*1 Associates, (Field Surgical Ltd. its discretion. properly exercised Shadab 991, 995, In this 663-64.) 59 Ill. case, plaintiff. Defendants self-help dispossessing defendants used maintain of the taxes and to plaintiff’s pay portion claim that failure to trial court found entitles them to declare a forfeiture. The premises bring any by failing had waived their to forfeiture defendants plaintiff equity requires The court found that years. action for further on the repairs and to make needed begin paying portion of the taxes terms and power impose A has inherent premises. equity court of (Board Springfield Education granting conditions relief. Education Association 47 Ill. N.E.2d the circumstances and constitutes equitable trial court order under We affirm. proper exercise of discretion.
Affirmed. GREEN,
REARDON, J., concur. J., P. ILLINOIS, Plaintiff-Appellee, THE PEOPLE OF THE STATE OF KELLY, Defendant-Appellant. CHARLES RICHARD Fifth District No. 77-420 Opinion August filed 1979.
KASSERMAN, J., dissenting. Plesko, Appellate Defender’s Rosborough Michael and M. both of State J. Jeff Office, Vernon, appellant. of Mt. (Raymond F. Eberspacher, Attorney, Shelbyville C. Edward State’s Blood, Buckley, Jr., Attorneys L. Service and Curtis both of State’s Appellate Commission, counsel), People. Mr. PRESIDING GEORGE MORAN delivered JUSTICE J.
opinion of the court: Kelly charged pos- with unlawful Defendant Charles Richard marijuana. He was grams session of more than 30 but less than 500 County, Shelby trial in the circuit court of following convicted a bench trial, jail awaiting in while and sentenced to the five months he had served two-year period. payable and a *1000fine over discharge, conditional disclosed the cannabis Kelly alleging only that the search which appeals, *3 was invalid. defendant was
At 1:30 a.m. on December approximately village Moweaqua. driving through his car north on Route 51 in the four-way stop at a and testified that Officers McLearin Parker they released and lights brake had not village they thought defendant’s village and edge him to the began They to follow him. followed him car and told approached him. defendant’s then McLearin He then asked the position. that his in the “on” lights brake were stuck license, him Kelly did not have with defendant for his driver’s which time, said testified that McLearin although Kelly that he did have one. over, why didn’t he something pulled to the effect that “while he had me my driver’s license.” just check parties. with the description of events varies point,
From this car, a tire into the he saw shining flashlight that on his McLearin claimed seat, the defendant’s the driver’s between protruding tool from under passenger in the should not be that the tire tool feet. He told defendant have such felt that to it in the trunk. McLearin put and to compartment, law he knew of no although object illegal, an under the seat was car, the tire he removed and when got it. out of prohibiting Defendant the defendant iron, view. He told bar came into McLearin said iron into the go it and should weapon this, too, be considered might that seat, from under object this Kelly pulled well. When trunk as car. him to search knife, prompted which saw kitchen McLearin that else of anything if there was Kelly that he asked McLearin claimed to a second consented seat, Kelly subsequently that under the nature Officer find ahead, anything.” you won’t “Go but saying, request, time, most corroborated McLearin at was with Parker who testimony. McLearin’s asked hand, that after McLearin defendant, testified on the other which smoking pot, license, if been asked he had he then
for his driver’s car, shined he get him out of told McLearin then defendant denied. floor, only look at the stooped to and when he into the car flashlight remove instructed to tool. The defendant he see the tire then did It was at that time. not come out knife did iron bar. The kitchen removing the car. After a search of McLearin undertook only found after that nature bar, anything if else was asked there there was no need not and that that there was replied under the seat. He about, guilty nothing to feel said that if there was search. McLearin saying he denied not look. Defendant there was no reason he could not find he would if the car did not care McLearin searched denying in fashion. the search gave or that he consent for anything, remotely considered been even anything that could have that he said cold I would not consent, morning that “At 1:30 the he stated gas and went on just got I as soon my to a search of car. would agree home.” car and eventually
It entered undisputed McLearin ashtray from undisputed it. It is that he removed searched contents, what included its Kelly dashboard and confronted with the car McLearinre-entered and seeds. appeared to be cannabis residue according to the fourth time him but for (for according the second time in the was cannabis thought of what he defendant) bag and found first put then under arrest Defendant was glove compartment. time. the search and consented to trial that defendant had court found that he denied Defendant
that the cannabis was admissible into evidence. if automobile, he even of his contends consented to the search voluntary. He further consent, knowing the consent was not or reasonable without cause that the search was made contends hearing *4 suppression trial court at second suspicion, and erred regularly that Officer McLearin to admit evidence refusing without their automobiles then searched young pretext, drivers on consent. on any issue has waived initially contends
The State 84
appeal because he failed to file a post-trial motion. Such contention frivolous, because the law is well settled Illinois that defendant need if, here, not file a post-trial motion as he is tried before the court and has People v. Tobin raised at 73, issue the trial (1938), level. Ill. People v. 687; Ford N.E.2d 242, (1974), 21 Ill. App. 3d 87. N.E.2d It is undisputed that both the Illinois and the United States protect Constitutions an individual from unreasonable searches and (People Felton seizures. (1974), 103, 642; App. 20 Ill. 3d 313 N.E.2d People v. Billings (1977), 414, 52 Ill. 3d 337.) 367 N.E.2d The fourth amendment to the United States Constitution does require every not search be made pursuant to a warrant. It prohibits only unreasonable searches and seizures. The relevant test is not the reasonableness opportunity procure warrant, but the reasonableness of the seizure under all circumstances. The test of by per reasonableness cannot be fixed rules; se each case must be decided on its own facts. (Coolidge v. New Hampshire 443, (1971), 509-10, 564, 608, 403 U.S. 29 L. Ed. 2d 91 S. Ct. 2022, 2060; People v. (1972), 648, 592.) 6 Ill. 285 N.E.2d Jefferies However, all searches conducted without a valid search warrant are unreasonable unless shown to be within exceptions one of the to the rule that a search upon must rest a valid warrant. As shall we discuss further opinion, our search; the defendant voluntarily consent to the therefore, all, arrest, the search must if justified, be as incident or as a search probable made with exceptional cause and under circum stances might exist object when the of the search is a motor vehicle. (People v. Hering (1975), 27 Ill. App. 936, 327 N.E.2d In any event, a justified only cannot be produces, what it nor an arrest justified only by the fruit illegal of an search.
Probable
cause is required
warrantless
search and that is a
reasonable belief that a
particular
search of a
place
thing
or
will disclose
evidence,
crime,
fruits of the
or is necessary
protection
(People
v. Hering; People v. Jefferies.) Probable
officer.
cause
exists when the facts and circumstances within the arresting officer’s
knowledge
are sufficient
to warrant
a man of reasonable
caution to
believe that an offense has been committed and that
person
arrested
has committed
probable
offense. Fact sufficient
to establish
cause
doubt,
need not
beyond
be sufficient
to establish
guilt
reasonable
probable
may
upon
cause
be founded
would not
People Blitz
1238,
287,
admissible at trial.
68 Ill. 2d
cert,
denied
435 U.S.
56 L. Ed. 2d
Lichtenheld (1976), require to police was reasonable and of defendant stop detention its However, a which reasonable just identification. intoler of its by virtue the amendment inception may violate fourth exceed investigatory detention scope, may so an intensity able and nec reasonably beyond what is extended bounds when constitutional permissible. its initiation which made essary under circumstances In 555,83 22.) Rptr. Cal. App. 3d (Willett Superior v. Court (1969), Cal. traffic violation a serious initially arrested for this case defendant was which offense, any circumstances nor were there or for criminal than a a criminal rather dealing with would that the were indicate N.E.2d69; 91,227 (People v. Reed (1967), 37 Ill. 2d mere traffic offender. 482, 273.) Since v. Jordan (1973), 11 Ill. 3d N.E.2d App. it, the search could his car when McLearin searched defendant was out of safety. (People his predicated fear for not have been on McLearin’s Also, in 934,384 nothing Myers (1978), 516.) there is 66 Ill. 3d N.E.2d there Finally, that to likely escape. the record to indicate defendant was (See Amador- ordinary stop. a in an traffic are seldom fruits of crime 308, n. F.2d 315-16 Gonzalez v. United States (5th Cir. Therefore, was no cause to we conclude there or to him to the tire iron from defendant’s vehicle ask remove believe passenger compartment, only probable was cause to since there Further, for the reasons defendant was a mere traffic violator. where on passive, conduct stopping nonculpable involved mere to part, impermissible his hold that intrusion on defendant we was require place him to the tire tool the trunk. in In recent have the same issue. appellate
Two court cases addressed 516, People Myers 384 N.E.2d 66 Ill. only operational stopped was because his motor vehicle had one driver headlight. turning spotlight, After on his the officer noticed the something as if the car seat. The officer placing bend over he were under violation, vehicle, and the driver of the approached advised license, the his produced asked his driver’s license. After the driver for vehicle, so, as he officer step officer asked him to out floor, grocery lying partially observed a brown on the beneath paper sack car, officer standing the driver’s seat. While driver was outside containing opened bags green the sack clear and observed six to be vegetable-like substance determined subsequently Miranda squad given car cannabis. Defendant escorted to concerning the warnings incriminating after which he made an statement and the suppressed contents of the sack. The trial court cannabis statement, affirmed the appellate and the State court appealed. suspicious there suppression of and ruled that were insufficient or specific information to justify circumstances known the officer to case, limited this search. Likewise in there were suspicious insufficient or specific circumstances information to known the officer to justify limited search. People Nally
In 71 Ill. App. de- fendants driving Watson, were for limit. speed excess driver, squad walked to the car and exhibited his driver’s license which appeared to proceeded order. One the officers front of van to determine if plate, light there was front license shined into the area, windshield Nally, Sykes, and noticed and a motorcycle the van. Sykes Nally officer ordered out of the van asked them identification, which they supplied. response inquiry, to the officer’s Watson motorcycle stated belonged a friend in Wisconsin and that they taking it him. were When the officer asked Watson if he could *6 “Well, look at motorcycle, replied, you the it going Watson are to look at anyhow.” Although a check of the engine number did reveal that the not stolen, motorcycle was the officer ordered him accompany defendants to station, to the proof because defendants had no ownership of and one defendant was a convicted The court burglar. appellate ruled that doctrine, there was a plain-view search and that under the in to addition an initial intrusion opportunity lawful which affords the authorities the for view, the it plain necessary is to that of incriminating establish the nature plain immediately the in apparent arresting view to the officers.
In incriminating this case there was also search. The nature of the evidence, tool, arresting immediately apparent the tire could not be to the officers, possession because the of a tire tool under the driver’s seat is not 38, Therefore, 1975, (Ill. 1.) of law. Stat. par. violation the Rev. ch. 24— asking there was no to tire justification put defendant the tool the trunk, that everything and from an point impermissible onward was search and seizure.
The State contends that defendant consented to the search. Under Constitution, the fourth and fourteenth amendments the to United States upon a search a warrant probable per conducted without issued cause is unreasonable, subject se to a few and only specifically established well- exceptions. exceptions delineated to specifically One established requirement the of both a that is warrant cause is (Schneckloth Bustamonte (1973), to pursuant conducted consent. 218, 854, 93 However, S. 2041.) U.S. 36 L. Ed. 2d Ct. consent is ineffective entry to justify pursuant a search when a or made to consent search, illegal an an immediately following involving improper assertion authority, inextricably up illegal with of is bound conduct cannot 156, (People Lawler (1973), 9 Cal. 507 P.2d segregated therefrom. 621,107 129,568 see also State v. McMahon 13; Cal. 116 Ariz. Rptr. (1977), 1027.) way, authority P.2d acquiescence apparent Stated another mere to (Raleigh v. State not necessarily (Fla. 365 So. 2d consent. 1048.) engaged The officer when “asked” impermissible conduct he trunk, put possession the tire tool the because of tire tool 1975, 38, ain (Ill. motor vehicle is not Stat. It illegal. par. Rev. ch. 24 — matters not that at the “request” officer’s conducted seat, by preliminary search from or that dragging various items under the defendant “consented” search which officer’s led to the cannabis, discovery “request” everything occurring after was was an made unreasonable search which violated defendant’s rights constitutional both the and Illinois under United States Constitutions. We prior illegal conclude defendant’s consent and search conducted at the inextricably joined; officer’s are command consent, being itself the fruit of illegal authority, assertion cannot justify circumstances, a further illegal totality search. From inescapable passive conclusion is that defendant’s was a “consent” submission to authority not a voluntary relinquishment right. aof facts do justify except conclusion that defendant consented consent was secured authority officer’s demand and the of his office. foregoing does not amount of defendant’s waiver v. Harr rights. constitutional See Ill.
N.E.2d 1. jurisdictions
Other have dealt with presently the issue which is before Sayne State this court. Sayne’s 258 Ind. motor vehicle stopped by police solely for the reason automobile’s functioning. Sayne, was not Prior to stopping the officer knew that Sayne did not own the automobile and had heard *7 that he a had criminal record of although cognizant officer was not details. As the defendant’s stopping, up automobile was raised his hand he to the sunvisor area and dropped then his hand. The officer informed the license, defendant of his violation asked for driver’s which produced. pull The officer then asked the defendant to down the placed sunvisor because the had idea officer no what had been there. A plastic bag containing a small amount of cannabis had been hidden between top. windshield and the canvas convertible The Supreme Court of Indiana suppress ruled that the defendant’s motion to evidence should granted prosecution, have been because which relied search, on consent to justify the to meet its of proving failed burden was, fact, the consent freely given. and voluntarily That court further ruled that although may consent constitute a amendment waiver of fourth rights, such waiver must intelligent be an of a relinquishment known or privilege, and waiver a conclusively presumed cannot be from verbal facts indicated
expression assent. That court concluded of passive “consent” more than submission nothing defendant’s constituted a voluntary a of known relinquishment search and therefore was not to right. 1974), 290 So. 2d Keener’s (Fla.
In v. State Keener a A check of defendant’s taillight automobile was for violation. nothing was and the revealed that there plates driver’s license license began and he curiosity amiss. The testified that his was aroused officer Smith, bag brown interrogate ordinary grocery about an passenger, bag, threw it across Finally grabbed which under the seat. Smith officer, side, “I told the the automobile to the floorboard on driver’s name,” guess Florida court ruled that I don’t have a and fled. The he granted, have because suppress defendant’s motion to should been Smith. legal questioning went far without cause in too 87, an informer (Tex. In Grim. 532 S.W.2d Kolb State in a Emil had cannabis pounds told the authorities that Cross stored informer, had who locker numbered 94 or 95 at a certain location. The car and its given in the the Cross past, reliable information described no 94 and locked and found number. The officersfound lockers license rented locker. that Cross in the area or that he had either a warrant hours later without approximately The officers returned five However, they in the area. saw no evidence of Cross or his van again voice on the door and a male They found Locker 94 unlocked. knocked and told the responded. They themselves as officers identified person began open open who answered to the door. One of the officers inside, although he someone him from the door believed assisted Kolb, they they whom opened, was not sure. When the door saw know, the officers flashlight, With the aid of smelled cannabis. ruled that 132.8 The Texas court pounds observed of cannabis. any way if Kolb suppressed, cannabis should been have door, to the officer in it was submission opening assisted the voluntary as a consent. demand of officers and not result P.2d 9 Cal. 3d People Lawler that because An testified hitchhiking. officer companions and two were if he bag grabbing sleeping kept defendant seemed nervous and leave, of the pat-down search he conducted “routine” wanted that he felt an automatic sleeping weapons. The officerconcluded bag out to be turned weapon sleeping bag. weapon” in the The “automatic utensil, fork, commonly used spoon combination knife and pat-down campers. of cannabis also fell out. bags Several defendant. prior to sleeping bag was conducted bag was sleeping Attorney opening General contended that the by the consent, evidence discovered act of which rendered admissible the *8 that bag. Supreme sup- The California Court affirmed the pression of evidence and ruled that prior illegal pat-down the consent and sleeping bag of the inextricably joined were so the consent being itself an illegal authority, justify the fruit of assertion of cannot illegal further search. McCray (1975), State v. 46 Ohio for a violation. He got out of presented
automobile and his driver’s license. The officer went passenger side of the automobile and asked the passengers get out. The officer then stuck his head inside the automobile and with the aid of a flashlight around, saw what appeared to be cannabis He pipe. looked found two beer cans and pick reached down to up the cans and found a bag containing what he believed to be cannabis. The Ohio court ruled that the pipe should have been suppressed as well as the package of cannabis. The court further very ruled act removing the one passenger on side of the automobile inwas the nature of a “search” in that the officer removed an obstacle which obstructed the So, too, vision of the officer. is the removal of the tire tool from under the front seat a search. In this case the officer obviously attempting to find something with justify automobile; which to a full search of the therefore, we conclude that anything occurring after defendant identified himself was an impermissible search which violated the right privacy and security of the defendant.
Since the only evidence of the offense charged this case should have been suppressed, we reverse the conviction.
Accordingly, judgment Shelby Circuit Court of County is reversed.
Reversed.
KUNCE, J., concurs.
Mr. KASSERMAN,dissenting: JUSTICE In my opinion the judgment of the circuit court should be affirmed. The evidence indicates that proper the search the officerswas aas plain-view vehicle; therefore, search of the defendant’s consent was not rendered ineffective followed an illegal search.
The officers a portion observed of the tire iron from under protruding the driver’s seat and place asked defendant to remove it and it in the officers, trunk. In complying with request pipe iron and a kitchen knife were exposed when defendant tire iron removed the from under the seat. discovery of these items would have entitled the officers outside, to further examine the vehicle from the they flashlight. appeared with the use of a Their examination disclosed what ashtray marijuana part marijuana cigarette seeds and of a justified consequence the further search. It is of no that the officers were using they ashtray since the flashlight when observed the contents of the *9 light plain use of artificial that which is in view would not alter observe 17, 280 plain-view doctrine. See 51 Ill. 2d v. Bombacino N.E.2d 697. LADENHEIM, COUNTY Plaintiff-Appellant,
CHARLES v. UNION DISTRICT, Defendant-Appellee.
HOSPITAL Fifth No. District 79-13 August Opinion filed 1979.