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People v. Seymour





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

The defendant, William Seymour, was found in possession of cocaine and charged with possession of a controlled substance. Prior to trial, the defendant filed a motion to suppress the cocaine, which he alleged was taken from him following a strip search. The Cook County circuit court allowed the motion and suppressed the evidence. The appellate court affirmed. (80 Ill. App.3d 221.) We granted the State leave to appeal under our Rule 315. 73 Ill.2d R. 315.

On July 27, 1977, at about 9 p.m., Sergeant Neilson and Officer Cronin were patroling the vicinity of 450 North Clark Street in Chicago in a marked squad car. The defendant was observed leaning into the passenger side of a parked automobile. When the officers pulled their car up behind the parked vehicle, the defendant stood up and began to walk away from them. Neilson got out of the squad car, noticed that the parked car had keys in its ignition, and ordered the defendant to stop. Seymour's shirt was hanging outside of his pants as the police approached him. When Sergeant Neilson asked Seymour for some identification, the defendant began to reach into his pants pocket. Before he could, Neilson patted him down. Neilson found a loaded .38-caliber revolver in Seymour's waistband. The officers immediately placed Seymour under arrest and called for a vehicle to transport defendant to the 18th district police station. While waiting in Sergeant Neilson's squad car, Seymour stated that the parked car was his and that he had a gun registration card for the revolver. Officer Cronin testified that, while waiting, Seymour also mentioned that he had been in the penitentiary before and had a narcotics case pending, and he couldn't take the heat. He asked Sergeant Neilson to give him a break. Seymour later denied making such a comment. When a second squad car arrived at the scene to take Seymour to the station, he was again superficially searched. After arriving at the station, Seymour was again given a pat-down search.

Once at the police station, the defendant was fingerprinted. The fingerprint apparatus was located in the lockup area. After being fingerprinted, the defendant went to a sink in the lockup area to wash his hands. The two arresting officers did not accompany the defendant to the police station but arrived after he had been fingerprinted. Officer Cronin approached the defendant as he finished washing his hands and directed the defendant to remove his clothing. Officer Cronin testified that after the defendant removed his shoes the officer found a tinfoil packet in one of the shoes. The defendant testified that he was required to strip naked and the officer inspected him visually, after which the officer found the tinfoil packet in one of the defendant's socks. The packet contained .22 grams of cocaine. The defendant was charged with possession of a controlled substance. Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402.

At the hearing on the motion to suppress, the court made a finding that the initial arrest on the street was valid. The defendant's motion to suppress the gun, therefore, was denied. The court stated its belief that the police would then be allowed a reasonable length of time to detain the defendant so as to check his identity and prepare charges against him. However, the court found that, once at the police station, the defendant should have been advised that he was charged with a misdemeanor which was bailable. It should then have been determined whether the defendant could make bail and, if not, only then could he be incarcerated. The court held that, if a determination were made that the defendant could not post bail, he then could be searched before being placed in the lockup. Because the defendant was not notified that he was being charged with a bailable offense and of his right to post bail, and since he had enough money with him to post the preset bail, he should not have been placed in the lockup and, consequently, should not have been searched. The discovered cocaine was therefore suppressed, and the finding of probable cause was vacated.

The appellate court, in affirming the judgment of the circuit court, held that the police are required to advise all arrestees charged with a misdemeanor of their right to post bail immediately. The appellate court further held that, although the defendant could be detained a reasonable time for further investigation, he could not be placed in the police lockup and strip-searched during that time.

We will first address the question of whether it was necessary for the officers to inform the defendant of his right to post bail. The appellate court found such a requirement not as being constitutionally mandated, but as being required by that court's construction of the provisions of our Rule 528(c) (73 Ill.2d R. 528(c)), which presets the amount of bail for the class of misdemeanors that includes the offense involved in this case, and from the provisions of section 103-7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 103-7), which requires that posters informing the defendant of certain rights be posted in certain conspicuous places. We need not discuss the cases from Michigan, Colorado and California relied on by the appellate court, because it is clear that our legislature, in enacting section 103-7 of the Code of Criminal Procedure of 1963, did not intend to require that a defendant be orally informed of his right to post bail. The committee comments to this section, as originally adopted in 1963, state:

"Defense representatives strongly urged a requirement in the Code that the arresting officer inform an arrestee of his rights. Others strongly opposed such a requirement. The Committee was not persuaded that the officer was the proper medium for conveying such information fully and understandably. This section was proposed as a compromise. It was accepted." (Ill. Ann. Stat., ch. 38, par. 103-7, Committee Comments, at 84 (Smith-Hurd 1970).)

The General Assembly apparently felt that informing the accused of his rights through printed information contained on posters located as required by statute was adequate and more likely to accurately inform an accused. It should be noted that, in situations where the General Assembly intended that the defendant be personally informed of certain rights by specified individuals, it clearly stated so in the Code. (See Ill. Rev. Stat. 1979, ch. 38, par. 103-1(a) (shall inform the person arrested that a warrant has been issued for his arrest and the nature of the offense); Ill. Rev. Stat. 1979, ch. 38, par. 103-1(b) (after an arrest without a warrant — shall inform the person arrested of the nature of the offense upon which the arrest is based); Ill. Rev. Stat. 1979, ch. 38, par. 109-1(b)(1) (after arrest the judge shall inform the defendant of the charge against him); and Ill. Rev. Stat. 1979, ch. 38, par. 109-1(b)(2) (must advise the defendant of his right to counsel).) We conclude that the legislature did not intend to require that a defendant be orally advised by the police of his right to post bail.

It is also contended, and the trial court and the appellate court held, that since the defendant was lawfully arrested on an unlawful-use-of-weapons charge (Ill. Rev. Stat. 1977, ch. 38, par. 24-1(a)(10)), which is a Class A misdemeanor (Ill. Rev. Stat. 1977, ch. 38, par. 24-1(b)), and for which preset bail was fixed at $1,000 with the 10% deposit statute applicable (73 Ill.2d R. 530), he should have been admitted to bail without having been placed in the lockup area of the police station. Noting that the defendant had over $300 in cash on him when arrested, the court found there was no question as to his ability to post the amount of preset bail. It is urged that, since the defendant had the right to and could post bail, the police had no right to detain him and no need or right to conduct a search. Since the search was unauthorized, it is argued, the seizure of the tinfoil packet containing the controlled substance was illegal and the evidence was properly suppressed.

Although the unlawful use of weapons is only a Class A misdemeanor for which preset bail is provided by our Rule 528(c), the offense becomes a Class 3 felony if committed within five years after the accused's release from prison or within five years after conviction if no prison sentence was imposed for a prior felony conviction. (Ill. Rev. Stat. 1977, ch. 38, par. 24-1(b).) The officer stated that, following the arrest, the defendant asked for a break because he had a previous felony conviction. Acceptable police procedures would require that the officers ascertain whether or not that conviction was within the period of time that would make the weapons charge a Class 3 felony. In fact, because of the possibility that this arrest involved a felony and not just a misdemeanor, a further routine identification check would be in order, even in the absence of such a remark by the suspect. In making this determination, it was necessary that the defendant be fingerprinted and that the fingerprints be processed through identification procedures. It was testified that this would require two to three hours. The trial court, in passing on the motion to suppress, stated its disbelief that detention for this period of time would be necessary. However, there is no evidence in the record that indicates a lesser period of time was required for the proper identification. It must be assumed that it was therefore necessary that the defendant be detained for whatever time was required and that he could not be permitted to immediately post bail for a misdemeanor and be released.

Since the police were authorized to detain the defendant, the question then becomes what should be the nature of the detention, whether a search of the defendant was justified, and, if so, to what extent he could be searched. We will postpone for the present the question of defendant's detention and consider the questions relating to search. The officers here effected a lawful arrest on the weapons charge and properly had the defendant transported to the police station. Section 108-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 108-1) provides that, when a lawful arrest is made by an officer, the officer may reasonably search the person arrested for the purpose of (a) protecting the officer from attack, (b) preventing the person from escaping, (c) discovering the fruits of the crime, or (d) discovering any instruments, articles or things that had been used in the commission of, or which may constitute evidence of, any offense. The right to search a person incident to a lawful arrest for these purposes does not, however, depend solely upon the provisions of our statute. Such a right has long been recognized both in England and in this country. (Weeks v. United States (1914), 232 U.S. 383, 392, 58 L.Ed. 652, 655, 34 S.Ct. 341, 342; United States v. Rabinowitz (1950), 339 U.S. 56, 60, 94 L.Ed. 653, 657, 70 S.Ct. 430, 432-33.) The fact that the search is conducted at the police station rather than at the place of arrest does not by itself render the search invalid. United States v. Edwards (1974), 415 U.S. 800, 803, 39 L.Ed.2d 771, 775, 94 S.Ct. 1234, 1237; People v. Campbell (1977), 67 Ill.2d 308, 319.

In United States v. Robinson (1973), 414 U.S. 218, 38 L.Ed.2d 427, 94 S.Ct. 467, the court considered the historical development of the right to search without a warrant incident to a lawful arrest. The court held that, while the justification to search a person incident to a lawful custodial arrest is based on the need to disarm and discover evidence, it does not depend upon what a court may later decide was the probability in a particular situation that weapons or evidence would, in fact, be found on the suspect. The court stated:

"A custodial arrest of a suspect based on probable cause is a reasonable instrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. * * * [I]n the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but it is also a `reasonable' search under that Amendment. ...

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