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June 30, 1997


Appeal from the Circuit Court of Cook County. The Honorable James M. Schreier, Judge Presiding.

Rehearing Denied August 7, 1997. Released for Publication August 21, 1997.

Justice Leavitt delivered the opinion of the Court. Cousins, P.j., and Cahill, J., concur.

The opinion of the court was delivered by: Leavitt

Justice Leavitt delivered the opinion of the Court:

After a bench trial, the defendant, David Fulton, was found guilty of possession of cocaine and sentenced to three years probation and six months in prison. Police discovered the cocaine after entering the defendant's car following his arrest for driving without a license. The defendant contends, among other things, that the trial judge erred in denying his motion to reconsider the denial of his motion to suppress the cocaine. Because the police lacked authority to enter the car and seize the property therein, the judge erred as a matter of law in denying the defendant's motion to suppress. We find, therefore, that his failure to grant the motion on that ground constituted an abuse of discretion. We reverse the defendant's conviction.

At a hearing on the defendant's motion to suppress, the defendant testified that on March 24, 1993, his father had asked him to retrieve the father's car and drive it home. The defendant did so, and, at around 8 p.m., he had been driving the car for only a few minutes when he stopped at a red light. The defendant stated that he waited for two minutes, but the light did not change. Believing that it was broken, he proceeded through the red light. Soon after, police stopped his vehicle. The defendant testified that he immediately produced a traffic citation and his State of Illinois identification card in lieu of his driver's license. Officer Michael Jedlowski contradicted the defendant, asserting that the defendant had not produced a traffic citation until he arrived at the police station. The defendant also could not produce proof of insurance.

The remaining facts are not in dispute. The officers arrested the defendant for driving without a valid driver's license and without proof of insurance. Before ushering the defendant into their car, the officers patted him down. They reached into the defendant's pockets and removed four to five hundred dollars. Without asking for the defendant's consent, the officers also searched the interior of the defendant's car. This search included at least the immediate area where the defendant had been. Following this search, Officer Jedlowski got into the defendant's car and began driving it to the police station. Officer Jedlowski testified that he did this to secure the car. Officer Jedlowski drove a short while before noticing a clear plastic bag protruding from an air vent. He stopped the car to investigate, pulled the vent out and discovered the bag containing cocaine.

Based on this evidence, the defendant initially argued that the cocaine should be suppressed because the officers did not have a warrant to search the car. Despite the defendant's unrebutted testimony that the officers never asked for his permission to search the car, as well as his testimony that he produced a traffic citation and a state identification card at the scene, the judge denied the motion to suppress and issued findings inconsistent with the record in that he stated the defendant did not testify that he produced a ticket at the scene:

"There is no testimony, as I understand it, from the defendant that he produced a ticket at the time of the arrest. Just that he was driving on a ticket. It would seem that no valid license being produced and the defendant then having to be in the status of an arrestee, not allowed to receive a ticket or summons and go on his way, but having to be brought to the station for bond purposes, that the officer had a right to enter the car and bring the car down to the station where in such trip he discovered the drugs open from the vent."

Sometime later, but before trial, the defendant filed a motion for reconsideration, contending that this court's decision in People v. Buffo, 202 Ill. App. 3d 240, 242, 559 N.E.2d 908, 147 Ill. Dec. 568 (1990), required the judge to have granted the motion. The judge denied this motion on its merits, ruling that Buffo was not controlling.

We will reverse a trial judge's decision to deny a motion to reconsider only if it constituted an abuse of discretion. People v. Diana F., 265 Ill. App. 3d 419, 638 N.E.2d 368, 202 Ill. Dec. 722 (1994). The purpose of a motion to reconsider is to bring to the court's attention errors in the court's previous application of existing law. Diana F., 265 Ill. App. 3d at 426. Furthermore, although we ordinarily review a trial judge's ruling on a motion to suppress to determine whether it was manifestly erroneous, where the facts are not in dispute, and the question as to the reasonableness of a search can be characterized as one of law, we will review the ruling de novo. People v. James, 163 Ill. 2d 302, 310, 645 N.E.2d 195, 206 Ill. Dec. 190 (1994). Because the facts surrounding the officer's entry into the defendant's car are not in dispute, we review the trial judge's decisions as a matter of law.

Both the United States and Illinois Constitutions protect every person from unreasonable searches and seizures. U.S. Const. Amend. IV; Ill. Const. 1970, art. I, sec. 6. The primary purpose of these provisions is "to protect the legitimate expectations of privacy that citizens possess in their persons, their homes, and their belongings" ( James, 163 Ill. 2d at 311), while according "'fair leeway for enforcing the law in the community's protection.'" James, 163 Ill. 2d at 311, quoting Dunaway v. New York, 442 U.S. 200, 208, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979).

Generally, searches and seizures are only reasonable if the government has first obtained a warrant authorizing the action. Illinois v. Rodriguez, 497 U.S. 177, 181, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990). Warrantless searches "are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well delineated exceptions***. The burden is on the one seeking the exception to show the need for it." Coolidge v. New Hampshire, 403 U.S. 443, 455, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). Consent can render a search reasonable. Rodriguez, 497 U.S. at 183. A search incident to a lawful arrest also does not require a warrant. Rodriguez, 497 U.S. at 185. However, the scope of such a search must be "strictly tied to and justified by" the circumstances which led to the arrest. Terry, 392 U.S. 1, 19, 20 L. Ed. 2d 889, 88 S. Ct. 1868. Thus, the police may search the arrestee and areas within his reach to prevent him from obtaining weapons or destroying evidence. Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969).

We do not consider that general principles of fourth amendment jurisprudence validate the officer's actions in this case. The record does not show, and the State does not claim, that the officers here had either a warrant, probable cause or the defendant's consent to conduct a search. Nonetheless, the defendant's car was searched twice. First, Officer Jedlowski looked into the defendant's car and felt for weapons on the seat and the floor. This search was arguably incident to a lawful arrest, and was never at issue in this case. The defendant sought to suppress evidence gained during the second ...

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