Petition — Myers v. Illinois

Supreme Court, U. $.

| FILED

977°903 |! vce eum

N MICHAEL RODAK. IR., CLERK

0.

3n the

Supreme Court of the United States

Ocropzr Team, 1977

ee eee _

PATRICK MYERS,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

—_F_F_F*_{“{{*{]_{{=“**“=“_*=—_—_rC“_"={*_*=_*_"=_*<_<_<<{=$SS-LE*"*S]=""""h"hDn2==

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

Jenome Rorensenro

7 South Dearborn Street

Chicago, Illinois 60603

(312) 726-1678

Attorney for Petitioner

— ae

The Scheffer Press, Inc.—(312) 263-6850

INDEX

PAGE

Judgment and Opinion beIOW ...ccsccssnsrserereeenersneeeersnees 2

TUPUOGIOTOR «cersnrccscrcccccerccecererececcccccccecsecosesccecsoccscoseccsesssooseseoees 2

Questions Presented oicccsssssssesscsssereersreseerersreerseesenenenens 2

Constitutional provisions INVO]VEM ...ccccssssrerereeeees 3

Statement Of the CAB ooicicccccsssssserseseersereeseeeeereeeneeees 3

Reasons for granting the Writ. ccccccccscseeeereeeeeeeees 7

COOTGIGEGT — cccsecesccsssncvsvccsceceseecsccsenssceceneccssscncscenssescotecoscocscrsesens 14

Appendix

Opinion of the Appellate Court of Illinois .......... la

Opinion of the Supreme Court of Illinois ............. 15a

Order denying petition for rehearing... 24a

Motion to suppress EVIAENCE ...cccccsssereesneeerereees 25a

Taste or Autnoritizs Crrep

Cases

United States v. Chadwick, .... 0 U.S. 00 , 97 8. Ct.

TTS ccccccccssccceccsccccescssscccsesssnssscesscssesecosescssenecseoes 7, 10, 11, 12, 13

ConsTITUTIONAL Provisions

Amendment IV, United States Constitution ................ 3

In Tre

SUPREME COURT OF THE UNITED STATES

Ovcroner Team, 1977

No. |

————————————————————

PATRICK MYERS,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

To The Honorable, The Chief Justice And Associate

* Justices Of The Supreme Court Of The United States:

Petitioner respectfully prays that a Writ of Certiorari

issue to review the order of the Supreme Court of Lllinois

entered on June 1, 1977, which reversed the judgment of

the Appellate Court of Illinois, First District and the Cir-

cuit Court of Cook County, Illinois and remanded the

cause to the Circuit Court of Cook County with directions

to deny the petitioner’s motion to suppress.

aniline

JUDGMENT AND OPINIONS OF THE

COURTS BELOW

The judgment of the Cireuit Court of Cook County,

I}linois, First Municipal District, was entered on May 27,

1974, without opinion and is not reported. The opinion of

the Appellate Court of Illinois, First District, affirming

the judgment of the Cireuit Court of Cook County was

filed on December 30, 1975, and is reported at 35 IlLApp.

3d 196, 340 N.E.2d 690. A copy of this opinion is set forth

in the Appendix. The opinion of the Supreme Court of

Illinois was filed on June 1, 1977, and is reported at 67 Ill.

2d 308, 367 N.E.2d 949. A copy of this opinion is also set

forth in the Appendix.

JURISDICTION

The order of the Supreme Court of Illinois was entered

on June 1, 1977, and a timely petition for rehearing was

denied on October 3, 1977. The jurisdiction of this Court

is invoked pursuant to Title 28, Section 1257, United States

Code,

QUESTIONS PRESENTED

1. Was a warrantless opening and search of petition-

er’s luggage violative of his rights pursuant to the Fourth

Amendment to the Constitution of the United States?

2. Is the opinion of the Supreme Court of Illinois in

direct conflict with this court’s opinion in United States

V. Chadwick, ....6. US. ccccoees , 97 S.Ct. 2476 so as to require

reversal?

— i

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment IV, United States Constitution.

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or af-

firmation, and particularly describing the place to be

searched, and the persons or things to be seized.

STATEMENT OF THE CASE

The petitioner, Daniel Campbell and Michael Ward were

arrested at O’Hare Field, Chicago, Illinois, on February

27, 1974, and charged with the offense of possession of

marijuana in violation of Chapter 571%, Section 704,

Illinois Revised Statutes C'2, C23, C46). The arresting

officers had neither an arrest warrant nor a search war-

rant (R.* 8).

All three filed a motion to suppress evidence. The peti-

tioner, in his motion, alleged that the search and seizure

of the marijuana were in violation of his rights pursuant

to the Fourth Amendment to the Constitution of the

United States and Sections 6 and 10 of Article I of the

Constitution of the State of Illinois (C. 30).

After an evidentiary hearing, the trial judge granted

the motion to suppress on May 27, 1974 (R. 49).

The evidence at the hearing on the motion to suppress

revealed that Special Agent Dale Anderson of the Federal

1“O” refers to the Common Law Record filed with the

court below.

*“R” refers to the Report of Proceedings filed with the

court below.

cintlinin

Drug Enforcement Administration spoke with Special

Agent Robertson of their San Antonio office at about 2:00

P.M. on February 27, 1974 (R. 11). Agent Robertson told

Anderson that they had received information from Agent

Nichols in El] Paso that a Charles Ward had been stopped

by the border patrol entering the country illegally from

Mexico into the United States (R. 13). Upon question-

ing by the border patrol, it was learned that Ward had

$2,700.00 in his possession, that he had been previously

arrested in Brownsville, Texas for possession of marijua-

na, that he had hitch-hiked to Dallas and was going to take

a plane to Chicago and then to Michigan. Ward was re-

leased and kept under surveillance.

Ward was then observed re-entering Mexico. His name

was put on the “customs lookout system in Texas” and

all law enforcement agencies were notified to be on the

lookout for him should he return (R. 14).

Ward was next observed at a bus station in E] Paso,

Texas with two other individuals. Information was then

received that Ward, Campbell and Myers boarded a bus

in El Paso, Texas, travelled to San Antonio and then took

Braniff Flight #58 scheduled to arrive in Chicago at 4:30

P.M.

Agent Robertson told Anderson that the three had eight

suitcases and a foot locker in their custody (R. 15).

Anderson then notified his superior and the Chicago

Police Department Vice Control Unit that there were three

subjects coming to Chicago, and it was suspected that

they had a quantity of marijuana in their luggage (R.

16). The canine unit of the Chicago Police Department

was also advised, and two dogs and two dog handlers were

ener meee me +

_

obtained in order to get probable cause to determine if

there was, in fact, marijuana or drugs in the suitcases.

The dogs and their handlers were stationed behind the

baggage retrievable area of Braniff Airlines at O’Hare

Field which is a non-public area (R. 17, 30). The luggage

from Flight #58 was then brought to that area and placed

behind closed doors. Each dog was alerted to two suit-

cases.

The dog handlers advised Agent Anderson that the re-

action of the dogs meant the presence of a marijuana-

like substance in the suitcases.

Anderson observed Campbell and Myers claim the eight

suitcases and the foot locker (R. 20). The luggage was

placed on two whee! carts, and they walked to the upper

level where they met Ward and then proceeded to the

North Central ticket area. As they were about to check

the luggage in at the North Central area, all three were

placed under arrest for possession of a controlled snb-

stance (R. 21). Anderson then opened the two suitcases

to which the dogs had alerted and found marijuana.

The other seven pieces of luggage were opened at the

Vice Control Division Headquarters of the Chicago Police

Department at 11th and State and were also found to

contain marijuana (R. 27).

It was stipulated for purposes of the motion to suppress

hearing that the dog handlers would testify that they had

worked with these dogs on numerous occasions, that the

dogs were specially trained for the purpose of detecting

narcotics, that thev were not used for other police work

except narcotic investigations, and that the dogs’ actions

in the airport indicated to the handlers, based on their

_— oe

previous experience with the dogs, that there was narcot-

ies in the suiteases (R. 33-34, 37).

The trial judge granted the defendants’ motions to sup-

press (R. 49). Thereafter, the preliminary hearing was

held, and the court entered a finding of no probable cause

(R. 51).

The respondent appealed the trial judge’s ruling to the

Illinois Appellate Court which affirmed his decision on

December 30, 1975, and on June 1, 1977, the Illinois Su-

preme Court reversed the Illinois Appellate Court and

remanded the cause to the trial court with directions to

deny the motion to suppress.

units

REASONS FOR GRANTING THE WRIT

The Warrantless Search Of Petitioner’s Luggage Was

Violative Of His Rights Pursuant To The Fourth Amend-

ment To The Constitution Of The United States. The Deci-

sion Of The Court Below Is In Conflict With This Court’s

Decision In United States v. Chadwick, ........ ED cossnens :

$7 S.Ct. 2476.

The factual situation in the case at bar is analogous

to the facts present in this court’s recent opinion in the

case of United States v. Chadwick, ........ | eee , 97

S.Ct. 2476, decided by this court on June 21, 1977 and

which was decided subsequent to the opinion of the Illinois

Supreme Court entered in this case on June 1, 1977. The

Chadwick decision, however, was called to the attention of

the Illinois Supreme Court by way of a motion to cite ad-

ditional authority in support of petitioner’s petition for

rehearing.

Like the Chadwick case, the luggage that was the subject

of the motion to suppress in the case at bar was opened

and searched after the petitioner and the others were

_ arrested. Unlike the Chadwick case, however, two of the

pieces of luggage were opened at the airport while the

other seven pieces were opened at police headquarters in

Chicago.

In its decision the Illinois Supreme Court erroneously

concluded that the petitioner did not have a reasonable

and justifiable expectation of privacy in the luggage.

“Defendants also argue that the uninvited noses of

the dogs have intruded into an area where they had

a reasonable expectation of privacy (Katz v. United

States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S.

Ct. 507). But they do not explain in what manner the

uninvited canine noce is more intrusive than the un-

=

invited human nose in the same location. More im-

portantly, their argument fails since a protectable

expectation of privacy must be reasonable and justi-

fiable. (United States v. White (1971), 401 U.S. 745,

752, 28 L. Ed. 2d 453, 459, 91 S. Ct. 1122, 1126.) Their

intent and efforts to so conceal and disguise the odor

of the marijuana (which was itself contraband) that

its presence in the luggage could not be detected

simply does not meet this test. Nor can there be the

same expectation of privacy in luggage checked on

an airline as exists in one’s home or private prop-

erty. (Cf. United States v. Johnston (9th Cir. 1974),

497 F.2d 397.) A desire to conceal the odor of contra-

band hidden in a container exposed to the public is

not, in our judgment, entitled to fourth amendment

protections any more than is an analogous desire to

conceal something in an open field (Hester v. United

- States (1924), 265 U.S. 57, 68 L. Ed. 898, 44 S. Ct.

445), in plain view (Ker v. California (1963), 374 U.S.

23, 10 L. Ed. 2d 726, 83 S. Ct. 1623), or otherwise ex-

posed to an individual (United States v. White

(1971), 401 U.S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122)

or the public (United States v. Hufford (9th Cir.

1976), 539 F.2d 32).” 67 Til. 2d at 316, 367 N.E.2d at

953.

a

Ct. 4; People v. Williams (1974), 57 Ill. zc 239, 243

cert. denied (1974), 419 U.S. 1026, 42 L. Ed. 24 302,

95 S. Ct. 506). The scope of such a search includes

the person of the defendant and the area within his

immediate control (Williams; People v. Perry (1971),

47 Ill. 2d 402), and this search falls within this defini-

tion (United States v. Edmonds (2d Cir. 1976), 535

F.2d 714, 720; United States v. Frick (5th Cir. 1973),

490 F.2d 666, 669, cert. denied (1975), 419 U.S. 831,

42 L. Ed. 2d 57, 95 S. Ct. 55; People v. McGowan

(1953), 415 Ill. 375, 382; State v. Culver (Del. 1972),

288 A.2d 279, 283; People v. Perel (1974), 34 N.Y.2d

462, 315 N.E.2d 452). Additionally, the marijuana

for which the police searched the luggage was direct-

ly involved in the offense. This contraband was with-

out question a proper object of search by the police.

(United States v. Edwards (1974), 415 U.S. 800, 805,

39 L. Ed. 2d 771, 777, 94 S. Ct. 1243, 1238; People v.

Palmer (1976), 62 Ill. 2d 261, 263; People v. Jeffries

(1964), 31 Ill. 2d 597, 601; People v. Van Scoyk (1960),

20 Ill. 2d 232, 235; People v. Tillman (1953), 1 Ill. 2d

525, 532.) Similarly, “[i]t is also plain that searches

and seizures that could be made on the spot at the

time of arrest may legally be conducted later when

the accused arrives at the place of detention.” (United

States v. Edwards (1974), 415 U.S. 800, 803, 39 L. Ed:

2d 771, 775, 94 S. Ct. 1234, 1237; Chambers v. Ma-

roney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct.

1975); United States ex rel. Muhammad v. Mancusi

(2d Cir. 1970), 432 F.2d 1046, cert. denied (1971),

The Illinois Supreme Court also erroneously upheld

the warrantless search in the case at bar on the theory

that it was a “search incident to a lawful arrest.”

“Finally, it is argued that the warrantless search

of the luggage at the airport, and the continuation of

that search at the police statior was impermissible.

Not all warrantless searches are impermissible (Peo-

ple v. Wiseman (1974), 59 Til. 2d 45, 48), and one of

the exceptions is a search incident to a lawful arrest

(Chimel v. California (1969), 395 U.S. 752, 763, 23

L. Ed. 2d 685, 694, 89 S. Ct. 2034, 2040; Agnello v.

United States (1925), 269 U.S, 20, 70 L. Ed. 145, 46 S,

fe

402 U.S. 911, 28 L. Ed. 2d 653, 91 S. Ct. 1391; United

States v. Robbins (6th Cir. 1970), 424 F.2d 57, cert.

denied (1971), 402 U.S. 985, 29 L. Ed. 2d 151, 91 S. Ct.

1674; People v. Wiseman (1974), 59 Ill. 2d 45, 49;

People v. Canaday (1971), 49 Ill. 2d 416, 421.) The

ultimate test, of course, is the reasonableness of the

search which was made, not whether the officers could

have secured a warrant, and we find no unreasonable

conduct here. (Cardwell v. Lewis (1974), 417 US.

= 10 —

583, 595, 41 L. Ed. 2d 325, 338, 94 S, Ct. 2464, 2472;

United States v, Edwards (1974), 415 U.S, 800, 807,

39 L, Ed, 2d 771, 777, 94 8. Ct, 1234, 1239; People

v. Wright (1969), 42 Ll, 2d 457, 460; People v. Jones

(1967), 38 Ill, 2d 427, 434.) Rather, we believe the

conduct here constituted commendable police proce-

dure.” 67 Ill, 2d at 318-319, 367 N.E.2d at 954-955,

eatin

long as there is probable cause to believe that the

property contains contraband or evidence of crime.

Although recognizing that the footlocker was not

within respondents’ immediate control, the Govern.

ment insists that the search was reasonable because

the footlocker was seized contemporaneously with

respondents’ arrests and was searched as soon there-

after as was practicable. The reasons justifying

search in a custodial arrest are quite different. When

a custodial arrest is made, there is always some

danger that the person arrested may seek to use a

Both of these conclusions of the Illinois Supreme Court

are in conflict with this court’s opinion in Chadwick where-

in it was stated:

“The factors which diminish the privacy aspects of

an automobile do not apply to respondents’ footiocker,

Luggage contents are not open to public view, except

as a condition to a border entry or common carrier

travel; nor is luggage subject to regulated inspections

and official scrutiny on a continuing basis, Unlike an

automobile, whose primary function is transportation,

luggage is intended as a repository of personal effects.

In sum, a persons’ expectations of privacy in personal

luggage are substantially greater than in an auto-

mobile,

Nor does the footlocker’s mobility justify dispensing

with the added protections of the Warrant Clause.

Once the federal agents had seized it at the railroad

station and had safely transferred it to the Boston

federal building under their exclusive control, there

was not the slightest danger that the footlocker or

its contents could have been removed before a valid

search warrant could be obtained, The initial seizure

and detention of the footlocker, the validity of which

respondents do not contest, were sufficient to guard

against any risk that evidence might be lost, With

the footlocker safely immobilized, it was unreasonable

to undertake the additional! and greater intrusion of

a search without a warrant.

Finally, the Government urges that the Constitu-

tion permits the warrantless search of any property

in the possession of a person arrested in public, so

weapon, or that evidence may be concealed or de-

stroyed, To safeguard himself and others, and to

prevent the loss of evidence, it has been held reason-

able for the arresting officer to conduct a prompt,

warrantless “search of the arrestee’s person and the

area ‘within his immediate control’—construing that

phrase to mean the area from within which he might

gain possession of a weapon or destructible evidence.”

Chimel vy. California, 395 U.S., at 763, 89 S.Ct. at

2040. See also Terry v, Ohio, 392 U.S. 1, 88 8.Ct.

1868, 20 L.Ed.2d 889 (1968).

Such searches may be conducted without a warrant,

and they may also be made whether or not there is

probable cause to believe that the person arrested

may have a weapon or is about to destroy evidence.

The potential dangers lurking in all custodial arrests

make warrantless searches of items within the “imme-

diate control” area reasonable without requiring the

arresting officer to calculate the probability that

weapons or destructible evidence may be involved.

United States vy. Robinson, 414 U.S, 218, 94 S.Ct. 467,

88 L.Ed.2d 427 (1973); Terry v. Ohio, supra, How-

ever, warrantless searches of luggage or other prop-

erty seized at the time of an arrest cannot be justi-

fied as incident to that arrest either if the “search

is remote in time or place from the arrest,” Preston

v. United States, 376 U.S., at 367, 84 S.Ct., at 833, or

no exigency exists. Once law enforcement officers

have reduced luggage or other personal property not

== 13 —

immediately associated with the person of the ar-

restee to their exclusive control, and there is no

longer any danger that the arrestee might gain access

to the property to seize a weapon or destroy evidence,

a search of that property is no longer an incident

of the arrest.” ........ U.S. at page ....... , 97 S.Ct. at

pages 2484-2485,

See also Footnote 8 wherein this court stated:

“Respondents’ principal privacy interest in the foot-

locker was of course not in the container itself, which

wus exposed to public view, but in its contents, A

search of the interior was therefore a far greater

intrusion into Fourth Amendment values than the

impoundment of the footlocker. Though surely a sub-

stantial infringement with respondents’ use and pos-

session, the seizure did not diminish respondents’

legitimate expectation that the footlocker’s contents

would remain private.” ........ U.S. at page

Ct. at page 2485,

In Footnote 2 of the concurring opinion this Court

stated;

“When Machado and Leary were ‘standing next to

[the] open automobile trunk containing the footlocker’,

and even when they ‘were seated on it,’ post, at 2489-

2490, it is not obvious to me that the contents of the

heavy, securely locked footlocker were within the area

of their ‘immediate control’ for purposes of the search

incident to arrest doctrine, the justification for which

is the possibility that the arrested person might have

immediate access to weapons that might endanger the

officer’s safety or assist in his escape, or to items of

evidence that he might conceal or destroy, I would

think that the footlocker in this case hardly was

‘“within [respondents’) immediate control”—constru-

ing that phrase to mean the area from within which

[they] might gain possession of a weapon or de-

= =

structible evidence.’ Chimel v. California, 395 U.S.

753, 763, 89 S.Ct, 2034, 2040, 23 L.Ed. 2d 685 (1969).

ecnenees U.S. at page ...... 97 S.Ct. at page 2486.

The fact that two of the pieces of luggage were seized

and opened at the airport does not distinguish the case

at bar from the Chadwick case for the reason that once

the luggage was seized by the law enforcement agents

at the airport after the petitioner and the others were

taken into custody, there was no longer any danger

that they “might gain access to the property to seize a

weapon or destroy evidence.” Therefore, the search of

the two pieces of luggage at O'Hare Field and the seven

pieces at police headquarters in Chicago was no longer

an incident of petitioner’s arrest inasmuch as the luggage

was not then within his “immediate control”, that is, in

an area from which he “might gain possession of a

weapon or destructible evidence,”

The record of the case at bar also fails to show that

the search of the luggage was justified by any exigency.

Since no exigency was shown to support the need for an

immediate search and the property to be searched was

under the exclusive dominion of police authority, the peti-

tioner was entitled to the protection of the Warrant

clause of the Fourth Amendment before his privacy in-

terests in the contents of the luggage was invaded, See

United States v. Chadwick, ........ U.S, at page ....... , 97

S. Ct. at page 2486.

—

OONCLUSION

WHEREFORE, for the foregoing reasons, this petition

for a writ of certiorari to review the judgment of the

Supreme Court of Illinois should be granted,

Respectfully submitted,

Jerome Rorensera,

Attorney for Petitioner.

7 South Dearborn Street

Chicago, Illinois 60603

(312) 726.1678

— ja —

APPENDIX

61036)

61087) Consolidated

61038)

PEOPLE OF THE STATE OF LLLINOIS,

Plaintiff-Appellant,

v.

DANIEL CAMPBELL, PATRICK MYERS

and MICHAEL WARD,

Defendants- Appellees.

Appeal from the Cireuit Court of Cook County,

James EB. Munrny, J.

Mr. Justice Dempsey Detiverrep THe OPINION OF THE

Court:

Daniel Campbell, Patrick Myers and Michael Ward were

arrested for the possession of marijuana at O'Hare Inter-

national Airport, Chicago, soon after their arrival on a

commercial airline flight from San Antonio, Texas. Their

luggage was searched, marijuana was found and they

were charged with the knowing possession of the drug in

violation of section 4 of the Cannabis Control Act, ‘Tl.

Rey. Stat., 1973, ch, 561%, par. 704, Prior to trial they

filed separate motions to suppress the seized evidence.

The State has appealed from the trial court’s order

granting each motion, Ill,Rev.Stat., 1973, ch. 110A, par.

604(a)(1).

At the hearing on the motions, Dale Anderson, a special

agent assigned to the Chicago office of the Federal Drug

Enforcement Administration, testified that about 2:00

P.M., on February 27, 1974, he received a_ telephone

message from Agent Robinson of the administration's San

Antonio office that three men —— of having mari-

vuana in their possession had boa a plane for Chicago.

bertson gave Anderson the following background in-

——

formation: the San Antonio office had been informed by

Agent Nichols of their FE) Paso office that Ward had been

stopped at the Texas border after having entered the

United States illegally from Mexico, Ward, who had been

arrested previously in Brownsville, Texas, for possessing

marijuana, had $2,700 on his person; upon questioning

him it was learned that he planned to take a plane to

Chicago and then go on to Michigan, Released, but kept

under surveillance, Ward was next observed re-entering

Mexico, His name was placed on the United States Cus-

toms “look-out” system so that various law enforcement

agencies would be alerted should he attempt to return,

He was next seen at a bus station in El Paso in the

company of two other men who were subsequently iden-

tified as the defendants Campbell and Myers, The men,

with eight suiteases and a footlocker, boarded a bus bound

for San Antonio, Upon their arrival in San Antonio they

were kept under observation, and Robertson said they

took Braniff flight #58 which was scheduled to arrive

in Chicago at 4:30 P.M, that afternoon,

Anderson notified the Chicago Police Department that

three men were coming to Chicago who were suspected

of carrying marijuana in their luggage. Two dogs, trained

in narcotics detection, were placed at Anderson’s disposal

by the department’s Vice Control Unit. The dogs and

their handlers were stationed in a non-public area in back

of the Braniff Airlines’ luggage retrievable conveyors at

O'Hare. The luggage from flight #58 was brought to

that area and the dogs were allowed to sniff all of it.

Ward, Campbell and Myers had been observed disem-

barking from the plane, but neither Anderson, nor Donald

Senece, the officer in charge of the vice control detail,

nor the policemen handling the dogs, knew what suitcases

helonged to them. Independent of each other, the dogs

reacted vigorously to two suitceases—a reaction which their

handlers told Anderson and Senece was caused by the.

scent of marijuana emanating from the suitcases.

All the luggage was then released. Campbell and Myers

claimed nine pieces including the two suitcases the dogs

=o

had attacked. They loaded the baggage on two carts and

wheeled them to an upper level of the airport where they

met Ward. The three men then walked to a North Central

Airlines ticket counter. As they were about to check the

eight suitcases and the footlocker into North Central,

they were arrested by Senece. The suitcases that had re-

ceived the dogs’ positive response, and which still bore

traces of saliva, were opened and searched. Marijuana

was found in them, as it was in the remaining seven pieces

of luggage when they were opened later at the headquar-

ters of the Vice Control Unit.

Since the search of the two suitcases was made without

a warrant, its validity can be sustained only if the arrests

preceding it were legal. Chimel v. California (1969), 395

U.S. 752. Two components must be considered in deter-

mining whether there was probable cause to arrest the

defendants: the information the Chicago law enforcement

authorities received from their counterparts in Texas and

the information conveyed to them by the dogs’ reaction

to the suitcases. A warrantless arrest is proper if the

arresting officer has reasonable grounds to believe that

the person he is about to arrest has committed or is com-

mitting a criminal offense. Ill.Rev.Stat., 1973, ch. 38, par.

107-2(c); People v. Wright (1969), 42 Ill.2d 457, 248 N.E.

2d 78. The reasonableness of the arrest must be deter-

mined by the knowledge and information possessed by

the police officer at the time the arrest is made. People v.

Clay (1973), 55 Ill.2d 501, 304 N.E.2d 280. The test is

whether the facts and circumstances known to the officer

warrant a prudent man in believing an offense has been

committed. Henry v. United States (1959), 361 U.S. 88.

An arrest cannot be based on mere suspicion (People v.

Marino (1970), 44 Ill.2d 562, 256 N.E.2d 770), but in de-

termining if probable cause exists courts deal with prob-

abilities and act upon the factual and practical considera-

tions of everyday life upon which the reasonable and

prudent men must act. Brinegar v. United States (1949),

338 U.S. 160; People v. Fiorito (1960), 19 Ill.2d 246, 166

N.E.2d 606. The factual basis for the arresting officer’s

—_—wn

belief that a crime has been or is being committed need

not be as persuasive as that necessary for the conviction

of a defendant for a crime. People v. Peak (1963), 29 LIL.

2d 343, 194 N.E.2d 322. Reasonable grounds for an arrest

may be supplied by an informer of established reliability.

People v. Durr (1963), 28 Ill2d 308, 192 N.E.2d 379.

Apart from the question of its sufficiency, which will be

discussed later, the information received by Anderson

came from agents of the Federal Drug Enforcement Ad-

ministration and the United States Border Patrol. The

information was supplied by reliable sources and Ander-

son and Senece had good reason to rely upon it.

The probative value of the information they obtained

by observing the dogs’ reaction poses a more difficult

problem. At the hearing on the motion to suppress it was

stipulated that if the dogs’ handlers were called as wit-

nesses they would testify:

“. .. that these dogs are specifically trained for the

purpose of detecting narcotics . .. that their actions

in the airport indicated to the handlers, based on their

previous experiences with the dogs, that there was

narcotics in the suitcases.”

Despite this stipulation the defendants contend that the

dogs’ reliability was not established—they were alerted by

only two suitcases although there was marijuana in all

nine pieces of luggage; that the dogs could not be cross-

examined, the testimony of their handlers was hearsay

and there was no evidence as to the basis of their con-

clusion; that the defendants were thus deprived of their

right to the confrontation of witnesses, the assessment of

their credibility and the protection of cross-examination.

Because of their keen olfactory sense, dogs for many

years have assisted police in tracing human beings and

in the detection, pursuit and capture of criminals. With

the present day increased traffic in narcotic drugs and

the growing menace from their widespread use, dogs have

been trained to recognize the scent of these drugs and

have been used with much success in their detection. Ju-

aninen

dicial acceptance of this detection in the determination of

probable cause has been mixed. Illinois appellate courts

have not passed on this question directly and courts of

other jurisdictions have expressed divergent views.

This is illustrated by the following cases. In United

States v. Fulero (1974), 498 F.2d 748, an employee at a

bus station in Arizona notified the local police of the

suspicious actions of three men who were shipping two

footlockers to Washington, D.C. An officer went to the

station and examined the lockers. He smelled the odor

of mothballs which he knew was frequently used to con-

ceal the odor of marijuana. He obtained the services of

a dog handler and a marijuana-snifing dog from the

Federal Customs Service. The handler brought the dog

into the baggage room where there were several pieces

of luggage. The dog went immediately to one of the foot-

lockers; he was pulled away, but he returned three times,

pawed at it and attempted to chew it. The officer obtained

a search warrant, opened the lockers and found 88 pounds

of marijuana. The defendant, Fulero, was arrested when

he reclaimed the luggage in Washington. He was found

guilty of the unlawful possession of marijuana and he

appealed, contending that having the dog sniff at his foot-

lockers was an unconstitutional intrusion into them and

that there was no probable cause for the issuance of the

warrant. The reviewing court called the intrusion argn-

ment frivolous, held there was ample probable cause for

issuing the warrant and said that the conduct of the police

was a model of intelligent procedure.

In contrast, the court in the case of United States v.

Solis (1975), 393 F.Sup. 325, held that the positive re-

action of two trained United States customs’ dogs to the

scent of marijuana coming from the inside of a semi-

trailer did not establish probable cause for the search of

the trailer. Before conducting the search, the government

agents had obtained a warrant which had been issued

upon information supplied by an informer and had eim-

ployed two dogs said to be 100 per cent reliable in de-

tecting narcotic substances. The court, characterizing the

— ée—

ease as one involving the “uninvited canine nose,” held

the search warrant was defective because the informer

was of unproven reliability and that consequently the

warrantless search, based as it was entirely on the dogs’

reaction, was invalid. In its opinion the court stated that

the owner of the fully enclosed trailer had a reasonable

expectation that the interior of the vehicle, even though

parked at a gasoline station accessible to the public, would

be treated as a private place. The court concluded that

by employing the olfactory senses of the dogs, the agents

gained information substantially equivalent to what they

would have acquired had they actually opened the doors

and examined the trailer’s concealed interior and that this

constituted an unreasonable search under the Fourth

Amendment.

A dog was also used in the case of United States v.

Bronstein (1975), 521 F.2d 459. In Bronstein the court

affirmed the denial of a motion to suppress marijuana

which was detected in the defendants’ suitcases by a mari-

juana-sniffing police dog. The warrantless search of the

suitcases occurred at a Connecticut airport where the two

defendants arrived after a flight from California. The

defendants’ behavior at the California airport attracted

the attention of ticket agents who alerted an agent of the

Federal Drug Enforcement Administration, The agent had

previous experience with the ticket agents and had found

them to be reliable informants. The agent relayed the

ticket agents’ suspicion and the description of the men

and their luggage to his Connecticut office. The State po-

lice of Connecticut were notified and they, government

agents and a trained dog were at the airport when the

California flight arrived. Fifty pieces of Inggage from the

flight were lined up on a conveyor belt which was not

moved into the public retrieving area until the dog, termed

by the court a “canine cannabis connoisseur,” was given

the opportunity of sniffing the baggage. The dog vigor-

ously nipped at two snitecases. When the baggage reached

the public area two men, who fitted the description re-

ceived from California, picked up two suitcases each, in-

—

cluding one of those identified by the dog. Each man was

arrested after he admitted the suitcases he was carrying

belonged to him. After some discussion the men agreed

to open the bags. Each one of the four bags was found

to contain 60 pounds of marijuana, packed in a quantity

of moth balls, designed, the court said, to disguise tlic

“pungent and offensive aroma” of the marijuana. The de-

fendants’ motion to suppress the evidence was denied. In

affirming the denial, the reviewing court noted that there

can be no reasonable expectation of privacy when one

transports baggage by airplane, stated that the snifling

of the dog was not a search within the meaning of the

Fourth Amendment, and held that the use of the dog by

agents who had ample reason to pursue the reliable in-

formation they had received from California did not ren-

der the subsequent search constitutionally suspect. ‘The

court concluded that there was probable cause to arrest

the defendants and that the search of their suitcases and

the seizure of the marijuana did not violate the Fourth

Amendment.

There are many similarities between the Bronstein case

and the present one. The dog in Bronstein, like those in

this case, did not react to all the suitcases that contained

contraband. In Bronstein, the marijuana was packed in

mothballs, here it was wrapped in small bags surrounded

with taleum powder. In both cases the defendants were

arrested at airports after arriving from distant states

and their arrival was preceded by information receive:

from narcotics agents in those states. However, the infor-

mation received by the Federal agent in Chicago was

much more incriminating than that received by the agent

in Connecticut. The latter’s information came from a

fellow agent, but it rested on the suspicions of airline

employees aroused by the actions of the defendants in

the California airport and their having four identical

pieces of new luggage. The Chicago agent’s information

came from his associates whose own suspicions were

aroused by Ward’s prior arrest for the possession of

marijuana, by the large amount of cash on his person,

—

his illegal entry into the United States from Mexico and

his surreptitious trips in and out of that country.

Although the information came from _ trustworthy

sources, it was not sufficient, by itself, to justify an ar-

rest. However, it was sufficient to arouse a strong sus-

picion that a crime was being committed and was suffi-

cient to justify the use of the trained dogs to confirm or

remove the suspicion. The defendants were not arrested

because of this information, nor were they arrested just

because of the dogs’ positive reaction to the defendants’

luggage. They were arrested because of the information

the Federal agent and the Chicago policeman had of the

suspicious nature of Ward’s activities and because of the

confirmation of this suspicion by the reaction of the dogs.

Absent either factor, Anderson and Senece did not have

probable cause to make an arrest, but the combination of

both factors—the information possessed by them and the

affirmative response of the trained dogs—established prob-

able cause for arrest.

At this juncture we must differentiate between the de-

fendants. Although there was probable cause to arrest

Ward, there was none to arrest Campbell and Myers. The

information concerning them was inadequate to justify

the use of the dogs or to validate the knowledge acquired

from the dogs’ behavior. The information received by

Anderson inculpeted Ward, not Campbell and Myers. The

only thing learned about these men before they arrived

at O’Hare was that they accompanied Ward from El Paso

to San Antonio and that they were with him on a plane

bound for Chicago. This would hardly provide a reason-

able basis for concluding that they possessed marijuana.

Mere presence at the commission of a crime does not con-

stitute culpability (People v. Bracken (1966), 68 Tll.App.

2d 466, 216 N.I.2d 176) and associating with a person

known to have, or reasonably suspected of having, pos-

session of narcotics is insufficient in and of itself to con-

stitute probable cause for an arrest. Sibron v. State of

New York (1968), 392 U.S. 40. Guilt by association is a

thoroughly discredited doctrine. Uphaus v. Wyman (1959),

ee

— ee

360 U.S. 72; People v. Ramirez (1968), 93 Ill.App.2d 404,

236 N.E.2d 284. The only additional thing learned about

Campbell and Myers after they arrived at O’Hare was

that they retrieved all the luggage including the two suit-

cases attacked by the dogs. But this additional informa-

tion was insufficient to reasonably establish that they knew

what was in the suitcases. There was no indication that

the suitcases belonged to them and it is not unusual for

traveling companions to take care of another’s bags.

At the time of the arrest, the authorities had no valid

information to support their suspicion that Campbell and

Myers possessed marijuana themselves, or that they had

attached themselves to Ward with knowledge of his crimi-

nal design or that they shared with him a common pur;

pose to commit an illegal act. Although subsequent events

disclosed their complicity, this was not apparent at the

time of their arrest. There was not probable cause for

their arrest and the search of any luggage they may have

owned was improper.

We use the words “any luggage they may have owned”

advisedly, for there was no evidence of any kind as to

whose luggage was opened. Based on the report received

from Texas and the reaction of the dogs there was sub-

stantial reason to believe that Ward’s luggage contained

contraband and, consequently, there was probable cause.

for his arrest and the concomitant search of his luggage.

However, there was no proof that the two suitcases which

were searched belonged to him. For all the record shows,

they may have been owned by Campbell or Myers. While

the logical supposition would be that some of the luggage

was Ward’s, it would also be logical to presume, since he

was traveling with two companions, that not all of it was

his. We have mentioned the similarities between this case

and United States v. Bronstem (1975), 521 F.2d 459, there

is however, one crucial difference: in Bronstein there was

no problem matching the defendants with their Inggage

since each admitted when questioned by the police that he

owned one of the suspected suitcases. Here, neither Ward,

nor Campbell and Myers made such an admission, nor were

—o

they asked before being arrested who owned the suitcases

marked by the dogs. It is the absence of this connecting

link—knowledge on the part of the arresting officers con-

cerning the ownership and control of the bags—that impels

affirmance of the trial court’s decision.

There was no probable cause to arrest Campbell and

Myers and hence the search of any luggage owned or con-

trolled by them was an unjustifiable invasion of their

right to privacy. The order of the trial court sustaining

their motions to suppress the evidence was correct and

it is affirmed. There was probable cause to arrest Ward

and a search of his luggage incident to his arrest was

proper, but inasmuch as there is no evidence whatsoever

in the record that either of the opened suitcases was his

property or that he clearly exercised dominion and con-

trol over either one of them, the order sustaining his

motion to suppress was correct and is affirmed.

JUDGMENT AFFIRMED.

McNamara, J., concurs.

McGtoon, P.J., specially concurs:

| agree with the majority’s decision to affirm the order

of the circuit court of Cook County suppressing the seized

evidence, but would follow a different mode of analysis

on the question of whether there was probable cause to

arrest Ward.

The majority's opinion stands for the proposition of law

that a trained dog’s alert for narcotics is not a search

within the meaning of the fourth amendment and that

such a canine alert may be used to establish probable

cause for a lawful arrest with the subsequent search and

seizure, In my opinion, whenever a trained dog is directed

to and sniffs the air adjacent to a closed suitcase to dis-

cover concealed contraband contents which are not ascer-

tainable to a human using his natural powers of percep-

tion, a constitutionally impermissible search of the suit-

case has been made by the dog’s policeman handler,

—lla—

The State argues that the odor the dogs sniffed was a

chemical vapor which had emanated from defendants’ lug-

gage and was readily accessible to anyone who could smell

it. Otherwise worded, the contents of the suitcases were

in “plain smell”, a variation of the plain view doctrine,

so that the defendants had no reasonable expectation of

privacy as to the escaping odors, The majority fails to

directly address itself to this argument. I believe that

whenever an individual successfully conceals the sight and

odor of any item from unaided human sensory perception,

that individual reasonably anticipates his privacy under

the fourth amendment, This concept can be explained by

reference to the landmark case of Kate v. United States

(1967), 389 U.S. 347, wherein the court held that the de-

fendant overheard talking on the phone in a public tele-

phone booth had a reasonable expectation of privacy. In

that case, the police overheard the conversation via a

microphone attached to the phone booth, and the listening

was deemed to have been a search even though there was

not a physical trespass, since the fourth amendment pro-

tects persons and not places. In the instant case, the de-

fendants reasonably expected privacy for the contents of

their suitcases, and when the dogs’ handlers observed the

dogs’ reaction at the alert, there was a search of the suit-

cases and a discovery of the illicit contents therein. As

was held in United States v. Davis (9th Cir, 1973), 482

F.2d 893, 905, it is sufficient that the defendants relied

upon the closed suitcases for privacy.

The majority's reliance upon the decision in United

States v. Bronstein (2d Cir. 1975), 521 F.2d 459, indicates

that the majority of this Court implicitly adopts the Sec-

ond Circuit’s view that:

“There can be no reasonable expectation of privacy

when one transports baggage by plane, particularly

today when the menace to public safety by the sky-

jacker and the passenger of dangerous or hazardous

freight compels continuing scrutiny of passengers and

their impedimenta,”

atin

I believe that such a rule is incorrect when applied to the

facts at bar. Individuals travelling by airplane are sub-

ject to certain limited searches for weapons and explo-

sives. If a valid search of weapons and explosives dis-

closes narcotics, the narcotics are considered to be dis-

closed pursuant to a lawful search, To search only for

well-concealed narcotics and then attempt to justify the

search under the need for the safety of airline passengers

and baggage is in my judgment a misapplication of the

law. I believe that the above rule enunciated in Bronstein

and implicitly adopted by this Court, without limitation

and extended to its obvious, logical conclusion, would give

carte blanche to a police officer with suspicion to inten-

tionally open any item of checked baggage and subject it

to a general search,

The issue of consent is closely related to the issue of

reasonable expectation of privacy. When an individual

travels by air, he is subjected to an unobtrusive magne-

tometer sean for an amount of metal corresponding to

that of a pistol or another metal weapon, and then a

frisk for weapons if it is suspected that he is carrying

a weapon, Some courts have held that an individual vol-

untarily passing through a clearly marked magnetometer

inspection station consents to a search, Even if this rule

is correct, I fail to see how express or implied consent to

a pre-flight search of an individual and his hand-luggage

for concealed skyjacking weapons can be equated with

consent to a post-flight search for narcotics.

In summary to this point, I believe that the use of the

dogs to sniff around the luggage was a search of defen-

dants’ suitcases without either probable cause, a lawful

arrest, a warrant, or consent. The State argues that the

minimal intrusion by the investigating officers aided by

specially trained animals is constitutionally permissible.

To be sure, the use of dogs of unerring talent to sniff out

concealed narcotics is a narrow search, as opposed to a

general search. A narrow, unobtrusive search may, none-

theless, be violative of the fourth amendment,

== 198 —

The fourth amendment proscribes unreasonable searches

without probable cause, and some carefully limited searches

without probable cause have been held reasonable. The

most widely recognized reasonable search upon less than

probable cause is the stop and frisk procedure described

in Terry vy. Ohio (1968), 392 U.S, 1; People v. Lee (1971),

48 111.2d 272, and sections 107-14 and 108-1.01 of the Crim-

inal Code (Ill.Rev.Stat. 1973, ch. 38, pars, 107-14 and

108-1.01), which permit “a carefully limited search of the

outer clothing of such person” for weapons. (Terry at

30.) The court in People vy. Felton (1974), 20 DlL.App.3d

103, 106, recently explained the three restrictions upon

stop and frisk:

“(1) the stop itself must be justified by specific and

articulable facts which, taken together with the ra-

tional inferences from those facts, reasonably war-

rant that intrusion: (2) assuming a valid stop, a lim-

ited search of the suspect for weapons is justified

only if a reasonably prudent man in the circumstances

would be warranted in the belief that his safety or

that of others was in danger; and (3) the authorized

search is confined in scope to an intrusion reason-

ably designed to discover objects capable of use as

weapons,”

Upon similar grounds, an unobtrusive pre-flight magne-

tometer scan has been held to be the type of limited war-

rantless search approved in Terry. T believe that the lan-

guage and holding in United States v, Epperson (4th Cir.

1972), 454 F.2d 769, are illustrative:

“We agree that the use of the magnetometer in these

circumstances was a ‘search’ within the meaning of

the Fourth Amendment. By this device a government

officer, without permission, discerned metal on Epper-

son’s person. That he did so electronically rather than

by patting down his outer clothing or ‘frisking’ may

make the search more tolerable and less offensive—

but it is still a search, Indeed, that is the very pur-

=

pose and function of a magnetometer: to search for

metal and disclose its presence in areas where there

is a normal expectation of privacy.

“We also agree that the limited search by magne-

tometer does not fall within any of the recognized

exceptions to warrant requirement of the Fourth

Amendment except that suggested by Terry v. Ohio,

392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We

think that case controls this one, although the reason

in Terry for dispensing with the ordinary warrant

requirement is not the same as here.”

The court went on to state, as in 7'erry and numerous other

cases, that the reasonableness of any warrantless search

must be determined by balancing the governmental inter-

est in searching against the invasion of privacy which the

search entails. “These interests must be balanced at two

stages: the search must be ‘justified at its inception’ and

‘reasonably related in scope to the circumstances which

justified the interference in the first place.’” (Epperson

at 771, quoting from Terry at 20.) The court found that

the governmental interest was the protection of essential

air commerce and the lives of passengers, and that the

limited magnetometer search was reasonably related to

the prevention of skyjacking.

I would suggest in airport search cases that warrant-

less searches without probable cause are constitutionally

permissible only when the protection of human life from

danger is at stake, In the stop and frisk cases, the courts

always stress that the limited search is permissible only

if the policeman reasonably believes that he or another

is in danger of attack. Similarly, the airport search cases

without exception indicate that the overwhelming need

for such searches is the protection of human life.

In the case at bar, I perceive no imminent danger to

life or property as would justify a constitutionally per-

missible search. Nobody's life was in danger when the

police officers led the trained dogs through the baggage

area. Nobody's property was threatened with imminent

— 15a —

destruction when the police, acting upon mere suspicion,

searched by smell the baggage of the lawbreakers and

lawabiding alike. Without a valid governmental interest

to be balanced against the invasion of privacy, I cannot

condone any search, however unobtrusive, Although the

apprehension of drug sellers is an important governmental

function, it does not rise to the level of protection of

human life from attack, and I would hold that a search

for drugs by police using trained dogs, based upon an

articulable suspicion falling short of probable cause, is

prohibited by the fourth amendment.

Since the use of trained dogs to detect concealed nar-

eotics is undeniably a search, | would point out once

again that the police herein searched every single piece

of baggage unloaded from flight #58, Although all but

two pieces of baggage passed the search without alert by

the dogs, the fact remains that the bags of innocent per-

sons were unlawfully searched, albeit unobtrusively. Lest

we face the terror of constant unobtrusive electronic

searches of our persons, homes, and offices without prob-

able cause, I would hold that the use of the trained dogs

in the instant case was reprehensible. Although such dogs

are invalurble to the Customs Service at border searches,

where the tourth amendment does not apply, the domestic

use of such dogs should be avoided unless there has al-

ready been a lawful arrest or a search warrant.

Docket No, 48292—Agenda 3—March 1977.

THE PEOPLE OF THE STATE OF ILLINOIS,

Appellant, v.

DANIEL CAMPBELL et al., Appellees.

Mr. Justice Unperwoop delivered the opinion of the

court:

The defendants, Daniel Campbel!, Patrick Myers and

Michael Ward, were arrested and charged with the know-

ing — of marijuana in violation of section 4 of

the Cannabis Control Act, (Ill. Rev, Stat. 1973, ch. 561%,

par. 704). Each defendant filed a motion to suppress evi-

—

dence seized in a search of his luggage subsequent to his

arrest. The motions were sustained following a consoli-

dated hearing before the Cook County circuit court, The

State appealed, the Appellate Court for the First District

affirmed (35 Ill. App. 3d 196), and we allowed the State’s

petition for leave to appeal.

The events leading up to the arrest of the defendants

occurred on February 27, 1974. Dale Anderson, a special

agent for the Federal Drug Enforcement Administration,

testified at the hearing that sometime after 2 p.m, on

February 27 he engaged in a telephone conversation with

Agent Robertson of the Administration’s San Antonio

office. Agent Robertson related that the defendants were

due to arrive at O’Hare Airport at 4:30 p.m. on Braniff

flight No. 58 from Dallas, Texas. Agent Anderson also

related the factual background of this information, tes-

tifying that Robertson had received word from Agent

Nichols of the Border Patrol that defendant Ward had

been stopped trying to enter the country illegally from

Mexico. He was carrying $2,700 and had explained he

planned to fly to Chicago and then go to Michigan. Ward

had previously been arrested in Texas for possession of

marijuana, and his name was on a customs lookout list.

Subsequently Ward was observed in E] Paso, Texas, where

he, Campbell and Myers boarded a bus for San Antonio

after checking eight suiteases and a footlocker on the bus.

In San Antonio, they had boarded Braniff flight No, 58

to Chicago, Anderson verified this information by calling

Agent Nichols in El Paso, and then notified the Chicago

police that defendants were arriving in Chicago and it

was suspected they had marijuana in their luggage. The

Chicago police then brought to the airport a canine unit

consisting of two German Shepherd dogs and their two

handlers. This unit was stationed behind the baggage re-

trieval area of Braniff at O'Hare. All of the luggage

from flight No. 58 was placed behind closed doors in a

nonpublic area where each dog was permitted to inde-

pendently sniff at the luggage. Anderson observed each

dog “alert” to the same two suitcases in a manner best

—17a—

described as an attack upon the two bags. The handlers

indicated to Agent Anderson that the dogs’ reactions

meant that marijuana or a marijuana-like substance was

present in the two cases. The parties stipulated at the

hearing that “the handlers would testify that they have

worked with these dogs on numerous occasions, that these

dogs are specially trained for the purpose of detecting

narcotics, that they are not used for other police work

except for the purposes of narcotic investigations and

that their actions in the airport indicate to the handlers,

based on their previous experiences with the dogs that

there was [sic] narcotics in the suitcases.”

Donald Senece, a Chicago police officer, observed Ward

disembark from flight No. 58 in the company of the other

two defendants. Agent Anderson observed Campbell and

Myers claim eight suitcases, including the two which had

attracted the dogs, and one footlocker and place them on

wheeled carts. He did not recall which defendant had the

claim checks or which efendant actually touched the sus-

pected suitcases. Ward joined them about 100 yards from

the North Central Airlines ticket counter and walked with

them to it. As they were about to check in their luggage,

all three men were placed under arrest. Anderson opened

the two suspect suitcases and discovered the marijuana

which the trial court suppressed. The remaining luggage

was taken to police headquarters where additional mari-

juana was found in each piece of luggage. The trial court

also suppressed this evidence. The marijuana was wrapped

in quadruple bags and heavy taleum powder. No arrest

or search warrants h: been obtained.

The warrantless arrests of the defendants were proper,

of course, if the officers had probable cause, i.e., reason-

able grounds to believe the defendants were committing

the offense of unlawful possession of marijuana at the

time of the arrest. (People v. Robinson (1976), 62 Ill. 2d

273, 276; People v. Wright (1969), 42 Ill. 2d 457, 459; Ill.

Rev. Stat. 1973, ch. 38, par. 107-2(c).) If the use of the

dogs trained in detecting marijuana was permissible here,

it cannot be seriously argued that probable cause did not

=

exist at the time of defendants’ arrest. (Draper v. Umited

States (1959), 358 U.S. 507, 3 L. Ed. 2d 327, 79 S. Ct.

329: People v. Clay (1973), 55 Ill. 2d 501.) At that point

Agent Anderson had been informed by Agents Robertson

and Nichols, both of whom were reliable sources, that

Ward, a man with a prior drug arrest, had been stopped

trying to illegally enter the United States from Mexico,

that he had $2,700, and that he planned to fly to Chicago;

that, despite being on a custom’s lookout list, he had man-

aged to enter this country and was traveling with Myers

and Campbell; and that they were carrying eight suit-

eases and a footlocker and flying to Chicago on Braniff

flight No. 58, arriving at 4:30. Agent Anderson had then

notified Chicago police that three individuals suspected of

carrying marijuana in their luggage were arriving at the

airport. As a result, the police brought and used the canine

unit, All of this information, including the probable pres-

ence in the luggage of marijuana, had been corroborated

in detail by the officers at the time the arrests were made.

Defendants urge, however, that the reactions of the

dogs to the suitcases should not be considered in deter-

mining whether probable cause existed because the use of

the dogs constituted an impermissible search unjustifiably

invading the privacy of the owners of the luggage; and

that probable cause was not established by the remaining

facts. While probable cause may have existed apart from

the reactions of the dogs (see Umited States v. Murray

9th Cir. 1973), 492 F.2d 178, 188, cert. denied (1974), 419

U.S. 942, 42 L. Ed. 2d 166, 95 S. Ct. 210), we need not

consider that question, since we hold the use of the dogs

permissible.

Defendants strenuously maintain that police dogs sniff-

ing the air around their luggage is a search from which

they are entitled to fourth amendment protection. They

cite only one case so holding, and it was reversed on ap-

peal. (United States v. Solis (C.D. Cal. 1975), 393 F.

Supp. 325, rev’d (9th Cir. 1976), 536 F.2d 880.) We have

found only one other case expressly holding that the use

of trained dogs to detect marijuana constitutes a search,

—_—,

and that court also held that the search was reasonable

although warrantless. (State v. Elkins (1976), 47 Ohio

App. 2d 307, 354 N.E.2d 716.) In contrast, other State

and Federal courts have expressly stated that no search

occurred. (Solis; State v. Martinez avtere, 113 Ariz. 345,

554 P.2d 1272.) It is in our judgment immaterial whether

that action is characterized as a search, “a monitoring of

the air” (United States v. Solis (9th Cir. 1976), 536 F.2d

273, 276), and we believe it was. This is the unanimous

conclusion in every Federal circuit which has considered

the issue.

In Umited States v. Fulero (D.C. Cir. 1974), 498 F.2d

748, the court rejected as frivolous the argument that a

dog’s sniffing of the air around footlockers in a bus

terminal was an unconstitutional intrusion. United States

v. Bronstein (2d Cir. 1975), 521 F.2d 459, involved a

factual situation virtually identical to ours, and the court

concluded that the limited but effective use of the dogs

did not create a constitutional issue of substance. In United

States v. Solis (9th Cir. 1976), 536 F.2d 880, a trained dog

was used to verify information that a semitrailer parked

at a gas station contained marijuana. The court stated

that the use of the dogs was not a search, and held such

use is reasonably tolerable in our free society. The same

result obtains in the first circuit. United States v. Meyer

(1st Cir. 1976), 536 F.2d 963; United States v. Race (1st

Cir. 1976), 529 F.2d 12.

Defendants rely upon Johnson v. United States (1947),

333 U.S. 10, 92 L. Ed. 2d 436, 68 S. Ct. 367, wherein the

Supreme Court indicated that odors alone did not justify

a ‘s-arrantless search. That decision, however, actually

supports our conclusion, since the court there went on

to say that distinctive odors can be most persuasive evi-

deace of probable cause. (333 U.S. 10, 13, 92 L. Ed. 2d

436, 440, 68 S. Ct. 367, 369.) Moreover, its holding im-

plicitly recognized that no unconstitutional search oc-

curred when the officer smelled the odor of narcotics. It

is clear that the detection of narcotics by police smelling

the odor is a permissible method of establishing probable

cause (People v. Wolf (1975), 60 Til. 2d 230: Umited States

— re

v. Martinez-Miramontes (9th Cir. 1974), 494 F.2d 808,

cert. denied (1974), 419 U.S. 897, 42 L. Ed.. 2d 141, 95 S.

Ct. 176), and we see no significant difference in the use

of dogs under identical circumstances. United States v.

Bronstein (2d Cir. 1975), 521 F.2d 459.

Defendants also argue that the uninvited noses of the

dogs have intruded into an area where they had a rea-

sonable expectation of privacy (Katz v. United States

(1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507).

But they do not explain in what manner the uninvited

canine nose is more intrusive than the uninvited human

nose in the same location. More importantly, their argu-

ment fails since a protectable expectation of privacy must

be reasonable and justifiable. (United States v. White

(1971), 401 U.S. 745, 752, 28 L. Ed. 2d 453, 459, 91 S. Ct.

1122, 1126.) Their intent and efforts to so conceal and

disguise the odor of the marijuana (which was itself con-

traband) that its presence in the luggage could not be

detected simply does not meet this test. Nor can there be

the same expectation of privacy in luggage checked on an

airline as exists in one’s home or private property. (Cf.

United States v. Johnston (9th Cir. 1974), 497 F.2d 397.)

A desire to conceal the odor of contraband hidden in a con-

tainer exposed to the publie is not, in our judgment, en-

titled to fourth amendment protections any more than in

an analogous desire to conceal something in an open field

(Hester v. United States (1924), 265 U.S. 57, 68 L. Ed. 898,

44 S. Ct. 445), in plain view (Ker v. California (1963), 374

U.S. 23, 10 L. Ed. 2d 726, 83 S. Ct. 1623), or otherwise

exposed to an individual (United States v. White (1971),

401 U.S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122) or the

public (United States v. Hufford (9th Cir. 1976), 539 F.2d

32).

Defendant Myers refers us to People v. Williams (1975),

51 Cal. App. 3d 346, 124 Cal. Rptr. 253, where the Cali-

fornia Court of Appeals suppressed marijuana discovered

when a trained dog “alerted” to a bag in an airline bag-

gage container. That case is not inconsistent with our

conclusion, however, for the police in that case had neither

— 2la —

the airline’s permission to be in the baggage room nor

any information indicating the presence of narcotics. The

court carefully distinguished People v. Furman (1973), 30

Cal. App. 3d 454, 106 “al. Rptr. 366, where the court

found probable cause when the trained dog’s reaction

corroborated an informant’s tip that there might be nar-

eoties in the defendant’s suitcase.

It is axiomatic that the fourth amendment protects the

guilty as well as the innocent, but that amendment was a

reaction to the general warrant« and unsupported searches

which harassed the early colonists. (Chimel v. California

(1969), 395 U.S. 752, 761, 23 L. Ed. 2d 685, 692, 89 S. Ct.

2034, 2039.) Evidence seized in violation of this amend-

ment is suppressed to deter such conduct, thereby pro-

tecting the privacy of innocent persons. (Umted States

v. Janis (1976), 428 U.S. 433, 446, 49 L. Ed. 2d 1046, 1056,

96 S. Ct. 3021, 3028; Mapp v. Ohio (1961), 367 U.S. 643,

6 L. Ed. 2d 1081, 81 S. Ct. 1684; Weeks v. United States

(1914), 232 U.S. 383, 391, 58 L. Ed. 652, 655, 34 S. Ct.

341, 344.) But the use of trained dogs to detect the odor

of marijuana poses no threat of harassment, intimidation

or even inconvenience to the innocent citizen. Nothing of

an innocent but private nature and nothing of an incrimi-

nating nature other than the narcotics being sought can

be discovered through the dog’s reaction to the odor of

the narcotics.

The use of trained dogs as a follow-up investigative

technique to partially corroborate information received is,

in our judgment, a useful, entirely reasonable and per-

missible procedure. If it be considered an intrusion into

privacy, that intrusion is minimal and inoffensive. In this

ease the procedure employed was limited and exact. It

was also objective in that the dogs selected the suitcases

containing contraband independently and from among all

those on the plane. There was no fourth amendment

violation.

The reliability of the dogs is, of course, a crucial con-

sideration, and defendants seek to challenge that relia-

bility because the dogs detected the marijuana in only

—

two of the nine pieces of luggage. Defendants, however,

stipulated the handlers would testify that the reactions

of the dogs indicated the presence of marijuana in the

two bags. Additionally, it seems to us, the important focus

in determining reliability is whether the dogs indicated

marijuana existed where it did not, for only then could

innocent persons be affected by their use. All the failure

to detect it in the other seven containers indicates to us

is that defendants were more successful in their efforts

to conceal the odor of the marijuana in those pieces of

luggage.

Defendant Ward argues the officers at the time of his

arrest had no reason to believe the two suspect suitcases

belonged to him. As we indicated earlier, however, the

totality of the facts then known to the officers established

probable cause to assume all three defendants were travel-

ing together and that the luggage containing marijuana

was under their joint control,

Finally, it is argued that the warrantless search of the

luggage at the airport, and the continuation of that search

at the police station was impermissible. Not all warrant-

less searches are impermissible (People v. Wiseman (1974),

59 Ill. 2d 45, 48), and one of the exceptions is a search

incident to a lawful arrest (Chimel v. California (1969),

395 U.S. 752, 763, 23 L. Ed. 2d 685, 694, 89 S. Ct. 2034,

2040; Aqnello v. United States (1925), 269 U.S. 20, 70 L.

Ed. 145, 46 S. Ct. 4; People v, Williams (1974), 57 Ill. 2d

239, 243, cert. denied (1974), 419 U.S. 1026, 42 L. Ed. 2d

302, 95 S. Ct. 506). The scope of such a search includes

the person of the defendant and the area within his im-

mediate control (Williams; People v. Perry (1971), 47

Til. 2d 402), and this search falls within this definition

(United States v. Edmonds (2d Cir. 1976), 535 F.2d 714,

720; United States v. Frick (Sth Cir. 1973), 490 F.2d 666,

669, cert. denied (1975), 419 U.S. 831, 42 L. Ed 2d 57,

95 S. Ct. 55; People v. McGowan (1953), 415 Ill. 375,

382; State v. Culver (Del. 1972), 288 A.2d 279, 283;

People v. Perel (1974), 34 N.Y.2d 462, 315 N.E.2d 452).

Additionally, the marijuana for which the police searched

onlin

the luggage was directly involved in the offense. This

contraband was without question a proper object of search

by the police. (United States v. Edwards (1974), 415 U.S.

800, 805, 39 L. Ed. 2d 771, 777, 94 S. Ct. 1243, 1238;

People v. Palmer (1976), 62 Ill. 2d 261, 263; People v.

Jeffries (1964), 31 Ill. 2d 597, 601; People v. Van Scoyk

(1960), 20 Ill.2d 232, 235; People v. Tillman (1953), 1 Ill.

2d 525, 532.) Similarly, ‘‘[i]t is also plain that searches

and seizures that could be made on the spot at the time of

arrest may legally be conducted later when the accused

arrives at the place of detention.’’ (United States v.

Edwards (1974), 415 U.S. 800, 803, 39 L. Ed. 2d 771,

775, 94 S. Ct. 1234, 1237; Chambers v. Maroney (1970),

399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975; United

States ex rel. Muhammad v. Mancusi (2d Cir. 1970), 432

F.2d 1046, cert denied (1971), 402 U.S. 911, 28 L.Ed. 2d

653, 91 S. Ct. 1391; United States v. Robbins (6th Cir.

1970), 424 F.2d 57, cert. denied (1971), 402 U.S. 985, 29

L. Ed. 2d 151, 91 S. Ct. 1674; People v. Wiseman (1974),

59 Ill. 2d 45, 49; People v. Canaday (1971), 49 Ill. 2d 416,

421.) The ultimate test, of course, is the reasonableness

of the search which was made, not whether the officers

could have secured a warrant, and we find no unreason-

able conduct here. (Cardwell v. Lewis (1974), 417 U.S. 583,

595, 41 L. Ed. 2d 325, 338, 94 S. Ct. 2464, 2472; United

States v. Edwards (1974), 415 U.S. 800, 807, 39 L. Ed. 2d

771, 777, 94 S. Ct. 1234, 1239; People v. Wright (1969),

42 Ill. 2d 457, 460; People v. Jones (1967), 38 Ill. 2d 427,

434.) Rather, we believe the conduct here constituted

commendable police procedure.

The judgments of the appellate and circuit courts are

accordingly reversed, and the cause remanded to the

circuit court of Cook County with directions to deny

defendants’ motion to suppress and proceed in accordance

herewith.

Reversed and remanded, with directions.

_

MR. JUSTICE GOLDENHERSH, specially concurring:

Although I find it offensive that the luggage of airline

passengers is subjected to this type of ‘‘dog sniffing’’

search, I conclude, with reluctance, that it is not constitu-

tionally impermissible. The record, however, shows a

warrantless search at the airport and a continuation of

the search at the police s.ation when the luggage had been

taken off the luggage carrier, defendants were in custody,

and had no access to it. Under these circumstances there

was no justification for a warrantless search. This case

is strikingly similar to United States v. Chadwick (1st

Cir. 1976), 532 F.2d 773, and I agree with the Court of

Appeals for the First Circuit that under Chimel v.

California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct.

2034, this type of warrantless search was unreasonable and

unlawful. Had this issue been raised by defendants and

argued in the briefs, I would dissent rather than specially

concur, but in view of their failure so to do, I reluctantly

concur in the result.

StaTe OF ILLINOIS

OFFICE OF

CLERK OF THE SUPREME COURT

SPRINGFIELD

62706

October 3, 1977

Mr. Jerome Rotenberg

Attorney at Law

Seven S. Dearborn St.

Chicago, Ill. 60603

No. 48292- People State of Illinois, appellant, vs. Daniel

Campbell, et al., appellees. Appeal, Appellate

Court, First District.

You are hereby notified that the Supreme Court today

denied the petition for rehearing in the above entitled

cause.

Very truly yours,

/s/ Clell L. Woods

Clerk of the Supreme Court

ili

MOTION TO SUPPRESS EVIDENCE

Now Comes the Defendant, Patrick Myers, by his at-

torney, Jerome Rotenberg, and moves this Honorable

Court to suppress and all evidence illegally seized from

the defendant’s person, possessions and presents on

February 27, 1974, and as grounds therefore shows unto

the Court the following:

1. That on or about February 27, 1974, this defendant

was arrested by certain police officers of the City of

Chicago.

2. That thereafter his person and luggage was

searched, and a quantity of marijuana was seized which

he believes the prosecution will offer into evidence at the

trial of this cause.

3. That the aforemention arrest and search was

executed without a search warrant.

4. That the aforementioned search was not made in-

cident to a lawful arrest.

5. That the aforementioned search was not made with

the consent of the defendant.

.6. That at the time of the defendant’s arrest and sub-

sequent search, the police officers did not have probable

cause for believing that the defendant had committed or

was committing a criminal offense.

7. That the property in question was seized in viola-

tion of the defendant’s rights pursuant to the Fourth

Amendment to the Constitution of the United States and

Sections 6 and 10 of Article I of the Constitution of the

State of Illinois.

Patrick Myers

By /s/ Jerome Rotenberg

Jerome Rotenberg

Jerome Rotenberg

Attorney for Defendant

7 South Dearborn Street

Chicago, Illinois 60603

RA6-1678