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The People of the State v. Michael G. Kowalski

July 28, 2011

THE PEOPLE OF THE STATE
PLAINTIFF-APPELLEE,
v.
MICHAEL G. KOWALSKI,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court OF ILLINOIS, of Du Page County. No. 08-CM-5239 Honorable Karen M. Wilson, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

2011 IL App (2d) 100237

JUSTICE BOWMAN delivered the judgment of the court, with opinion.

Presiding Justice Jorgensen and Justice McLaren concurred in the judgment and opinion.

OPINION

¶ 1 Following a stipulated bench trial, defendant, Michael G. Kowalski, was convicted of possession of drug paraphernalia (720 ILCS 600/3.5 (West 2008)). The trial court sentenced him to 30 days in jail and 12 months' probation. Defendant appeals, contending that the trial court erred in denying his motion to suppress evidence. For the reasons that follow, we reverse.

¶ 2 BACKGROUND

¶ 3 The only witness to testify at the hearing on defendant's motion to suppress was Officer John Gaw of the Lisle police department. He gave the following testimony. In the early morning hours of September 7, 2008, he responded to a call of a bar fight. When Gaw arrived, he observed defendant sitting on the stairs outside the bar. Defendant was highly intoxicated and had blood on his face and clothing. It was "apparent" that defendant was the victim of the fight. Because defendant required medical attention and because of defendant's intoxicated state, Gaw assisted defendant to the waiting ambulance. Prior to placing defendant in the ambulance, and according to the fire department's policy that anyone involved in a call involving violence be searched before entering an ambulance, Gaw conducted a search of defendant. In defendant's front pants pocket, Gaw found a small, metal pipe containing some burned cannabis residue in the bowl area. When Gaw searched defendant, defendant was not under arrest, defendant was not a suspect of any kind, Gaw did not possess a warrant to search defendant, and defendant did not consent to a search of his person. In addition, defendant did not display any aggression toward Gaw or any other person.

¶ 4 After taking the matter under advisement, the trial court denied defendant's motion to suppress. The trial court stated that it was extending the holding of Terry v. Ohio, 392 U.S. 1 (1968), to allow for a weapons search of a person who is to be transported in an ambulance where an officer reasonably believes the person might be armed. The trial court also likened the situation to one where an officer conducts a weapons pat-down search before giving a citizen a courtesy transport in a squad car. Defendant filed a motion to reconsider the ruling on his motion to suppress, which the trial court denied.

¶ 5 The trial court found defendant guilty of possession of drug paraphernalia and sentenced him to 30 days in the county jail and 12 months' probation. Defendant timely appeals.

¶ 6 ANALYSIS

¶ 7 On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence, because Gaw lacked legal authority to conduct the search and, even if Gaw was legally authorized to conduct a search, the search he conducted exceeded the legally permissible scope. Because we agree with defendant's latter argument, we reverse his conviction.

¶ 8 In reviewing the trial court's ruling on a motion to suppress, we will reverse the trial court's factual findings only if they are against the manifest weight of the evidence; however, we will review de novo the ultimate question of whether the evidence should have been suppressed. People v. Queen, 369 Ill. App. 3d 211, 214 (2006).

¶ 9 Although a defendant initially bears the burden of proof on a motion to suppress, where a defendant makes a prima facie case that the evidence was obtained by an illegal search or seizure, the burden shifts to the State to go forward with evidence countering the defendant's prima facie case. People v. Kveton, 362 Ill. App. 3d 822, 832 (2005). A defendant presents a prima facie ...


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