The opinion of the court was delivered by: Justice Thomas
JUSTICE THOMAS delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.
¶ 1 At issue is whether the circuit court of Lake County erred in denying defendant's motion to suppress evidence, where the evidence was obtained pursuant to a search incident to an arrest for a petty offense. We hold that the trial court did not err, because defendant did not meet his burden of showing that the arrest violated his rights under the search and seizure clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 6).
¶ 3 The State charged defendant, Lewis C. Fitzpatrick, with possessing fewer than 15 grams of cocaine. Defendant moved to suppress the evidence that was discovered during a search of his person after he was arrested for a petty offense. Defendant alleged that subjecting him to an arrest for a petty offense violated his rights under the fourth amendment and the search and seizure clause of our state constitution.
¶ 4 At the hearing on the motion to suppress, Officer Paul Kehrli of the Zion police department testified that in July 2009, he observed defendant and a companion walking down the middle of 28th Street. Walking in the middle of the street is a violation of section 11-1007 of the Illinois Vehicle Code (625 ILCS 5/11-1007 (West 2010)), and it is classified as a petty offense (625 ILCS 5/11-202 (West 2010)). Kehrli also testified that defendant's conduct violated a municipal ordinance. Kehrli testified that he had no specific belief that defendant was armed, and defendant was not doing anything threatening at the time. Kehrli conducted a brief pat-down search for weapons and then placed defendant under arrest. As part of routine procedure when someone is placed under arrest, defendant was searched for contraband at the police station. The police discovered cocaine in defendant's sock.
¶ 5 The trial court denied the motion to suppress. The court found that People v. Taylor, 388 Ill. App. 3d 169 (2009), is the controlling law in the Second District. In Taylor, the court held that, pursuant to Atwater v. City of Lago Vista, 532 U.S. 318 (2001), an arrest for a minor fine-only offense does not violate the fourth amendment. And, because this court has construed the search and seizure clause of the Illinois Constitution in limited lockstep with the fourth amendment (People v. Caballes, 221 Ill. 2d 282 (2006)), such an arrest does not violate the Illinois Constitution either. Taylor, 388 Ill. App. 3d at 176.
¶ 6 Defendant appealed, and the Appellate Court, Second District, affirmed. 2011 IL App (2d) 100463. That court acknowledged that it had, in an earlier decision, held that this court had implicitly rejected Atwater. Id. ¶ 4 (discussing People v. Moorman, 369 Ill. App. 3d 187 (2006)). However, the Second District later disavowed Moorman in Taylor and concluded that this court had not implicitly rejected Atwater. See Taylor, 388 Ill. App. 3d at 176-78. In the present case, the Second District continued to follow Taylor. The court explained that Illinois follows a "limited lockstep" approach and that none of the narrow exceptions for departing from lockstep were present in this case. 2011 IL App (2d) 100463, ¶¶ 8-12. Accordingly, the court upheld the denial of the motion to suppress.
¶ 7 The court agreed with defendant that he should have been granted a hearing on his ability to pay a public defender fee before such a fee was imposed, and the court remanded for such a hearing. The court rejected defendant's argument that such a remand was improper because more than 90 days had passed since the entry of final judgment. Id. ¶ 13.
¶ 8 We allowed defendant's petition for leave to appeal. Ill. S. Ct. R.
315 (eff. Feb. 26, 2010).
¶ 10 Defendant raises two issues on appeal: (1) that his motion to suppress should have been granted because the search and seizure clause of the Illinois Constitution provides greater protection than its federal counterpart; and (2) that the appellate court erred in remanding the cause for a hearing on defendant's ability to pay a ...