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11/10/88 the People of the State of v. Willie J. Bibbs

November 10, 1988





531 N.E.2d 75, 176 Ill. App. 3d 521, 125 Ill. Dec. 896 1988.IL.1635

Appeal from the Circuit Court of Vermilion County; the Hon. John P. O'Rourke, Judge, presiding.


JUSTICE LUND delivered the opinion of the court. McCULLOUGH and SPITZ, JJ., concur.


On June 29, 1987, in the circuit court of Vermilion County, defendant Willie Bibbs was charged with the offense of possession of a controlled substance in violation of section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402(b)). On November 25, 1987, a hearing was held on defendant's motion to suppress evidence illegally seized. The court granted this motion on December 18, 1987. The State appeals. We reverse.

At the suppression hearing, the evidence established the police on April 15, 1987, were executing a valid search warrant on defendant's two-room apartment looking for firearms and ammunition. Pursuant to this search, a tray was discovered in a chest of drawers. This tray had a mirrored bottom and contained a small amount of a green leafy substance, some seeds, and a single-edged razor blade. Half of the mirror was covered with a thin layer of a white powdery substance. There was no white powder on any surface but the mirror.

The two officers, Sergeant Doug Miller and Sergeant Gerald Wright, have 14 and 13 years' experience, respectively, with the police department. They have received training in the identification of illegal drugs and have had numerous opportunities to identify cannabis. They have had training in the identification of cocaine and heroin, but have not had as much experience with it. They both identified the leafy substance and seeds as cannabis. It has also been their experience and training that a mirrored surface and a razor blade are common drug paraphernalia in the use of cocaine. They believed the white powder was cocaine.

Defendant contested only the seizure of the tray and the white powdery substance. The court determined it was not readily apparent that these were contraband, and, accordingly, there was no probable cause to seize them. The State appeals this determination.

If the seizure of the tray and its contents is proper, it would be so under the plain-view doctrine. In order for this doctrine to apply: (1) the police must have a prior justification for the intrusion; (2) they must inadvertently come across the evidence; and (3) it must be immediately apparent to the police that the items may be evidence of a crime, contraband, or otherwise subject to seizure. (Texas v. Brown (1983), 460 U.S. 730, 737, 75 L. Ed. 2d 502, 510, 103 S. Ct. 1535, 1540-41; Coolidge v. New Hampshire (1971), 403 U.S. 443, 466, 29 L. Ed. 2d 564, 583, 91 S. Ct. 2022, 2038.) In Arizona v. Hicks (1987), 480 U.S. 321, 326, 94 L. Ed. 2d 347, 355, 107 S. Ct. 1149, 1153, the court held the officer must have probable cause to seize an item in plain view.

It is clear from the evidence that the first two requirements are met. However, the problem arises over the question of the illegality of the substance being immediately apparent. The trial court, in its suppression order, found "that insufficient evidence was produced to establish that the powder residue was, in fact, cocaine."

The United States Supreme Court was faced with a similar question in Brown. There the seizure involved a red balloon which was tied shut and was later determined to contain narcotics. The court first noticed that the use of the words "immediately apparent" was likely an unhappy choice of words because it implies that an unduly high degree of certainty as to the incriminating nature of the evidence is necessary. It went on to note that the seizure of property in plain view is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity. Brown, 460 U.S. at 741-42, 75 L. Ed. 2d at 513, 103 S. Ct. at 1543.

The court then defined probable cause, stating:

"As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would 'warrant a man of reasonable caution in the belief,' [citation], that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A 'practical, nontechnical' probability that incriminating evidence ...

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