THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellant, v. SUSAN A. HUNT, Defendant-Appellee.
Third District No. 3-88-0552
Third District
Opinion filed September 11, 1989.
188 Ill. App. 3d 359
Therefore, for all оf the foregoing reasons, the decision of the Illinois Pollution Control Board is affirmed.
Affirmed.
BARRY and STOUDER, JJ., concur.
Opinion filed September 11, 1989.
John A. Barra, State‘s Attorney, of Peoria (Rita Kennedy Mertel, of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
Mark D. Fisher, of State Appellate Defender‘s Office, of Ottawa, for appellee.
PRESIDING JUSTICE WOMBACHER delivered the opinion of the court:
The defendant, Susan A. Hunt, was charged with unlawful possession of cannabis with intent to deliver and unlawful possession of a controlled substance. (
The issue on appeal is whether the еvidence used against the defendant at her trial was obtained in violation of her freedom from unreasonable search and seizure as guaranteed by the fourth amendment to the United States Constitution (
Officer Greg Metz of the Peoria police department testified that he was on patrol that evening. During his patrol he stopped at the Miracle Mart parking lot. He often went to that vicinity to watch for minors purchasing liquor at Tony‘s and people drinking in their cars. He noticed the defendant‘s car and observed that two pеople were seated in the front seat. He saw no one exit or enter the vehicle and was unable to determine whether the individuals were minors or adults. From his original vantage pоint, Metz could not see any activ
After watching the vehicle for two or three minutes, Metz drove up behind it with his headlights off. When he was about 10 feet from the car, he turned on his high-beam headlights and his spotlight. As he exited his patrol car, Metz noticed the individual in the passenger seat duck or make a quick movement of some kind. Metz walked up to the passenger window. Keeton rollеd down the window, and Metz asked him if he was drinking in the car. Keeton responded that he was not. During this exchange, Metz was shining his flashlight into the car. He noticed clear plastic bags containing a green, leafy substance near Keeton‘s right foot. Metz opened the car door and ordered Keeton out of the car. He then reached into the car and picked uр one of the bags. Keeton was searched and handcuffed. Metz then continued his search of the vehicle. The defendant remained seated in the driver‘s seat throughout this period.
Whеn other officers arrived, the defendant was ordered out of the car, searched, and handcuffed. The defendant testified that she never consented to having her car searched. The State and the defendant stipulated at trial to tests showing that both cannabis and cocaine were retrieved in the search of the defendant‘s vehicle.
The fourth amendmеnt applies to all seizures of persons, including brief investigatory stops of vehicles. (United States v. Cortez (1981), 449 U.S. 411, 66 L. Ed. 2d 621, 101 S. Ct. 690.) In determining whether the search and seizure was “unreasonable,” the court must first inquire whether the officеr‘s action was justified at its inception. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) Although an officer need not have probable cause to briefly detain a suspect, he is required to have a reasonable suspiciоn, based on objective facts, that the individual is involved in criminal activity. (Brown v. Texas (1979), 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637.) In justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant the intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) In the absence of any basis for suspecting a person of misconduct, the balance between the public interest and the individual‘s right to personal security and privacy tilts in favor of freedom from police interference. (Brown v. Texas (1979), 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637.) A reviewing court will not disturb a trial court‘s finding on a motion to suppress unless that finding is manifestly erroneous. People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.
The judgment of the circuit court of Peoria County is affirmed.
Affirmed.
STOUDER, J., concurs.
JUSTICE HEIPLE, dissenting:
The trial court found the defendant, Susan A. Hunt, guilty of unlawful possession of cannabis with intent to deliver and unlawful possession of а controlled substance. (
Officer Greg Metz testified that on the night in question he was watching the Miracle Mart parking lot. He stated that the parking lot was frequently used by underage drinkers who were purchasing alcohol at the liquor store across the streеt. After watching two people in the defendant‘s car for approximately two minutes, he drove to within 10 feet of the car. He then illuminated the vehicle with his high-beam headlights and spotlight. As he got out of the car, he saw a passenger in the front seat make a quick movement. Officer Metz walked up to the passenger side of the vehicle and shined his flashlight into the car.
Where a police officer converses with an individual but does not restrain the individual‘s freedom to walk away, an investigative stop had not occurred, even if the conversation was investigative in nature. (People v. Kennedy (1978), 66 Ill. App. 3d 267, 383 N.E.2d 713.) A police officer, just аs any citizen, has the right to be in a parking lot next to a business which is open to the public. (People v. Caserta (1984), 123 Ill. App. 3d 608, 463 N.E.2d 190.) There is no legitimate expectation of privacy shielding that portion of the interior of а car which may be viewed by inquisitive passerby, and the use of a flashlight to illuminate such an area does not trigger fourth amendment protection. Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535.
Contrary to the majority‘s holding, I find that Officer Metz did not subject the defendant to an investigative stop. Rather, Metz properly walked up to the car, which was in a parking lot next to a business open to the public. As already noted, this wаs a parking lot known to be frequented by underage drinkers who were purchasing alcohol at a liquor store across the street. His question to Keeton did not transform the encounter intо an investigative stop. Neither Keeton nor the defendant was restrained from leaving at that time. Consequently, Officer Metz‘s observation of the marijuana in plain view was proper. Thе officer‘s subsequent actions were also proper because at that point, they were based on probable cause.
For these reasons, the order suppressing the evidence should be reversed and I dissent.