the suitcase prior to the arrival of the police. Carlock told the defendant that he had closed the suitcase and that he would tell the sheriff to watch it because it contained something valuable. Carlock also remembered seeing at the accident scene a shaving kit, which was closed, and a cloth whiskey bag with drawstrings. From three feet away, the bag's strings appeared to be drawn shut. He had no idea of the contents of the bag. Carlock departed shortly after the defendant was removed in the ambulance and the sheriff arrived. To the best of his knowledge, at that time all three of the containers (the suitcase, the shaving kit, and the cloth bag) were closed.
James Williams, another neighbor, testified that he too arrived at the scene of the accident before the police got there. He saw a suitcase, clothing, sports equipment, and other items lying around the car on the ground. It looked to him as if "most of it just fell right out of the trunk on probably the last jolt." Williams heard Carlock tell the defendant that he had taken care of closing the suitcase. After the police officers arrived, Williams saw the sheriff look through the shaving kit and find a roll of money inside it. Williams also heard the officers talking about finding a plastic bag containing marijuana. The suitcase was open when Williams arrived at the wreck, then Carlock closed it, then it was opened again when the police were examining the contents.
Deputy Sheriff James Alsip testified that $1255 in bills had been found in and around the vehicle before he ever handled the suitcase in which he found marijuana. The sheriff told Alsip that the defendant had something valuable in the suitcase and wanted it "took care of." When Alsip first saw the suitcase, it "was probably a half an inch or three-quarters of an inch from being closed." He testified that the "main reason" for opening the suitcase was that "the sheriff has always told us that on any wreck or tow-in that we have, that we have to make an inventory of all the personal property, the items in any vehicle, to protect us and protect them so that we know what's there." Before he opened the suitcase, he thought that it might contain more money. When he did open it, he did find some money; he also discovered a plastic bag containing a small amount of marijuana, and a brown paper bag containing a "brick" of marijuana.
The deputy sheriff had seen the sheriff take the money out of the shaving kit. After the money was found, the deputy began to make his inventory. He made a list which purported to show all the articles that had been taken from the wreck. In fact, the cloth drawstring bag, in which marijuana had been found before Alsip began to take his inventory, did not appear on the list. Alsip testified that he had "probably overlooked" writing it down. Alsip testified that the defendant did not ask him to open his suitcase; that the defendant was not under arrest at the time the inventory of his belongings was conducted; that Alsip had no reason at that time to believe that he was in danger; and that he was not looking for drugs. Defense counsel asked: "Did you search because this was an inventory or did you have some other reason?" Deputy Sheriff Alsip responded: "This is an inventory is what I was told."
Sheriff Elry Faulkner testified that he had opened and examined the contents of the cloth bag and the shaving kit before Deputy Sheriff Alsip opened the suitcase. When Faulkner found the cloth bag there was "some plastic sticking out of it." He opened the bag to "check to see what was in it" and to see "if there was anything of value in it to where I could give it back to the victim of the accident." Inside the cloth bag he found a plastic bag containing marijuana. He then opened the shaving kit, in which he found the money about which Alsip had testified. He did not remember whether or not Carlock had already told him at that time about the defendant's statement that there was something valuable in the suitcase. The suitcase "was closed from where I was standing." On cross-examination, asked again why he had opened the cloth bag, the sheriff responded: "Like I say, because I could see that there was a plastic bag out of it and to be perfectly honest with you if you'll check my record, I'm very suspicious of any plastic bags because that's usually what narcotics come in." He also had suspected that he might find alcoholic beverages at the scene of the accident. When asked if he was "looking through things" because he thought he might find beer, he answered in the affirmative. He had instructed his deputies to examine the contents of closed containers "If it's necessary * * * [t]o protect us."
At the preliminary hearing, which preceded the hearing on the motion to suppress, Deputy Sheriff Alsip had testified that the suitcase, which had a combination lock, was "partially closed" at the time he came to open it. It was "closed but it had been sprung in the wreck." He opened one latch and "pushed the release on it * * * it was a little hard where it had been sprung * * *." He testified that it was the sheriff's policy to make an inventory of all items at the scene of a wreck, and to open closed containers and inventory every item within them.
Sheriff Faulkner had testified at the preliminary hearing that there was "nothing on paper" concerning his inventory policy. Asked whether or not he had told his deputies to open closed containers, he answered: "I really couldn't tell you whether I have or not, it's a possibility." He said that there was no established form for making an inventory, and that a list was usually written on a legal pad. *fn1 He also testified that it was his practice to open a closed container and inventory its contents "if it's not locked."
1, 2 The protections of the fourth amendment extend wherever the subject of a search possesses a reasonable expectation of privacy. (Katz v. United States (1967), 389 U.S. 347, 357, 19 L.Ed.2d 576, 585, 88 S.Ct. 507, 514; People v. Nunn (1973), 55 Ill.2d 344, 304 N.E.2d 81, cert. denied (1974), 416 U.S. 904, 40 L.Ed.2d 108, 94 S.Ct. 1608; People v. Sanders (1976), 44 Ill. App.3d 510, 358 N.E.2d 375.) Searches which are conducted without prior judicial approval, like the one in the instant case, are considered per se unreasonable under the fourth amendment, subject only to a few "specifically established and well-delineated exceptions." (Katz v. United States, 389 U.S. 347, 357, 19 L.Ed.2d 576, 585, 88 S.Ct. 507, 514.) One of the established exceptions to the requirement that officials obtain a warrant before conducting a search is the so-called "inventory search." (See South Dakota v. Opperman (1976), 428 U.S. 364, 49 L.Ed.2d 1000, 96 S.Ct. 3092; People v. Clark (1976), 65 Ill.2d 169, 357 N.E.2d 798; People v. Hamilton (1979), 74 Ill.2d 457, 386 N.E.2d 53.) It is this exception upon which the State relied, and the court ruled, in the case now before us. A review of the cited cases reveals that the extent of the application of the inventory-search exception has not yet been precisely delineated.
In the Opperman case, the defendant's car was impounded because of parking violations. Following their standard procedures in such cases, the city police conducted an inventory of the contents of the vehicle. In the process, marijuana contained in a plastic bag was found in the unlocked glove compartment of the car. The plurality opinion of the United States Supreme Court held that where there was no suggestion that the inventory was a pretext to conceal investigatory police motives, such an inventory procedure was not unreasonable under the fourth amendment. In People v. Clark, which, like Opperman, involved evidence found in the glove compartment of an impounded automobile, the Illinois Supreme Court likewise found "no hint whatever of any improper [investigatory] motive * * * on the part of the arresting officer." (65 Ill.2d 169, 175, 357 N.E.2d 798, 801.) Clark established that the inventory-search exception to section 6 of article 1 of the Illinois Constitution is co-extensive with that exception to the fourth amendment of the Federal Constitution. The court pointed out that the Supreme Court had not yet squarely decided the question raised by the instant case: whether "an inventory exception applies to evidence seized as the result of an inventory of luggage or other containers taken from an automobile in the course of an inventory of the vehicle." 74 Ill.2d 457, 467, 386 N.E.2d 53, 58.
The Supreme Court has now decided a case, subsequent to Hamilton and the briefs and oral arguments in this case, which though perhaps not determinative, strongly suggests how the majority of the court would answer the question left unresolved by the plurality in Opperman. *fn2 In Arkansas v. Sanders (1979), ___ U.S. ___, 61 L.Ed.2d 235, 99 S.Ct. 2586, the court decided that, absent exigent circumstances (such as a reason to suspect the presence of a weapon), police are required to obtain a warrant before searching an unlocked suitcase taken from an automobile, even where the automobile itself had been properly stopped and searched for contraband upon probable cause. The court held that "the extent to which the Fourth Amendment applies to containers and other parcels depends not at all upon whether they are seized from an automobile." (___ U.S. ___, ___ n. 13, 61 L.Ed.2d 235, 245 n. 13, 99 S.Ct. 2586, 2593-94 n. 13.) Elaborating on United States v. Chadwick (1977), 433 U.S. 1, 53 L.Ed.2d 538, 97 S.Ct. 2476, the court stated: "A lawful search of luggage generally may be performed only pursuant to a warrant. * * * [L]uggage is a common repository for one's personal effects, and therefore is inevitably associated with the expectation of privacy." (___ U.S. ___, ___, 61 L.Ed.2d 235, 244, 99 S.Ct. 2586, 2592.) The fact that the suitcase was unlocked did not "alter its fundamental character as a repository for personal, private effects." (___ U.S. ___, ___ n. 9, 61 L.Ed.2d 235, 244 n. 9, 99 S.Ct. 2586, 2592 n. 9.) The court in Sanders expressly distinguished the situation before it from that in previous decisions including Opperman, which involved searches of some integral part of the automobile, concluding:
"* * * [A]s a general rule there is no greater need for warrantless searches of luggage taken from automobiles than of ...