Appeal from the Circuit Court of St. Clair County. No. 92-CF-950. Honorable Stephen M. Kernan, Judge Presiding.
Rarick, Goldenhersh, Maag
The opinion of the court was delivered by: Rarick
JUSTICE RARICK delivered the opinion of the court:
On September 11, 1992, the defendant, Darryl Phillips, was charged with unlawful possession of cannabis with the intent to deliver in violation of section 5(c) of the Cannabis Control Act (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 705(c)). Defendant filed a motion to suppress evidence, and a hearing on the motion to suppress was held on February 11, 1993. On February 17, 1993, the trial court allowed the defendant's motion and suppressed a quantity of cannabis seized from the trunk (a carrier or box on the back) of a motorcycle which defendant was operating. The State's motion to reconsider was subsequently denied on March 3, 1993. The State's Attorney has certified that the suppression substantially impairs his ability to prosecute the defendant and thus takes this interlocutory appeal (Supreme Court Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1)). We reverse.
At the suppression hearing, Delbert Marion, a detective of 15 years with the East St. Louis police department whose primary duty was drug enforcement, testified that while driving eastbound in St. Clair County on Interstate 64 on September 9, 1992, he observed amotorcycle traveling at a high rate of speed. It went around several cars, and as it rounded a curve, it appeared that the rear wheel nearly slid out from under the rider. Officer Marion followed the motorcycle for over one-quarter mile, pacing it with the certified digital speedometer in his squad car. After determining the motorcycle was being driven at 73 m.p.h. in a 55 m.p.h. zone, he activated his red lights, pulled the motorcycle over, and told its rider, the defendant, that he was speeding. Defendant explained that he was trying to return home before it rained. In response to Officer Marion's request, defendant produced a valid Missouri driver's license and obtained the motorcycle registration from a zippered compartment located at the front part of the bike. Defendant explained to Officer Marion that he had an Illinois address and Illinois license plates but a Missouri driver's license because he had moved recently. Believing this explanation to be reasonable, Officer Marion decided to let the defendant go because it was about to begin raining.
As he was letting the defendant go, and while the defendant was standing next to the motorcycle preparing to leave, as an afterthought Officer Marion asked defendant whether he had any guns or drugs on the motorcycle. The defendant replied that he had no guns but said nothing about having drugs. He told the officer that he could search the bike if he cared to do so, and Officer Marion stated that he did want to search it. On cross-examination, Officer Marion denied asking the defendant for permission to search the motorcycle, insisting that defendant had volunteered his permission. Upon receiving the defendant's permission to search, the officer asked the defendant to open the carrier (trunk) on the motorcycle. The defendant opened it, and inside Marion saw a jacket which he picked up. Feeling the outside of the jacket, Officer Marion detected in the pocket what appeared to be something made of plastic. The officer then removed from the pocket a purple Crown Royal bag, which contained individually wrapped plastic bags of what he believed to be cannabis. Officer Marion then placed the defendant under arrest and handcuffed him.
The defendant testified at the suppress ion hearing that he was headed home on his motorcycle, eastward on Interstate 64, about 8 p.m. on September 9, 1992, when he noticed that a police officer was behind him. The officer followed him for about one-quarter mile and then activated his red lights and pulled him over. The officer, Delbert Marion, told the defendant that he had stopped him because he was speeding and that he saw the defendant leaning too far when rounding a curve and thought that defendant was about to fall. Althoughthe defendant had not looked at his speedometer, he believed that he was travelling at the speed limit because there were cars both in front of and behind him. On cross-examination however, he admitted that he did not know how fast he was going. Defendant told Officer Marion that he was trying to get home before it began raining. When Officer Marion asked to see defendant's motorcycle registration, defendant retrieved it from the trunk of his bike. Defendant described the motorcycle trunk as being a carrier about 13 to 14 inches wide and four feet high on the rear of the bike. Defendant's jacket was also in the trunk. Officer Marion took defendant's driver's license and his motorcycle registration and returned to the squad car. According to the defendant, the officer never returned either of these items to him. Defendant testified that he had purchased the motorcycle the day of the traffic stop and that it had Illinois license plates. Although he had a Missouri driver's license, defendant told Officer Marion that he lived in Washington Park, Illinois. Defendant testified that upon returning from his squad car Officer Marion told the defendant that he "was finna, let me go." Officer Marion then asked the defendant if he had any guns or drugs. The defendant responded that the officer could search the motorcycle if he cared to do so. On redirect examination, the defendant said that he told the officer that he could search the motorcycle after the officer had asked permission to search it. The defendant testified that after Officer Marion searched the motorcycle with defendant's consent, Officer Marion found some marijuana in the Crown Royal bag which was in the motorcycle trunk. At that point the officer placed the defendant under arrest for possession of marijuana.
In rebuttal, after Officer Marion testified, defendant testified that he did not volunteer permission for Officer Marion to search his motorcycle. He also indicated that although he consented to the search of the trunk of his motorcycle, he did not give his consent to search the jacket located in the trunk. Defendant stated he made no attempt to leave because the officer had not told him that he could leave and because the officer had not returned his driver's license and registration.
The trial court found that the officer had legitimately stopped the defendant for speeding. He stated that both the defendant and Officer Marion were credible witnesses. However, he chose to believe the defendant's testimony that his driver's license and registration were never returned to him. The trial Judge consequently concluded that defendant could reasonably have believed that he was not free to leave so that, when he consented to the search without having been given his Miranda warnings, his consent was not voluntary. The court therefore granted defendant's motion to suppress. The court initially declined to file a written order but later did so on February 17, 1993. In that order the trial Judge repeated his oral findings and added that he believed the defendant's testimony that the officer asked for defendant's consent to search the motorcycle, rather than Officer Marion's testimony that defendant suggested that the officer search it. The trial Judge added that since the officer had no probable cause to believe that defendant had committed a crime, the officer was conducting "a fishing expedition" to find evidence of criminal activity. Finally, the trial Judge stated that even if the defendant's consent had been voluntary, the officer exceeded the scope of the consent by searching the jacket he found in the motorcycle's trunk. After the State's motion to reconsider was denied, the State filed a timely notice of appeal and certificate of substantial impairment.
The State initially urges that the trial court erred in granting defendant's motion to suppress, contending that defendant validly consented to the search of his motorcycle. In entering the suppression order, the trial court concluded that the defendant's consent to a search of his motorcycle was not voluntary because: (1) Officer Marion had no probable cause to believe that the defendant had drugs when he requested permission to search, and (2) because the defendant was in a custodial situation and was not advised of his rights, including his right not to consent to a search.
It is a well-settled proposition that an individual may consent to a search conducted without a warrant and thus eliminate the need for probable cause and a search warrant. ( Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L.Ed.2d 854, 93 S.Ct. 2041.) Miranda -type warnings, including the right to refuse to consent, are not required prior to obtaining a valid consent. ( Schneckloth, 412 U.S. at 246, 36 L.Ed.2d at 874, 93 S.Ct. at 2058; People v. Wegman (1981), 101 Ill. App. 3d 634, 637, 428 N.E.2d 637, 640, 57 Ill. Dec. 87.) To support a search undertaken pursuant to consent, the State must prove by a preponderance of the evidence that the consent was voluntarily given. ( People v. Holliday (1983), 115 Ill. App. 3d 141, 143, 450 N.E.2d 355, 357, 70 Ill. Dec. 882.) The determination of whether a consent is voluntary is a question of fact to be determined from the totality of all the circumstances. ( Schneckloth, 412 U.S. at 227, 36 L.Ed.2d at , 93 S.Ct. at 2048; Wegman, 101 Ill. App. 3d at 637, 428 N.E.2d at 640.) The voluntariness of a consent does not depend on any single factor but, rather, depends upon all the circumstances under which the consent was given. ( People v. Smith (1984), 124 Ill. App. 3d 914, 919-20, 464 N.E.2d 1206, 1210-11, 80 Ill. Dec. 223.) Accordingly, lack of knowledge of the right to refuse to consent does not vitiate the voluntariness of the consent but is merelya factor to consider. ( People v. Spriegel (1992), 233 Ill. App. 3d 490, 493, 599 N.E.2d 191, 193-94, 174 Ill. Dec. 645.) Since the voluntariness of a consent to search is a factual question, the trial court's determination in this regard will be upheld on review unless it is found to be manifestly erroneous. Spriegel, 233 Ill. App. 3d at 493, 599 N.E.2d at 194; Smith, 124 Ill. App. 3d at 920, 464 N.E.2d at 1211.
Our review of the record leads us to conclude that defendant's consent was voluntary and that the trial court's finding that the defendant could reasonably have believed that he was not free to leave was against the manifest weight of the evidence. At the outset we note that defendant's speeding violation provided Officer Marion with a reasonable basis to stop the defendant. ( People v. Manikowski (1989), 186 Ill. App. 3d 1007, 1010-11, 542 N.E.2d 1148, 1151, 134 Ill. Dec. 641; People v. Guerrieri (1990), 194 Ill. App. 3d 497, 501, 551 N.E.2d 767, 769, 141 Ill. Dec. 580.) In addition, Officer Marion's request of the defendant to produce identification was not unreasonable and did not constitute a fourth amendment seizure. ( Manikowski, 186 Ill. App. 3d at 1011, 542 N.E.2d at 1151.) The record reveals that Officer Marion found defendant's driver's license and motorcycle registration to be in order and had decided to let defendant leave because it appeared to him that it was going to rain soon. In fact he told the defendant that he was finished with him and that he was letting him go. The defendant then prepared to leave and was standing next to his motorcycle, when, as an afterthought, Officer Marion asked whether he had any guns or drugs in his possession. Defendant's reply was evasive; stating he had no guns but saying nothing about having drugs. Officer Marion testified that defendant told him he could search the bike if he cared to do so. Defendant testified that he told the officer that he could search the motorcycle after the officer had asked permission to search it. In its finding, the circuit court chose to believe defendant's version; however, by his own testimony, defendant agreed that he consented to the search, regardless of who first suggested it.
Officer Marion testified that he returned defendant's driver's license and his motorcycle registration. While defendant denied this, he did testify that after the officer ran a check of his license the officer told the defendant that he was finished with him and was letting him go. Officer Marion also testified that after he ran the license check he told the defendant he was free to leave. The circuit court finding that the defendant was in a custodial situation and that he could reasonably have believed that he was not free to leave appears to us to be against the manifest weight of the evidence. Officer Marion did not draw his weapon or handcuff the defendant, nor did he physically touch the defendant or use language or a toneof voice suggesting that compliance with his request might be compelled. ( People v. Manikowski (1989), 186 Ill. App. 3d 1007, 1011, 542 N.E.2d 1148, 1151, 134 Ill. Dec. 641; United States v. Mendenhall (1980), 446 U.S. 544, 555-56, 64 L.Ed.2d 497, 509-10, 100 S.Ct. 1870, 1877.) Additionally, there was not the threatening presence of several police officers or the presence of a canine unit.
Relying on People v. Kelly (1979), 76 Ill. App. 3d 80, 394 N.E.2d 739, 31 Ill. Dec. 537, defendant argues that his "consent" was involuntary because it was a passive submission to authority and not a voluntary relinquishment of his fourth amendment rights. In Kelly, this court held that "consent is ineffective to justify a search when a search or entry made pursuant to consent immediately following an illegal search, involving an improper assertion of authority, is inextricably bound up with illegal conduct and cannot be segregated therefrom." ( Kelly, 76 Ill. App. 3d at 86, 394 N.E.2d at 744.) Continuing, we said: "Stated another way, mere acquiescence to apparent authority is not necessarily consent." ( Kelly, 76 Ill. App. 3d at 87, 394 N.E.2d at 744.) In Kelly, one of the police officers who stopped the defendant for driving with defective brake lights observed a portion of a tire tool protruding from under the driver's seat while shining a flashlight into the car. The officer told defendant that the tire tool should not be in the passenger compartment, and to put it in the trunk. In complying with this request, an iron pipe and a kitchen knife were exposed when defendant removed the tire tool from under the seat. When the officer saw the kitchen knife, he searched the car and then asked defendant if there was anything else of that nature under the seat. The defendant then consented to a second search which uncovered a bag of cannabis in the glove compartment. On review we found that the officer had engaged in ...