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January 10, 1995


Appeal from the Circuit Court of Lake County. No. 92-CF-1109. Honorable Victoria A. Rossetti, Judge, Presiding.

Presiding Justice McLAREN delivered the opinion of the court: Geiger, J., concurs. Justice Bowman, dissenting.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

Defendant, James Blake, was convicted in a stipulated bench trial of the unlawful possession of less than 15 grams of cocaine (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(c) (now 720 ILCS 570/402(c) (West 1992))). The trial court sentenced him to 30 months of intensive probation and 9 months of periodic imprisonment. He appeals, contending that the court erred in denying his motion to suppress the evidence and that he is entitled to credit toward his street-value fine for the time he was in custody prior to sentencing. We reverse.

At the hearing on the motion to suppress, Officer Cimaglio, of the Mundelein police department, testified that on May 2, 1992, he was on routine patrol in a marked squad car. Around 10:30 p.m., he drove through the parking lot of a tavern. Cimaglio was aware of problems behind this tavern, in particular of drug deals in the parking lot. As he came around the south side of the building, he observed two men in the northeast corner, close to the building. One of them was defendant. Cimaglio was about 25 feet away from them when he saw them "exchanging items." Although there was a floodlight, the men were slightly shadowed so that Cimaglio could not see what they were exchanging. He believed that a drug transaction was occurring. As he approached, they immediately put their hands in their front pants pockets. The two men appeared "very nervous," they kept their hands in their pockets, and they shrugged their shoulders. Cimaglio exited his car and identified himself as a police officer. He asked them to remove their hands from their pockets. They did so only after several requests. Cimaglio had them put their hands on the squad car, and he patted them down because he feared for his safety.

He did not find anything that felt like a weapon, but he felt a "bulge" in defendant's left front pants pocket. Cimaglio testified the "bulge" felt like "a rolled object, pretty well packed, but able to maneuver, bend its shape." It felt as if it was in a plastic bag and was marijuana. Between 20 and 30 times he had done pat-down searches and found a plastic bag containing marijuana. When he retrieved the bag from defendant's pocket, he recognized it as marijuana. After he arrested defendant, Cimaglio found cocaine in defendant's wallet.

Defendant testified that he was heading home and left the tavern through the back with a friend. Defendant was going through his pockets searching for his apartment keys when Officer Cimaglio approached. Cimaglio asked defendant and his companion to take their hands out of their pockets. Defendant complied after several requests. Cimaglio searched through all of defendant's pockets. In the pocket of defendant's shirt, Cimaglio found marijuana. Defendant had a jacket on over the shirt.

The prosecutor argued that the officer had the authority to make the stop, conduct a frisk, and remove the marijuana from defendant's pants pocket. Defendant responded that the search here was more intrusive than that permitted during a pat down for weapons. The court credited the officer's testimony and found that the frisk for weapons was justified. It determined that was the end of the investigatory stop analysis and then considered whether the officer had probable cause to believe that defendant had contraband. The court noted the following factors: the officer saw two people exchanging items; his 15-year experience as a police officer; the number of drug arrests and marijuana arrests he made; and his observations of marijuana. Based on those factors, the court found that the pat down of the bulge in defendant's pocket gave Officer Cimaglio probable cause to believe that defendant possessed contraband. (Although the court did not specifically state whether it found that the marijuana was in the pants pocket, as testified to by Officer Cimaglio, or in the shirt pocket, as defendant testified, we assume the former because the court accepted Cimaglio's version of the events.) The court therefore denied the motion to suppress.

Defendant first contends that the court erred in denying his motion to suppress the evidence. We may not disturb the trial court's ruling on a motion to suppress unless that decision is clearly erroneous. ( People v. Williams (1994), 161 Ill. 2d 1, 26, 204 Ill. Dec. 72, 641 N.E.2d 296.) Under the fourth amendment, warrantless searches are per se unreasonable, unless the search falls within a specific exception. ( People v. Bailey (1994), 159 Ill. 2d 498, 503, 203 Ill. Dec. 459, 639 N.E.2d 1278.) One such exception is a Terry stop, where a police officer's observations create a reasonable suspicion that the person has committed or is about to commit a crime. ( Terry v. Ohio (1968), 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911, 88 S. Ct. 1868, 1884; see also Ill. Rev. Stat. 1991, ch. 38, par. 108-1.01 (now 725 ILCS 5/108-1.01 (West 1992)).) However, an officer may frisk a suspect only if there is reason to believe that the person is armed and dangerous ( People v. Spann (1992), 237 Ill. App. 3d 705, 709, 178 Ill. Dec. 615, 604 N.E.2d 1138), and the scope of the search must be strictly limited to searching for weapons ( People v. Galvin (1989), 127 Ill. 2d 153, 170, 129 Ill. Dec. 72, 535 N.E.2d 837).

Defendant does not contest the validity of the stop, but he argues that there was no justifiable basis for the frisk. We need not consider this question as, assuming the frisk was justified, we agree with defendant that there was no probable cause to remove the bag from defendant's pocket.

The "plain feel" exception to the fourth amendment applies to frisks of suspects. "If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons." (Minnesota v. Dickerson (1993), 508 U.S. , , 124 L. Ed. 2d 334, 346, 113 S. Ct. 2130, 2137.) The officer must have probable cause to believe that the item is contraband before it may be seized. (Dickerson, 508 U.S. at , 124 L. Ed. 2d at 346, 113 S. Ct. at 2137.) Probable cause exists when the facts and circumstances known to the officer are sufficient to warrant a person of reasonable caution to believe that an offense has been committed and the defendant committed it. ( People v. Jones (1993), 156 Ill. 2d 225, 237, 189 Ill. Dec. 357, 620 N.E.2d 325.) Probable cause is more than a mere suspicion, but less than evidence sufficient to convict the defendant. ( In re D.G. (1991), 144 Ill. 2d 404, 409, 163 Ill. Dec. 494, 581 N.E.2d 648.) "Where the question is whether a crime has been committed, as opposed to whether a particular individual committed a known crime, more evidence will be required to satisfy the probable cause requirement." D.G., 144 Ill. 2d at 410.

Defendant relies on Spann where, during a frisk of the defendant, the police officer felt a soft bulge in the defendant's right front pocket. He squeezed the bulge, and it felt as if it was a powder. The officer had a hunch that the bulge was a bag of cocaine. This court ruled that the tactile sensation of a packed powder did not give the officer probable cause to arrest the defendant as:

"[The officer] could not explain how the bulge felt different from any legitimate contents of pockets. A powder alone is not illegal. There must be some other distinctive evidence to demonstrate its illegality." ( Spann, 237 Ill. App. 3d at 712.)

Similarly, here, there was no explanation of how a tightly rolled mass could distinctively feel like marijuana to the exclusion of other legitimate substances, nor did the officer testify that in his prior experience he had felt marijuana ...

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