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People v. Hughes





APPEAL from the Circuit Court of Peoria County; the Hon. STEPHEN COVEY, Judge, presiding.


This appeal is brought by the defendant, Helbert Hughes, from his conviction following a jury trial in Peoria County of the unlawful possession of less than 30 grams of a controlled substance, a Class 4 felony. (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1402(b).) The defendant was sentenced to two years' probation.

Prior to trial, the defendant filed a motion to suppress two grams of cocaine found in small cardboard packages contained within his wallet. At the hearing held on the defendant's motion, the following facts were established by stipulation. On December 22, 1980, the defendant was lawfully arrested by Officer Norman Green on outstanding warrants in Livingston County and was brought to the Peoria Police Department where his personal property, including his wallet, was taken. The defendant's wallet was opened and its contents, including two small white cardboard packages, were removed. Each package had a picture of a seal with the name "sno seals" on the cover. The record indicates that Officer Green assumed that the packages contained prophylactics. The defendant's personal belongings were then placed in a paper bag and the bag was placed in an unlocked security locker. Later in the day the defendant was transported to the county jail, but his belongings remained in the locker at the police station. The following morning Officer Green realized his error and transported the bag containing the defendant's belongings to the county jail.

County jailer Depperman asked Officer Green to empty the contents of the bag on a desk at the county jail. Depperman examined the items and opened one of the small cardboard packages. Officer Green then asked Depperman to open the other package. Both packages contained a powder-like substance, which, by stipulation was identified to be cocaine.

At the conclusion of the suppression hearing, the trial judge denied the defendant's motion to suppress, reasoning that a detailed search of items seized pursuant to a lawful arrest could take place at any time, and that there was no legitimate expectation of privacy in any package that was legally seized.

It is from the denial of his suppression motion that the defendant brings the instant appeal. The defendant contends that his fourth and fourteenth amendment rights were violated when his wallet and the cardboard containers found therein were searched. He asserts that he had a reasonable expectation of privacy in his wallet and the two cardboard packages and further contends that the State failed to establish any exception to the warrant requirement. The State argues that the search was valid as a delayed search incident to the defendant's arrest or as a valid inventory search. Neither party disputes the lawfulness of the defendant's arrest, nor does the State specifically challenge the defendant's assertion that he had a reasonable expectation of privacy in the contents of his wallet and items found therein.

Searches of arrestees and of their personal property during post-arrest detention have been the subject of a considerable body of case law in recent years. In United States v. Edwards (1974), 415 U.S. 800, 39 L.Ed.2d 771, 94 S.Ct. 1234, the United States Supreme Court held that a search incident to arrest, if lawful at the time of the arrest, may be conducted later when the accused arrives at the place of detention. In Edwards, the defendant was lawfully arrested and a search was conducted at the police station. The next day, without a warrant, the defendant's clothes were taken from him and evidence was discovered on that clothing. In upholding the search, the Supreme Court noted that the search was a normal incident of an arrest, and that a reasonable delay in effectuating the search did not change the fact that the defendant was no more imposed upon than he would have been at the time and place of his arrest or immediately after his arrival at the place of detention.

The Edwards case was consistent with the principle announced by the Supreme Court one year earlier in United States v. Robinson (1973), 414 U.S. 218, 38 L.Ed.2d 427, 94 S.Ct. 467. In Robinson, heroin discovered in a cigarette container taken from the defendant during a custodial arrest was held admissible. In so holding, the Supreme Court announced that in cases of lawful custodial arrests, a full search of the person is not only an exception to the warrant requirement of the fourth amendment but is also a reasonable search under that amendment.

Subsequent to the Robinson and Edwards decisions, courts> have generally recognized that anything on the person is fair game for a search incident to a lawful arrest. Thus, courts> have upheld searches through containers on the person: United States v. Jeffers (7th Cir. 1975), 524 F.2d 253 (a purse); and through the arrestee's pockets: McCoy v. State (Alas. 1971), 491 P.2d 127 (may also search wrapped packet found in the pocket). Of most significance for the case at bar, searches through the arrestee's wallet have been upheld: United States v. Basurto (9th Cir. 1974), 497 F.2d 781 (may also scrutinize documents found therein); State v. Dubay (Me. 1974), 313 A.2d 908 (a crushed LSD tablet found in a ball of tinfoil in the defendant's wallet was admissible); and State v. McElroy (1972), 189 Neb. 376, 202 N.W.2d 752 (cocaine discovered in a folded, opaque newspaper measuring 1 1/2 by 2 inches and found in the defendant's wallet was admissible).

In 1977, the United States Supreme Court limited the option of postponing a search incident to arrest by sanctioning only delayed searches of the person of the accused and of personal property discovered as a result of a search of the person. (United States v. Chadwick (1977), 433 U.S. 1, 53 L.Ed.2d 538, 97 S.Ct. 2476.) Prohibited by Chadwick are searches of "* * * personal property not immediately associated with the person of the arrestee * * *" (United States v. Chadwick (1977), 433 U.S. 1, 15, 53 L.Ed.2d 538, 551, 97 S.Ct. 2476, 2485). A search of a locked footlocker found adjacent to the lawfully arrested defendants conducted at the stationhouse and without a warrant subsequent to the defendants' arrest was held unlawful in Chadwick. Subsequent case law has applied the Chadwick rule to various types of containers, whether locked or unlocked. The test is whether, judging from the totality of circumstances, the accused has a reasonable expectation of privacy in the container. For examples of impermissible searches, see, e.g., Robbins v. California (1981), ___ U.S. ___, 69 L.Ed.2d 744, 101 S.Ct. 2841 (closed opaque plastic bag); United States v. Rigales (5th Cir. 1980), 630 F.2d 364 (closed backpack); People v. Bayles (1980), 82 Ill.2d 128, 411 N.E.2d 1346 (unopened suitcase); and Arkansas v. Sanders (1979), 442 U.S. 753, 61 L.Ed.2d 235, 99 S.Ct. 2586 (unlocked suitcase).

In recent opinions from the Illinois Supreme Court (People v. Helm (1981), 89 Ill.2d 34), and from this court (People v. Lafayette (1981), 99 Ill. App.3d 830, 425 N.E.2d 1383), the Chadwick rule was applied to hold unlawful the postponed warrantless search of the defendant's purse and shoulder bag, respectively. Because the searches in Helm and Lafayette could not be justified as properly incident to a lawful arrest or as valid inventory searches of the defendant's belongings, they were held to have violated the fourth amendment.

• 1 Applying the principles found in this body of case law to the facts of the case at bar, we find that the defendant's wallet is the type of object subject to a search, whether incident to his arrest or justified as an inventory search. This is so despite the absence of any clear indication in the record that the defendant's wallet was found on his person. We note that there is nothing to rebut the obvious presumption that the wallet was found on the defendant's person, since he carried no type of shoulder bag or other container.

• 2 Having determined that the defendant's wallet was subject to search following his arrest, we next address the question of whether the two packages contained in the wallet were lawfully opened. Relying on United States v. Jeffers (7th Cir. 1975), 524 F.2d 253, United States v. Basurto (9th Cir. 1974), 497 F.2d 781, and other case law applying the Chadwick rule to searches of closed containers found on the defendant's person and to the opening of packages found within those containers, we hold that the two cardboard packages in the instant case could lawfully have been opened at the time of their first discovery.

• 3 Our final task must be to determine the legality of the timing of the search. The defendant's wallet was searched at the Peoria Police Department subsequent to his arrest, and the two cardboard packages were removed. These items plus other personal belongings of the defendant were put into a paper bag, which was then placed in an unlocked security locker. The next day, the defendant's belongings were taken to the county jail. There, both cardboard packages were opened. Was this "second look" permissible? Based on our recent decision in People v. Richards (1981), 103 Ill. App.3d 1120 we hold that it was not. In Richards, this court held unlawful a second look search of a necklace found in the defendant's clothing pursuant to a lawful inventory search ...

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