Where a defendant was pulling a wheeled luggage bag when he was arrested on a civil arrest warrant for failure to pay child support, the bag was in his immediate physical possession, was immediately associated with him, and was searchable in a search of his person incident to the arrest--suppression of cocaine properly refused.
For Carlos Dax Cregan, Appellant: Ms. Amber E. Corrigan, Office of the State Appellate Defender, Springfield, IL.
For People, Appellee: Mr. Michael Marc Glick, Attorney General, Chief of Criminal Appeals Division, Chicago, IL; State's Attorneys McLean County, McLean County Law & Justice Center, Bloomington, IL; State's Attorneys Appellate Prosecutor Springfield, Fourth Judicial District, Springfield, IL; Mr. David Harris Iskowich, Assistant Attorney General, Chicago, IL.
CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion. Justices Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion. Justice Burke dissented, with opinion, joined by Justice Freeman.
GARMAN, CHIEF JUSTICE.
[¶1] The circuit court of McLean County convicted defendant, Carlos Cregan, of possession of a controlled substance, after denying defendant's motion to suppress evidence from a search accompanying his arrest for failure to pay child support. The appellate court held the search valid under the search-incident-to-arrest exception to the search warrant requirement. 2011 IL App (4th) 100477, 961 N.E.2d 926, 356 Ill.Dec. 537. For the reasons that follow, we affirm.
[¶3] Carlos Cregan was charged with unlawful possession of less than 15 grams of cocaine, a controlled substance (720 ILCS 570/402(c) (West 2008)). He filed a motion to suppress evidence, arguing the search that led to discovery of the controlled substance violated his fourth amendment right
to be free from unreasonable searches. At a hearing on the motion, the court heard testimony from two Normal police officers, Kevin Kreger and Christopher Nyman. The defendant also testified.
[¶4] The Normal police department had received a tip that defendant would arrive by train on November 3, 2009, and that defendant had an active warrant for his arrest. Officers Kreger and Nyman were assigned to a multijurisdictional unit focused on gangs and drug activity. They learned that defendant was a documented member of the Satan Disciples gang while confirming the arrest warrant's validity. The McLean County civil warrant sought defendant's arrest for failure to pay child support. Kreger, Nyman, and a third officer waited at the train station for defendant's arrival, just after 9:30 p.m. The officers approached defendant, placed him under arrest and handcuffed him, and searched his two bags. Defendant did not resist or try to access his bags once he was in handcuffs. The witnesses' accounts vary somewhat as to the exact sequence of events.
[¶5] Officer Kreger testified that defendant was alone when he exited the train, and that the officers approached and reached him before anyone else arrived. A woman, later identified by defendant as his friend Lindsey Collins, approached on the platform as the officers confirmed defendant's identity and completed his arrest. Kreger testified that defendant had a " laundry bag" over his shoulder and a " wheeled luggage bag." The wheeled bag was closed with zippers and had no lock on it. Kreger's testimony was somewhat ambiguous as to how defendant moved the wheeled bag, stating both that defendant was " carrying" it and rolling it by the handle. He testified unambiguously, however, that defendant was in possession of both bags. Kreger testified that it was his intention to bring the bags into custody with defendant, as defendant was alone, and that he intended to conduct an inventory search of the bags, pursuant to department policy. Defendant asked if his bags could be turned over to his friend Collins, but Kreger told him the bags had to be searched first. The defendant was handcuffed at the time Kreger searched his bags.
[¶6] Officer Nyman testified that defendant got off the train with two other people, then departed from them to approach a woman. Nyman testified that defendant approached her before officers reached him, but that officers reached defendant immediately afterward. Nyman testified that defendant was " carrying two bags" and was holding the handle of the rolling bag when officers told him he was under arrest. Nyman also testified that gang members are " known to carry weapons," so the officers had safety concerns in making the arrest and search. Nyman said at the time of arrest, officers were not aware defendant had a prior conviction for a weapon offense.
[¶7] Defendant testified that he exited the train while talking to people he had met on it, then saw that his friend Lindsey Collins was waiting to give him a ride. Defendant approached her, put his bags down, and gave her a hug. At that point, she whispered, " I hope they are not here for you," referring to the police officers. Officers then approached and confirmed defendant's identity, placing him under arrest. Defendant asked if Collins could take his bags, and the officers said they " had to check them out first." The officers then wheeled the bags to the side of the station and began searching the bags in defendant's presence. The exact distance between defendant's location when he was handcuffed and where his bags were searched is not clear from any witness's
testimony. However, defendant's testimony was that he and Collins met on the walkway between the train and the station. The officers then wheeled the bags over to the side of the station to search them.
[¶8] While searching defendant's bags, Kreger found a jar of hair gel. Its appearance was not noteworthy. Opening it to look within, he found a bag containing powder cocaine. Defendant moved to suppress that evidence. After hearing testimony from Kreger, Nyman, and defendant, the circuit court ruled the bags were within defendant's control at the time of the arrest. The circuit court also noted that defendant's status as a gang member " obviously played a role not only in [the officers'] concern about what might be within the immediate control of the Defendant, but some other unspecified concern," and reasoned there was little distinction to be made between defendant having access to a weapon and giving a friend of defendant access to a weapon. The trial court considered the search to be an " inventory search *** conducted incident to the Defendant's arrest."
[¶9] Defendant was convicted in a stipulated bench trial and sentenced to five and one-half years' imprisonment. On appeal, defendant contended the search of his luggage was not a valid search incident to arrest. The State argued that issue was forfeited because defendant failed to raise it in a written posttrial motion. The State argued in the alternative that the trial court properly denied the motion to suppress, because the search was valid incident to defendant's arrest.
[¶10] The appellate court examined this court's ruling in People v. Enoch, 122 Ill.2d 176, 190, 522 N.E.2d 1124, 119 Ill.Dec. 265 (1988), and its own precedent in People v. Cox, 295 Ill.App.3d 666, 670, 693 N.E.2d 483, 230 Ill.Dec. 354 (1998), and concluded defendant did not forfeit his challenge to the search, because it is a constitutional issue raised in the trial court and cognizable in a postconviction petition. The appellate court concluded the search was valid incident to defendant's arrest, because the bags were immediately associated with his person, similar to the arrestee's purse in People v. Hoskins, 101 Ill.2d 209, 461 N.E.2d 941, 78 Ill.Dec. 107 (1984). The appellate court also held the search was not limited to a brief search for weapons. The officers were allowed to conduct a thorough search for weapons, including the hair gel container located inside the luggage. The appellate court, therefore, affirmed the trial court's judgment. 2011 IL App (4th) 100477, 961 N.E.2d 926, 356 Ill.Dec. 537.
[¶11] We allowed defendant's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010).
[¶13] This appeal concerns whether the warrantless search of defendant's bags violated his right to be free from unreasonable searches, or whether that search was reasonable under the search-incident-to-arrest exception to the warrant requirement. The defendant's chief argument is that the search of his bags exceeded the permissible scope of a search incident to arrest--being handcuffed, he presented no threat he might access the bags to produce a weapon or destroy evidence. Relying on Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), defendant argues the search of his bags did not qualify for this exception to the warrant requirement. The State counters that defendant still had access to his bags and presented a threat that justified a search of the area within defendant's control pursuant to his arrest. The State renews its argument that defendant forfeited his challenge
to the search by failing to raise it in a posttrial motion. As a threshold matter, we take up the question of forfeiture first.
[¶15] To preserve an issue for review, a party ordinarily must raise it at trial and in a written posttrial motion. Enoch, 122 Ill.2d at 186. Defendant acknowledges he failed to raise his challenge to the search in a posttrial motion.
[¶16] In Enoch, however, this court held three types of claims are not subject to forfeiture for failing to file a posttrial motion: (1) constitutional issues that were properly raised at trial and may be raised later in a postconviction petition; (2) challenges to the sufficiency of the evidence; and (3) plain errors. Id. at 190. In holding defendant's challenge to the search was not forfeited, the appellate court relied on the constitutional-issue exception.
[¶17] The State contends that Enoch was a capital case, and the constitutional-issue exception stems from the special scrutiny exercised by this court in reviewing those cases. The State, therefore, maintains that the constitutional-issue exception applies only to capital cases, and the appellate court erred in relying on that exception in this noncapital case.
[¶18] Contrary to the State's argument, the constitutional-issue exception recognized in Enoch is based primarily in the interest of judicial economy. The Post-Conviction Hearing Act provides a mechanism for criminal defendants to assert that a conviction or sentence resulted from a substantial denial of their rights under the United States Constitution, the Illinois Constitution, or both. 725 ILCS 5/122-1(a) (West 2008). Postconviction proceedings permit inquiry into constitutional issues that were not, and could not have been, adjudicated on direct appeal. People v. English, 2013 IL 112890, ¶ 22, 987 N.E.2d 371, 369 Ill.Dec. 744. If a defendant were precluded from raising a constitutional issue previously raised at trial on direct appeal, merely because he failed to raise it in a posttrial motion, the defendant could simply allege the issue in a later postconviction petition. Accordingly, the interests in judicial economy favor addressing the issue on direct appeal rather than requiring defendant to raise it in a separate postconviction petition.
[¶19] The State's argument that Enoch created special forfeiture rules for capital cases is likewise undermined by the other forfeiture exceptions recognized in Enoch . In addition to the constitutional-issue exception, Enoch observed that challenges to the sufficiency of the evidence and plain errors are not forfeited by failure to raise them in a posttrial motion. Challenges to the sufficiency of the evidence and plain errors are forfeiture exceptions that apply to all criminal cases, not just capital cases. We conclude that the forfeiture exceptions from Enoch apply to both capital and noncapital cases.
[¶20] Defendant's motion to suppress asserts a violation of his constitutional right to be free from unreasonable searches and seizures. The constitutional-issue exception applies because defendant raised the issue at trial and could have raised it later in a postconviction petition. Accordingly, we conclude that the appellate court did not err in applying the constitutional-issue exception to forfeiture in this case.
[¶21] Standard of Review
[¶22] In reviewing a ruling on a motion to suppress, this court gives great deference to the trial court's findings of fact and will reverse those findings only if they are against the manifest weight of the evidence. People v. Bridgewater, 235 Ill.2d 85, 92, 918 N.E.2d
553, 335 Ill.Dec. 208 (2009). We review de novo the trial court's legal ruling on whether evidence should be suppressed. Id. at 92-93.
[¶23] The defendant bears the burden of proof on a motion to suppress evidence. 725 ILCS 5/114-12(b) (West 2008); People v. Lampitok, 207 Ill.2d 231, 239, 798 N.E.2d 91, 278 Ill.Dec. 244 (2003). If the defendant makes a prima facie showing that the evidence was obtained in an illegal search or seizure, the burden shifts to the State to provide evidence to counter the defendant's prima facie case. People v. Gipson, 203 Ill.2d 298, 306-07, 786 N.E.2d 540, 272 Ill.Dec. 1 (2003). The ultimate burden of proof remains with the defendant, however. Id. at 307.
[¶24] Search Incident to Arrest
[¶25] Warrantless searches are per se unreasonable under the fourth amendment, subject to a few specific exceptions. Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Among the exceptions is a search incident to arrest. Gant, 556 U.S. at 338. A search incident to arrest falls under two lines of analysis: search of the person of the arrestee and search of the area under the control of the arrestee. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).
[¶26] In this case, defendant made a prima facie case that the evidence was obtained illegally by showing the officers searched his luggage without a warrant. See Gipson, 203 Ill.2d at 307 (defendant made a prima facie case by showing an officer searched the trunk of his car without a warrant). To counter defendant's prima facie case, the State maintains the search was valid under the search-incident-to-arrest exception to the warrant requirement.
[¶27] The appellate court held that the search of defendant's luggage was valid incident to his arrest under this court's decision in Hoskins . In Hoskins, the defendant ran from police officers after being told she was under arrest for prostitution. As she fled, the defendant either threw her purse to the ground or dropped it. One of the officers caught defendant, subdued her, and handcuffed her behind her back. The other officer searched defendant's purse, finding an envelope containing a hypodermic syringe and cocaine. Hoskins, 101 Ill.2d at 212. This court held the search was valid incident to the defendant's arrest under the Supreme Court's decision in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Hoskins, 101 Ill.2d at 216.
[¶28] In Robinson, the Supreme Court distinguished between two types of search incident to arrest: the search of the person arrested and the search of the area within his control. Robinson, 414 U.S. at 224. These searches serve different purposes and are justified by different concerns. A search of the person incident to his arrest is based on the need to disarm the individual and to discover evidence. However, the search need not be justified by probable cause to search for weapons or evidence; the search of the person requires no additional justification beyond the fact of his lawful custodial arrest, which is itself justified by probable cause. Id. at 235.
" The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation
that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification." Id.
[¶29] The search of the area of the arrest, on the other hand, must be justified by the possibility that the arrestee might gain possession of a weapon or destroy evidence. The scope of an area search is, therefore, limited to the area within the arrestee's immediate control. Gant, 556 U.S. at 335.
[¶30] Whether Hoskins Survived Gant
[¶31] On appeal to this court, defendant argues this court's decision in People v. Hoskins is no longer good law following the United States Supreme Court's 2009 decision in Arizona v. Gant . Defendant observes that in Gant, the Supreme Court reaffirmed the long-standing principle that police officers may search incident to arrest only the area within an arrestee's immediate control, meaning the area where he might gain possession of a weapon or destructible evidence. Gant, 556 U.S. at 335 (quoting Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)). Although Gant involved the search of a vehicle, defendant maintains the reasoning of that case applies to all searches incident to arrest, abrogating both New York v. Belton, 453 U.S. 454, 459-63, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (upholding searches of vehicle and all containers within upon the arrest of an occupant), and Robinson, 414 U.S. at 234-36 (upholding searches of arrestee's person and containers within pockets, irrespective of individualized likelihood of a weapon or evidence of the arrest offense). Defendant contends this court's holding in Hoskins, that items immediately associated with an arrestee's person may be searched with no additional justification other than a lawful arrest, can no longer be sustained. Accordingly, defendant contends the appellate court erred in upholding the search of his luggage under Hoskins .
[¶32] Defendant reads Gant to have a broad reach. In Gant, the Supreme Court clarified the search-incident-to-arrest exception as applied to vehicle searches in Belton. Gant, 556 U.S. at 338. The Court observed Belton had been " widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search." Id. at 341. The Court held that the broad reading of Belton untethered the rule from the justifications underlying the exception for search of a vehicle incident to arrest. Id. at 343. A search of the area of the arrest must be justified by the possibility that the arrestee might gain possession of a weapon or destroy evidence. Id. at 339; Chimel v. California, 395 U.S. 752, 762-65, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Based on the fundamental principles underlying Chimel, the Court rejected the broad reading of Belton and held that police officers may " search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." Gant, 556 U.S. at 343. The decision in Gant thus clarified and limited the search-incident-to-arrest exception as applied to vehicles.
[¶33] Hoskins, however, relied on Robinson 's rule for search of the person incident to arrest. " The search of the purse here was proper under Robinson as incident to the defendant's lawful arrest. [Citations.] Thus, Robinson authorizes a warrantless
search of the defendant's purse, which is immediately associated with defendant's person, simply on the lawful, custodial arrest." Hoskins, 101 Ill.2d at 217. The Hoskins court separately considered arguments about an inventory search, abandonment of the property, and the search of an area for evidence of an offense. Id. at 218-21. Yet these parallel considerations do not alter or undermine the Hoskins court's ruling on the purse as an object " immediately associated" with the person of the arrestee: that Robinson allows such a search.
[¶34] Defendant does not point to, and we do not find, any portion of the Gant decision that indicates abrogation of Robinson 's holding on search of the person incident to arrest. In no prior case has the Supreme Court used the area of the arrestee's control as a limit on the search of a person incident to arrest, and at no point in Gant is such a limit imposed. Indeed, the Supreme Court continues to cite Robinson for a per se rule allowing a full search of the arrestee's person incident to arrest without additional justification other than the lawful arrest. In Maryland v. King, 569 U.S., , 133 S.Ct. 1958, 1970-71, 186 L.Ed.2d 1 (2013), the Supreme Court reaffirmed the ruling in Robinson, stating:
" 'The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged.' United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Even in that context, the Court has been clear that individual suspicion is not necessary, because '[t]he constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search.'"
We therefore conclude Gant does not apply to a search incident to arrest of the defendant's person or items immediately associated with the defendant's person. The search in those circumstances is still controlled by the Supreme Court's decision in Robinson . Our decision in Hoskins, based on the rule in Robinson, is undisturbed by Gant .
[¶35] Whether Hoskins Governs the Present Case
[¶36] Having concluded that this court's ruling in Hoskins survives the United States Supreme Court's decision in Gant, we now consider whether Hoskins applies to the search of defendant's bags. When the object searched is an item of moveable personal property other than the clothing on the arrestee's back or an item contained inside his clothing, as in a pocket (see Robinson, 414 U.S. at 220-24 (approving search of cigarette pack found in arrestee's coat pocket)), the question arises whether this situation should be analyzed as a search of the person or as a search of the area within his control.
[¶37] In holding the defendant's purse was immediately associated with her person, Hoskins distinguished the Supreme Court's decision in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Hoskins, 101 Ill.2d at 214-15. The Chadwick Court held that the search of a 200-pound double-locked footlocker belonging to the defendants was not justified as a search of the area under their control. When Chadwick and his two associates were arrested, one was sitting in the front seat of a car while the other two were standing near the back of the car, after having lifted the footlocker into the trunk. Before the trunk could be closed and the
engine started, police officers arrested all three men. Chadwick, 433 U.S. at 4. The police took the footlocker into their " exclusive control" and transported it to the Federal Building, where it was searched an hour and a half later, revealing a large quantity of marijuana. Id. at 4.
[¶38] After rejecting the Government's argument that the search of the footlocker, a moveable item, was justified under the same logic as the " automobile exception" to the warrant requirement ( id. at 12-13), the Court turned to the question of whether it was properly searched incident to arrest ( id. at 14). The Government argued that the search was permissible because the footlocker was in the respondents' possession when they were arrested. Id. Significantly, the Government conceded that at the time of the arrests, " the footlocker was not within respondents' immediate control." Id.
[¶39] The Court noted that a search incident to arrest has two components, the search of the arrestee's person and the search of the area " 'within his immediate control.'" Id. (quoting Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)). Given the Government's concession in Chadwick on the question of " immediate control," the facts that the footlocker was double-locked and could not have been accessed by any of the defendants, that it was too large and heavy to have been carried away had one of them attempted to flee, and that it was secured by the police and transported to the Federal Building, combined with the delay before the search was conducted, the Court held that the search was not justified by the need to search the area within the defendants' control as part of a search incident to arrest. Id. at 15.
[¶40] The Court, however, did not specifically consider whether the footlocker could have been searched as part of a search of the persons of the three defendants, perhaps because, given the size, weight, and location of the item, such an argument by the government would have been fruitless. The Court did hold that " warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the 'search is remote in time or place from the arrest,' [citation] or no exigency exists." Id. The Court did not make any specific ...