People v. Tilden

Mr. JUSTICE JOHNSON, dissenting:

I am' unable to agree with the holding of the majority; therefore, I would reverse the trial court.

In a bench trial, the defendant was found guilty of unlawful use of weapons in violation of section 24 — 1(a)(4) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a)(4)). After a hearing in aggravation and mitigation, he was sentenced to 6 months in the House of Correction — Work Release.

The arresting officer, Raymond Krakausky, at the hearing on the motion to suppress, testified that he observed the defendant operating a green automobile southbound on Prairie from 43rd Street. The vehicle had no headlights or taillights. The defendant exited the car, produced a valid driver s license, and offered no resistance.. Officer Krakauksy testified that the defendant said, during questioning, that he had just left a tavern and forgot to turn his lights on. Then the officer noticed an empty holster on the right side of defendant’s pants, and, according to the officer, the holster was in plain view and was not detected after á search. The officer searched the defendant and the front seat of his car; On the basis of the preceding evidence, the trial judge denied the defendant’s motion to suppress so a trial was held.

The defendant’s attorney stipulated that Officer Krakausky’s testimony on the motion to suppress would be the same at trial. The officer testified that he “went to the automobile” and discovered a gun when he looked under the front seat. Then he identified People’s exhibit 1 as the gun taken from the car. The officer also testified that a female was riding with the defendant and she was sitting on the passenger’s side of the front seat.

The stop in the instant case, at first blush, appears to be a routine traffic stop for a minor motor vehicle violation. The policeman testified that he stopped the defendant’s car because he was driving without lights. I do not question the propriety of the initial stop since it is clearly permissible for a policeman to stop a motorist driving in a. moving car with no lights to inspect the license of the car’s driver, and to issue á warning or citation and, in the exceptional case to effectuate an arrest. Consequently, I concur with the holding of the majority insofar as they hold that the officer’s testimony established a proper purpose for the initial stop. In this case, however, the defendant produced a valid driver’s license and offered no resistance. Although the defendant’s car was stopped for a traffic violation, the record is devoid of any evidence that a citation of any kind was issued. Therefore, a routine stop for a minor traffic violation became the justification for searching the defendant’s car and its contents.

I submit that the police officer in this case exceeded the permissible scope of a search of tire person incident to a traffic stop for violation of a motor vehicle regulation. The majority concedes that the “initial stop” was not grounds to conduct a search of the defendant’s person and car since a mere traffic violation was involved. This is to be expected since this is the law in Illinois: most traffic offenses do not justify a search. (People v. Watkins (1960), 19 Ill.2d 11 , 166 N.E.2d 433 . Compare People v. Esposito (1959), 18 Ill.2d 104 , 163 N.E.2d 487 ; People v. Berry (1959), 17 Ill.2d 247 , 161 N.E.2d 315 .) Then the majority holds that the sighting of the gun holster in “plain view” provided a basis for further investigation. This may be so, but I am particularly concerned about the scope of the search in this case, and with the fact that the “plain view doctrine” is used as the underlying justification for the extensive search here. It converts the initial seizure, the stop, into a general exploratory rummaging of the defendant’s person and property. It is this very evil, the general exploratory search, that the fourth amendment was promulgated to prevent, and in a warrantless search situation, as here, the general exploratory search is equally evil.

The question raised is how far does the sighting of the holster permit the officer to go without making the search unreasonable. The majority refers us to the proscriptive concepts of warrantless search and seizure which, I think, are particularly applicable in this case. I submit that a traffic stop is analogous to a "stop and frisk” situation — there is less than probable cause for an arrest, but under special circumstances an officer’s apprehensions may give him a right to conduct a limited search of the driver’s person for the officer’s personal protection. (See Terry v. Ohio (1968), 392 U.S. 1 , 20 L.Ed.2d 889 , 88 S.Ct. 1868 ; Sibron v. New York (1968), 392 U.S. 40 , 20 L.Ed.2d 917 , 88 S.Ct. 1889 .) Although there may have been ample justification for the search of the traffic violator’s person, the area under the front seat of the violator’s car was clearly not an area within his control at the time of the initial search, since the defendant was standing outside the car. (Chimel v. California (1968), 395 U.S. 752 , 23 L.Ed.2d 685 , 89 S.Ct. 2034 .) The sighting of the holster gave the officer a right to conduct a custodial search of the person, but that is all. This should have been sufficient to allay any fears that the officer had since no weapon was found during the custodial search. But more importantly, custodial searches of the arrestees person are the only searches permitted by cases making definitive statements about searches incident to traffic arrests. So in a fact situation, such as the one in the case under review, where there is less than probable cause to arrest, the scope of the search can be no greater than that permitted in cases where a search is conducted incident to a traffic arrest. Searches, like the one that was conducted here, that are general and without limits are per se unreasonable and violative of the fourth amendment of the United States Constitution.

I think the United States v. Robinson (1973), 414 U.S. 218 , 38 L.Ed.2d 427 , 94 S.Ct. 467 , must be distinguished from the instant case since the majority cites Robinson as authority for the constitutionality of the stop and subsequent search in this case. The Supreme Court held, in Robinson, in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the fourth amendment, but is also a "reasonable” search under that amendment. If the defendant, in the instant case, had been stopped while driving and a license inspection revealed a revoked operator s permit, he would have been arrested. That was not the case here. The defendant emerged from his car and produced a valid operator’s license. In Robinson the arresting officer conducted a search subsequent to a custodial arrest. In the case under consideration, the search preceded the arrest. The motion to suppress should have been granted because the evidence, a gun, was the fruit of an illegal search and seizure. (Wong Sun v. United States (1963), 371 U.S. 471 , 9 L.Ed.2d 441 , 83 S.Ct. 407 .) Therefore, the arrest cannot be justified by what the subsequent search disclosed. (Henry v. United States (1959), 361 U.S. 98 , 4 L.Ed.2d 134 , 80 S.Ct. 168 .) Moreover, the officer never indicated, during the hearing on the motion to suppress, or during the trial, that he was in danger or feared that he would be attacked. More importantly, the place where the gun was found, under the front seat of the defendant’s car, was clearly not an area within the traffic violator’s immediate reach.

Finally, Robinson permits nothing more than custodial searches, searches of the arrestee’s person, not unreasonable intrusions into people’s cars to check out suspicions.

In People v. Jordan (1973), 11 Ill.App.3d 482 , 297 N.E.2d 273 , a case where this court was concerned with the scope of a search for a traffic violation, the same result was reached. In Jordan the defendant was stopped for making an illegal left hand turn, he could not produce a driver’s license, but only a prior driving citation. He was placed under arrest so he could accompany the officer to the station to post bond. The defendant was given a pat-down search prior to being placed in the squad car which was to transport him to the police station. At that time, the officer discovered a small vial of pills which were analyzed as a depressant drug. The court points out that a more thorough search of a man seized in commission of a felony would be permitted than of a man who failed to have a driver’s license. The court then holds that the scope of the search was unreasonable since the "pat-down” search for the officer’s safety revealed nothing more than a small vial, similar to the one in which a pharmacist puts pills, in an "apparently innocuous place.” 11 Ill.App.3d at 487 , 297 N.E.2d at 276 .

This question has been considered by several State and Federal courts; the vast majority are in agreement with Jordan and have held that absent special circumstances a police officer has no right to conduct a full search of the person and his property incident to a lawful arrest for violation of a motor vehicle regulation. United States v. Robinson (1973), 414 U.S. 218 , 38 L.Ed.2d 427 , 94 S.Ct. 467 .

In State v. Curtis (1971), 290 Minn. 429 , 190 N.W.2d 631 , police officers stopped a car which had defective tail-lights and which had made an illegal right ton. The officers decided to take the driver down to the station house and searched him for weapons before putting him in the squad car. One of the officers felt the outside of the driver’s pockets and reached inside, resulting in the discovery of a package of marihuana. The Minnesota Supreme Court held the search unlawful. The court stated that the validity of a search for weapons following a traffic arrest depends on whether the officer had reasonable grounds to believe such a search was necessary for his own safety or to prevent an escape. 290 Minn, at 437, 190 N.W.2d at 636 .

In People v. Marsh (1967), 20 N.Y.2d 98 , 281 N.Y.S. 789 , 228 N.E.2d 783 , the court arrived at the same result as that in the preceding case when presented with a similar fact situation. There the defendant was arrested pursuant to an arrest warrant issued in 1965 for a traffic violation, speeding committed in 1963. Immediately upon making the arrest, the police officer searched the defendant, took from his pocket a book of matches and, opening the match cover, found a sheet of paper which implicated him in the playing of policy. He was thereafter charged, tiled, and convicted for possession of a policy slip. ( N.Y. Penal Law § 975 (McKinney 1967.) On appeal, the defendant complained about the denial of his pretrial motion — which was renewed and denied at the trial — to suppress the evidence uncovered in the search by the arresting officer. The court held that a police officer is not authorized to conduct a search every time he stops a motorist for speeding or some other ordinary traffic infraction. The court went on to say, as- a general rule, when an individual is lawfully arrested, the police officer may conduct a contemporaneous search of his person “for weapons or for the fruits or implements used to commit the crime” (Preston v. United States (1964), 376 U.S. 364, 367 , 11 L.Ed.2d 777 , 84 S.Ct. 881, 883 ), we do not believe that the legislature intended the rule to cover arrests for traffic violations. 20 N.Y.2d 98 , 281 N.Y.S. 789 , 228 N.E.2d 783 .

The tenth circuit has also stated that it is in complete agreement with the prevailing Federal and State authority which condemns the search of persons and automobiles following routine traffic violations. Such searches can only be justified in exceptional on-the-spot circumstances which rise to the dignity of probable cause. United States v. Humphrey (10th Cir. 1969), 409 F.2d 1055, 1058 .

I am of the opinion that searches of persons and automobiles must be for something more than mere traffic violations, otherwise, citizens’ constitutional rights will be continuously and unnecessarily violated. (See People v. Johnson (1973), 14 Ill.App.3d 254 , 302 N.E.2d 430 .) In People v. Tate (1967), 38 Ill.2d 184 , 230 N.E.2d 697 , the court stated that a search must be lawful to justify the seizure of evidence. The court went on to say that a search was not justified merely because the defendant was stopped for a traffic offense. It is necessary that the circumstances indicate that the police may be dealing not with the ordinary traffic violator but with a criminal. (People v. Davis (1965), 33 Ill.2d 134 , 210 N.E.2d 530 .) The defendant, in the case under consideration, was cooperative, since he complied with all the officer’s requests, and offered no resistance. Consequently, there was no reason for the officer to suspect he was in danger or that the defendant was a criminal. Therefore, given the situation that confronted this policeman, I think that a warrantless, search of the automobile was not justified.