Appeal from the Circuit Court of Cook County; the Hon. Themis
N. Karnezis, Judge, presiding.
JUSTICE MURRAY DELIVERED THE OPINION OF THE COURT:
The defendant, Michael Jackson, was charged by information with the offense of possession of a controlled substance. (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1402(b).) Prior to trial, defendant made a motion to suppress the cocaine seized by the arresting officers alleging that it was illegally obtained. After a hearing on this motion, the trial court granted it. The State appeals, *fn1 contending that the trial court erred when it suppressed the cocaine taken from defendant's person where the defendant voluntarily accompanied the arresting officer to his squad car and thereafter brought the evidence into plain view of that officer, who then properly seized the evidence and placed defendant under arrest. 87 Ill.2d R. 604(a)(1).
The following facts were adduced at the hearing on defendant's motion to suppress evidence. At approximately 6:15 p.m. on September 16, 1984, Chicago police officers Tanderic, Wilandiz and Detective Carone received information from their supervising sergeant that a man named Marshall Redman was in the area of 58th Street and Indiana Avenue in Chicago in a black and red Ford. The sergeant informed these officers that Redman was suspected of possessing 250 bags of cocaine in his vehicle. When the officers arrived at the aforementioned location, they saw a group of approximately 10 men standing on the corner. At that time, Detective Carone recognized defendant, who was a member of that group, since he had previously stopped and arrested defendant in connection with an unrelated controlled-substance charge. Detective Carone then exited his vehicle, walked up to the group and stated to defendant, "Michael, I would like to talk to you." Detective Carone testified that, at that time, he wanted to privately inquire of defendant whether Marshall Redman was in the vicinity. In response, defendant followed Carone to the squad car, which was approximately 15 feet away. Approximately 5 feet from the squad car, defendant took a clear plastic bag containing white powder from his pocket and put it in his mouth. While he was attempting to swallow that plastic bag, Detective Carone took defendant by the coat and told him to spit it out, and defendant did so. Defendant was then placed under arrest. Defendant did not testify at the hearing on his motion to suppress. After hearing the testimony of Detective Carone and the closing arguments by counsel, the trial court granted defendant's motion to suppress. The court stated:
"[I]t is the Court's view that the actions of the Officer and looking through it and, I think, as a reasonable person would, and certainly, at least it is my opinion that Mr. Jackson, who at the direction or request of the Officer, in my mind, [it] is a seizure within the confines and the meaning of the Fourth Amendment of the United States Constitution and the Constitution of the State of Illinois and it is my view that that seizure was without probable cause and it is my view further that anything stemming from the seizure thereafter was without probable cause, fruits of a poisonous tree and for that reason, I am sustaining the motion to suppress."
• 1 The assumption that an individual is required to cooperate with the police cannot be equated with an arrest since every citizen has a duty to assist police officers up to the point of self-incrimination. (People v. Wipfler (1977), 68 Ill.2d 158, 167, 368 N.E.2d 870.) Both the Federal courts and the Illinois Supreme Court have held that the intent of the officer and the understanding of the arrestee are two essential elements in the definition of an arrest. (68 Ill.2d 158, 165, 368 N.E.2d 870.) The standard is not what the defendant thought, nor is it what a reasonable person would think. Rather the standard is what a reasonable man innocent of any crime would have thought had he been in the defendant's position. (People v. Reed (1982), 104 Ill. App.3d 331, 488 N.E.2d 979.) The trier of fact, when applying this standard, must also consider the surrounding circumstances of the incident in question. People v. Wipfler (1977), 68 Ill.2d 158, 167-68, 368 N.E.2d 870.
• 2 Detective Carone stated that he knew defendant from a prior arrest and that that arrest involved another controlled-substance charge. When Detective Carone approached the group, he asked defendant if he might speak with him privately. Defendant then voluntarily followed the detective away from the group in order to speak with him. It is evident that at that time Detective Carone had not given the defendant any indication that he was under arrest, nor had he restrained defendant's movements in any manner. The only testimony heard by the trial court disclosed that the detective's intent was merely to ask defendant as to the whereabouts of another suspect. There is no evidence in the record indicating that a reasonable man, innocent of any crime, would have thought that he was under arrest. It was not until Detective Carone and defendant were walking to the squad car that the defendant gave the officer probable cause to arrest him. The only inference that can be adduced from the only testimony the trial court heard is that defendant panicked because he was in possession of a controlled substance. Because of this, he then attempted to conceal it from Detective Carone. When defendant pulled the clear plastic bag containing a white powder from his pocket and attempted to swallow it, given Detective Carone's 17 years' experience and his knowledge of defendant's previous involvement with controlled substances, he had probable cause to arrest defendant.
• 3, 4 When defendant removed the clear plastic bag with the white powder from the his pocket, it is apparent that that object was in plain view of the officer. It is well established that objects in the plain view of a peace officer, who has a right to be in the position to have that view, are subject to seizure and may be introduced into evidence. The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming there is probable cause to associate the property with criminal activity. Payton v. New York (1980), 445 U.S. 573, 587, 63 L.Ed.2d 639, 651, 100 S.Ct. 1371, 1380.
Defendant voluntarily placed the plastic bag, containing the cocaine, in plain view of Detective Carone. The detective then properly seized that evidence and arrested him.
For the reasons stated above, the circuit court's order, granting defendant's motion to suppress evidence, is reversed and the cause is remanded to the circuit court for further proceedings.
Order reversed, cause remanded.
JUSTICE PINCHAM, dissenting:
I dissent. The trial court found that Chicago police officer Carone violated the defendant's right against unreasonable search and seizure as guaranteed by the fourth amendment to the Constitution of the United States and article I, section 7, of the Constitution of the State of Illinois. That finding was correct and should not be disturbed.
Carone testified at the hearing of the defendant's motion to suppress that on September 16, 1984, at about 6:15 in the evening, the sergeant in his unit "received a call that a subject by the name of Marshall Redmond was in the area of 58th and Indiana in a red and black Ford with 250 bags of coke on him." Carone knew Marshall Redmond by sight. Carone and Officers Tandaric and Wilandiz went to 58th and Indiana in a police squad car. Carone saw the defendant and approximately 10 other men standing on the corner. Carone told the officers in the squad car to stop because ...