APPEAL from the Circuit Court of Du Page County; the Hon.
HELEN C. KINNEY, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant was found guilty after a bench trial of possession of more than 30 grams of a substance containing cocaine, a violation of section 402(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1402(a)(2)), a Class 1 felony. He was sentenced to four years in the penitentiary.
On February 14, 1980, the defendant, a Chicago police officer with 14 years of service, was on suspension for violation of the Chicago residency requirement. On that date at 2:30 a.m., he was a passenger in a red two-seat 1969 Jaguar sports car being driven east on Irving Park Road in Roselle by Henry Budzynski. The car was stopped by Roselle police officer John Zaabel because he did not see a rear license plate. After the car was stopped, Zaabel determined that there was a rear license plate, but it was so obstructed with dirt as to be unreadable. The car was otherwise extremely clean. Officer Zaabel believed the driver of the car was Henry Budzynski; however, when asked for his driver's license, Budzynski produced a traffic ticket bearing the name "Henry Razem." Zaabel's later check of the car license plate showed the owner was Henry Razem. Zaabel's belief that the driver of the car was Budzynski was corroborated by Roselle Police Lieutenant Sola, who arrived on the scene shortly after the stop, and Zaabel testified the Roselle Police Department had criminal intelligence and a prior arrest record of Budzynski.
At one point after the car was stopped, when the driver exited the vehicle, Officer Zaabel noticed a bottle of champagne or wine on the passenger side floor, with the neck of the bottle wedged between the driver and passenger seats. He could not determine if the bottle was open or closed; however, according to the testimony given at the preliminary hearing, in answer to Zaabel's question, Budzynski had stated that the bottle was not open. Zaabel had not observed the defendant make any movement after the car was first stopped. According to Zaabel's testimony, he asked Budzynski and the defendant to exit the vehicle so he could more closely examine the champagne bottle, and for reasons of his own personal safety. As the defendant exited the car, Zaabel observed that he had an object in his hand which he appeared to be trying to throw under the car. Zaabel retrieved the object from the ground, finding that it was a clear plastic baggie containing a white powdery substance and a small piece of aluminum foil. Based on his five years' experience as a police officer, Zaabel believed the powdery substance to be some type of drug. He then told Budzynski and the defendant that they were under arrest, and orally gave them their Miranda warnings.
In the subsequent search of the car, the champagne bottle was discovered to be sealed, and a search of the console directly behind the two front seats yielded a knife, a brown paper bag containing three clear plastic baggies with white powdery substances in them, a green plastic box containing a scale and some powdery residue, and a two-thirds full envelope of pink pills. While defendant was being transported to the police station, Zaabel testified the defendant asked him to throw the "stuff" away before they got to the police station, since he knew he would have to charge him once they arrived. Zaabel asked the defendant what the substance was, and the defendant replied that "it" was an ounce of coke (cocaine) and that it was for his own personal use. Later at the station, Zaabel testified the defendant asked what it would take to get him "out of this jam," and that if it was "bread" that he wanted, he would get him anything that the officer wanted.
According to the record, after the various substances were field tested at the police station, the defendant was advised that one of the substances tested did not show the presence of a controlled substance, and he was asked what it was. Defendant answered: "That's the cut." At trial, the State's expert witness, forensic scientist Deborah Juricic, testified the baggie the defendant had dropped was only preliminarily tested for the presence of a controlled substance, and that it contained .2 grams of a white powdery and chunky substance that possibly contained cocaine. Two of the other baggies retrieved from the car's console were tested and found to contain 20.6 and 23.7 grams respectively of a white powder conclusively determined to contain "L" cocaine. No quantitative analysis was performed to determine exactly how much cocaine was present in the powder.
On appeal the defendant presents the following issues: (1) whether the court erred in denying his motion to suppress; (2) whether he was not proved guilty beyond a reasonable doubt; (3) whether section 402(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1402(a)(2)) is unconstitutional; (4) whether the court improperly construed section 402(a)(2) in imposing sentence, and (5) whether the court erred in admitting exhibit No. 6A into evidence.
At the outset, we note the State argues here, as it did below, that the defendant lacked standing to move to suppress the evidence since he was a passenger in the car, and he had not alleged an ownership or possessory interest in the car or a reasonable expectation of privacy therein. (Rakas v. Illinois (1978), 439 U.S. 128, 58 L.Ed.2d 387, 99 S.Ct. 421.) Further, the Jones v. United States rule of "automatic standing" was explicitly overruled in United States v. Salvucci. (Jones v. United States (1960), 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725; United States v. Salvucci (1980), 448 U.S. 83, 65 L.Ed.2d 619, 100 S.Ct. 2547.) Under that former rule in Jones, when possession of the seized evidence was an essential element of the offense charged, the accused automatically had standing to challenge the search and seizure.
The defendant's position, however, is that he has standing to challenge stop of the car, and that the ordering of him out of the car was without probable cause — thus constituting an illegal seizure — and that the evidence seized thereafter was "fruit of the poisonous tree" which should have been suppressed. Defendant correctly cites our decision in People v. Kunath (1981), 99 Ill. App.3d 201, in support of his position that defendant, as the occupant of a vehicle stopped by the police, can challenge the stop of the automobile since it entails an infringement of his personal freedom. The defendant argues that even if there was probable cause to arrest the driver, defendant had done nothing, and the officer had no probable cause to order him out of the car. Defendant contends that he was unlawfully "seized" when the officer ordered him out of the car.
The State's position is that the defendant was not "arrested" until the officer observed him throw the baggie on the ground, and that he had properly been ordered out of the car because the car had been lawfully detained for a traffic violation. In support, the State cites Pennsylvania v. Mimms (1977), 434 U.S. 106, 54 L.Ed.2d 331, 98 S.Ct. 330, and People v. Ehn (1974), 24 Ill. App.3d 340.
The defendant finds Mimms and Ehn distinguishable, stating that once the officer determined the vehicle did have a license plate, no further detention of the car was permissible, and that the State is incorrect when it says it is a violation of the law to have an obstructed license plate.
The resolution of this issue turns on whether the defendant was lawfully ordered out of the car. In this respect, Pennsylvania v. Mimms is most persuasive. In that case, the driver of a car was stopped for an expired license plate. The driver was asked by one of the officers to step out of the car and produce his owner's card and operator's license. When he stepped out, the officer observed a bulge under his sports jacket and thereupon conducted a frisk which yielded a loaded .38-caliber revolver. A .32-caliber revolver was discovered as well on a passenger in the car. The driver's motion to suppress the revolver on fourth amendment grounds was denied, and he was convicted. The Supreme Court of Pennsylvania reversed on the basis that the ordering of the driver out of the car constituted an impermissible "`seizure'" since the officer had no "`objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety.'" Pennsylvania v. Mimms (1977), 434 U.S. 106, 108, 54 L.Ed.2d 331, 335, 98 S.Ct. 330, 332.
In its opinion reversing the Pennsylvania Supreme Court and affirming the defendant's conviction, the court in Mimms defined the focus of the inquiry as being,
"* * * not on the intrusion resulting from the request to stop the vehicle or from the later `pat down,' but on the incremental intrusion resulting from the request to get out of the car once the vehicle was lawfully stopped." Pennsylvania v. Mimms ...