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People v. Nogel

OPINION FILED OCTOBER 10, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

STEVEN NOGEL, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Champaign County; the Hon. John G. Townsend, Judge, presiding.

JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:

Defendant was charged with unlawful use of weapons and possession of a firearm without a firearm owner's identification card in violation of section 24-1(a)(4) of the Criminal Code of 1961 and section 2(a) of "An Act relating to the acquisition, possession and transfer of firearms * * *" (Ill. Rev. Stat. 1983, ch. 38, pars. 24-1(a)(4), 83-2(a)). Following a hearing on defendant's motion to suppress a revolver and cartridges discovered as the result of an inventory search, the trial court granted the motion and suppressed the evidence. The State filed an appropriate certificate of impairment and a timely notice of appeal.

At issue is whether the police were justified in conducting a station house inventory search of defendant's locked briefcase following his admittedly lawful arrest on a city ordinance violation.

The evidence presented at the hearing on the motion to suppress stood in irreconcilable conflict. Indeed, the trial court characterized the entire proceedings as "disingenuous." Nevertheless, the trial court, after very careful examination of the facts, resolved all significant conflicts in the testimony in favor of the arresting officer. On appeal, defendant has not made any significant challenge to any of the findings of the trial court in that regard and we will not question them for purposes of this appeal.

Although we are mindful of the observation of the supreme court that apparently small differences in factual situations frequently are viewed as controlling differences in determining fourth amendment rights (Arkansas v. Sanders (1979), 442 U.S. 753, 61 L.Ed.2d 235, 99 S.Ct. 2586), we believe that the facts can be stated succinctly.

Defendant and his girlfriend, Sherry Lynn Riser, were departing from Champaign heading for Indiana on the evening of October 2, 1984. Each was driving an automobile both of which were owned by the defendant. Defendant, in the lead car, developed engine trouble and was forced to abandon the vehicle in an Eagle Supermarket parking lot at Pioneer Plaza in Champaign. Riser, in the trailing car, followed the defendant into the parking lot and stopped some distance from the defendant's vehicle. The defendant, unable to restart his automobile after several attempts left his car after first retrieving a briefcase from the trunk. He subsequently entered the car in which Riser was located after first placing the briefcase inside the car.

All these events were witnessed by arresting Officer James Brewer who was parked in his squad car on stationary traffic patrol some short distance away. At this point, the stories diverge.

Brewer testified that defendant had words with Riser and that after entering the car Brewer witnessed a physical altercation between the two. Blows were struck by each and specifically Brewer noted defendant striking Riser in the area of the mouth, a blow which caused her head to recoil. A backup officer was summoned by Brewer and together they dislodged the two from the car. Brewer noted an injury to Riser's lip and mouth which appeared "very fresh."

Defendant's version and Riser's were that there was no argument. Riser had simply fallen asleep before defendant entered the car. Upon awakening she was disoriented and began flailing her arms. Defendant blocked her attempted blows and grabbed her wrists until she became fully awake. At that point the police flashed their lights into the car and ordered them out of the automobile. Riser denied any injury to herself.

Neither defendant nor Riser cooperated with the police and according to Brewer they were then arrested on what he termed a "city charge of fighting." The two, along with the briefcase located in the back seat of Riser's car, were taken to the Champaign city jail.

Upon arrival, both were subjected to standard booking procedures and the items of property on their persons were inventoried. That search revealed that defendant had at least $110 in United States currency in his possession.

Brewer acknowledged that the customary practice on an ordinance violation arrest of this type was to book the defendant, take information for the arrest materials, fill out the city complaint, write a report and then "usually either bond out or give a notice to appear." Brewer further testified that the bond for such a violation was $50.

Nevertheless, defendant was not allowed to bond himself out. Instead, he was placed in a jail cell after he refused to turn over the combination to his locked briefcase. Brewer testified that it was standard procedure to inventory all items of personal property and objects containing personal property both for the protection of the property of the defendant and of the police officer against later claims that items were stolen.

Brewer stated that he questioned defendant several times requesting the combination to the briefcase. Alternatively, defendant either disclaimed knowledge of the briefcase and its contents or attempted to lead the officer to believe he did not understand the questions. Defendant on the other hand testified that he vehemently refused each and every request for the combination. Although the officer threatened to break into the briefcase, the combination was discovered "inadvertently" and the case was opened. Inside, police discovered in excess of $800 cash, a number of silver ingots, ...


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