APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
525 N.E.2d 895, 169 Ill. App. 3d 485, 121 Ill. Dec. 588 1988.IL.560
Appeal from the Circuit Court of Cook County; the Hon. Lawrence Genesen, Judge, presiding.
JUSTICE FREEMAN delivered the opinion of the court. McNAMARA, J., concurs. JUSTICE RIZZI, specially Concurring.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
After a bench trial, defendant, Charles Hobson, was convicted of possession of a stolen motor vehicle. (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 4-103(a)(1).) The trial court sentenced defendant to an extended term of nine years in the Illinois Department of Corrections. On appeal, he contends the trial court erred in denying his pretrial motion to quash arrest and suppress evidence.
The State's evidence at the suppression hearing revealed the following. In the 20-day period preceding defendant's arrest on April 30, 1984, the Chicago police recovered two stolen and completely stripped automobiles near the residence defendant shared with his common law wife at 9859 S. Woodlawn in Chicago. In the early morning of April 30, Detectives Maurice McNulty and Robert Grinning were conducting a surveillance in the area of 99th and Woodlawn because trails of antifreeze had been found leading from the recovered automobiles to the garage behind defendant's residence. At about 5 o'clock, the detectives were in their automobile, which was parked facing south approximately one or two car lengths into the alley behind the west side of Woodlawn, when they observed defendant driving east on 99th Street in a white, 1980 four-door Oldsmobile with license plate number ALS 40. Thereafter, the detectives observed defendant drive to the garage behind 9857 S. Woodlawn, back the car into it and close the garage door. The garage was next to the alley behind the east side of Woodlawn and its overhead door opened onto 99th Street. The detectives ran a computer check on the Oldsmobile's license plate number and learned that the car was registered to a resident of Evanston, Illinois, a northern suburb of Chicago, and had not been reported stolen.
The detectives observed the garage for 15 minutes, then drove to the alley next to it and got out of their car. As they were walking up to the garage, its door swung open and they saw defendant standing in the garage. Defendant attempted to get by the detectives but they "grabbed him . . . on the apron" between the garage and the sidewalk on 99th Street. The detectives then looked inside defendant's garage and observed that the Oldsmobile had two tires off on the passenger side, which was sitting on milk crates; the hub caps had been removed from the wheels on the driver's side; the lug nuts had been removed from the rear wheel; the steering column had been "peeled," i.e., the left side of the steering column had been pried back and the locking mechanism exposed; and the trunk lock had been "popped." The detectives also observed the two tires the Oldsmobile was missing, a tire iron and some other tools. After making these observations, the detectives handcuffed defendant and put him in their car.
On cross-examination, Detective McNulty testified that he had seen the car with two tires off when he looked into the garage while standing outside of it. He admitted, however, that he had not seen the "peeled" ignition of the Oldsmobile until he had walked into the garage, which was after defendant had walked out of it and the detectives had placed him in handcuffs. The detectives had neither an arrest nor a search warrant nor defendant's consent to search the garage. They later learned from the car's owner that it was missing from its parking space in Evanston.
At trial, the parties stipulated that, if called to testify, Detective McNulty's testimony would be substantially the same as during the suppression hearing. The parties further stipulated that he would testify that: (1) he recovered from the garage an aluminum slam puller, a chrome ratchet wrench, two pairs of gloves, another puller with a trunk lock attachment, a screwdriver, two flashlights, a pair of pliers, a tire iron, a bent coat hanger, an umbrella, and a rubber mallet; (2) after placing defendant under arrest and advising him of his Miranda rights, defendant indicated that he understood them, waived them at that time and stated, "What can I say? You got me." Finally, they stipulated that the owner of the Oldsmobile would testify that he parked his car in Evanston on April 29, 1984, at approximately 8 p.m., did not give defendant authority or permission to be in the automobile, and learned that the car was missing when the police contacted him in the early morning hours of April 30. Defendant stipulated to these facts subject to the fact that the seizure of evidence and his statement occurred after a search and that Detective McNulty "did not see any damage to the ignition or slam pullers or any of that" until after he entered the garage and searched it.
The issue before us is whether the trial court's denial of defendant's motion to suppress was manifestly erroneous. (People v. Brett (1984), 122 Ill. App. 3d 191, 460 N.E.2d 876.) The correctness of the trial court's ruling, not its rationale, is controlling. (People v. Dyer (1986), 141 Ill. App. 3d 326, 490 N.E.2d 237.) The trial court ruled, relying on People v. Morrow (1982), 104 Ill. App. 3d 995, 433 N.E.2d 985, that the garage was part of the home and thus protected by the fourth amendment. It also found that the police had a right to detain defendant until they discovered "what further was going on." The trial court then reasoned that, under all the facts known to them at the time, including the partially stripped condition of the Oldsmobile, the detectives had probable cause to arrest defendant and could therefore search the garage and the Oldsmobile because the car was in "plain view." The trial court found that this was not a violation of Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034.
The issue argued by the parties is whether the search is justifiable as a search incidental to lawful arrest or by the plain view doctrine. We disagree. Preliminarily, we must note that the police entry into the garage is not justifiable as a search incidental to a lawful arrest. A search conducted under that exception to the fourth amendment's search warrant requirement is limited to "the arrestee's person and the area 'within his immediate control,'" i.e., "the area from within which he might gain possession of a weapon or destructible evidence." (Chimel v. California (1969), 395 U.S. 752, 763, 23 L. Ed. 2d 685, 694, 89 S. Ct. 2034, 2040.) The record clearly reveals that the police did not enter the garage until after they handcuffed defendant and placed him in their vehicle. In determining whether an alleged warrantless search incidental to arrest exceeds constitutional bounds, the issue is whether the area searched was, at that time, "conceivably accessible to the arrestee -- assuming that he was neither 'an acrobat [nor] a Houdini.'" United States v. Lyons (D.C. Cir. 1983), 706 F.2d 321, 330.
We believe the controlling issue here is whether defendant had a legitimate, i.e., actual and reasonable, expectation of privacy in the garage and its contents. If defendant had no such expectation of privacy, the police entry into the garage was not a "search" in the constitutional sense, i.e., there was no police action which was prohibited by the fourth amendment. U.S. Const. amends. IV, XIV.
In Katz v. United States (1967), 389 U.S. 347, 351-52, 19 L. Ed. 2d 576, 582, 88 S. Ct. 507, 511, ...