Appeal from the Circuit Court of Cook County. 08 CR 7107 Honorable William T. O'Brien, Judge Presiding.
The opinion of the court was delivered by: Justice Hall
JUSTICE HALL delivered the judgment of the court, with opinion. Justices Garcia and Gordon concurred in the judgment and opinion.
¶ 1 Defendant Cesar Garcia was arrested and charged with possession of less than 15 grams of cocaine in violation of section 402(c) of the Illinois Controlled Substances Act (720 ILCS 570/402(c) (West 2006)). Following a stipulated bench trial he was found guilty and sentenced to two years' felony probation.
¶ 2 The primary issue on appeal is whether the trial court erred in denying defendant's motion to quash arrest and suppress evidence of drugs found in a plastic baggie for lack of probable cause. Defendant maintains the trial court erred in finding that Chicago police officer Romano had probable cause to seize a clear plastic baggie protruding from his front pants pocket. The trial court determined that the seizure was justified under the plain-view exception to the fourth amendment's warrant requirement. We find the trial court erred in this regard.
¶ 3 In reviewing a trial court's ruling on a motion to suppress evidence, we apply the two-part standard of review adopted by the United States Supreme Court in Ornelas v. United States, 517 U.S. 690, 699 (1996). See People v. Luedemann, 222 Ill. 2d 530, 542 (2006). Under this standard of review, findings of fact made by the trial court are given great deference and will be upheld unless they are against the manifest weight of the evidence since the trial court is in a superior position to observe the witnesses' demeanor, weigh their credibility, and resolve conflicts in their testimony. People v. Jones, 215 Ill. 2d 261, 268 (2005). However, reviewing courts remain free to undertake their own assessment of the facts in relation to the issues and may draw their own conclusions when deciding what relief should be granted. Luedemann, 222 Ill. 2d at 542; Jones, 215 Ill. 2d at 268. Therefore, we review de novo the trial court's ultimate legal ruling as to whether suppression is warranted. Luedemann, 222 Ill. 2d at 542; Jones, 215 Ill. 2d at 268.
¶ 4 The fourth amendment of the United States Constitution protects individuals from unreasonable searches and seizures. U.S. Const., amend. IV. The central requirement of the fourth amendment is reasonableness. Illinois v. McArthur, 531 U.S. 326, 330 (2001). The general rule is that searches and seizures are unreasonable unless conducted pursuant to a judicial warrant issued by a neutral magistrate after a finding of probable cause. McArthur, 531 U.S. at 330. However, courts have established certain exceptions to the warrant requirement. One such exception relevant to this case is the plain-view exception. This exception allows a police officer to seize an object without a search warrant if the officer is lawfully located in the place where he observed the object, the object is in plain view, and the object's incriminating nature is immediately apparent. People v. Chavez, 228 Ill. App. 3d 54, 69 (1992).
¶ 5 At issue in this case is the third element of the plain-view exception. Whether the incriminating nature of the plastic baggie protruding from defendant's front pants pocket was immediately apparent.
¶ 6 The facts in this case reveal that on March 10, 2008, at approximately 2 a.m., defendant was riding as a passenger in a vehicle when Officer Romano observed him throw an object or a large can out of the passenger-side window. The officer stopped the vehicle to issue defendant a citation for littering. At this point, the officer's stop of the vehicle was supported by probable cause and was therefore justified at its inception.
¶ 7 Defendant allegedly made a "snide" remark, denying that he threw anything out of the car. Officer Romano then ordered defendant to exit the vehicle. Although making a "snide" remark should not occasion police removing someone from his car, Officer Romano was justified in ordering defendant to step out of the vehicle based upon his conduct of throwing the can out of a moving vehicle. It is well established that following a lawful traffic stop, the police may, as a matter of course, order the driver and any passengers out of the vehicle pending completion of the stop without violating the protections of the fourth amendment. Maryland v. Wilson, 519 U.S. 408, 410 (1997); People v. Sorenson, 196 Ill. 2d 425, 433 (2001).
¶ 8 When defendant exited the vehicle, Officer Romano noticed "plastic" protruding two to three inches from the defendant's right front pants pocket. On cross-examination, the officer testified that what she observed was a "clear knotted plastic bag." Based upon her 131/2 years of experience as a police officer, which included 300 to 400 narcotics-related arrests, Officer Romano believed that the clear knotted plastic bag might contain illegal narcotics. Without defendant's consent, the officer removed the plastic bag from the defendant's pocket and discovered a white powdery substance believed to be cocaine. At this point defendant was placed under arrest.
¶ 9 In order for Officer Romano to have had probable cause to seize the plastic baggie under the plain-view exception, it must have been immediately apparent to her that the plastic baggie was evidence of a crime or contraband. "The requirement that an item's criminal nature be 'immediately apparent' essentially translates into a probable cause requirement." People v. Watkins, 293 Ill. App. 3d 496, 502 (1997).
¶ 10 Probable cause is a flexible, commonsense standard (People v. Taggart, 233 Ill. App. 3d 530, 554 (1992)), which has both a subjective and an objective component. People v. Velleff, 94 Ill. App. 3d 820, 823 (1981); People v. Long, 369 Ill. App. 3d 860, 867 (2007). Probable cause exists where the police have knowledge of facts that would lead a reasonable person to believe that a crime has occurred and that it has been committed by the defendant (People v. Bradford, 187 Ill. App. 3d 903, 919 (1989)), and this belief must be objectively reasonable under the totality of the circumstances (Long, 369 Ill. App. 3d at 867). "The determination of probable cause to search is to be made after examining the totality of the circumstances, including the police officer's knowledge based on his prior law enforcement experience." People v. Jones, 269 Ill. App. 3d 797, 805 (1994).
¶ 11 Based on the circumstances of the traffic stop and objectively looking at the totality of the circumstances known to Officer Romano when she made the stop, we find that the officer did not have probable cause to seize the plastic baggie from defendant's front pants pocket. Officer Romano initially stopped the vehicle to issue defendant a citation for littering from a moving vehicle. After defendant complied with the officer's ...