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03/31/94 PEOPLE STATE ILLINOIS v. JAMES MOORE

March 31, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAMES MOORE, JR., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 13th Judicial Circuit, Grundy County, Illinois. No. 90-CF-14. Honorable Robert Adcock, Judge, Presiding

Petition for Leave to Appeal Denied June 2, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Mccuskey

JUSTICE McCUSKEY delivered the opinion of the court:

On October 29, 1991, the defendant, James Moore, Jr., was convicted of possession with intent to deliver a controlled substance (cocaine) (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401(a)(2)). He was subsequently sentenced to serve eight years in the Department of Corrections. The defendant appeals.

The sole issue before us is whether the trial court erred in denying the defendant's motion to suppress evidence seized from the interior of his automobile. For reasons which follow, we find no error in the trial court's decision. Accordingly, we affirm.

Evidence admitted at the hearing on the defendant's motion to suppress established that on February 10, 1991, Officers Mark Scott and Bill Dolan of the Dwight Police Department received a radio dispatch that an automobile was parked along Interstate 55. The vehicle was partially blocking the passing lane of the interstate highway. The officers responded to the message and found the defendant was asleep and slumped against the driver's side door. The vehicle's motor was running in neutral, and the car window was cracked open about six inches. The officers observed an open bottle of gin on the seat beside the defendant. Officer Scott smelled the odor of alcohol and reached inside the vehicle to turn off the ignition. Scott awoke the defendant and asked him to perform field sobriety tests. The tests were unsuccessful because the defendant had a glass eye and leg injuries from a prior accident.

Scott informed the defendant that he would be ticketed for illegal transportation of alcohol and improper parking. However, the officer said he would not charge the defendant with DUI. Scott told the defendant that his vehicle would be towed to a service station until a sober driver could pick it up. Scott offered to drive the defendant into Dwight so he could make arrangements for his own transportation. The defendant asked Scott if he would move the vehicle to prevent it from being struck by a passing motorist. Scott agreed to move the defendant's car.

Scott testified that before he moved the defendant's car, he did a cursory search of the area immediately surrounding the driver's seat as he entered the vehicle. Scott then started the car and drove it off the interstate highway. After Scott parked the defendant's car, he noticed two cigarette packages lying on the dashboard. Scott testified that, as a smoker, he believed the defendant would appreciate having the cigarettes while he waited for his ride home. It was with this sole purpose in mind that Scott picked up the two cigarette packages. The top of one package had been torn off, and Scott looked inside to see if there were any cigarettes left. Instead of finding cigarettes, Scott observed several small, clear plastic bags. On further inspection, Scott observed that the bags contained a white powdery substance which he believed to be cocaine.

At that point, the defendant was arrested for unlawful possession of a controlled substance. The defendant's car was subsequently searched and $4,740 in cash, 96 packets of white powder, empty plastic baggies, a sifter, and more white powder believed to be cocaine were found in the vehicle.

The defendant sought to suppress all of the evidence seized following the officer's search of the cigarette package. The defendant argues that the search was illegal for the following reasons: (1) the officer lacked probable cause to believe the defendant was involved in any criminal activity; (2) the defendant had not given his consent to search the car; and (3) the search was not incident to a lawful arrest.

In denying the defendant's motion to suppress evidence, the trial Judge explained, "I don't think that there was a search or seizure in violation of defendant's rights under the fourth amendment."

In analogous situations, the Supreme Court has held that a police officer's inadvertent discovery of contraband during either a routine driver's license check or during an arrest for minor traffic violations does not violate fourth amendment protections. ( New York v. Class (1986), 475 U.S. 106, 89 L. Ed. 2d 81, 106 S. Ct. 960; Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535.) In Brown, the officer conducting a routine driver's license check stood outside the defendant's car and shined his flashlight into the vehicle while the defendant looked for his license. In the process, the defendant dropped a balloon on the front seat and, while rifling through the glove compartment, the defendant exposed to the officer's view plastic vials, white powder, and an open bag of party balloons. The officer recognized the material as heroin paraphernalia and made an arrest. Based on these facts, Justice Rehnquist, writing for the plurality, applied a "plain view" analysis to the circumstances surrounding the officer's conduct (see Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022) and concluded that the officer's seizure of the green balloon "trenched upon no right secured to [defendant] by the Fourth Amendment," and his observation of the contents of the glove compartment "was not a search within the meaning of the Fourth Amendment." Brown, 460 U.S. at 740, 75 L. Ed. 2d at 512-13, 103 S. Ct. at 1542.

In Class, the officer stopped the defendant for speeding and driving with a cracked windshield. After the defendant got out, the officer entered the defendant's vehicle and moved papers that had obscured his view of the Vehicle Identification Number (VIN), thereby disclosing the contraband, a weapon. Justice O'Connor, writing for the Court, initially noted that the VIN on the dashboard of a vehicle is normally exposed in plain view to anyone outside the vehicle. However, since the officer entered the defendant's car without his consent to examine the VIN, the Court characterized the officer's conduct as a "search," but determined that no fourth amendment violation had resulted. Justice O'Connor reasoned that the "search was sufficiently unintrusive to be constitutionally permissible in light of the ...


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