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March 29, 1994


Appeal from the Circuit Court of Du Page County. No. 92-CF-887. Honorable Ronald B. Mehling, Judge, Presiding.

McLAREN, Inglis, Geiger

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

In April 1992, defendant, Lance Evans, was indicted for unlawful possession of more than 30 but less than 500 grams of a substance containing cannabis (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 704(d) (now 720 ILCS 550/4(d) (West 1992))). After the trial court denied his pretrial motion to suppress evidence and his motion to reconsider the suppression motion, the court held a bench trial with stipulated evidence in which defendant was convicted of the offense. Defendant now appeals from this conviction, contending that it was error to deny his motion to suppress evidence. We reverse.

The testimony from the initial suppress ion hearing reveals that, on April 12, 1992, the 29-year-old defendant was stopped for a speeding violation by Officer Donald Draksler of the Bolingbrook police department. Defendant testified that, at approximately 5 p.m., he was driving a 1985 Cadillac El Dorado northbound on Route 53 through Bolingbrook, Illinois, when the officer pulled him over. Draksler approached defendant's vehicle and asked for a driver's license. After defendant gave him his license, the officer went back to his squad car and returned about five minutes later.

Defendant had remained in his car with the driver's window down. He was wearing a long-sleeved shirt with a single pocket on the left side. According to defendant, the officer handed him a traffic citation and then asked defendant what was in his front shirt pocket. Defendant did not respond. Defendant testified that the officer, who was standing outside the driver's window, then reached into defendant's shirt pocket and pulled out a small wooden box. The officer did not have a warrant of any kind and did not suggest that defendant was being investigated for any type of crime other than a minor traffic violation. The unmarked box measured about 1 1/2 inches by 2 1/2 inches and was closed on all sides. After examining the box and asking defendant some questions, the officer asked defendant to get out of the car and placed him in handcuffs. Defendant noticed that one of the officer's hands reached toward his pistol. Defendant did not feel free to leave at this time. He did not receive any Miranda warnings at the scene of the stop. Defendant was escorted to the rear area of the car and was asked some questions. The officer opened the trunk and took defendant to the police car where he was placed inside. The officer advised him that a canine unit would be coming and shut the door. At the hearing, defendant exhibited a box (defense exhibit No. 1) identical to the one in question at the scene of the stop.

On cross-examination, defendant stated that not more than five seconds elapsed between the time the officer handed him the fully written traffic citation and the officer reached into defendant's pocket when defendant did not respond to the officer's question. Defendant denied that after he got out of the car he consented to the officer's looking into his car. He did not consent to a search of his vehicle until he was placed in the jail. Defendant admitted that he was not a cigarette smoker. Defendant explained that he purchased the box at a tobacco shop in Carpentersville, Illinois. It contained a pipe and was designed for persons who wanted to take one or two puffs of tobacco and satisfy their craving without lighting up an entire cigarette.

On redirect examination, defendant testified that there was a patent number assigned to the box device. The defense also tendered to the court a United States document certifying the patent number. The exhibits were admitted into evidence along with a business cardidentifying Igor's Tobacco & Gift Shop in Carpentersville and a sample of Igor's blend of pipe tobacco given to defendant when he purchased the box device.

Officer Draksler testified that, at about 5:30 p.m on April 12, 1992, he obtained a radar reading of defendant's Cadillac traveling at 65 m.p.h. in a 45 m.p.h. zone. He stopped defendant's vehicle at 83d Street and Route 53. After requesting defendant's license and proof of insurance, Draksler explained that he was going to issue a citation for speeding. Draksler went back to his squad car to complete the traffic ticket and returned to defendant's car to issue the citation. Defendant was sitting in his car and was wearing a short-sleeved dress shirt. As he was issuing the citation, Draksler, who was standing outside, looked inside defendant's car and noticed a wooden box inside his shirt pocket. According to Draksler, the box was known as a "stash box." Draksler testified that People's exhibit No. 2 was the box he had seen in defendant's pocket. The upper part of the box had a sliding trap door which was closed at the time he saw it in defendant's pocket. Draksler stated that he had training in the area of drug enforcement. He said that, in over 50 situations, he had occasion to arrest or come into contact with persons in connection with this type of box and in each case the box did not contain tobacco. Draksler compared the box with that exhibited by the defense and found them to be essentially the same. Inside the defense exhibit was a little brass object used for smoking and known as a "one-hitter." The box also contained a cut-out section where cannabis could be found.

Draksler testified that, after he saw the box, he asked defendant to remove it from his shirt pocket and defendant handed it to him. Draksler opened the top of the box and looked inside and observed what he suspected was cannabis. He then asked defendant to step out of his car and stated he would be conducting a search of the vehicle. He asked if defendant had any more cannabis in the vehicle and defendant said he had some in the backseat. Draksler eventually located additional cannabis in three small baggies inside of a duffel bag in the backseat.

On cross-examination, Draksler stated that he had worked as a patrolman for three years in the Village of Plainfield and had been working for the Bolingbrook police department as a patrolman for three years. It was the primary duty of detectives and other investigators to investigate drug and violent crimes. Draksler was not an investigator. As a patrol officer, he responded to calls or dealt with traffic control. When he stopped defendant's vehicle, he was responding only to the speeding violation. When he handed the traffic citation to defendant, the driver's window was down. Draksler did not observe anything unusual about the interior of the vehicle itself. When he saw the box, he did not notice any writing on the outside of it. He denied that he took the box out of defendant's pocket, but said he asked defendant to hand it to him. He did not observe any cannabis or cannabis residue anywhere in the car or in defendant's pocket. Draksler said that he was searching for weapons at this time, but he admitted that he did not think the box contained any weapon. After he opened the box, he asked defendant to step out of the car. Defendant was not free to leave at this time and was under arrest. He then asked defendant if there was any more cannabis in the car and explained that he would be searching the vehicle. He took defendant into custody and placed him in the squad car. Draksler did not read defendant his Miranda rights until 7:26 p.m., approximately two hours later, at the police station. The consent to search form was also signed at the police station.

After hearing the arguments of counsel, the court denied defendant's motion to suppress evidence. On August 6, 1992, after hearing further arguments of counsel, the court denied defendant's motion to reconsider. A bench trial with stipulated evidence followed which relied almost entirely on the testimony from the hearing of the motion to suppress. It was further stipulated that the State would produce testimony regarding two of the items taken from defendant which were analyzed by the Illinois State Police Crime Laboratory, and each contained some 27 grams of plant material identified as cannabis. The court found defendant guilty of the offense in accordance with the indictment and sentenced defendant. This timely appeal followed.

We first observe that defendant did not renew his motion to reconsider the motion to suppress after the stipulated bench trial which immediately followed the denial of his motion to reconsider. Although a written post-trial motion is generally required to preserve an issue for appeal, we elect to review the issue presented here as plain error rather than treating it as waived. The question whether the officer had probable cause to seize and search the container was not at all clear-cut in this case; we necessarily had to consider the merits of the question in order to determine whether plain error was committed (see People v. Young (1989), 128 Ill. 2d 1, 131 Ill. Dec. 78, 538 N.E.2d 453), and we have determined that the trial court's ruling was erroneous. Furthermore, defendant twice presented the issue thoroughly in the trial court, and the issue has again been briefed in this court without objection from the State. Since the issue was argued before the trial court and the claimed error is both substantial and premised on a constitutional right, we will therefore consider it. See People v. Chandler (1989), 129 Ill. 2d 233, 242, 135 Ill. Dec. 543, 543 N.E.2d 1290.

On appeal, defendant argues that the trial court erred in denying his motion to suppress the evidence because (1) the officer did not have probable cause to retrieve and open the closed, small wooden box in his shirt pocket; and (2) absent probable cause to seize and search the wooden box, there was no further legal authority to conduct any additional search of defendant or his vehicle. Defendant posits that the evidence derived from the subsequent search of his ...

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