APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
546 N.E.2d 293, 189 Ill. App. 3d 1034, 137 Ill. Dec. 539 1989.IL.1649
Appeal from the Circuit Court of McLean County; the Hon. W. Charles Witte, Judge, presiding.
JUSTICE SPITZ delivered the opinion of the court. KNECHT and GREEN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ
Following a jury trial, defendant was convicted of unlawful possession of cannabis with intent to deliver in violation of section 5(d) of the Cannabis Control Act (Act) (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 705(d)). The circuit court of McLean County sentenced defendant to 30 months' probation, 90 days' incarceration with credit for time served, and fined defendant $3,000 plus costs. Defendant appeals, contending that the circuit court erred in denying his motion to suppress evidence.
Defendant filed a motion to suppress physical evidence. At the suppression hearing, deputy sheriff Scott Shumaker testified that on April 23, 1988, at approximately 9:30 p.m. he was on DUI patrol driving east on Six Points Road in McLean County. While on patrol, Shumaker noticed a vehicle driving westbound without a rear license-plate light. Deputy Shumaker made a U-turn and stopped the vehicle. While stopping the vehicle, Shumaker illuminated the back of the car with his spotlight and noticed the passenger appearing to place something under the seat, as the passenger's shoulders were dropped. Deputy Shumaker got out of his car, approached the driver's side of the vehicle and asked defendant Stroud for his driver's license. After defendant produced his license, Deputy Shumaker detected the smell of alcohol coming from the car. Shumaker then asked defendant to step from the vehicle to show him the broken rear license light. Deputy Shumaker did not smell alcohol on defendant's breath. Shumaker then asked defendant to step to the front of the car and approached the passenger side of the car to ask passenger Randy Tromp for his identification. After Tromp produced his identification, Shumaker asked him to exit the vehicle so Shumaker could look for alcohol. Tromp got out of the car and left the door open.
Deputy Shumaker then looked inside the car and saw a green leafy substance inside a plastic bag protruding from underneath the passenger seat which, due to his past experience, he believed to be cannabis. Shumaker was standing at the open door and did not have to physically enter the car to see the bag.
After noticing the bag, Shumaker pulled it out to make further observation and found another bag with similar contents. Shumaker then called for an additional squad car to watch the two passengers while he searched the interior of the car. Deputy Shumaker then found one more bag believed to be cannabis under the passenger's seat, one under the driver's seat and some in the glove box. Also found were two "one-hitter" boxes, with traces of cannabis, and a large O'Haus scale. Defendant was then taken into custody.
The State contends that under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 107-14), Deputy Shumaker had the right to detain and question defendant and his passenger because it was reasonable for Shumaker to infer that a crime had been committed or was taking place. And once Shumaker had the right to stop and question the passenger, anything he saw in plain view could be confiscated and considered not part of any illegal search. We agree.
The fourth amendment to the United States Constitution and the safeguards in section 6 of article I of the Illinois Constitution (U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6) do not prohibit all searches made without a warrant. Instead, these safeguards only prohibit warrantless searches which are unreasonable. (United States v. Rabinowitz (1950), 339 U.S. 56, 94 L. Ed. 653, 70 S. Ct. 430; People v. Watkins (1960), 19 Ill. 2d 11, 166 N.E.2d 433.) The United States Supreme Court has held that an officer may make an investigative stop if he reasonably suspects criminal activity has taken place, is taking place, or will take place. (Terry, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) Illinois has codified this decision in section 107-14 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 107-14), which states: "A peace officer . . . may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense." This rule has been extended to detentions of automobiles and their occupants. People v. Martin (1984), 121 Ill. App. 3d 196, 459 N.E.2d 279.
To be reasonable, Shumaker's inference must have been based on "more substantial facts and circumstances than would support a mere hunch, yet less substantial than those necessary to support a finding of probable cause to arrest or search the defendant." (People v. McGowan (1977), 69 Ill. 2d 73, 77-78, 370 N.E.2d 537, 539.) Deputy Shumaker noted that defendant's passenger appeared to be putting something under the seat, as the passenger's shoulders were dropped. Later, as Shumaker stood by the car, he detected the smell of alcohol coming from the car. Thus it was reasonable for the deputy to infer that a crime such as having open alcohol in the vehicle may have been in progress.
Once Deputy Shumaker had a right to stop and question the passenger, anything he saw in plain view could be confiscated and considered not part of an unreasonable search. The United States Supreme Court has held that "objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." Harris v. United States (1968), 390 U.S. 234, 236, 19 L. Ed. 2d 1067, 1069, 88 S. Ct. 992, 993.
Deputy Shumaker testified that once passenger Tromp stepped out of the car, the bag of cannabis was in plain view. He did not have to enter the car to see it. Thus, the seizure of the first bag of cannabis was not unreasonable. The sight of the cannabis in plain view also gave Deputy Shumaker probable cause to arrest defendant and passenger Tromp and to conduct a lawful, warrantless search of the car. In Martin, the court held that evidence discovered in plain view was sufficient to escalate an officer's suspicions to the level of probable cause to arrest. The court in Martin also held ...