Appeal from the Circuit Court of Saline County; the Hon.
Michael J. Henshaw, Judge, presiding.
JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
This is a State appeal from an order granting a motion by defendant, Gary Gulley, to suppress evidence. Defendant was charged by information with unlawful possession of a controlled substance, pentobarbital.
The facts are undisputed. On September 17, 1981, at approximately 3:17 a.m., Deputy James Wheatcroft and Special Deputy Joey DeNeal of the Saline County sheriff's department were patrolling in their squad car in the city of Harrisburg, Illinois, when they observed a vehicle traveling at a high rate of speed on the wrong side of the street on Jackson Street. The officers pursued the vehicle for a few blocks. They then observed the vehicle turn east on Towle Street, travel approximately one-half block, and stop. The officers next observed defendant exit the driver's side of the vehicle, stumble and nearly fall. Deputy Wheatcroft smelled alcohol on defendant's breath and observed that defendant's eyes appeared glassy. Defendant was then placed under arrest for driving under the influence of intoxicating liquor.
Deputy Wheatcroft advised defendant that he was going to be transported to the county jail and that he could either leave his vehicle and have it towed in or allow Special Deputy DeNeal to drive the vehicle to the county jail. Defendant indicated that he would allow Special Deputy DeNeal to drive his vehicle and handed the keys to Officer DeNeal. Deputy Wheatcroft then drove defendant to the Saline County jail in the police squad car, and Special Deputy DeNeal drove defendant's vehicle there.
At the county jail, Deputy Wheatcroft proceeded to book defendant, advised him of his rights, and requested that he submit to a breathalyzer test. After calling an attorney, defendant agreed to take the breathalyzer test. At no time subsequent to his arrest was defendant allowed access to his vehicle.
While Special Deputy DeNeal was getting out of defendant's vehicle after driving it to the county jail, he kicked something on the floorboard. He related that he picked up the object, which was an opaque black plastic cannister. Officer DeNeal shook the bottle and heard a rattling noise. Officer DeNeal said he opened the container out of "curiosity" and because he, in his capacity as dispatcher for the sheriff's office, "got some calls from a subject advising * * * me that [defendant] and another subject * * * were selling drugs." Special Deputy DeNeal discovered that the bottle contained pills which subsequently were identified as pentobarbital, a barbiturate.
Special Deputy DeNeal, after finding that the container on the floor of defendant's vehicle contained pills, replaced the lid on the container and put it back where he had found it. He then went into the county jail and upon his first opportunity, advised Deputy Wheatcroft of what he had found. By that time, Deputy Wheatcroft had administered a breathalyzer test to defendant, which showed that defendant had .08% by weight of alcohol in his blood. Deputy Wheatcroft and Special Deputy DeNeal then left the county jail building, went to defendant's automobile, and retrieved the bottle containing the pills.
The trial court's order stated, inter alia, that: (1) at the time of the search by Special Deputy DeNeal, there was no probable cause to justify a warrantless search of defendant's vehicle; (2) the search was not justified under the automobile exception to the warrant requirement "for the reason that at the time of the search the Defendant did not have access to the vehicle, did not even have the keys to the vehicle, and due to his arrest for driving while under the influence of intoxicating liquor would not have been allowed access to the vehicle that evening"; and (3) the search was not incident to arrest "because the search was conducted outside the presence of Defendant, the area searched was not within the immediate control of the Defendant, and the officers testified that at the time of the search they were not in any way in fear for their safety."
There are two issues presented for review: (1) whether there was probable cause to search the container found in defendant's car; and (2) whether the search of the container was incident to arrest.
The State argues that because there was probable cause to search defendant's vehicle, the police, under United States v. Ross (1982), 456 U.S. 798, 72 L.Ed.2d 572, 102 S.Ct. 2157, could search the container found inside the automobile. It is argued that the following factors gave rise to probable cause which justified a search of the container discovered by Special Deputy DeNeal: (1) defendant was intoxicated when arrested; (2) the container was suspicious because it was opaque, not labeled, and it rattled when it was shaken; and (3) the container was found on the floorboard of the automobile, which suggests that it was deliberately hidden.
Defendant responds that there was no probable cause to search the container found in defendant's automobile and, therefore, under Ross, the search was prohibited. We agree with defendant.
The trial court's decision regarding a defendant's motion to suppress will not be disturbed unless it is found to be clearly erroneous. (People v. Clark (1982), 92 Ill.2d 96, 99, 440 N.E.2d 869, 871.) In Clark, our supreme court summarized the applicable law as follows:
"It is well recognized that a warrantless search of an automobile may be permissible where the searching officer has probable cause to believe that the vehicle contains contraband. (See United States v. Ross (1982), 456 U.S. 798, 72 L.Ed.2d 572, 102 S.Ct. 2157; Colorado v. Bannister (1980), 449 U.S. 1, 66 L.Ed.2d 1, 101 S.Ct. 42; Chambers v. Maroney (1970), 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975; Carroll v. United States (1925), 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280.) To establish probable cause to search it must be shown that the totality of the facts and circumstances known to the officer at the time of the search would justify a reasonable person in believing that contraband was present in the automobile. (United States v. Ross (1982), 456 U.S. 798, 72 L.Ed.2d 572, 102 S.Ct. 2157; Colorado v. Bannister (1980), 449 U.S. 1, 66 L.Ed.2d 1, 101 S.Ct. 42; Carroll v. United States (1925), 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280.) * * * As stated recently in United States v. Ross (1982), 456 U.S. 798, 824, 72 L.Ed.2d 572, 593, 102 S.Ct. 2157, 2172:
`The scope of a warrantless search of an automobile * * * is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which ...