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September 30, 1994


Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 92-CF-4359. Honorable William Penn Judge, Presiding

Rehearing Denied November 4, 1994. Petition for Leave to Appeal Allowed February 1, 1995.

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Tom M. Lytton, Justice

The opinion of the court was delivered by: Slater

PRESIDING JUSTICE SLATER delivered the opinion of the court:

Following a stipulated bench trial, defendant Kenneth Dilworth was found guilty of the offense of unlawful possession of a controlled substance (cocaine) on school property with the intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1407(b)(2)). He was sentenced to a four-year term of imprisonment. The issue on appeal is whether the trial court erred in denying defendant's motion to suppress evidence. For reasons that follow, we reverse.

The evidence admitted at the suppression hearing established that in November of 1992, the 15-year-old defendant was a student at the Joliet Alternate School. Joliet Police Officer Francis Ruettiger was assigned full-time to the school and was responsible for criminal activity and disciplinary problems that arose there. On November 18, two classroom teachers requested that Ruettiger search another student, Deshawn Weeks, for possession of drugs. The teachers said they had heard that Weeks brought drugs into the school on the 18th, and that he planned to bring more the next day. Based on this information, Ruettiger searched Weeks on the 19th. He found no contraband and escorted Weeks back to his locker.

Defendant's locker was next to Weeks'. The two young men met there and began talking and giggling in Ruettiger's presence. Ruettiger testified that he had the impression that they had "played him for a fool and had got something over on" him. Ruettiger noticed a flashlight in defendant's hand. He asked defendant what he was doing with the flashlight, and defendant said that he was going on a field trip to the museum. Ruettiger responded that there was no need for a flashlight at a museum, and that such objects were not permitted at the school. Suspecting that it might contain drugs, Ruettiger first asked defendant to hand the flashlight over, and then he grabbed it from him. Ruettiger unscrewed the top and discovered five baggies containing a white, rock-like substance under the flashlight batteries. At that point, Ruettiger related, defendant looked like he had just seen a ghost, and he bolted out the school doors. Ruettiger gave chase, captured defendant, handcuffed him and escorted him to the police station. There, Ruettiger obtained defendant's statement, and defendant was charged as an adult for the instant offense.

Ruettiger further testified that a week or two prior to the arrest, he had interviewed defendant at the school at the request of a classroom teacher who suspected him of selling drugs at the school. Ruettiger had searched defendant on that occasion, but he had found nothing. Defendant informed Ruettiger that another student had the drugs. The other student was subsequently arrested for possession of marijuana in the classroom. Finally, Ruettiger testified that the students at the alternate school are prohibited from bringing in any type of weapon or blunt instrument that could be used as a weapon.

At the close of all evidence and arguments of counsel, the trial court determined that Officer Ruettiger had reasonable cause to believe that the flashlight contained contraband. Accordingly, the court denied defendant's motions to suppress the fruits of Ruettiger's search and seizure. Defendant was subsequently tried as an adult, found guilty and sentenced, as aforesaid.

In this appeal, defendant contends that the trial court erred in ruling that defendant's constitutional rights were not violated by Ruettiger's search of his flashlight. Defendant argues that the officer's conduct was "unreasonable" under the standard established in New Jersey v. T.L.O. (1985), 469 U.S. 325, 83 L. Ed. 2d 720, 105 S. Ct. 733. We agree.

In T.L.O., a teacher discovered 14-year-old T.L.O. smoking in the school lavatory. T.L.O. was interrogated by the assistant vice-principal. She denied that she had been smoking in the lavatory and claimed that she never smoked. The administrator then demanded to see T.L.O.'s purse and therein discovered cigarettes as well as a package of rolling papers associated with marijuana usage. Upon a more thorough search, the official discovered a small amount of marijuana, a pipe, several plastic bags, a wad of one-dollar bills, a list of what appeared to be the names of students who owed T.L.O. money, and two letters implicating T.L.O. in marijuana dealing. As a consequence, T.L.O. was delivered to the police, and she confessed to dealing in marijuana at the school.

On these facts, the trial court found that the search of T.L.O.'s purse was "reasonable" under Fourth Amendment strictures. A divided appellate court agreed. The Supreme Court of New Jersey, however, reversed on the ground that the contents of T.L.O.'s purse had no bearing on the accusation of smoking in the school lavatory.

The Supreme Court granted certiorari and addressed "what limits, if any, the Fourth Amendment places on the activities of school authorities." (469 U.S. at 332, 83 L. Ed. 2d at 728, 105 S. Ct. at 737.) The Court established that neither a warrant nor probable cause was constitutionally required.

"Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider 'whether the . . . action was justified at its inception,' Terry v. Ohio, 392 U.S., at 20, 20 L. Ed. 2d 889, 88 S. Ct. 1868, 44 Ohio Ops. 2d 383; second, one must determine whether the search as actually conducted 'was reasonably related in scope to the ...

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