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People v. Braasch





Appeal from the Circuit Court of Du Page County; the Hon. Anthony Peccarelli, Judge, presiding.


The State brings this interlocutory appeal (87 Ill.2d R. 604(a)(1)) from an order of the trial court which granted the motion of the defendant, Fred Braasch, to suppress cannabis which an Illinois State police trooper discovered pursuant to an inventory search inside a paper bag in the trunk of the automobile which defendant was driving.

On appeal, the State contends that the trial court erred when it granted the defendant's motion to suppress, because (1) cannabis was discovered pursuant to a valid inventory search of the vehicle; (2) the cannabis was admissible under the theory of evidence discovered incident to a lawful custodial arrest; and (3) the defendant did not have standing in the first place to seek suppression of the cannabis.

The defendant was charged with the unlawful possession of more than 30 grams but less than 500 grams of a substance containing cannabis. (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 704(d).) Defendant filed a motion to suppress the evidence, a quantity of cannabis, which a State trooper seized from the automobile defendant was driving. The motion alleged that the warrantless search of the vehicle and seizure of the cannabis following his being stopped for a traffic violation constituted a violation of the defendant's rights under the fourth amendment to the United States Constitution (U.S. Const., amend. IV) and article I, section 6 of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 6).

At the suppression hearing the defendant testified that he was driving his mother's vehicle on Interstate Highway 55 (I-55) near Cass Avenue at approximately 1:40 a.m. on January 26, 1982. At that time a State trooper stopped the defendant for failure to use a turn signal when changing lanes. According to the defendant, he had a beer bottle on the floor of the vehicle, and the trooper noticed it. The trooper asked the defendant whether he possessed a driver's license, and the defendant responded in the negative. The trooper advised the defendant that he was being placed under arrest for driving under the influence of alcohol.

After the trooper handcuffed the defendant and placed him in the front seat of the squad car, he called in and determined the car was not stolen. Then he returned to the vehicle the defendant was driving, checked the inside of the car, removed the keys from the ignition, and opened the trunk of the automobile. The trooper searched the trunk and found a brown paper bag which contained marijuana. Defendant testified the top of the bag was "closed up," or "wrapped down, not folded." The defendant related further that the trooper did not display a search warrant for the car, did not have permission to remove the keys from the ignition, and did not inform the defendant that he was acting pursuant to an outstanding arrest warrant for an unrelated offense. Defendant stated he had placed a small quantity of marijuana in a bag into a tool box on the back floor which was still there when he recovered the car.

Ed Donath, an Illinois State police trooper, recounted that he was on patrol on I-55 on the morning in question when he observed a vehicle driving in an erratic manner, weaving from lane to lane. After following that automobile for about one mile, Donath stopped the defendant who was alone in the car. Trooper Donath asked the defendant to explain why he was driving in such an erratic manner. At this time the officer noticed the odor of alcohol and realized that the defendant was not aware that he had been driving erratically. When Donath asked to see the defendant's driver's license, the defendant responded that he did not have one because it had been revoked. Trooper Donath also observed that the defendant's speech appeared sluggish and somewhat slurred. In Donath's opinion, the defendant was not physically able to drive. Then the witness arrested the defendant for driving under the influence of intoxicating liquor.

After arresting the defendant, the trooper placed the accused in the squad car and asked the defendant whether he would be able to have the car removed or be able to make bond, because he was going to transport the defendant to jail. The defendant replied that the car belonged to his mother, that he was unable to post bond, and that he had nobody to call to get him. According to Trooper Donath, the vehicle in question was located on the shoulder of I-55, and it would have been illegal for the car to remain parked there because parking is only allowed on a controlled-access highway, such as I-55, under emergency conditions. Donath related further that it is the policy of the Illinois State police to arrange to have all vehicles towed if a subject is arrested and to conduct an inventory search of all vehicles that are towed. Accordingly, the officer conducted an inventory search of the vehicle to ascertain what personal items were in the car.

Trooper Donath testified that he first examined the interior of the automobile, including the driver's area and the backseat and floor but excluding the area under the seats, and then checked the trunk to see if there were any tools present. He opened the trunk with the defendant's key and noticed a spare tire and a brown paper bag in the center of the trunk. The bag was not taped or stapled, and one end of the bag was open. He lifted up that end to look inside to determine the bag's contents. He observed a clear plastic bag inside the brown bag which contained a green, leafy substance that he presumed was cannabis. He prepared an inventory sheet of all the items of personal property that were inside the car. He also stated that his sole purpose in conducting the search of the trunk was for inventory purposes.

At the suppression hearing the only theory which the State advanced before the trial court was that Trooper Donath conducted a valid inventory search of the trunk of the vehicle. Subsequently, the trial court granted the defendant's motion to suppress, stating, among other things, that there was a lawful arrest for a violation of the motor vehicle law; that there was no evidence that the defendant was transporting or in possession of contraband prior to the time the trooper opened the trunk and brown paper bag; that the inventory search was pursuant to departmental policy; that the departmental policy to inventory a motor vehicle stopped on the highway was insufficient to justify an inventory search in this case; and that the contents of the brown bag were not open to view. Thereafter, the State filed a motion to reconsider, again arguing that this was a valid inventory search, which the trial court denied.

• 1 The State has contended in its appellate brief for the first time that the defendant lacked standing to raise the claim of a fourth amendment violation because the vehicle he was driving belonged to his mother. However, the State has waived its right to challenge the standing of the defendant, where the defendant has prevailed below on his motion to suppress, by failing to raise the argument in the trial court in either its argument on the motion to suppress or in the motion to reconsider the court's ruling on the motion to suppress. People v. Holloway (1981), 86 Ill.2d 78, 91-92, 426 N.E.2d 871; People v. Chianakas (1983), 114 Ill. App.3d 496, 501-02, 448 N.E.2d 620.

• 2 In similar fashion, the State has for the first time, without citation of authority, asserted that the search was pursuant to a lawful custodial arrest. This argument is waived by failing to raise it in the court below (People v. Fuentes (1980), 91 Ill. App.3d 71, 76-77, 414 N.E.2d 876; People v. Valdez (1980), 81 Ill. App.3d 25, 27-28, 400 N.E.2d 1096), and by failing to cite any authority or present a reasoned argument in compliance with Supreme Court Rule 341(e) (87 Ill.2d R. 341(e)). We choose not to ignore the waiver rule (see People v. Hoskins (1984), 101 Ill.2d 209), as our resolution of the remaining issue determines the search issue.

The State's principal argument on appeal is that the defendant having been arrested for driving while under the influence of alcohol and the vehicle he was driving having been subject to impoundment, Trooper Donath was justified in conducting an inventory search of the automobile pursuant to departmental policy. While the trial court found there was a lawful arrest of defendant and the search of the automobile was made pursuant to departmental policy, it concluded that the departmental policy to inventory a motor vehicle stopped in the interstate roadway was insufficient to justify the inventory search in this case.

On a motion to suppress evidence, the defendant has the burden of proving that the search and seizure were unlawful. (Ill. Rev. Stat. 1981, ch. 38, par. 114-12(b); People v. Hoskins (1984), 101 Ill.2d 209.) A trial court's determination on a motion to suppress evidence will not be overturned unless it is found to ...

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