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12/01/87 the People of the State of v. Timothy Bierman Et Al.

December 1, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

TIMOTHY BIERMAN ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

516 N.E.2d 963, 163 Ill. App. 3d 256, 114 Ill. Dec. 808 1987.IL.1767

Appeal from the Circuit Court of Jackson County; the Hon. Richard E. Richman, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. KARNS, P.J., and HARRISON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

Defendants, Timothy and Diane Bierman, were charged by an information filed March 4, 1986, in the circuit court of Jackson County with unlawful possession of cannabis under section 4(b) of the Cannabis Control Act (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 704(b)) and illegal transportation of alcohol under section 11-502(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-502(a)). Diane Bierman was additionally charged with unlawful possession of a substance containing cocaine under section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402(b)).

Defendants filed separate motions to quash their arrests and suppress evidence seized in a search of their vehicle. On April 24, 1986, Timothy Bierman's motion was heard.

Sergeant Don Strom of the Carbondale police department testified that he was patrolling an alley at the rear of 515 South Illinois Avenue in Carbondale at approximately 12:30 a.m. on the morning of March 2, 1986, when he noticed a car parked in a nearby parking lot with its windows fogged up. There appeared to be people inside the car, and, since there had been a high incidence of auto burglaries in the area, Strom decided to investigate. He got out of his squad car and approached the passenger door of the vehicle.

As Strom approached, he could tell there was a person in the front passenger seat, another person in the driver's seat and some people in the rear seat. Strom shined his flashlight into the front passenger seat area and observed a woman (later identified as Diane Bierman) who had what looked to him like a rolling paper up to her mouth and appeared to be licking it closed. Strom said the light startled her and she pulled the object down with her left hand and placed it under her left hip.

Strom immediately opened the door of the car. He reached across to where Bierman's hand was underneath her hip, felt a plastic object, which he confiscated, and asked Bierman to get out of the car. Strom said he smelled the odor of cannabis as soon as he opened the door. The object Strom took from Diane Bierman's hand was a small plastic "compact-like" case which contained a white powdery substance Strom believed to be cocaine.

Upon the arrival of other officers, a search of the vehicle was conducted in which officers found pipes in the ashtray and under the driver's seat, rolling papers in the glove box, and "items that appeared to be cannabis" under the driver's seat. No rolling papers were found on Diane Bierman or in the seating area of the car.

On cross-examination, Strom stated he thought at the time that the object in Diane Bierman's hand was a rolling paper, but he could not specifically identify it as such. Strom did not smell marijuana until he opened the car door.

Officer Steve Michaels arrived after Strom had ordered defendants out of the front seat of the car. Three people were still seated in the backseat. Michaels corroborated Strom's recitation of items found in the search of the car.

Defendant Timothy Bierman testified that his sister Diane's hands were in her lap immediately before Strom opened the car door. She was not holding a marijuana cigarette. After ordering defendants to get out of the car, police officers searched the glove box, the ...


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