APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
541 N.E.2d 199, 185 Ill. App. 3d 231, 133 Ill. Dec. 362 1989.IL.1071
Appeal from the Circuit Court of Du Page County; the Hon. Edward W. Kowal, Judge, presiding.
JUSTICE REINHARD delivered the opinion of the court. McLAREN and NASH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD
The State appeals pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)) from an order of the circuit court of Du Page County granting a motion to quash arrest and suppress evidence filed by defendant, Danny Clark.
The single issue raised is whether the circuit court erred in granting the motion to quash arrest and suppress evidence.
Defendant was charged with committing the offenses of unlawful possession of less than 15 grams of a controlled substance containing cocaine (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1402(b)) and unlawful possession of more than 30 grams, but not more than 500 grams, of a controlled substance containing cannabis (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 704(d)). Defendant subsequently filed a motion to quash his arrest and suppress the evidence seized contending that there was no probable cause to seize a "cigarette" from his automobile or to arrest him contemporaneous with the seizure without a warrant.
At the suppression hearing, defendant testified that, on February 9, 1988, at 11:45 a.m., he was driving his yellow Toyota with some friends in the City of Wood Dale. He was smoking a cigarette, which he admitted contained marijuana, and passed it to his friend in the front passenger seat. The cigarette was being smoked while he was stopped for a couple of minutes waiting for a train to pass. The handrolled cigarette was crumpled and lopsided and looked different from a commercial cigarette. At some point, the cigarette was passed to the passengers in the backseat. He remembered that at the time he was stopped for the train, another car was stopped directly behind him. He also recalled that at a previous stop light he had been stopped and the same car was stopped directly behind him. He admitted that the car behind him contained the person now known to him as Detective Vitek of the City of Wood Dale.
He pulled his car into a gas station to purchase gas. As he exited the car to get gas, he noticed that his car was on the wrong side of the pump and reentered it. He then heard a knock at his window and saw Detective Vitek. He rolled down the window. The detective identified himself, and told the defendant to get out of the car and to produce his license. The detective also demanded the cigarette. Defendant acknowledged that it smelled like marijuana smoke inside the vehicle. A passenger in the rear of the car gave the marijuana cigarette to Detective Vitek. Vitek told everyone else to exit the vehicle. Vitek asked defendant if there was anything else in the vehicle, and he told him some more was in the glove box.
Detective Vitek testified that at the time in question he was driving an unmarked squad car on Wood Dale Road. He stopped a foot behind a yellow Toyota with four persons in it at a red light. Vitek was seated about 10 feet from the back window of the Toyota. He then saw the driver pass a hand-rolled cigarette, which he described as not as smooth and round as a commercial cigarette, to the passenger in the front seat. He saw the cigarette being puffed and the smoke held in. The Toyota turned left and shortly thereafter stopped at a railroad crossing. He was again behind the vehicle. He saw the cigarette being passed from the front to the rear passenger area of the car and being smoked by holding the smoke in before exhaling. Detective Vitek stated that this cigarette appeared to be hand-rolled. Vitek also stated that the manner in which it was being smoked and passed around indicated to him that it was a marijuana cigarette, although he could not smell it at the time. The vehicle in front of him remained stopped for the train for about a minute, then it pulled into a gas station several hundred feet away.
Vitek followed and stopped his vehicle behind defendant's at the service station. He had not made any effort to stop defendant up to this point. He approached the vehicle, tapped on the driver's window, identified himself, and told the driver to open the window. Once the window was down, he smelled a strong odor of marijuana emanating from the Toyota. He asked defendant to get out of the car and for the cigarette to be given to him. A passenger in the rear seat handed the marijuana cigarette, still lit, to him. Another marijuana cigarette was given to the detective, and he then saw marijuana seeds on the floor of the car. In response to Vitek's questions whether there was any more, defendant told Vitek that there was more in the glove box. Officer Delcarlo, another officer assisting Vitek, found a bag of green leafy substance in the glove compartment.
On cross-examination, Vitek stated that he did not have a warrant and that the defendant had committed no traffic violations. He testified that, based upon what he observed, he determined that the car's occupants were doing something illegal and that he would stop them to investigate and to obtain the cigarette. When he knocked at the window, he did so to investigate and to obtain the cigarette. He acknowledged that there are hand-rolled cigarettes that do not contain marijuana, having seen them on television.
Both parties stipulated that, if Officer Delcarlo were to testify, he would state that he entered defendant's vehicle and removed some contraband from the glove ...