*1 ILLINOIS, Plaintiff-Appellee, v. JAMES THE STATE OF THE PEOPLE OF BLAKE, Defendant-Appellant. 2 — 93—0541 District No.
Second January Opinion filed
BOWMAN, J., dissenting. Lilien, Appellate State Joseph Thomas A. both of
G. Weller and Office, Elgin, appellant. Defender’s of (William Browers, Waller, Waukegan Attorney, L. State’s Michael J. Davison, Attorneys Biderman, Jeffrey all of State’s
Robert J. K. Office, counsel), People. Appellate for the Prosecutor’s opinion JUSTICE McLAREN delivered PRESIDING court: bench
Defendant, Blake, stipulated James was convicted (Ill. grams of cocaine less than 15 possession trial of the unlawful 1402(c)(now 56½, 570/402(c) (West Rev. par. Stat. ch. 720 ILCS 1992))). The trial court sentenced him to 30 months of intensive probation and 9 months of periodic imprisonment. appeals, He contending that the denying court erred in his motion suppress the evidence and that he is entitled to credit toward his street-value fine for the time he was in custody prior to sentencing. We reverse. hearing
At the on the suppress, motion to Cimaglio, police department, Mundelein 2,May testified that on he was *2 on patrol routine in a squad marked car. p.m., Around 10:30 he drove through parking lot of a Cimaglio tavern. problems was aware of tavern, behind particular drug parking deals in the lot. As he came around the south building, side of the he observed two men corner, in the northeast building. close to the One of them was defen- Cimaglio dant. was about 25 away feet from them when he saw them "exchanging Although items.” floodlight, there was a the men were slightly Cimaglio shadowed so that they not see what were exchanging. He drug believed that a transaction occurring. As approached, he they immediately put their hands in their pants front pockets. The appeared "very nervous,” two men they kept their hands pockets, in their they shrugged and their Cimaglio shoulders. exited his car and identified himself a police as officer. He asked them to remove their hands from pockets. They their did so after several requests. Cimaglio put car, had them squad their hands on the and patted he them down safety. because he feared for his anything
He did not find that felt like a weapon, but he "bulge” pants defendant’s left pocket. Cimaglio testified the "bulge” felt like "a object, pretty rolled packed, well but able to ma neuver, shape.” bend its It felt as if it was in a plastic bag and was marijuana. Between 20 and 30 times he had done searches plastic bag and found a containing marijuana. When he retrieved the pocket, recognized from defendant’s marijuana. it as After he defendant, Cimaglio arrested found cocaine defendant’s wallet. Defendant heading testified that he was home and left the tavern through the back with a friend. going through Defendant was pockets searching apartment keys for his Cimaglio when Officer approached. Cimaglio companion asked defendant and his to take pockets. their hands complied out their Defendant after several requests. Cimaglio through searched pockets. all of defendant’s In shirt, pocket marijuana. found Defendant jacket had a on over the shirt. prosecutor argued
The
that the officer had
authority
to make
frisk,
stop,
conduct a
marijuana
and remove the
from pants pocket.
responded
Defendant
that
the search here was more
weapons. during
pat
down for
permitted
that
intrusive than
frisk
testimony and
that the
found
court
the officer’s
credited
end of
that was the
justified.
It determined
analysis
then considered whether
investigatory stop
contraband. The
that defendant had
cause
believe
people
two
following
the officer saw
court
factors:
noted
officer;
items;
experience
police
his 15
as a
exchanging
years’
made; and his
marijuana
arrests
arrests he
number of
factors,
court found
marijuana. Based on those
observations of
gave Officer Ci-
bulge
in defendant’s
maglio
possessed
believe that defendant
state
it found that
(Although
specifically
the court did not
as
Officer Ci-
pocket,
was in the
testified to
pants
testified,
maglio,
we assume the
or in the shirt
as defendant
events.)
Cimaglio’s
former
court
accepted
because the
version
suppress.
motion to
court therefore denied the
denying his
Defendant first
that the court erred in
mo
contends
tion to
the trial
suppress
evidence. We
disturb
court’s
ruling
clearly
on a motion to
decision is
suppress unless that
(People
erroneous.
Williams
Ill. 2d
Under the
amendment,
unreasonable,
fourth
per
warrantless
searches are
se
unless
specific exception. (People Bailey
the search falls within a
exception
159 Ill. 2d
One such
is a
where
suspicion
officer’s observations create
reasonable
*3
person
(Terry
or
v.
has committed
is about to commit a crime.
Ohio
(1968),
30-31,
889,
1868,
1,
911,
1884;
Ed. 2d
S. Ct.
20 L.
88
(now
1991,
38, par.
see
Stat.
also Ill. Rev.
ch.
108 — 1.01
ILCS
(West 1992)).) However, an
may
suspect
officer
frisk
5/108 — 1.01
only if
is reason
is armed
person
there
to believe that
709),
dangerous
(1992),
705,
Spann
Ill.
and the
(People
App.
3d
scope
strictly
searching
weapons
the search must
limited
of
to
170).
(1989),
153,
(People v. Galvin
127 Ill. 2d
validity
argues
Defendant does not
but he
contest
justifiable
that
no
there was
basis for the frisk. We need
consider
as,
agree
question
assuming
justified,
frisk was
we
with de-
fendant
that there was no
cause to remove the
from
pocket.
applies to
“plain
exception
feel”
to the fourth amendment
suspect’s
police
lawfully
frisks
"If a
suspects.
pats
officer
clothing
outer
and feels
mass
its
an
whose contour or
makes
immediately
has
no invasion of the
identity
apparent,
there
been
suspect’s
beyond
by the officer’s
privacy
already
authorized
(Minnesota
(1993),
***.”
search for
v. Dickerson
U.S.
334,
2137.)
346,
2130,
2d
113 S. Ct.
The officer
must have
cause to believe that
the item is contraband
before it
(Dickerson,
be seized.
508
"[The explain officer]could not bulge how the felt different from any legitimate pockets. contents of A powder illegal. alone is not There must be some other distinctive evidence to demonstrate its illegality.” (Spann, App. 237 Ill. 3d at Similarly, here, explanation there was no tightly how rolled mass distinctively feel like to the exclusion of other legitimate substances, testify nor did the officer prior that in his ex- perience marijuana through had felt clothing similar to defen- tightly dant’s and in a rolled mass.
Moreover, the exploration continued suspect’s pocket of a the officer concludes that it does not contain a weapon exceeds the proper of a 377-78, 124 frisk. 508 U.S. at L. Ed. 2138-39.) 347-48, 2d at here, 113 S. Ct. at In as the officer had to manipulate object; incriminating its character was not immediately apparent. Contrary assertion, to the State’s testify did not that he bent the verify fact, his suspicion. In the tactile sensations involved here could have been the result of a grope, not a down. App. Morales 221 Ill. (See relies, on which the State is inapposite. Morales, therefore (the squeezed bulge 3d at 19 to determine if it *4 a weapon; was he "immediately” thought it a marijuana).) was (We feeling objects Dickerson, note that the in v. People Mitch (1993), ell 257 Ill. App. through 3d and Morales was a shirt or jacket through pants, not as here and in "If Spann.) the
741 beyond if the goes necessary is to determine protective search what armed, Terry and its fruits will suspect longer it is no valid under is at 113 at L. Ed. 2d suppressed.” 124. S. Ct. at 2136. beyond necessary what was to determine
Because the search went a have weapon, was the officer had to object in defendant’s manipulate cause before he to search However, give circumstances did not independently here bulge in defendant’s that the soft officer to believe did not see what men The officer was area. they inherently suspicious (Cf. an exchanged, and were not in (officer drug Mitchell, App. 3d crack cocaine 257 Ill. at 161 observed objects baggie in paraphernalia hard car felt small pocket); defendant’s shirt Holman exchange pills).) Merely appearing (police men saw approach sufficiently suspicious a officer is nervous at the not justify probable conduct to cause. The officer had no information that either or his a The companion drug defendant dealer. facts known officer did to the not establish cause to believe that transaction occurred. We therefore conclude that trial suppressed court should have the evidence the cocaine. trial, cocaine,
Because the evidence aat new without would conviction, support be insufficient we reverse defendant’s outright, conviction and we not address need his second contention. judgment County court of Lake circuit is reversed. Reversed.
GEIGER, J., concurs. BOWMAN, dissenting:
JUSTICE
ruling
I respectfully
fully
dissent. I believe the trial
court’s
justified
"plain
the search
proper
since
involved here was a
feel”
search
authority
under
of Minnesota Dickerson
U.S.
334, 346,
Ed. 2d
Ct.
124 L.
113 S.
majority
agree
start
with
off on the
foot:
their
subject’s pocket
of a
exploration
conclusion that
continued
weapon
concludes that
exceeds the
it does
contain a
377-78,
at
frisk.
2138-39.)
347-48,
explora
Objects
Ct. at
an
113 S.
discovered
such
However,
tion not be used to
cause.
defen
establish
dispute that,
does not
had Officer
identified the
dant
manner,
information,
proper
coupled
cannabis in
*5
officer’s
knowledge
other
at the time of
the
would
provided
have
probable cause to search the
person
defendant’s
or seize the item in
pocket. Thus,
his
the dispositive question here, as it was in Dicker-
son, is whether
the officer who conducted the search
acting
within the lawful
by
bounds marked
gained
at the time he
probable cause to believe that
lump
respondent’s
the
in
pocket was
Dickerson,
377,
347,
The officer in Dickerson testified concerning as follows of the search he following conducted a Terry stop: " pat-searched I '[A]s body, the front of lump, his I felt a a small
lump, in
the front
I
my
examined it
fingers
and it
”
slid and
lump
it felt to be a
of crack
cellophane.’
cocaine in
369,
341,
In contrast the facts persuasive of this case are contemporaneously determined pat-down with his search pocket item in defendant’s contraband, during rather than already further search after he had concluded it was a weapon. The officer had a Terry conducted stop place in the first indicating because the circumstances occurrence keenly deal. He would have been aware of those Too, circumstances when he patted down the defendant. the officer conducted searches a plastic which revealed Cimag- occasions. Officer previous to 30 containing marijuana on 20 he entirety, indicates that also testimony, considered its lio’s when as he touched bag marijuana as soon object was a determined the case, in defendant’s it. On direct examination when any weapons on defendant that he did not find responded pat-down, he did after the asked what else patted him down. When down, bulge in his him replied: padded [sic] "I—as I front several items left and also there was State, Cimaglio testified: by the pocket.” On cross-examination defendant, "Q. what did you pat down on the And when did the pant’s pocket? items feel like in his front able to maneu- object, pretty packed, well but A. It was a rolled bag; it felt as ver, in a shape. It felt like it was bend its if a material known as cannabis. it was before, approxi- times Q. many you done downs How have bag containing *6 mately, you a cannabis? where found Numerous times.” A. only the defendant’s left Cimaglio
On occasion further searched this though objects felt in the pants pocket even he had also pocket. from, reasonably col- the trial court could have inferred believe
lectively, Cimaglio’s testimony, previous experience, his his Officer him, of the sense of observations of the situation before use that, object he process satisfying touch in the himself that the immediately simultaneously weapon, was not a determination, marijuana. This packet determined it felt like officer, turn, together other circumstances known to the cre- object him to remove the permitted ated the cause which from defendant’s following quotation
Support my may view be found (2d 1987): 9.4(c), LaFave, ed. W. Search & Seizure at 524 § "Assuming in the does not feel discovered may not be weapon, that a further search like a means analysis. possibility that justified There remains the under circumstances, object, suspicious together of the with other the feel or is contraband will amount cause that seizure, subject in which case there other item some (Emphasis add- upon based cause.” further search (2d 1987). ed.) LaFave, 9.4(c),at 524 ed. Search & Seizure § W. by technical is determined not Whether cause exists rules, commonsense, examination of the legal practical but (Illinois (1983), 462 U.S. totality circumstances. v. Gates 2317, 2332; People v. Tisler 103 S. Ct. the circumstances here totality Ill. justified the trial court’s conclusion that discovered item in defendant’s packet was a contemporaneously with, to, subsequent rather than a proper pat- People search. See Mitchell 3d 157.
Because I believe the trial court’s clearly conclusion is not erroneous, I would affirm. (The T.W., Illinois,
In re a Minor Petitioner-Appellee, State of T.W., Respondent-Appellant).
Second District No. 2 — 93—0645
Opinion August filed *7 Joseph Paschen, Appellate G. Weller and Barbara R. both of State Office, Elgin, appellant. Defender’s (William Ryan, Attorney,
James E. State’s of Wheaton L. Browers and Bauer, Office, Attorneys Appellate Lawrence M. both of State’s Prosecutor’s counsel), People. for the opinion PRESIDING JUSTICE INGLIS delivered the of the court: T.W., Respondent, appeals the order of the circuit court of