Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Circuit No. 08--CF--764 Honorable Michael E. Brandt, Judge, Presiding.
The opinion of the court was delivered by: Justice Holdridge
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Presiding Justice Carter and Justice O'Brien concurred in the judgment and opinion.
¶ 1 After a stipulated bench trial, the defendant, Cedric S. Carter, was found guilty of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2008)) and sentenced to 30 months' probation. He appeals his conviction and argues that the trial court committed reversible error by denying his motion to suppress evidence. He also argues that the trial court erred by ordering him to pay a $100 public defender fee without first determining his ability to pay. We affirm in part and reverse in part.
¶ 3 On May 2, 2008, at approximately 6 p.m., the defendant was pulled over for failing to stop at a stop sign. The officer who stopped him ran a license check and discovered that the defendant's license was suspended. The officer returned to the vehicle and informed the defendant that he was being arrested for driving on a suspended license.
¶ 4 After placing the defendant in handcuffs, the officer conducted a search of the defendant's person. During the search, the officer found a small amount of cocaine in the defendant's crotch area.
¶ 5 On November 13, 2008, the defendant filed a motion to suppress the cocaine, alleging that the officer conducted an illegal strip search. Specifically, the defendant claimed that the officer's strip search violated his rights under the fourth amendment of the United States Constitution and article I, section 6, of the Illinois Constitution. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. He also alleged the strip search violated his statutory rights under the Code of Criminal Procedure of 1963 (Code). 725 ILCS 5/103--1 (West 2008).
¶ 6 The hearing on the motion to suppress took place that same day. The officer who conducted the search was called to testify. The officer stated that after he cuffed the defendant, he conducted a pat down search. During that search, he squeezed the defendant's crotch because, in his experience, it was a known spot where individuals hid contraband. Because the material did not "mesh" together, the officer believed that the defendant was hiding drugs. While still on the street, the officer unzipped the defendant's pants and saw a plastic bag sticking out of a hole in the defendant's clothing, which he removed. The officer did not state whether he was able to see the defendant's underwear once he pulled the zipper down. The officer admitted that the defendant's underwear was exposed during the search, but he also explained that the defendant's underwear was exposed prior to the search because the defendant wore his pants low. The officer further testified that, to the best of his understanding, the policy of his department was that in order to conduct a strip search, he would have to first get permission from a shift lieutenant.
¶ 7 The defendant testified that, after he was handcuffed, the officer unbuckled the defendant's belt, unbuttoned his pants, and unzipped his pants as well. He also stated that, during the search, his pants slid down below his crotch area.
¶ 8 After hearing all the evidence, the trial court found that the defendant was subjected to a search incident to a lawful arrest and not a strip search. The court also concluded that, although the strip search statute places certain limits upon the performance of strip searches, a violation of the statute is merely "a form of official misconduct" that "does not *** directly implicate the Fourth Amendment as far as excluding evidence." The trial court found that the search in this case was reasonable under the circumstances and therefore did not violate the fourth amendment. Thus, the court held that the plaintiff's motion to suppress should be denied.
¶ 9 The stipulated bench trial proceeded on December 2, 2008, and the defendant was found guilty of possessing a controlled substance. The defendant's motion for a new trial was denied, and on March 23, 2009, the defendant was sentenced to 30 months' probation. The trial court also applied the defendant's bond to a $100 laboratory fee and a $100 public defender fee. The defendant timely appealed.
¶ 11 On appeal, the defendant argues that the trial court erred by denying his motion to suppress evidence and by imposing a $100 public defender fee without first holding a hearing to determine his ability to pay the fee. We first consider whether the search of the defendant violated the defendant's statutory and constitutional rights. On review, all findings of fact made by the trial court will be accepted unless they are manifestly erroneous, but the ultimate decision ...