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04/20/95 PEOPLE STATE ILLINOIS v. CURTIS MITCHELL

April 20, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
CURTIS MITCHELL, APPELLANT.



The Honorable Justice Freeman delivered the opinion of the court: Justice Heiple, dissenting:

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

This appeal lies to this court on a certificate of importance from the appellate court (Ill. Const. 1970, art. VI, § 4(c); 134 Ill. 2d R. 316). The issue, as framed by the appellate court, is whether the "plain touch" doctrine recognized by the United States Supreme Court in Minnesota v. Dickerson (1993), 508 U.S. , 124 L. Ed. 2d 334, 113 S. Ct. 2130, violates article I, section 6, of the Illinois Constitution.

FACTUAL AND PROCEDURAL BACKGROUND

In July 1992, Officer Edward King observed defendant, Curtis Mitchell, driving a 15-year-old Oldsmobile southbound in the alley of Orleans Street in Chicago. The car's lights were not on, and King could not see any license plates. Because that area of the city had a high incidence of auto theft, King kept the Oldsmobile under surveillance.

After being followed for a few blocks, defendant pulled over and parked the car. Defendant exited the vehicle as King approached. King identified himself to defendant and began questioning him concerning ownership of the car and his reason for driving without lights.

As King stood next to the vehicle, he was able to observe that the steering column on the car had been "peeled." He also saw "crack pipes" and small pieces of copper scouring pads on the front seat of the car. In King's experience as a police officer, he had seen pipes used to smoke cocaine and scouring pads used as filters inside those pipes.

King conducted a patdown search of defendant "primarily" for weapons. During the patdown, he felt a foreign object inside defendant's shirt pocket. King did not believe that what he felt was a weapon; it felt, instead, like a piece of rock inside a small baggie.

King reached inside defendant's pocket and pulled out the object. He observed it to be what he believed was rock cocaine. King then placed defendant under arrest for possession of narcotics.

Prior to trial, defendant filed a motion to quash the arrest and to suppress the evidence. In his motion, defendant maintained that the officer's seizure of the cocaine went beyond the scope of a Terry patdown. See Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

The trial court found the Terry stop and patdown to have been proper. However, the court held that seizure of the drugs exceeded the scope of Terry. The court, therefore, granted defendant's motion and entered an order to quash the arrest and suppress the evidence.

The State filed a motion for reconsideration. In its motion, the State argued that the search and seizure could be upheld either as incident to an arrest or under the "plain touch" doctrine. The State's motion was denied.

The State appealed the trial court's order. During the pendency of the appeal, the United States Supreme Court decided Minnesota v. Dickerson (1993), 508 U.S. , 124 L. Ed. 2d 334, 113 S. Ct. 2130, in which the Court held that the "plain touch" doctrine did not violate the fourth amendment proscription against unreasonable searches and seizures. Noting this court's predisposition to interpret section 6 of the Illinois Bill of Rights consistently with the Supreme Court's interpretation of the fourth amendment, the appellate court adopted Dickerson's "plain touch" doctrine. The court, finding the seizure proper under the doctrine, reversed the circuit court.

The appellate court subsequently granted defendant's motion to issue a certificate of importance to this court. Ill. Const. 1970, art. VI, § 4(c); 134 Ill. 2d R. 316.

MINNESOTA v. DICKERSON

In Dickerson, the Supreme Court granted certiorari to resolve a conflict among the State and Federal courts over whether contraband detected through the sense of touch during a patdown search is proper and admissible evidence. The Court noted that under certain circumstances, police officers may seize contraband detected during the lawful execution of a Terry search. In its analysis, the Court placed particular reliance on its decision in Michigan v. Long (1983), 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469, which sanctioned "plain view" seizures of items other than weapons in the context of a Terry search of automobiles.

Specifically, the Court stated, "'If while conducting a legitimate Terry search of the interior of the automobile, the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.'" Dickerson, 508 U.S. at , 124 L. Ed. 2d at 345, 113 S. Ct. at 2136, quoting Long, 463 U.S. at 1050, 77 L. Ed. 2d at 1220, 103 S. Ct. at 3481.

Expounding on the "plain view" doctrine, the Court stated that, if police officers are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object--i.e., if "'its incriminating character [is not] "immediately apparent"' [citation]--the plain-view doctrine cannot justify its seizure." Dickerson, 508 U.S. at , 124 L. Ed. 2d at 345, 113 S. Ct. at 2137.

The Court noted that the "plain view" doctrine has obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. "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; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context." Dickerson, 508 U.S. at , 124 L. Ed. 2d at 345-46, 113 S. Ct. at 2137.

Applying these principles to the facts before it, the Court held that the officer's seizure of the crack cocaine exceeded the bounds of Terry. The Court held that although the officer was lawfully in a position to feel the lump in the defendant's pocket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search--squeezing, sliding and otherwise manipulating the contents of the defendant's pocket. Because the further search of the defendant's pocket was constitutionally invalid, the seizure of the cocaine that followed was unconstitutional. Dickerson, 508 U.S. at , 124 L. Ed. 2d at 347-48, 113 S. Ct. at 2138-89.

ARGUMENT(S)

The Supreme Court's decision in Dickerson resolves any conflict concerning whether the "plain feel" doctrine offends fourth amendment guarantees. The question presented for our resolution is whether the doctrine comports with Illinois' article I, section 6, protections. The appellate court, although presented with an alternative basis upon which to uphold the validity of the seizure, rested its decision on the "plain touch" doctrine. Although we need not do so (see Nowicki v. Union Starch & Refining Co. (1973), 54 Ill. 2d 93, 100, 296 N.E.2d 321 (Goldenhersh, J., dissenting) (certification does not require that we find the question certified to be the controlling issue in the case)), we confine our analysis to the consideration and application of the doctrine.

At the outset, however, we must address defendant's assertion that we are not required to follow the Supreme Court's interpretation of Federal protections in "lockstep." We acknowledge that we are not bound to follow the Supreme Court's interpretation of Federal constitutional law. Indeed, this court has often stated that we may construe provisions of our State constitution to provide more expansive protections than the comparable Federal constitutional provisions. (See In re May 1991 Will County Grand Jury (1992), 152 Ill. 2d 381, 390, 178 Ill. Dec. 406, 604 N.E.2d 929; People v. Perry (1992), 147 Ill. 2d 430, 436, 168 Ill. Dec. 817, 590 N.E.2d 454; People v. Tisler (1984), 103 Ill. 2d 226, 243, 82 Ill. Dec. 613, 469 N.E.2d 147.) Certain judicially crafted limitations, however, define the exercise of that right.

In Tisler, 103 Ill. 2d at 245, in response to the defendant's entreaty for a broader construction of our search and seizure provision, this court stated that "we must find in the language of our constitution, or in the debates and the committee reports of the constitutional convention, something which will indicate that the provisions of our constitution are intended to be construed differently than are similar provisions in the Federal constitution." See, e.g., People v. Fitzpatrick (1994), 158 Ill. 2d 360, 198 Ill. Dec. 844, 633 N.E.2d 685; People v. McCauley (1994), 163 Ill. 2d 414, 206 Ill. Dec. 671, 645 N.E.2d 923.

Prior to 1970, section 6 of our Bill of Rights mirrored the language of the fourth amendment. As it currently reads, section 6 provides: "The people shall have the right to be secure in their persons, houses, papers, and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means." (Ill. Const. 1970, art. I, § 6.) The addition of express provisions for invasions of privacy and interceptions of communication is a product of the 1970 Constitutional Convention. No similar provisions are expressed in the Federal fourth amendment. In all other respects, however, the language of section 6 continues, nearly, to parallel that of the Federal fourth amendment. Cf. U.S. Const., amend. IV; see Tisler, 103 Ill. at 235-36.

Defendant views the additional language in section 6 as evidencing the drafters' intent that Illinois' search and seizure clause provide more expansive protections than its Federal counterpart. Then, as a further attempt at satisfying the requirements announced in Tisler, he offers the verbatim transcript of the convention debates on section 6.

This issue of the expansiveness of section 6 was considered and correctly decided in Tisler and no purpose is served by our reconsideration. We would simply add that the comments of committeeman Dvorak, in his address to the convention on the proposed changes to section 6, are particularly pertinent on this point. Dvorak stated:

"There is nothing new or no new concepts that the Bill of Rights Committee intended to provide insofar only as the search and seizure section--or the search and seizure concept--is concerned if, in fact, we break [section 6] down in three concepts--as I originally stated." 3 ...


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