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People v. Hoskins





Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 30, 1984.

This appeal involves a search of the defendant's purse following her arrest for prostitution (Ill. Rev. Stat. 1981, ch. 38, par. 11-14(a)(2)). Based on evidence seized from her purse, she was charged by a criminal information with unlawful possession of a controlled substance (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1402(b)) and unlawful possession of a hypodermic syringe and needle (Ill. Rev. Stat. 1981, ch. 38, par. 22-50), as well as with prostitution and resisting a police officer (Ill. Rev. Stat. 1981, ch. 38, par. 31-1). The circuit court of Peoria County granted the defendant's motion to suppress the evidence taken from her purse and reassigned the case for trial on the prostitution and resisting-a-police-officer charges. On the State's appeal, the appellate court affirmed the suppression of evidence in a Rule 23 order. (105 Ill. App.3d 1202.) We granted the State's petition for leave to appeal. 87 Ill.2d R. 315.

The parties stipulated that the arresting officers' case report reflected what they would testify to at trial concerning the circumstances surrounding the defendant's arrest and the search of her purse. Proceeding by stipulation at a hearing on a motion to suppress evidence is ordinarily not a felicitous decision. A police report typically does not contain the detail that testimony would provide; there can be no cross-examination to challenge or refute, or redirect examination to explain or develop. In this case, however, what did occur is sufficiently clear for us to conclude that the trial court's order of suppression was manifestly erroneous.

On a motion to suppress evidence the defendant, of course, has the burden of proving that the search and seizure were unlawful. (Ill. Rev. Stat. 1981, ch. 38, par. 114-12(b); People v. Berg (1977), 67 Ill.2d 65; 3 W. LaFave, Search & Seizure sec. 11.2(b) (1978); E. Cleary & M. Graham, Illinois Evidence sec. 502.10 (3d ed. 1979).) A trial court's determination on a motion to suppress evidence will be overturned if it is manifestly erroneous. See People v. Holloway (1981), 86 Ill.2d 78; People v. Conner (1979), 78 Ill.2d 525; People v. Fuentes (1980), 91 Ill. App.3d 71, 73.

On June 4, 1981, at about 12:23 a.m., the defendant approached an unmarked police car and allegedly, to use the language of the statute, agreed to perform an act of deviate sexual conduct with two Peoria police officers. When told that she was under arrest for prostitution, the defendant ran from the officers and either threw her purse to the ground or dropped it as she fled. Sergeant G. Lock, one of the officers, overtook her approximately 10 to 20 feet from the police car. The officer subdued the defendant after a struggle and handcuffed her hands behind her back. Her purse was then searched by Officer J. Hill and a yellow envelope was found. The envelope contained a hypodermic syringe with a yellow plastic needle cover and a metal mayonnaise jar cap with a white powdery substance adhering to it. Officer Hill performed a field test and determined that the substance contained cocaine, which is a controlled substance (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1206(b)(4)).

At the hearing on the motion to suppress the envelope and its contents, the defendant conceded that her arrest for prostitution was "appropriate." The State argued that the search of the purse was proper as incidental to a lawful arrest. Section 108-1 of the Code of Criminal Procedure of 1963 states the circumstances under which a search incident to a lawful arrest may be conducted:

"When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of:

(a) Protecting the officer from attack; or

(b) Preventing the person from escaping; or

(c) Discovering the fruits of the crime; or

(d) Discovering any instruments, articles, or things which may have been used in the commission of, or which may constitute evidence of, an offense." Ill. Rev. Stat. 1981, ch. 38, par. 108-1.

Defense counsel argued at the hearing that the search was not justifiable either as a check for weapons to protect the officers from attack or to prevent escape, since the defendant was handcuffed and was in custody. The attorney claimed that there were no fruits of the crime of prostitution which could be found. He said, too, that the search was not a conventional inventory as it was conducted "in the field" and the purse's contents were not itemized.

The trial court granted the motion and in doing so stated what it deemed was the issue for its decision:

"May a police officer, without consent or search warrant, and for the sole purpose of searching for weapons, search a person arrested for prostitution, when the arrested person is handcuffed and not in a position to escape nor use any weapon which may be found in the purse." (Emphasis in original.)

The police report referred to the search as one to discover weapons, and the trial court limited its consideration to that aspect. This plainly was erroneous. The proper approach for evaluating compliance with the fourth amendment is to objectively assess the officer's actions in light of the facts and circumstances before him at the time without regard to his underlying intent or motivation. (Scott v. United States (1978), 436 U.S. 128, 135-38, 56 L.Ed.2d 168, 176-78, 98 S.Ct. 1717, 1722-23.) The issue here was broader than what the trial court by its own statement examined. The question was whether the search of the purse under the circumstances violated the protection against unreasonable searches and seizures provided under the fourth amendment to the Constitution of the United States (U.S. Const., amend. IV), and under section 6 of the bill of rights in our State Constitution (Ill. Const. 1970, art. I, sec. 6).

The Supreme Court has explicitly held in Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, that there is a "distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons." The court explained:

"The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v. United States [(1964), 376 U.S. 364, 367, 11 L.Ed.2d 777, 780, 84 S.Ct. 881, 883], is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person." 392 U.S. 1, 25, 20 L.Ed.2d 889, 908, 88 S.Ct. 1868, 1882.

The trial court, in ordering suppression, relied in part on United States v. Chadwick (1977), 433 U.S. 1, 53 L.Ed.2d 538, 97 S.Ct. 2476, where a warrantless search of a footlocker more than an hour after the defendant's arrest was held not to be incident to the arrest. The trial court here granted the motion to suppress on the ground that the purse, when searched, was outside the area within which the defendant might have obtained a weapon.

Chadwick is not applicable here. There the Supreme Court stated that "[o]nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest." (433 U.S. 1, 15, 53 L.Ed.2d 538, 551, 97 S.Ct. 2476, 2485.) The footlocker in Chadwick understandably was not considered to be immediately associated with the arrestee's person. A purse is obviously different in size and character and has been considered to be different. The court in United States v. Berry (7th Cir. 1977), 560 F.2d 861, 864, stated that a purse "might be characterized as `immediately associated with the person of the arrestee' because it is carried with the person at all times." (See also People v. Helm (1981), 89 Ill.2d 34, 39-44 (Ward, Underwood, and Moran, JJ., dissenting), and cases cited therein; United States v. Graham (7th Cir. 1981), 638 F.2d 1111, cert. denied (1981), 450 U.S. 1034, 68 L.Ed.2d 231, 101 S.Ct. 1748; United States v. Venizelos (S.D.N.Y. 1980), 495 F. Supp. 1277; Stewart v. State (Tex.Crim. App. 1981), 611 S.W.2d 434.) It seems clear in any sensible construction that a purse is "immediately associated with the person of the arrestee." Moreover, the Supreme Court subsequently made it clear in New York v. Belton (1981), 453 U.S. 454, 461-62, 69 L.Ed.2d 768, 776, 101 S.Ct. 2860, 2865, that the search in Chadwick was invalid because it was not conducted contemporaneously with the defendant's arrest.

Before the appellate court, the State argued that the search was valid as incident to a lawful arrest, that the search was permissible since the defendant had abandoned her purse, and that the suppression motion should not have been granted since the contents of the purse inevitably would have been discovered during a routine and proper inventory search at the police station. The appellate court refused to consider the latter two arguments, saying that, as they were first raised on appeal, they had been waived. The court, relying principally on People v. Helm (1981), 89 Ill.2d 34, and People v. Lafayette (1981), 99 Ill. App.3d 830, affirmed the trial court's suppression order.

Lafayette, however, was held to be erroneous and was reversed by the Supreme Court in Illinois v. Lafayette (1983), 462 U.S. 640, 77 L.Ed.2d 65, 103 S.Ct. 2605. There the court held that a warrantless station house search of a "purse-type shoulder bag" containing drugs and an inventory of the possessions of the person arrested were reasonable even though less intrusive means of serving the purposes of inventory may have been available. The Supreme Court's decision in Lafayette had the practical effect of overruling Helm, where this court, with three members dissenting, held that, if the purposes of an inventory could readily be accomplished by less intrusive means, a motion to suppress incriminating evidence discovered during a station house inventory of a purse should be allowed. See People v. Settecase (1983), 119 Ill. App.3d 542.

The search here was proper under United States v. Robinson (1973), 414 U.S. 218, 38 L.Ed.2d 427, 94 S.Ct. 467. That case involved the warrantless search of the arrestee following his arrest for a traffic violation. In upholding the validity of the search and the seizure of drugs, the Supreme Court stated:

"The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest 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." (414 U.S. 218, 235, 38 L.Ed.2d 427, 440-41, 94 S.Ct. 467, 477.)

The Court declared that it was in "fundamental disagreement" with the suggestion in the court of appeals' opinion "that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest." 414 U.S. 218, 235, 38 L.Ed.2d 427, 440, 94 S.Ct. 467, 477.

The search of the purse here was proper under Robinson as incident to the defendant's lawful arrest. See also United States v. Moreno (9th Cir. 1978), 569 F.2d 1049 (court held a search of a woman's purse after her arrest was a valid search incident to arrest); People v. McElroy (1976), 44 Ill. App.3d 1047 (where a search of a purse disclosed a gun and marijuana, it was held that, upon lawful custodial arrest, full search as an incident thereto is proper).

Thus, Robinson authorizes a warrantless search of the defendant's purse, which is immediately associated with defendant's person, simply on the lawful, custodial arrest. The Supreme Court referred to its holding in Robinson as "a straight forward rule, easily applied, and predictably enforced." (New York v. Belton (1981), 453 U.S. 454, 459, 69 L.Ed.2d 768, 774, 101 S.Ct. 2860, 2863.) And it is to be observed that the court in Belton extended Robinson by holding that all containers within the defendant's immediate control could also be searched regardless of the likelihood that a weapon or evidence of criminal conduct would be found. (453 U.S. 454, 461, 69 L.Ed.2d 768, 775, 101 S.Ct. 2860, 2864.) It is important to observe that neither Robinson nor Belton can be distinguished on the ground that the holding rested upon the automobile exception to the fourth amendment discussed in Carroll v. United States (1925), 267 U.S. 132, 69 L.Ed.2d 543, 45 S.Ct. 280. The Supreme Court made it clear in Belton that its decision did not involve any consideration of the so-called "`automobile exception.'" (New York v. Belton (1981), 453 U.S. 454, 462-63 n. 6, 69 L.Ed.2d 768, 776 n. 6, 101 S.Ct. 2860, 2865 n. 6.) The opinion in Robinson concerned only the validity of a search incident to arrest. Although Robinson had been stopped for a traffic violation, the search of the arrestee's person which was discussed and decided there did not involve the automobile and the court made no reference to it in its opinion.

Any contention that it was intended that section 6 of the bill of rights in our own constitution was to be interpreted differently from the Supreme Court's interpretations of the search provisions of the fourth amendment to the United States Constitution cannot be supported. The constitutional debates do not indicate any wish or intent to provide protections against unreasonable searches and seizures broader than those existing under decisional interpretations under the fourth ...

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