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08/04/94 PEOPLE STATE ILLINOIS v. BRIAN BAILEY

August 4, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
BRIAN BAILEY, APPELLANT.-THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT, V. JAMES WIEST ET AL., APPELLEES.



Freeman

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

At issue is whether the automobile search in each ofthese two consolidated appeals was a valid search incident to arrest pursuant to New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860. We uphold the search in each case.

BACKGROUND

In cause No. 75994, a Downers Grove police officer stopped an automobile driven by defendant, Brian Bailey, containing four additional passengers. The officer stopped the car because it did not have a front license plate. Prior to stopping defendant, the officer did not observe any other criminal behavior and had no reason to believe that defendant was armed or dangerous.

The officer determined that defendant's driver's license had been suspended and arrested defendant for that offense. The officer handcuffed and searched defendant, and placed defendant in the back of the officer's squad car. The officer then asked the four passengers to step out of the automobile. The officer searched the interior of the vehicle. In the glove compartment, he found and seized a container in which there was drug paraphernalia.

Defendant was indicted for possessing less than 15 grams of a substance containing cocaine. (Ill. Rev. Stat. 1987, ch. 56, par. 1402(b).) The circuit court of Du Page County granted defendant's motion to suppress the evidence found during the search. The trial court found that there was no search warrant, no factual basis for searching the vehicle, no inventory search, and no exigency.

The State appealed. (134 Ill. 2d R. 604(a)(1); People v. Carlton (1983), 98 Ill. 2d 187, 74 Ill. Dec. 492, 455 N.E.2d 1385.) The appellate court reversed, concluding that the search of the interior of the automobile was constitutionally permissible. 247 Ill. App. 3d 611.

In cause No. 76036, Galena police officers Evelyn Keleher and Kevin Green stopped an automobile drivenby defendant, Daniel Mausser. Codefendant James Wiest sat in the front passenger seat and a third codefendant, whose case was eventually dismissed, sat in the backseat. The officers stopped the car solely because of a burned-out license plate light. They did not notice anything else unusual about the car.

At defendants' car, Officer Green saw defendant Wiest rummaging through the glove compartment. Before Wiest closed the glove compartment, Officer Green saw therein a 35 millimeter film container. Officer Green then noticed an open can of beer on the floor of the backseat. At that point, since Mausser was a minor in possession of alcohol, the officers ordered defendants and the backseat passenger out of the automobile and searched the car's interior. The officers found one partially full can of beer, five full cans, and six empty cans. In the glove compartment, Officer Green found a clear plastic bag containing a white powdery substance that field-tested positive for cocaine. A subsequent inventory search of the automobile at the police station revealed a visor mirror and a plastic card under the driver's seat. Both of those items had a white powdery residue that field-tested positive for cocaine.

Defendants were each arrested for drug possession and charged with several drug offenses. After a preliminary hearing in the circuit court of Jo Daviess County, the charge that remained against each defendant was one count of possessing less than 15 grams of a substance containing cocaine. (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1402(b).) The trial court subsequently granted defendants' motions to suppress the evidence gathered after the opening of the film container. The court apparently found that the police lacked probable cause to open the container.

The State appealed. The appellate court affirmed with one Justice specially Concurring and one Justice Dissenting. 246 Ill. App. 3d 96.

We granted leave to appeal in these two cases (134 Ill. 2d R. 315(a)) and consolidated them for review. In cause No. 75994, we affirm the appellate court. In cause ...


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