APPEAL from the Circuit Court of Ogle County; the Hon. JOHN L.
MOORE, Judge, presiding.
MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
The State appeals from the trial court's order granting the defendant's motion to suppress.
On October 13, 1979, at approximately 7:30 p.m. three Ogle County deputy sheriffs stopped the automobile in which the defendant, Jeffrey J. Fox, was riding as a passenger. As a result of the stop and resultant search of the car and the defendant's person, the defendant was subsequently charged with the unlawful possession of a hypodermic syringe and cannabis. The defendant filed a motion to suppress all evidence seized subsequent to the stop and all incriminating statements which he made thereafter.
After holding a hearing on the motion, the trial court granted the motion to suppress. The court's order found that law enforcement officials did not possess specific and articulable facts which, when combined with rational inferences from those facts, reasonably warranted the stop. This appeal followed.
During the suppression hearing the trial court heard the testimony of two witnesses for the defendant and three witnesses on behalf of the State. The testimony of the State's witnesses was substantially different in important aspects from that proffered by the defendant's witnesses. It is undisputed, however, that the Ogle County deputy sheriffs did not possess a search warrant for the vehicle or for the defendant and that neither the defendant nor the driver of the vehicle in question consented to a search.
Jeffrey Daniels was driving a 1973 Dodge Colt station wagon at approximately 7:30 p.m. on the evening in question. He was accompanied by the defendant. Daniels was driving northbound on River Road in Ogle County when he turned into an area described as "the boat docks," which parallels River Road. He drove north past the boat docks to the north entrance to the area, turned south onto River Road and returned in the direction from which he had come. He did not stop at the boat docks or in the area. He stated that it was fairly dark at the time and that he had turned on his lights before entering the boat docks. As Daniels started to drive south on River Road, two police cars turned on their lights and pulled his vehicle over to the side of the roadway. The police shined their flashlights inside his vehicle and asked the defendant to hand them a metal tray, which was on the car's dashboard and inside the open glove compartment. The tray contained a "roach." The defendant complied with this request. The police then searched Daniels, the car and the person of the defendant. The officers found a hypodermic syringe on the defendant's person. Daniels, who was not arrested, testified that he had not violated any traffic laws.
The defendant, a passenger in Daniels' vehicle, related that Daniels was driving northbound on River Road when he turned his vehicle from River Road into the boat docks area, proceeded slowly through the area without parking and then turned south onto River Road. Daniels did not stop his car while driving in the boat docks area except to check for traffic before leaving the area via River Road. Defendant stated that no squad car entered the boat docks area prior to their exiting the area via River Road. While traveling south on River Road, the defendant observed two northbound squad cars on River Road, which turned around, activated their overhead lights, and halted Daniels' vehicle.
According to the defendant, a police officer tapped the passenger window with a flashlight and asked the defendant to hand him the metal tray on the car's dashboard. The defendant complied and then exited the car at the officer's request. The officers then searched the defendant's jacket and person and found a hypodermic syringe and "a little bit of hash" in the pockets of the jacket. The defendant was placed under arrest and immediately transported directly to the Ogle County jail where he gave a statement or confession, after having been advised of his Miranda rights, regarding the items which had been recovered from his jacket. He was questioned at the jail shortly after he had been fingerprinted and photographed.
Anthony Russell, a deputy for the Ogle County sheriff's department, testified that he was traveling northbound on River Road in a marked squad car on the evening in question. Sergeant Keith Charvat and Deputy Daryl Brass were in another marked squad car directly in front of him. It was completely dark outside. Russell related that he, Charvat and Brass were going to the boat docks area to patrol it because of numerous previous reports, some as recent as a week prior to the incident in question, of persons "partying and littering in the area." According to Russell, the vehicle driven by Charvat and Brass turned into the boat docks area and proceeded northbound. As Charvat's vehicle proceeded northbound, it approached another vehicle which was parked at the north end of the area. As the squad car approached within 50 to 75 feet of the parked car, the subject vehicle turned on its headlights, accelerated out of the area and proceeded south on River Road. According to Deputy Russell, this vehicle accelerated at a greater than reasonable speed in departing the boat docks area. Russell stopped the vehicle at the south entrance to the boat docks at which time he observed both Jeffrey Daniels and the defendant in the front seat of the car.
Deputy Russell also testified that he then asked the driver to roll down his car window, which Daniels did. At this time Russell, who had been trained to detect the odor of cannabis, smelled the odor of a substance he believed to be cannabis coming from the interior of the vehicle. He also looked into the car and observed a small, open metal tray directly in front of the defendant which contained a small amount of a green, leafy substance that Russell thought to be marijuana and several cigarette butts he believed to be the remnants of hand-rolled marijuana cigarettes.
Both Sergeant Charvat and Deputy Brass corroborated the testimony of Deputy Russell concerning the events which preceded and led to the stopping of the subject vehicle. In addition, Deputy Brass related that he conducted a "pat-down" search of the defendant's person after he exited Daniels' vehicle. As he was conducting the search, he discovered a hypodermic syringe and a brown powdered substance in a tin foil container in the pocket of the jacket that the defendant was wearing. He arrested the defendant at the scene of the stop for possession of a hypodermic syringe. The deputy also testified that he questioned the defendant at the Ogle County jail after first advising him of his Miranda rights. The defendant verbally acknowledged that he understood his rights and answered the deputy's questions.
On appeal, the State contends that, given the circumstances of this case, the police officers conducted a valid investigatory stop of the car in which the defendant was a passenger. Consequently, the State asserts that, since a valid investigatory stop had been made, the subsequent warrantless searches of the defendant and the vehicle were justified because the officers became aware of certain facts after the stop which gave them probable cause to conduct the searches.
• 1 At the suppression hearing the defendant argued, in essence, that the stop of the automobile in which he was riding was improper and hence the resultant nonconsensual, warrantless search of his person violated his State and Federal constitutional right to be free from unreasonable searches and seizures. He argued below that, since the initial stop of the vehicle was improper, the physical evidence seized thereafter and the incriminating statements later obtained should be suppressed at trial. Although the defendant has not filed a brief on appeal, the court may nevertheless consider the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 131, 133; Super v. Armstrong (1980), 83 Ill. App.3d 1062, 1063-64.
• 2 With respect to a motion to suppress evidence illegally seized, the burden of establishing that the search and seizure were unlawful rests on the defendant (Ill. Rev. Stat. 1979, ch. 38, par. 114-12(b); People v. Grice (1980), 87 Ill. App.3d 718, 722), and the reviewing court has the duty to affirm the result reached by the trial court in a motion to suppress evidence ...