Appeal from the Circuit Court of Montgomery County; the Hon.
Joseph L. Fribley, Judge, presiding.
JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendant was convicted in the circuit court of Montgomery County of unlawful possession of cannabis and with bringing contraband into a State penal institution. He appeals, contending that his automobile was unlawfully searched and that the evidence adduced, did not prove his guilt of either offense.
We first consider the issue raised by defendant regarding the alleged unlawful search. The essential facts are not disputed. Defendant turned off a State highway onto an access road which leads only to Graham Correctional Center near Hillsboro, Illinois. Larry Reynolds was a passenger in defendant's car. Defendant had driven about 50 yards on the access road when he was stopped by guard Garland Reed. The point of the stop was on the access road about 50 feet from the institution parking lot and 300 to 400 yards from the front door of the institution. Defendant and Reynolds were ordered to open the glove box, get out of the car, unlock the trunk, and stand aside. The vehicle was then searched by a canine officer using a dog. A clear plastic bag containing cannabis was seized from the console between the seats.
Defendant testified that he "assumed" that he was already on institution grounds when stopped. He had already passed 40 to 45 feet beyond a sign which stated: "ALL PERSONS AND VEHICLES ENTERING OR LEAVING THE GRAHAM CORRECTIONAL CENTER ARE SUBJECT TO SEARCH AT ANYTIME. ANY PERSON FOUND IN POSSESSION OF CONTRABAND WILL BE PROSECUTED."
Assignments regarding searches at the institution were varied periodically to prevent their detection and circumvention. On the date in question the assignment was to search all incoming visitors' vehicles. However, while defendant's car was being searched, some cars occupied by visitors drove through to the prison without being searched. Guard Reed testified that he had no reason to suspect that defendant or his car contained contraband and that he would not have searched defendant's car if defendant had objected or chosen to "back out" of the search; however, he stated that he did not so inform defendant. Guard Reed testified that in his opinion defendant "consented" to be searched by coming onto institution grounds. Reed did not ask for defendant's consent to conduct a search. Reed gave the following answers relative to other vehicles.
"Q. Have you had the experience on this facility grounds before of people driving in, driving around the facility and driving right back out again?
A. Yes, sir, I have had people that come in and that, when I asked them and they said they were just looking and I asked them to turn the car around and leave and in which they did.
Q. Have you ever seen the problem here in this facility of kids coming in and just driving around and going back out?
A. Well, we have more problems with the older people wanting to sightsee than the kids."
The institution's internal regulations state, inter alia, that the owner or driver of any vehicle to be searched should be advised that such person must either consent to be searched or be refused access to institution property.
The institution's grounds maintenance crew, apparently made up of prisoners, had supervised access to the institution parking lot. Assistant Warden Kerley testified that small amounts of marijuana had been found in cells in the institution; "however we haven't established that there is weapons that come in. [Sic.]"
Defendant first urges that no specific facts existed at the time defendant's car was stopped which were sufficient to justify the stop, as opposed to the subsequent search. We need not consider the propriety of the stop as a matter distinct from the propriety of the search. This is true because it is undisputed that the search itself was undertaken without a warrant, probable cause or any level of suspicion on the part of the officers, i.e., with no more justification than the less intrusive stop.
• 1, 2 The purpose of fourth amendment proscriptions is to impose a standard of reasonableness upon the exercise of discretion by government officials, including law enforcement agents; thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's fourth amendment interests against its promotion of legitimate governmental interests. (Delaware v. Prouse (1979), 440 U.S. 648, 653-54, 59 L.Ed.2d 660, 667-68, 99 S.Ct. 1391, 1396.) Any search of an automobile is a "substantial" invasion of privacy. (United States v. Ortiz (1975), 422 U.S. 891, 896, 45 L.Ed.2d 623, 629, 95 S.Ct. 2585, 2588.) Thus the question is whether the State's interest in keeping contraband out of penal institutions is sufficient to warrant this "substantial" intrusion and whether the search policy in question is "reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio (1968), 392 U.S. 1, 20, 20 L.Ed.2d 889, 905, 88 S.Ct. 1868, 1879.
• 3 The instant search was justified when tested by both criteria. The legitimate governmental interest, keeping contraband out of penal institutions, is in our view ...