*1 (No. 73925. ILLINOIS, THE STATE OF
THE PEOPLE OF Appel- HUNDLEY, D. lant, v. JACKIE Appellee. 26, 1993.
Opinion August filed FREEMAN, J., dissenting.
HARRISON, J., joined by BILANDIC, J., dissenting. also Burris, General, Roland Attorney Springfield, Samuel State’s Naylor, Attorney, Carthage (Norbert
J. Goetten, John X. Hoffman, Breslin and J. Paul Office of the State’s Attorneys Prosecutor, Appellate Ottawa, of counsel), for the People. Ancelet,
Albert V. Ancelet & Capps, Stoverink, of for Carthage, appellee.
JUSTICE HEIPLE delivered the opinion of the court: defendant,
The Jackie D. was Hundley, charged, the circuit court of Hancock with County, the offense of unlawful possession of a controlled substance. (Ill. Rev. Stat. 56V2, ch. par. 1402.) Cocaine was found in Hundley’s unattended automobile an by Illinois state trooper during a warrantless search. inventory Hundley filed motion to evidence, suppress which was granted the trial by court. The appellate court affirmed. (227 Ill. App. 3d 1056.) We reverse.
On 1, 1988, October approximately p.m., State Trooper Grace was on Anthony routine patrol when he came across what appeared to have been a one-car acci- dent. The scene was near the intersection of U.S. High- way and Fountain Creek Road in Hancock County, Illinois. Grace Trooper observed 1986 blue au- Mercury tomobile in a A ditch. utility pole had been broken off and a part of was stuck under the car. Downed power lines were lying across the highway. Hundley, owner and operator car, of the was From an exam- present. scene, ination of the the trooper was able to conclude that the car had left the traveled portion embankment, crossed an crashed a fence through and come to rest the ditch after with and break- colliding off a Closer utility pole. inspection the car re- vealed that the doors were locked.
Trooper Grace called for a tow truck to remove the vehicle. He then a mechanical used device called a “slim this He testified the car’s locked door. to jim” into that he could shift was done so transmission towing damage. neutral to avoid con- Grace not present, Trooper
Since defendant was to its re- of the car prior an ducted facility. unguarded storage tow truck to an moval closed, snap-top of his he found a In the course cigarette Inside the case which he cigarette opened. cocaine. containing he found a tube snorting case he be- cigarette testified that opened trooper often put he had found women cause in his experience No and in these containers. their drivers’ licenses money in the vehicle. were found or other valuables purse an inventory testified that he prepared Grace Trooper of it gave copies list to State police policy pursuant truck operator. to and the tow commanding sergeant his form was introduced into evidence at No At the hearing. hearing, conclusion suppression police general the court received into evidence State fol- procedure order which contains im- lowed a warrantless search of an *3 Identified as section of the pounded 4(a)(2) vehicle. 13— Police, the General Order of Illinois State provides: “An examination of the contents of all inventory and authority per- towed of Division by vehicles/boats or held completes who the sonnel shall be made the officer inventory Tow-In This examination and Recovery Report. or op- shall restricted to those areas where an owner or ordinarily place property equip- erator would or store vehicle/boat; include normally ment in the and would areas, glove map front and rear seat compartment, visors, engine compartments.” sun and trunk and the car towed ordering Grace’s for Trooper authority in statute. Ill. Rev. Stat. impounded grounded 1987, 95V2, ch. par. 4-203(d).
138
An search is inventory created judicially exception to the warrant requirement the fourth amendment. (Illinois v. Lafayette (1983), 640, 462 U.S. 77 L. Ed. 2d 65, 103 S. Ct. Three requirements must be satis fied for a valid warrantless search of a inventory vehicle: the (1) original impoundment the vehicle must be law ful (South Dakota v. Opperman (1976), 364, 428 U.S. 49 L. 1000, Ed. 2d 96 S. Ct. 3092); (2) purpose search must inventory be to protect owner’s prop and to erty lost, from protect stolen, claims of or vandalized and to property from guard dan ger 364, (Opperman, U.S. L. Ed. 2d 96 S. Ct. 3092); (3) search must be con ducted in faith good pursuant to reasonable standardized police procedures and not as a pretext for an investiga tory (Colorado Bertine L. 739, 107 Ed. 2d S. Ct. 738).
In Florida v. Wells (1990), 109 L. Ed. 2d Court Supreme again affirmed validity warrantless searches which fol- low a standardized police procedure requiring open- closed containers in vehicles. impounded Differing on its facts from the case, however, instant in Wells the defendant had been for stopped driving under the influ- ence of alcohol and the trooper forced open locked suitcase in the trunk of the car. Defendant Wells had given permission to the trunk of the car but had not given permission to the officer to force locked suitcase.
The Court held that since the Florida Patrol Highway had no whatsoever with respect opening of containers, closed the marijuana which was found in the locked suitcase was The Court properly suppressed. stated, however, that police should be allowed sufficient latitude to determine whether a container particular *4 of the nature light or should not be opened should the container itself. the and characteristics of the facts the law as to Considering applicable applied case, of the instant we that the general believe to situation. the Illinois State Police is the adequate More based on the circumstances particularly, unique wreck, of an unattended vehicle towing following we the officer’s decision to ciga- believe rette in his he had found because experience women often their drivers’ licenses put money containers, these a reasonable exercise of judgment was on the officer’s part. court and
Accordingly, judgments appellate are to the circuit court reversed. The cause is remanded circuit for court further proceedings. reversed;
Judgments cause remanded. FREEMAN, JUSTICE dissenting: I conclude that search of warrantless defendant’s not to regulated automobile was sufficiently the fourth amendment States Con- United (U.S. Const., stitution. amend. I re- IV.) Accordingly, dissent. spectfully
FACTS The majority following recites opinion correctly 1, 1983, facts. On the an Illinois night October State conducted a search of trooper warrantless defendant’s unattended During automobile. trooper found closed case. He cigarette opened
case and found cocaine. 156 Ill. at 137.
The record facts. following contains additional friend, Main, also Defendant’s Tom whom the trooper knew, did present was at the accident scene. trooper of defendant’s automobile relinquish possession
Main because defendant and not Main was the car’s reg- istered owner. The next morning, defendant and Main went to the storage and facility attempted retrieve her car.
CONTROLLING PRINCIPLES The applicable legal are clear. “The principles central of the purpose Fourth Amendment is to safeguard privacy security individuals in- against arbitrary vasions by government officials.” South v. Dakota Op- perman (1976), 377, 49 L. 2d 1000, Ed. 1009-10, 3101 (Powell, J., concurring). and similar intrusions into vehicles for
“[Inventories
purposes other
than seizing evidence of crime are
searches within the
of the
meaning
Fourth Amend-
ment.”
in
(Emphasis
original.) (3
LaFave,
W.
Search &
§7.4,
Seizure
at 96 (2d ed. 1987).) Routine inventory
searches of automobiles are generally constitutional be-
cause an individual’s diminished
expectation
in
privacy
an automobile is outweighed
three
governmental
in-
terests:
of the
protection
from
police
danger; protection
against claims and
over lost or
disputes
stolen property; of the owner’s
protection
property
while it
in
remains
Opperman, 428 U.S.
custody.
at
49
L. Ed. 2d at
However, a warrantless
search of an auto-
mobile must not be unrestrained. The search must be
conducted
accordance with established police depart-
ment rules or
(Opperman,
379-80,
policy.
1011-12,
L. Ed.
J.,
“Inventory are not conducted to discover evidence of crime. The does not make a judg- search based on a discretionary determination to present. Inventory are ment that certain conditions po- in accordance with established searches are conducted and occur whenever an au- department lice rules or added.) (Opperman, 428 (Emphasis tomobile is seized.” 1013-14, 49 L. 2d at Ct. at 3104 U.S. at Ed. S. J., (Powell, concurring).)
Thus, in the Opperman, “[w]hat based on is needed vehi- *** cle context cause but probable rather set which regularized procedures adequately LaFave, arbitrariness.” Search & guard against W. §7.4(a), (2d Seizure at 109 ed. 1987).
These
of a closed con-
principles apply
Colorado
tainer
a vehicle
In
search.
*6
Bertine
367,
(1987),
739,
93 L. Ed. 2d
107 S.
738,
Ct.
the United States
Court held that a
Supreme
police
may
closed container while conduct-
a routine
inventory
of an
vehicle.
impounded
The Court emphasized that police department procedures
in that case mandated of
opening
closed containers.
Bertine,
n.6,
479
n.6,
U.S.
374
Further,
Blackmun,
Justice
in
who
participated
Bertine,
wrote
to
majority
underscore
“separately
of
only
importance
having such inventories
conducted
to standardized
pursuant
police procedures.” (Emphasis
(Bertine,
added.)
479
748,
U.S. at
The recent case of Florida v. Wells (1990), L. 2d did not alter these Ed. Wells, In the Court upheld suppression principles. in- during evidence found in a closed container vehicle search. The Court held as follows: ventory “In the Court of Florida present Supreme Patrol had no Highway found that Florida to containers respect whatever with closed hold that inventory encountered an search. We ab policy, sufficiently sent such a the instant search was not Wells, the Fourth Amendment ***.” regulated 4-5, 7, 110 109 L. Ed. 2d at S. Ct. at 1635. Court decisions can summarized as Supreme These follows: gov
“Standardized criteria or an established routine limit erning searches must an officer’s discre First, tion in it must limit the officer’s discre ways. two regarding whether tion to search a seized vehicle. Second, criteria or routine pre-existing [Citations.] regarding scope discretion must limit an officer’s respect an with particularly (Emphasis treatment of closed containers. [Citations.]” v. original.) United States Salmon (3d 1991), Cir. F.2d 1106, 1120. summed these fourth correctly up
Our court appellate it held that one thread amendment concerns when “[t]he common to all valid warrantless searches on a standard predicated police pro the search was Lear 217 Ill. People cedure.” App. *7 714. Wells in included the
However, majority opinion dictum: following may
“A
allowed sufficient latitude to de
termine
container should or should
particular
whether
of the search and
light
not be
of the nature
opened
Wells,
itself.”
characteristics of the container
4, 109
6,
APPLICATION OF LAW TO FACTS
Based on these
I conclude that
principles,
war
rantless
inventory search
case was not
present
regulated to
the fourth
sufficiently
amendment.
The
majority upholds
search because:
Illinois
(1)
State Police General Order
4(a)(2) (general order)
§13—
situation,”
was
“adequate
(2)
trooper’s
defendant’s closed
case
cigarette
constituted
“a reasonable exercise of
on the officer’s
judgment
part.” (
The General Order
general
(
der does not limit an officer’s
search,
with
particularly
respect
of an
scope
inventory
(Salmon,
the
of closed containers.
944 F.2d at
treatment
The Florida
Patrol
did not
1120.)
Highway
policy
justify
of a closed container
automobile
search in Wells.
Likewise,
general
inventory
Salmon,
should not
such conduct here. Accord
justify
(“Based
I note that in United States v. Wilson 1991), Cir. (7th 938 F.2d the United States Court of for the Appeals Seventh Circuit held that the order suf- recently general limits the discretion of officers to ficiently that the fourth amendment. The court reasoned requir- of the contents” of the “examination and ing an inventoried vehicle establishes the that closed policy Wilson, at 789-90. containers must be 938 F.2d opened. interpreta- I believe that the Federal court’s appeals tion of the order was erroneous for at least two general the Wilson court concluded that First, gen- reasons. the Florida eral order was from distinguishable Highway Patrol the “Florida State Police admit- because policy governing had no standard tedly policy (Wilson, of Illinois searches while State did.” in Wells and the However, 790.) policy gen- F.2d Thus, are the same. the result eral order essentially Wells should obtain here. the Wilson court’s
Second, general that reasoning, the open- requirement necessarily requires examination containers, Court of Oregon of closed is flawed. as follows: Appeals explained reasoning] “What fails to recognize ‘gen- that the [this procedure eral nature’ of the is precisely what makes it defective. To approve general because it is so that an officer must look everywhere he can think of flies in the face of the requirement the inventory be ‘con- according criteria,’ ducted to standardized [citation], or ” (State ‘established routine.’ v. Willhite 110 Or. App. 567, P.2d
Further, Professor LaFave specifically notes that reasoning of the Wilson court “is open to question.” (3 LaFave, W. Search & §7.4, Seizure at 28-29 ed. (2d Supp. 1993).) course, Of the Wilson decision is not bind on Illinois courts. See v. People Kokoraleis (1989), 132 Ill. 2d 293.
Police Discretion
The majority upholds
the warrantless
search in the present case also because the trooper’s
opening of defendant’s closed cigarette case constituted
“a reasonable exercise of judgment on the officer’s
part.” However, the
essence
very
of an inventory search
is that a police officer does not exercise any discretion.
The officer does not decide to search based on his or her
judgment
that certain conditions are present.
(Opper-
man, 428
U.S. at
49 L. Ed.
1013-14,
2d at
at
J.,
3104 (Powell,
A
concurring).)
officer
cannot
given
complete, if
discretion in
any,
choosing whether
to search or not to search closed containers found during
an inventory search. See
Wells,
generally
U.S. at
109 L. Ed.
2d at
The inventory search in the present case did not meet fourth amendment requirements. The did trooper not open defendant’s closed case cigarette based on any standard police policy, including the general order. Rather, he testified that he acted based on “his experi- not con- does experience
ence.” The trooper’s personal
v.
(See United States
police procedure.
stitute a standard
remand
on
Kordosky
219, 221,
909 F.2d
(7th
1990),
Cir.
case to dis-
I note that the State does lastly defendant’s automo evidence, could not contend that in the context of the fourth amend bile was abandoned of the zone of lies outside ment. Abandoned property v. (People offered the fourth amendment. protection People Dorney 785, 787; see 17 Ill. App. *10 Arnett fourth 632.) Because (1991), App. Ill. an automo concerns are not when applicable amendment the without abandoned, by is it be seized may bile on the examined with no limitations a warrant and of the examination. The or intensity, objectives scope, for use as retained may and its contents automobile v. (Duncan State 247, 263, 378 281 Md. (1977), evidence. is is a abandoned property A.2d Whether the intent an examination fact requiring question aban asserting The party actions of the defendant. clear, unequivocal, the of proof donment bears burden Dorney, 3d at 787-88. App. decisive evidence. Ill. that the win- case shows in the present The record the doors were up, car were rolled of defendant’s dows Also, ignition. not in the locked, and the were keys Main, friend, was was present during who defendant’s and defendant to take impoundment attempted pos- facts morning. session of her automobile the next These in- would not the contention that defendant support tended her in the context of the to abandon automobile fourth amendment. Wells,
As in warrantless present was not to case sufficiently regulated fourth I amendment. would affirm the court. appellate I dissent. Accordingly, respectfully HARRISON, dissenting: JUSTICE also to majority’s disposition directly runs counter of Florida v. holding Wells 109 L. here, Ed. 2d 110 S. There, Ct. 1632. as a general pol- effect, on or icy inventory searches was at least the Florida Court assumed that was. Supreme (State Wells (Fla. 1989), 464, 469.) 539 So. 2d What made inventory search infirm in the constitutionally view both the State court 2d at (Wells, 469) So. and the United States Court Supreme (Wells, 4-5, 109 L. 2d at 1635) Ed. 110 S. Ct. at was pol- that the did icy con- specifically address of closed tainers. That the problem here. Closed con- precisely tainers are not mentioned in the anywhere general our promulgated by State for inventory searches. The majority to this from attempts distinguish case Wells on the that grounds search here involved an wreck, unattended car towed after whereas the search in Wells after car came the defendant’s was impounded his arrest drunk following for and the driving arresting directed employees facility impoundment unlock a locked I suitcase found in the trunk. agree these exist, factual at a differences but am loss to under- stand their legal Wells’ significance. Nothing analysis *11 turns on the circumstances giving rise right have the In whether determining
search.
course of an inven-
found
closed containers
ex-
is whether a
policy
the threshold inquiry
tory
Absent
procedure.
ists which
authorizes
specifically
an inven-
containers
such a policy,
closed
(Wells,
the fourth amendment
search violates
tory
re-
1635),
search here was valid because Wells, the In on the officer’s judgment part.” exercise of mech- to have required court did hold that are call for all closed or which nothing” policies anistic “all search or an opened during containers to be Rather, being opened. else containers from any prohibit officers to which allow are free to fashion they policies “whether a determining particular exercise discretion in light should not be opened container should or of the container the search and characteristics nature of 2d at 110 S. 109 L. Ed. (Wells, itself.” however, ex- policy In this no such Ct. at noted, no on closed con- As I there was just isted. the police all. such a whether policy, tainers at Without as “rea- otherwise be might regarded officer’s judgment immaterial. is wholly sonable” reasons, I believe the judgments For the foregoing courts should be affirmed. the circuit and appellate in this dissent. BILANDIC joins JUSTICE