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05/04/94 PEOPLE STATE ILLINOIS v. ROCKIE BOSNAK

May 4, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
ROCKIE BOSNAK, DEFENDANT-APPELLEE. THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT, V. ONE DODGE DAYTONA TWO DOOR, VIN 183XW4438NN240983, DEFENDANT (ROCKIE BOSNAK, CLAIMANT APPELLEE).



Appeal from the Circuit Court of Du Page County. No. 92-CF-2215. Honorable Edward W. Kowal, Judge, Presiding. Appeal from the Circuit Court of Du Page County. No. 92-MR-710. Honorable Bonnie M. Wheaton, Judge, Presiding.

Doyle, Inglis, Bowman

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

The State appeals, pursuant to Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)), from the circuit court's order granting the motion of defendant, Rockie Bosnak, to suppress evidence. The State also appeals, pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), from the circuit court's order granting defendant's motion in limine in a related forfeiture proceeding. We consolidated the appeals. The issue in both appeals is whether a search of defendant's car following his arrest for driving with a suspended license was a proper search incident to arrest.

The State charged defendant by indictment with the unlawful possession of more than 30 grams 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))) and by information with driving under the influence of alcohol (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501(a)(2) (now 625 ILCS 5/11-501(a)(2) (West 1992))). Defendant also received a traffic complaint charging him with driving with a suspended license (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 6-303(a) (now 625 ILCS 5/6-303(a) (West 1992))).

Defendant moved to quash his arrest and to suppress all evidence obtained as a result of the search of his car. At the hearing, defendant testified that, on October 2, 1992, he resided in an apartment complex on Tennessee Drive in Willowbrook. At about 12:45 a.m., he was driving west on 75th Street and then turned onto Tennessee Drive.

As he was driving north on Tennessee Drive, defendant saw two Willowbrook police cars parked alongside the street, facing south, with their lights off. Defendant testified that the police cars were parked in the road and that there was a trash dumpster on the other side of the road just across from the cars. Defendant drove past thepolice cars and continued towards his apartment building. Because the road upon which he was driving was narrow, defendant's car passed within about five feet of the police cars.

Defendant drove another 200 yards and parked his car about 100 yards from his apartment building. Defendant testified that, during this or any other time, he never saw the police cars with their emergency lights activated. He exited his car, locked it, and began walking towards his apartment building. As he was about 10 yards from his car, he heard someone say, "Excuse me. Do you have a driver's license?" Defendant turned around and saw a police officer. Defendant also noticed that there was a squad car parked about 15 to 20 yards from where his car was parked. The squad car did not have its emergency lights or its headlights activated.

Defendant walked up to the officer and asked him if there was a problem. The officer again asked to see defendant's driver's license, and defendant responded that he did not have it with him. The officer told defendant to get into the squad car. After defendant entered the car, he twice asked the officer if he was under arrest. The officer did not respond. The officer "fidgeted" with something in the front seat of the squad car and then informed defendant that he was under arrest for driving with a suspended license.

Upon the officer's request, defendant handed the officer his car keys. The officer then took defendant to the police station. Defendant fell asleep at the police station. The officer woke defendant up and asked him to take a breath test, which he did.

Officer Mark Shelton of the Willowbrook police department testified that, at about 12:45 a.m. on October 2, 1992, he turned his marked squad car off of Tennessee Drive and into the westbound lane of 75th Street. The squad car's headlights were on. As he made this turn, a vehicle that was turning onto Tennessee drive from 75th Street nearly collided with his squad car. Shelton made a U-turn and followed the vehicle. As he followed the vehicle, he punched its license plate number into his computer. The computer revealed that the car was registered to a person whose driver's license had been suspended. The computer also provided Shelton with a physical description of that person.

Shelton testified that he activated his emergency lights. He admitted, however, that he failed to include this fact in his police report. Shelton explained that activating the emergency lights is a common practice when stopping a vehicle. The vehicle pulled into a parking spot, and Shelton pulled his squad car behind it. Defendant began to exit the car. Shelton exited his vehicle, checked to make sure that the driver matched the description provided by the computer, and said, "Hey, Rockie." Defendant turned and said, "Yes?" As Shelton approached defendant, defendant was just starting to get out of his vehicle and had his arm on the door to lift himself up. Shelton admitted that he did not include this fact in his police report.

Shelton asked defendant for his driver's license, and defendant stated that he did not have it. Shelton asked defendant if his license was suspended, and defendant said that it was. Based on his observations of defendant, Shelton suspected that defendant was under the influence of alcohol. He told defendant he was under arrest for driving with a suspended license, placed defendant under arrest, and handcuffed him. Shelton testified that he arrested defendant while defendant was standing right behind his car. He then placed defendant in the backseat of the squad car.

Shelton walked to defendant's car, took the keys out of the ignition, and began to search the interior of the car. Shelton testified that the purpose of the search was to secure and protect defendant's personal belongings "and also for the legal reasons for the police department." Because he suspected that defendant was under the influence of alcohol, Shelton also searched the car for evidence of alcohol consumption. He found in the glove compartment a bag containing a green leafy substance. Shelton then called for a tow truck and inventoried ...


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