Appeal from Circuit Court of Champaign County. No. 95CF1336. Honorable Harold L. Jensen, Judge Presiding.
As Corrected December 19, 1997. Released for Publication January 6, 1998.
Honorable Robert J. Steigmann, J., Honorable Rita B. Garman, J. - Concur, Honorable James A. Knecht, J. - Concur. Justice Steigmann delivered the opinion of the court.
The opinion of the court was delivered by: Steigmann
The Honorable Justice STEIGMANN delivered the opinion of the court:
In November 1995, the State charged defendant, Ladresha F. Brownlee, with possession with intent to deliver a controlled substance (1 gram or more but less than 15 grams of a substance containing cocaine) in violation of section 401(c)(2) of the Illinois Controlled Substances Act (720 ILCS 570/401(c)(2) (West 1994)). In December 1995, defendant filed a motion to suppress the evidence that was the basis for the charge against her. In January 1996, the trial court conducted a hearing on that motion and granted it.
The State appealed the suppression order, and this court reversed and remanded with directions. People v. Brownlee, 285 Ill. App. 3d 432, 674 N.E.2d 503, 220 Ill. Dec. 960 (1996) (Brownlee). Defendant filed a petition for leave to appeal, which the supreme court denied. However, in the exercise of that court's supervisory authority, it vacated this court's judgment and remanded with directions that we "consider the defendant's argument regarding the Illinois Constitution." People v. Brownlee, 223 Ill. Dec. 40, 172 Ill. 2d 555, 678 N.E.2d 1048-49 (1997).
In accordance with the supreme court's directions, we have considered anew defendant's argument regarding the Illinois Constitution. For the reasons that follow, we adhere to our earlier decision, reversing the trial court and remanding with directions.
The facts pertinent to this appeal are set forth in Brownlee, (285 Ill. App. 3d at 433-34, 674 N.E.2d at 504-05) and require only brief restatement here. Essentially, they show that on the night in question, two Urbana police officers stopped a car containing four occupants for a minor traffic violation. The officers noted that the car had been driven in a suspicious fashion in an area the officers knew had drug activity.
After the officers spoke to the car's occupants, determined that none had any outstanding arrest warrants, and decided not to issue any traffic tickets, one of the officers "paused a couple of minutes, and [he] asked [the driver] if [he] could search his vehicle." The officer had not told the driver that he could leave. After further discussion, the driver consented to the search. During this search, the officers found some marijuana and arrested all of the car's occupants. After the officers arrested defendant (who was a backseat passenger), they searched her purse and found the substance containing cocaine, which was the basis of the charge the State filed against her.
Defendant filed a motion to suppress and argued that the trial court should follow a decision from the Ohio Supreme Court that the State on appeal appropriately terms the "first-tell-then-ask" rule. This rule states that when the police stop a car and later determine that they are not going to issue any traffic tickets to the driver (or, alternatively, have completed the process of issuing those tickets), they may not ask for the driver's consent to search the car until they have first told the detained driver that he is free to drive away. The trial court granted defendant's motion to suppress, and this appeal followed. II. ANALYSIS
A. Federal Constitutional Search and Seizure Provisions
In Brownlee, we analyzed defendant's motion to suppress in the context of the fourth amendment to the federal constitution (U.S. Const., amend. IV). Defendant had argued to this court that the fourth amendment required that motorists who are stopped for traffic offenses be clearly informed by the detaining officer when they are free to go before the officer attempts to engage in any further questioning or to seek consent to search the car. Defendant argued that the officer must first say to the driver, "At this time you are legally free to go," or words to that effect.
In support of her argument, defendant cited the decision of the Ohio Supreme Court in State v. Robinette, 73 Ohio St. 3d 650, 653 N.E.2d 695 (1995). However, in Brownlee, this court noted that during the appeal from the suppression order in this case, the United States Supreme Court rendered its decision in Ohio v. Robinette, 519 ...