Appeal from the Circuit Court of McLean County; the Hon.
William D. DeCardy, Judge, presiding.
PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
This is an appeal by the State under the authority of Supreme Court Rule 604(a) (87 Ill.2d R. 604(a)) from an order of the circuit court of McLean County which suppressed certain evidence. Proper certification was made as required by People v. Young (1980), 82 Ill.2d 234, 412 N.E.2d 501. We reverse and remand.
Defendant was charged in a criminal complaint with unlawful possession of more than 2.5 grams but not more than 10 grams of cannabis in violation of section 4(b) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 704(b)). He filed a motion to suppress all items seized, including the cannabis. The police inventory attached to the motion lists a great variety of items from personal papers through cannabis to a spare tire and a sack of groceries. However, for purposes of discussion in this order only the cannabis, an opened six-pack of beer, a plastic cup and holder, some fireworks, and a "lock-jog" (an instrument apparently used to open locks on automobiles) are significant. The trial court's order denied suppression of the beer and plastic cup, but allowed suppression of all other items. We gather that defendant has also been charged with illegal transportation of liquor, but this matter is not before us.
A brief synopsis of the evidence adduced at the hearing on the motion to suppress follows. Officer Welch of the Illinois State University police department stated that at about 1 a.m. on February 14, 1982, he observed defendant's car leave a construction site on the ISU campus. There had been illegal activity in and about this site of which the officer was aware, so he stopped defendant in his car. When the car door was opened, Welch observed a plastic cup of the type commonly used in the campus area for the serving of liquor in a holder on the car door. He met defendant at the rear of defendant's car and smelled the odor of alcohol on defendant's breath. The presence of the cup and holder and the odor led him to believe that there might be a liquor violation, but he was principally concerned about defendant's presence at the construction site.
Using his flashlight, Welch looked into defendant's car and observed a beer carton on the floor of the passenger side which contained five open bottles of beer and the lock-jog, which was on the back seat. The plastic cup contained a small amount of liquid which smelled like beer. He was concerned about the lock-jog since a similar device had been used in the past as a burglary tool. Defendant claimed that he had become lost and was simply turning around at the construction site and that he was an automotive mechanic and used the lock-job in his trade. At about the same time Welch opened a paper sack in defendant's car; he was looking for additional alcoholic beverages but found that the sack contained fireworks.
He then arrested defendant for illegal transportation of alcohol, possession of a burglary tool, and possession of fireworks. He handcuffed defendant and placed him in the back seat of his squad car; he also sent a radio dispatch asking for assistance and Officer Nagle and Corporal Saunders responded, arriving at the scene a short time later.
While Nagle stood guard over defendant, Welch entered defendant's car to retrieve the beer carton and other evidence which he had earlier observed. In reaching across the driver's seat, he observed with the aid of the dome light the open ashtray in which, he claimed, there were a marijuana butt and two pipes with cannabis residue in them. He then returned to the squad and after admonishing defendant of his Miranda rights, asked for permission to search defendant's car. Defendant inquired as to alternatives and Welch informed him that he would impound the car and seek a search warrant. While the evidence is somewhat diverse as to the exact wording, it appears that defendant told Welch to proceed with the search and that he would find marijuana in the glove compartment. Welch then opened that compartment and discovered a plastic bag containing a substance which afterwards proved to be marijuana.
Nagle then drove defendant's car to police headquarters with Welch following with defendant in his custody. There defendant executed a waiver of rights and consent to search after these forms had been explained to him.
The testimony of Nagle and Saunders was essentially corroborative of that of Welch. Defendant's testimony was in many respects parallel to that of the officers. He stated that he was under arrest at the time indicated by Welch, saying "* * * I didn't offer any resistance. I, you know, went along with his conditions, and he put the handcuffs on me." He also indicated that he consented to the search of his car and signed the forms at headquarters because he "had to," although he did not regard this as a threat. The significant variations in defendant's testimony are: (1) the ashtray was closed; (2) the dome light in his car was inoperative; and (3) he was never near the construction site.
The trial court entered a written order which contained the following findings:
"1. That the traffic stop made by Officer Welch of Defendant's vehicle was reasonable in light of all of the circumstances.
2. That the visual search of the interior of the vehicle by Officer Welch was reasonable and the discovery of the five opened bottles of Michelob and a plastic cup in a holder by the driver's window was not in violation of any rights of the Defendant, and the five opened Michelob bottles and the cup were properly seized.
3. That the search of the remainder of the interior of the car, the ashtray and glove box included, and the trunk area, was in violation of the Defendant's Constitutional Rights, in that there was no valid consent given by the Defendant, and the search is not justified on any other theory in that it was not incident to an arrest, was not pursuant to a Search Warrant, and did not constitute a Plain View seizing of the objects.
4. All other items, excepting the five opened Michelob beer bottles and the aforementioned ...