APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
510 N.E.2d 445, 157 Ill. App. 3d 496, 109 Ill. Dec. 577 1987.IL.802
Appeal from the Circuit Court of Marion County; the Hon. Michael R. Weber, Judge, presiding.
JUSTICE KASSERMAN delivered the opinion of the court. HARRISON1 and WELCH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN
Following a jury trial in the circuit court of Marion County, defendant, Maurice Williams, was convicted of the offense of retail theft in excess of $150 (Ill. Rev. Stat. 1985, ch. 38, pars. 16A-3, 16A-10). The trial court subsequently sentenced defendant to a term of 4 1/2 years' imprisonment. Defendant has perfected the instant appeal, contending that (1) the X-ray search of his person violated his fourth amendment rights, (2) the State failed to prove him guilty beyond a reasonable doubt, and (3) the trial court erred in refusing to give the jury the second paragraph of the instruction on circumstantial evidence (Illinois Pattern Jury Instructions, Criminal, No. 3.02 (2d ed. 1981)). We affirm.
An information filed on October 3, 1984, alleged that on the previous day defendant and Shrie Towns had knowingly taken possession of two men's gold diamond rings from a retail mercantile establishment in Salem, Illinois, known as Perry's Jewelry Store, with the intention of retaining the rings without paying their full retail value, allegedly being in excess of $300. On January 9, 1985, defendant filed a motion to suppress evidence, alleging that the warrantless X-ray examination of defendant performed following his arrest constituted an unreasonable search in violation of his fourth amendment rights. The motion requested that the trial court suppress any evidence concerning a certain diamond gold ring which was discovered in defendant's mouth following the X-ray search.
The following evidence was adduced at the hearing on the motion to suppress. John Nagle, a Williamson County sheriff's deputy, testified that while patrolling in the city of Marion between 5 and 5:30 p.m. on October 2, 1984, he received a radio dispatch indicating that a jewelry theft had occurred in Salem, Illinois. The dispatch included a description of the individuals and the vehicle allegedly involved in the theft. Shortly thereafter, Deputy Nagle observed a vehicle which matched the description contained in the dispatch and transmitted the vehicle's license plate number to the police dispatcher, who then confirmed that the vehicle Deputy Nagle had observed was the vehicle allegedly involved in the Salem jewelry theft. Deputy Nagle, assisted by Williamson County Deputy Michael Swift, stopped the vehicle. They arrested the occupants of the car, who were later identified as the defendant and Shrie Towns, and transported the defendant and Ms. Towns to the Williamson County sheriff's department.
Deputy Swift testified that he had observed a gold diamond-studded ring on the little finger of defendant's right hand at the time of the arrest. After transporting the defendant and Ms. Towns to the sheriff's office, the deputies notified the Salem police department that the two suspects had been apprehended. The deputies were then informed that two rings had been taken in the jewelry store theft, including a horseshoe-shaped diamond ring. Deputy Swift then noticed that the diamond ring which he had observed on defendant's finger was no longer there. After being informed of his rights, defendant stated that he did not know "anything about the ring at all." Deputy Swift then searched the squad car, the path leading from the squad car to the sheriff's office and the jail facility where defendant was being held, but he did not find the ring.
Lieutenant Roger Rich of the Williamson County sheriff's department testified that he searched defendant's clothing and performed a visual strip search of defendant but did not find the ring.
Deputy Swift further testified that following the strip search of defendant, he again searched the area where defendant was arrested, the squad car, and the path leading from the squad car to the sheriff's office and the jail but did not find the ring in any of these places. Approximately 20 minutes after defendant had arrived at the Williamson County sheriff's department, the decision was made to transport defendant to a local hospital to subject him to an X-ray examination. Following the X-ray examination, Deputy Swift testified that a ring, which was subsequently identified as belonging to Perry's Jewelry Store, was found inside defendant's mouth, near his upper jaw.
Defendant admitted that the ring was found inside his mouth following the X-ray examination but stated that the X-ray examination was performed without his consent and that he was hiding the ring because he does not "trust police officers."
Following the hearing, the trial court denied defendant's motion to suppress, finding that the exigent circumstances presented in this case justified the warrantless X-ray examination of defendant. Defendant perfected the instant appeal and contends that the warrantless X-ray examination of his person constituted an unreasonable search and seizure in violation of his fourth amendment rights.
It is well established that in most instances searches conducted "outside the judicial process, without prior approval by Judge or magistrate are per se unreasonable under the Fourth Amendment." (Katz v. United States (1967), 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507, 514.) In United States v. Robinson (1973), 414 U.S. 218, 235, 38 L. Ed. 2d 427, 440-41, 94 S. Ct. 467, 477, the Supreme Court determined that a full search of the person incident to a custodial arrest "is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment." However, in Schmerber v. California (1966), 384 U.S. 757, 770-72, 16 L. Ed. 2d 908, 919-21, 86 S. Ct. 1826, 1835-36, the Supreme Court determined that a warrantless search incident to an arrest which involves the taking of a blood sample or the making of some similar intrusion into the body is justified only if (1) reasonable methods were used, (2) there was a "clear indication" that evidence would be found and (3) there were exigent circumstances making it impracticable to obtain a search warrant. In the case at bar, we recognize that the X rays actually penetrated defendant's body ...