Appeal from the Circuit Court of Du Page County; the Hon.
Edward W. Kowal, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
The State has filed a certificate of impairment and appeals pursuant to Supreme Court Rule 604(a) (87 Ill.2d R. 604(a)) from an interlocutory order which granted defendant's motion to suppress evidence, i.e., a revolver found in an automobile driven by defendant, Kenneth Caserta.
The issue raised on appeal is whether the trial court erred in suppressing this evidence where the evidence was in plain view and the police officer's conduct was not unreasonable.
Defendant was arrested on July 10, 1982, and charged with unlawful use of weapons (Ill. Rev. Stat. 1981, ch. 38, par. 24-1(a)(4)). He filed a motion to suppress evidence (Ill. Rev. Stat. 1981, ch. 38, par. 114-12), and at a hearing on that motion testified that on the evening of his arrest, he had gone to the Flame restaurant in Oakbrook Terrace driving a gray 1977 Lincoln Mark V. Defendant's car had been parked for him in the restaurant lot by an attendant, and returned to him by an attendant at the time of his departure at about 3:30 a.m. Upon leaving the restaurant, defendant drove approximately four blocks when he was stopped by several police officers. He was alone at the time and to the best of his knowledge was not committing any type of offense. When defendant pulled over, he heard the police demand that he get out of the car with his hands up. He then saw that the occupants of four squad cars, with their shotguns and pistols drawn, were on the scene. Defendant was spread-eagled over the trunk of his car and searched while a police sergeant opened his car door and entered. Defendant did not give permission for a search of his vehicle. The sergeant reached in, grabbed the gun, and threw it onto the roof of defendant's car.
Sergeant Stephen J. Quinn of the Oakbrook Terrace police department testified that earlier on the evening in question the police had received a complaint that there had been "a traffic altercation" in which two vehicles had cut off a third vehicle. This incident involved two Lincolns and a Corvette. In the course of his investigation, Quinn was informed that one of the Lincolns was blue, and the other was silver with Pennsylvania license plates. He was further told that the driver of the blue Lincoln had threatened the Corvette's driver with a gun, saying, "I'm going to blow your head off." The driver of the silver Lincoln responded, "Let's go, it's not worth it," and the two Lincolns were driven northbound on Summit.
The police began checking local bars and found a blue Lincoln in the parking lot at the Flame restaurant. On receiving this report, Sergeant Quinn transported the driver of the Corvette to the Flame parking lot where the latter identified the blue Lincoln. He and other officers looked into this vehicle for the gun, and then glanced into the adjoining car in the parking lot, which was a silver Lincoln with Pennsylvania license plates. In the silver Lincoln he observed the butt of a gun in a holster protruding up between the two sections of the front seat. This observation was made from outside the car. They never went into the vehicle. The police then set up the surveillance on both vehicles. When defendant later drove away in the silver Lincoln, Sergeant Quinn and another officer followed and stopped him, ordered him out of the car, and had him put his hands on the trunk. Upon ascertaining that the weapon was not on the defendant's person, Quinn went into the vehicle and retrieved the gun from between the seats.
On cross-examination, Quinn testified that he had also arrested the driver of the blue Lincoln and that as a result of that arrest he had prepared a three-page report. In that report, Quinn related that the complainant had reported being threatened by a man who then drove away and that the complainant described the other man's car and license plate. The report continued that the offender's car was located about five minutes later at the Flame restaurant. The three-page report made no mention of a silver Lincoln or of another driver's participation in the traffic incident. In addition, Sergeant Quinn's two-page report, which related to the arrest of the instant defendant, made no mention of the traffic incident. Quinn did not recall whether a police report was prepared regarding the original "man-with-a-gun" complaint.
Sergeant Quinn further testified that most of the patrons at the Flame have their cars parked in the lot for them by attendants, although some park their cars themselves. When he stopped the car at the time of the arrest, the armrest between the seats was down, although it had been up when he had looked into the car in the parking lot. He had not tried the car's door in the parking lot. When they had looked into the window of the car while it was in the parking lot, the police used their flashlights.
Defendant testified in rebuttal that when he brought his car into the parking lot, both armrests were down. The center armrest completely covers the center opening between the two seats and about three or four inches on either side.
In granting the motion to suppress, the trial court stated that the information supplied by the complaining motorist "certainly was insufficient as far as a basis for a search to be made. It is lacking in probability." In further remarks, the court indicated that it regarded as not controlling the question of whether the police could see the gun from their position in the parking lot. Rather, in view of the complainant's inability to trace the car to its position in the parking lot, there was insufficient probable cause to "come upon" the vehicle and to look into this particular vehicle. The court also appeared to find less justification for the police to look into a car parked in a private parking lot than into a car parked on the street. As the court remarked, "It is not a parking lot, it is a restaurant parking lot. * * * I think when a person pays a bill in a restaurant and there is a parking lot afforded, you can probably say that part of that bill goes toward the parking lot, too."
The State's position is that the police were properly in the parking lot pursuant to an investigation of a report of a man with a gun. Once in the parking lot, the State contends, the police "inadvertently" saw evidence of a crime in defendant's car and were justified in later seizing the weapon. Defendant's appellate argument is that credibility determinations were made by the trial court which were not manifestly erroneous. In this regard, defendant claims that the failure of Officer Quinn to mention in his police report that defendant's vehicle was involved in the original "traffic altercation" and the failure of that report to list the name of the complainant undermined Officer Quinn's testimony, which explained the reason for his presence in the parking lot, such that the trial court made a credibility determination, rejecting the explanation of the police and finding they had no probable cause to be in the parking lot. Also, defendant argues that his testimony regarding the downward position of the armrests which would allegedly cover the weapon was believed by the trial court.
Contrary to the defendant's contention, the trial court did not appear to base its decision to suppress the evidence on a credibility assessment, but rather it determined as a legal matter that the police lacked probable cause to be in the parking lot and to look into defendant's vehicle. This particular question before us is a legal one subject to consideration by this court de novo. (See People v. Abney (1980), 81 Ill.2d 159, 168, 407 N.E.2d 543.) Even if this were a credibility question decided adversely to the State below, under the circumstances here our result would still be the same.
The analysis of whether the eventual seizure of the revolver violated the fourth amendment to the United States Constitution (U.S. Const., amend. IV) under the circumstances depends first upon whether the police were lawfully in a position to observe the weapon, and then, if so, whether the weapon was within "plain view." The plain-view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior fourth amendment justification and who has probable cause to suspect that the item is connected with criminal activity. (Illinois v. Andreas (1983), 463 U.S. 765, 771, 77 L.Ed.2d 1003, 1010, 103 S.Ct. 3319, 3324; People v. David (1981), 96 Ill. App.3d 419, 421, 421 N.E.2d 312; People v. De La Fuente (1981), 92 Ill. App.3d 525, 529, 414 N.E.2d 1355; see 1 W. LaFave, Search & Seizure sec. 2.5(c), at 355-56 (1978).) Initially, we must determine whether the police were in a place where they had a lawful right to be, i.e., in the parking lot of the Flame restaurant, when they observed the revolver inside defendant's vehicle parked in that lot.
Numerous decisions in other jurisdictions have concluded that a police officer, just as any citizen, has a right to be in a parking lot adjacent to a commercial establishment which is open to the public. (See United States v. Finch (4th Cir. 1982), 679 F.2d 1083, 1085; State v. Planz (N.D. 1981), 304 N.W.2d 74; Albo v. State (Fla. 1980), 379 So.2d 648, 650; Milner v. State (1981), 159 Ga. App. 887, 285 S.E.2d 602; see also United States v. Bellina (4th Cir. 1981), 665 F.2d 1335; Commonwealth v. Cadoret (1983), 388 Mass. 148, ___, 445 N.E.2d 1050, 1052-53.) The rationale is that a law enforcement officer is a member of the public and, just like any citizen, may accept a general public invitation to enter upon commercial premises which are open to the public. Courts> have consistently ...