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11/26/97 PEOPLE STATE ILLINOIS v. CHRISTOPHER A.

November 26, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CHRISTOPHER A. SWEBORG, DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the 14th Judicial Circuit, Henry County, Illinois. No. 94--CF--234. Honorable Jay Hanson, Judge, Presiding.

Released for Publication January 6, 1998.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Kent Slater, Justice, Honorable John F. Michela, Justice. Justice Slater delivered the opinion of the court. Michela, J., concurs. Presiding Justice Lytton, specially concurring.

The opinion of the court was delivered by: Slater

The Honorable Justice SLATER delivered the opinion of the court:

The defendant, Christopher A. Sweborg, was convicted of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1994)) and unlawful possession of cannabis (720 ILCS 550/4(b) (West 1994)). He was sentenced to six months in the county jail, a concurrent term of 30 months' probation and a $500 drug assessment. On appeal, he contends that the trial court erred in denying his motion to suppress. We find that the defendant's motion to suppress should have been granted because defendant did not consent to a search of the trunk and there were no articulable facts justifying the officer's search of the trunk.

Facts

Just after midnight on September 12, 1994, the defendant's car was stopped by a police officer because one of its taillights was not illuminated. The officer informed the defendant of the reason for the stop and asked the defendant to wait with him inside the officer's car. The defendant exited his vehicle and walked toward the police car. At that time, the officer asked the defendant if he could search the defendant's person. The defendant said he could, and the officer proceeded to pat down the defendant and to go through all the defendant's pockets. The pat down revealed no weapons or unlawful substances.

Inside the police car, the officer initiated a check of the defendant's driver's license. From the check, he learned that the defendant was required to wear corrective lenses. Since the defendant was not wearing glasses, the officer questioned him about whether he was wearing contact lenses. The defendant attempted to show the officer his contacts, at which time the officer noted that the defendant's eyes appeared "glassy, glossy and bloodshot." Based upon this observation, the officer asked the defendant if there was any open alcohol or cannabis in the defendant's car. The defendant said, "No."

The officer then asked the defendant for permission to search the interior of the defendant's car. The defendant gave that permission. The officer searched the entire interior of the defendant's car--the back seat area, the front seat area and the glove compartment. He found only a small vial with brown-colored liquid in it which the defendant explained was incense.

After searching the interior of the car, the officer asked the defendant for permission to search the car's trunk. At the hearing on the motion to suppress, the defendant testified that the officer asked him what he had in the trunk and he replied that his guitar case and guitar were in the trunk. When the officer asked if he could search the trunk, the defendant testified that he said, "No. I really don't want you to." The defendant testified that he protested again once the trunk was opened, saying, "I thought I told you I didn't want you to look through my personal items." The officer testified that the defendant consented to a search of the trunk.

Upon opening the trunk, the officer noted the presence of the defendant's guitar case. He opened the case and found the defendant's guitar and another smaller compartment with a fliptop lid. When the officer attempted to open the compartment, the defendant reached in and clasped his hand on top of the compartment, effectively preventing the officer from opening the lid. According to the defendant, he told the officer, "I thought I told you that I didn't want you to look through my personal items."

The officer then asked the defendant what was in the compartment and the defendant answered that there were just personal items inside. The officer asked the defendant if there were any weapons in the compartment and the defendant replied that there were not. After inquiring about the contents of the compartment, the officer told the defendant to take his hand off the compartment and back away from the officer. The defendant did so. Then, despite defendant's previous protests, the officer opened the compartment and found a baggie containing a green leafy substance later determined to be cannabis and a closed tin box with eight square pieces of perforated paper containing LSD. At that time, the officer arrested the defendant.

The trial court found that the defendant had consented to the search of the interior of the vehicle and the search of the trunk. It found, however, that the defendant revoked his consent to search when the officer attempted to open the closed compartment within the guitar case. Nevertheless, the court concluded that the officer was justified in opening the compartment to protect himself. The court therefore denied the defendant's motion to suppress.

The defendant argues first on appeal that the trial court erred in denying his motion to suppress. He urges us to hold that the entire search of the vehicle--both the interior of the passenger compartment and the trunk--were invalid. We find, however, that we need not examine the validity of the entire search because we ...


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