*1 ILLINOIS, Plаintiff-Appellee, v. STATE OF THE PEOPLE OF THE HAMILTON, Defendant-Appellant. T. GEORGE District No. Fourth January Opinion filed TRAPP, J., dissenting. *2 Devine, Chicago, appellant. Maloney
Thomas Richard H. and both of for J. Difanis, (James Attorney, Hinterlong, E. Champaign Thomas State’s J. Association, counsel), Illinois Attorneys People. State’s for the Mr. CRAVEN delivered the court: JUSTICE driving While approximately a van at 1:15 on August a.m. Pesotum, in an defendant was involved on accident interstate near Illinois. An ambulance Burnham soon arrived and took defendant to the City conscious, Hospitаl Still Champaign. a defendant carried locked attache with him case in the ambulance. Trooper
State Clark gathered Forrest information at the scene and noted that the wrecked van a large personal contained amount of belongings including particular several .38-caliberbullets. He attached no significanceto them. It illegal was not to have van ammunition. The was towed to a garage safekeeping for hospital аnd the officerwent to the to gather more information for report. his
At the an hospital placed attendant defendant’s attache case on the cart transport used to to emergency defendant room. defendant There was to Mary Orderly attended Nurse They Waters and Olson. Jeff removed clothing, injuries the defendant’s outer him examined and treated him for minor cuts. Whenhe was later taken out of emergency room rays, for X orderly nurse and thе inventoried defendant’s wallet, watch, bullets, possessions. They found a 12keys, 10 or *1,200in including over cash one *500bill and several *100bills. While in X ray, Orderly opened was with Olson the attache case one the keys. In it large papers, pocket he saw a calculator number a brown paper bag with a it. band string around He removed the looked inside Waters that observing powdery substance. He told Nurse heroin, he thought it was but she not see He then powder did herself. closed the it. case and locked Trooper
When Clark 4 a.m. hospital arrived at the around 3:30 or interview the defendant his he was that the complete report, advised still ray. emergency defendant was in X A at the outside the nurse desk large keys, room told him that Hamilton case had a number of attache money. further and a amount of He was advised considerable He if he and the was asked was up money would lock wallet. it said take to take leave and he he would it to going the attache case or belongings. rest of the vehicle with the X ray, he returned from After was advised that the defendant had him the cause of trooper went room and talked to about emergency van. He large personal property accident and the amount necessary, reports the accident that were advised defendant about personal property where the van located and where his be. be at the trooper personal him that his wallet and effects would told that he would hospital, together trooper’s report, with a but copy all with keys take the attache case and which would be inventoried personal the van. other and locked Trooper pertaining had a Nurse Waters and Clark brief conversation through the trooper go She told the personal property. the items knew it contained but indicate that she whаt did not that was scared to opened. Orderly that it had Olson testified he been and he said be the one or turned it over to who found heroin case, picked up then he nothing trooper. to the testified Trooper it, it, upon the countér into when opened keys top to rake the preparing clear, him containing what plastic envelope appeared he noticed inside, bag looked marijuana. paper He then saw the brown thought opium. Thereupon, he discovering he was some kind of what *3 Later, Trooper Clark turned the took the case from the room. attache the a then field-tested two briefcase and its contents over to detective who the other cannabis. bags opium, and determined one contained later and he was signed complaint against day a defendant detective later, Bureau the Illinois August days arrested on 1975. Several contained 74.2 Investigation bag in determined that one Springfield lab grams of heroin. as being the suppress filed a motion to evidence
Prior trial defendant fruit of search. The trial court denied the an unreasonable trial, a following bench defendant was convicted motion 402(a) in than 30 violation of section grams of more heroin possession 56/2, (Ill. par. Act Stat. ch. the Substances Rev. Controlled 4 and fined imprisonment to 5 1402(a)). years’ He was sentenced to serve *2,500and costs. in heroin fоund appeal is whether the
The sole issue raised on fruit of an as the suppressed should have been defendant’s briefcase The trial court found: unconstitutional search and seizure. degree the any governmental participation
“There was no is not The Fourth Amendment discovery initial of the evidence. applicable to Suppress under these circumstances and Motion in question Evidence denied.” decision, While relying on that rationalе for its the trial court also found that, alternative, in the have been evidence would admissible theories, “plain doctrine. these two the State view” addition to admissible, having contends that the in the evidence was been discovered course of a impounded standard of an vehicle. We shall theories, consider each these on judgment may since the be sustained record, any ground irrespective warranted of whether particular given trial sрecific findings reasons or court are correct. City Maxwell Ill. 234 N.E.2d App. of Rockford all,
First of we recognize amendment was intended a upon to be governmental authority restraint a upon limitation private persons. by Evidence of crimes obtained as a result of searches private individuals are not to the bar the fourth amendment. (Burdeau McDowell 465, 65 1048, 41 S. Ct. However, Burdeau is not in point since there the part took wrongful of the incriminating seizure pаpers they came into possession of the government by without a rights violation governmental authority. Trooper Clark was Here not handed Rather, by narcotics orderly or the nurse. seizure the direct Hence, result of a second the officer we by conducted himself. a have situation government incriminating where the agent recovered evidence pursuant to his own efforts. United States v. Winbush
The on rely (6th 1970), Cir. 428 F.2d cert. denied 918, 27 L. Ed S. Ct. Diggs (3rd United States v. 1976), support Cir. 544 F.2d of their argument. Neither case is in point. Winbush, hospital employee discovered contraband here,
routinely inventorying clothing. the contents of defendant’s Unlike officer, employee then arresting handed the evidence to the for, obviating was, need there participation inference that Diggs the search by governmental with authorities. was concerned validity of the given consent to a warrantless search custodian defendant’s property unwittingly who had been involved Diggs alleged unwitting crime. held that the bailee of suspected box containing money right had to exonerate himself stolen *4 from the prevailed right crime which over defendant’s fourth amendment justified present a warrantless This is not in the problem search. instant case and there is no indication that the were personnel arguably implicated even by in defendant’s activities virtue of their possession reasonably of his here it Diggs, briefcase. Unlike сannot that argued possession surrendered his briefcase hospital employees authorizing as bailees a search of its implicitly contents.
We believe that trial court’s is error and the. misinterprets finding search The “there was no private cases. that the initial discovery governmental participation degree (emphasis added) evidence” misses what we believe to be critical point. only Here there were two searches and we cannot be concerned search, initial seized the second one. evidence was after by Clark. The was to and conducted first search unrelated not of the search. the briefcase are suggestive opening second His reasons totally expectation irrelevant since defendant had a reasonable This afforded privacy. expectation protection was rights expressly fourth amendment. did waive these either Defendant not without a impliedly. Consequently, policeman search made rights violated fourth amendment evidence warrant defendant’s Ill. People v. Nunn (1973), 55 during seized this search inadmissible. 108, 94 904, 40 cert. denied N.E.2d 416 U.S. L. Ed. 2d (1974), S. Ct. 1608. under
We also are that the evidence seized was admissible unpersuaded Harris v. United States “plain view” doctrine. 236, 19 admissibility S. theory Ed. 2d 88 Ct. this articulated was as follows: falling in the view of an objects plain
“It has been settled that long that view are position to have right officеr who has a may in evidence.” be introduced seizure in Harris here that analogized The trial the situation court arrest, where, following car defendant’s impounding incriminating plain inside car. noticed the evidence view officer car. The question lawfully but that was inside There was officer that it the critical reasoning ignores here is fallacy trial court’s possession in lawful police being distinction between the lawfully of it. being and their inside briefcase evidenсe was argument we Finally, consider State’s by the exception approved admissible 49 L. Opperman Dakota South Court in Supreme supreme own court our Ed. 2d 798. The State contends Clark 65 Ill. N.E.2d van its contents and Officer Clark going was this opened during would have been conducting a Moreover, they argue that Officer anyway. based on search, inventory. argument apparently This merely but
201 Opperman, as Clark in premise inventory, that an automobile a rejeсt not search in We the constitutional sense. contention several reasons. inventory
Several State court decisions have concluded that an (People 69, v. Sullivan examination is not 29 323 (1971), a search. N.Y.2d 945, 44, State Wallen 464; N.Y.S.2d 272 N.E.2d 185 Neb. 372, cert. denied 912, 292, N.W.2d 26 L. S. Ct. However, State v. Jenkins contrary. other courts have held to the (Fla. 1975), 91, App. 319 So. 2d of the “[rjegardless court stated that resort to a play suggesting on semantics that a exists distinction between an ‘inventory’ and a an ‘inventory’ ‘search’ search is a ‘search’ within the Fourth prohibition against Amendment unreasonable searches *(cid:127) 91, seizures 319 So. 2d 93. Superior
Likewise, Mozzetti Court in Cal. 484 P.2d 94 Cal. Rptr. the California Supreme Court considered precise question and saw no discernible fourth amendment distinction inventory between an and a search. “It seems undeniable that a routine police inventory of the contents of an a automobile involves substantial invasion the privacy into Regardless the vehicle owner. of professed purposes benevolent euphemistic explication, an involves a thorough exploration by police into the private property of * * * an Merely individual. because police searching are not express crime, purpose of finding they evidence exempt are not from the requirements in reasonableness set down the Fourth Amendment. Constitutional rights may not through be finely evadеd route of honed but 699, 705-06, 84, 88, 94 nonsubstantive distinctions.” 4 Cal. 3d 484 P.2d Cal. Rptr. 416.
The Eighth Circuit Appeals Court of much approach took the same United States v. Lawson (8th 1973), Circ. criticizing 487 F.2d those cases which an inventory may hold that not abe search.
“This seems a highly position. apparently anomalous Officers are to search, placed position a better they when have no reason to general since then a will exploratory ‘inventory’ upheld; required get they a wаrrant would have to with describe particularity things to be Both of the seized. above decisions (Wallen Sullivan) upon highly based technical ‘search,’ construction of the meaning unwarranted in our view of the Fourth Amendment. To consider not to be a ‘search’ does violence to the the Fourth concept Amendment a protection as privacy citizenry against unwarranted by government invasion 487 F.2d officials.” 472. Jenkins, Mozzetti and Lawson reach the persuaded
We are proper decision. We those here and hold Officer Clark’s follow cases intrusion into defendant’s briefcase was indeed “search” standards reasonableness. essentially argues that Clark’s conduct was The State police procedure, protection both for later theft. This property safeguarding police against claims of argument ignores safeguarding owner’s interest property Lawson, “A As possessions from unreasonable intrusions. stated interest, rule that upon showing legitimate governmental of a citizens eliminate protections give way, constitutional must protections very those situations for which were intended. ** * A duty the owner’s does safeguard give right to search.” 487 F.2d automatically *6 Clark Opperman Both inventories of automobiles involved police.inventory in both cases following parking traffic or violations. The serious, the crimes. each case disclosed evidence of more unrelated they suspicion notion of what police apparently preconceived had no or Nevertheless, analyzed in the would find. the courts both cases the subjecting them to they intrusions as were searches Clark did in supreme amendment test of reasonableness. Our court all treated the terms and at times advert to distinction between two fact, the that Opperman, the court discussed intrusion as search. In (428 issue on the rеsult. expressly split courts which reached the have have 1000, 1006, 3092, 3097, (se.e text U.S. 49 L. Ed. 2d its However, at the State abandoned 6).) argument note since oral argument exempt was the fourth that the intrusion from it as reasonableness, in Opperman court treated supreme standards a search. case, we present standard applying reasonableness two Theoretically, unreasonable.
find that the search here was are protect of motor justifications searches vehicles against in future defense owner from theft and to assist significant (Clark.) considerations Here neither of these charge theft. rights. The briefcase fourth amendment enough to defendant’s outweigh of taken left there instead and could have been already was at the if he Also, would asked Officer van. the nurse back to defendant’s it. Officer Clark going he was leave taking whether the briefcase or watch, some leaving to take the briеfcase chose ammunition, and rounds of money and several rings, containing a wallet conscious, the briefcase fully was Since defendant defendant’s clothes. rather than taken some possession' in his easily been left could have if an that It seem to us in a van. would lot be stored locked parking most are to offer defendant impoundment subsequent all belongings the defendant’s would property, for his then protection was taken “for Why have taken Officer Clark. been us. mystery escapes items is a that and not the other protection” in protecting themselves from With to the interest of respect theft, charges argument persuasive the State’s would more again belongings had in order to conduct they seized all see what complete that he did not even inventory. Clark testified watch, rings was done with the defendant’s or the ammunition found Thus, police’s in his interest at pockets. protecting concern for application. stake fades in in of its inconsistent here fact view States Chadwick United Supreme The Court’s recent decision supports U.S. L. Ct. further our (1977), 433 97 S. recognize While we conclusion the search here was unreasonable. search, that Chadwick dealt with a the police where probable cause one easily knew what for and could looking were have obtained warrant, helpful distinguishing privacy aspects here personal of an item The luggage. automobile vis-a-vis an court explained that its treatment has of warrantless searches automobiles (1) been based partly mobility, (2) upon on their inherent expectations privacy diminished motor surrounds a vehicle. court’s Chadwick seem regarding comments apropos the footlocker “A persons personal briefcase here: expectations privacy luggage substantially greater (433 than in an automobile.” 97 S. Ct. mobility 53 Ed. aspect, Nor does the part which has in led the dispense court to requirement warrant searches, application vehicle have probable here. Officer Clark had cause to search and made exigent no claim that an immediate dispose of the evidence.
Finally, we that Opperman note neither for nor stand the proposition that a locked container found inside an could automobile be Chadwick, pursuant searched inventory exception. to the In Justice Brennan specifically noted in footnote 6 his concurring opinion that “while the contents the car could have been pursuant searched to the automobile it exception, by means clear that the contents locked containers found inside a car to search exception, under this they police more than in any place.” found them other 53 L. Ed. 2d 2486.) Clearly, greater defendant has a expectation privacy such a Yet both case. the government’s and the defendant’s interests in protecting prop- erty be adequately could by merely insured that the contents of assuming the case are and it locking valuable up wherever store valu- ables This, that feel, in the process inventory. come across we strikes a much more reasonable competing balance interests the automobile behind policies Since the than what was done here. the facts undermine apply, do not inventory exception or the either defendant protect inventory procedure need for an under here, was unreasonable that the search we feel suppressed. the fruits must be circuit court of reasons, judgment foregoing For grant remanded with directions County is reversed Champaign suppress. defendant’s motion to
Reversed and remanded.
REARDON, J., P. concurs. TRAPP, dissenting:
Mr. JUSTICE here was inventory I that examination made conclude in this recоrd. the circumstances shown at the been left could have suggestion that the briefcase Upon were that its dimensions the record shows estimated 1/2 hospital, feet in a kept were locked valuables emergency feet 4 inches. room inventory items of value hospital, If a admitted to the patient box. of such that a briefcase may conclude kept were in a safe. One security hospital readily accommodated dimensions could nоt facility. hospital at the have been left that the case could suggestion
As for the form of such did not consider hospital that the patient, appears it that suggestion Upon the of value. as to matters keeping acceptáble safe money, wallet Clark, taken the officer, have should logical to be placed could be that those items a conclusion rings, supports the record had hospital that may infer envelope. One currency. maintaining access to interest storage private be moved to the van was to The record shows than fact is different Such to be secure. not known facilities which were 699, 484 P.2d Court Superior Mozetti v. 4 Cal. 3d the cited storage in a secure was left the vehicle 94 Cal. where Rptr. area. Police the State to the Clark testified pilferage experience and to years before
initiated some Clark, advised He, already been had breаking into stored vehicles. A person. currency on large of a sum of finding target is an obvious money and sums of carry be used to known to v. Clark 65 Ill. 2d vehicle. from stored pilferage have been might simply the car argued 357 N.E.2d compartment. glove unnecessary it and that was locked
205 security procedure The that such actual to provide noted did not valuables. 1000, Opperman (1976), South v. 364, Dakota L. U.S. 49 Ed. 2d 3092,
96 S. Ct. is it stated: unmistakably “The of this the conclusion point decisions court to by pursuant reached both federal and state courts that inventories ” ”.” (428 procedures standard are reasonable.” 364, 372, 3092, L. Ed. 2d 96 S. Ct.
That opinion
procedure
noted
even
an
is characterized
as
inventory
“search,”
constitutionally
permissible.
question
intrusion is
(Cooper
whether
the search was
reasonable
the fourth
amendment.
v.
788,
(1967),
58, 61, 17
386 U.S.
L.
87 S. Ct.
Ed. 2d
California
South
v. Opperman (1976),
Dakota
364, 372, 49
1000,
428 U.S.
1007,
3092,
S.
96 Ct.
3098.) The
test of reasonableness
cannot be fixed
per se rules but
South
upon
each case must be
its
facts.
decided
own
Dakota Opperman v.
1000, 1007, 96
364, 373, 49
428 U.S.
L. Ed. 2d
Coolidge
Hampshire
3092,
v. New
S.
443,
Ct.
cites
29 L.
(1971), 403 U.S.
Ed. 2d
Although the fact of defendant’s possession appears heroin record, it is to be possession recalled that when Clark took briefcase he was not advised staff had discovered contraband as throughout examined the briefcase. He had acted protect the property of the defendant at the scene of the acсident and at the hospital. The evidence is that the briefcase was at the bedside opened of the defendant placing incident keys numerous inside the briefcase which appears logical to be a act. reasonable Defendant was advised that such step would be taken appear and it does not that he any made comment.
The record shows that the hospital of all considered examination items of property, inсluding the contents reasonably necessary procedure patient hospital. both for the and for the logical One can see no reason providing greater for standard police when caretaking obligations imposed on them.
In Smith 44 Ill. a police 254 N.E.2d officer wallet, providing injured care for an man possession although took of his such act was not required to identity. establish The subsequent of its contents disclosed incriminating matter. The court dеtermined the inventory of property was a coming possession into the reasonable discovery and that the matter did incriminating convert process illegal an search. into United States Gravitt cert. denied (5th 1973), Cir. F.2d 38 L. Ed. 2d the court said: custody take sort container [such as] “[W]hen * * * automobile it to search container itemize police. held [This reflects] *9 only underlying principle proscribes unreasonable searches.”
See also 29 N.Y.2d 323 N.Y.S. Sullivan N.E.2d 464. discussed,
Despite per imposing the authorities this court se rule. FITZPATRICK, et al., Plaintiffs-Appellees, v. R. Defendant- HENRY GEVING J. Appellant. Fourth District No. February 1978.
Opinion Rehearing denied January filed