# Petition — Myers v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 942

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0251%3A1. Public record. Not legal advice.