People v. Wither
748 N.E.2d 336
Ill. App. Ct.
2001
Check Treatment

*1 consent, In the ordinarily required absence of valid a warrant is person’s People Bull, search the contents of a closed container. v. valid, In order for the consent to be person from whom it appar is obtained must have either actual or authority give Bull, ent consent. 185 Ill. 2d at N.E.2d at 833-34.

In Deputy this the computer Chisolm activated after learn- ing computer belonged from Howard Blair that the to defendant. Ac- cordingly, the officers could not have believed that Blair possessed the requisite authority consent, to consent to its search. Without valid computer warrantless search and its contents was unlawful and any evidence subsequently obtained therefrom must be as poisonous fruit of the Wong tree. See Sun v. United concurrence, Through this I express no about the conclu- drawn sions in its discussion of the ineffectiveness of computer. Blair’s consent to “seize” the believe such analysis unnecessary appeal. resolution of this THE ILLINOIS, PEOPLE OF THE OF Plaintiff-Appellant, STATE WITHER, Defendant-Appellee.

SYLVAN Third District 3—00—0524 No.

Opinion April filed 2001. *2 P.J., concurring. (John Rita Galesburg X. Breslin and Attorney, of Mangieri, State’s Paul Office, Attorneys of Mertel, Appellate Prosecutor’s Kennedy both of State’s counsel), People. Wallace, Island, Wallace, Winstein, Kavensky Rock of & of

Barbara K. appellee. of the court: HOLDRIDGE delivered the

JUSTICE defendant, Wither, charged posses- unlawful Sylvan The with (720 ILCS intent to deliver a controlled substance sion with 570/ 401(a)(2)(A) (West 1998)) of a controlled possession and unlawful (West 1998)). (720 570/402(a)(2)(A) He filed a motion ILCS substance to his ar- alleging the search of his vehicle suppress motion, the defendant’s granted The trial court rest was unlawful. We affirm. appeals. and the State

FACTS Nichols, Galesburg police a On October Officer Robert driver’s license officer, driving defendant without rear observed the the de- stopped the car and asked light. illumination Officer Nichols that the defendant’s fendant for identification. The officer discovered and handcuffed suspended. He arrested the defendant license had been him and escorted patted then the defendant down him. Officer Nichols car. and arrived on the scene During Officer Dan Hostens prior the defendant on two informed Officer Nichols that he arrested and of possession substance possession occasions for of a controlled called for the information, Officer Nichols Based on this cannabis. purpose requesting canine unit. Officer Nichols testified any ille- the defendant had to determine whether the canine unit was elapsed five gal Approximately substances in the vehicle. dog searched before the unit arrived. and alerted at the column. The officers

removed the baggie containing recovered a a white powdery substance and an off-white chunk substance.

After considering the evidence presented suppression hear- ing, the trial court ruled that the search exceeded the scope of a lawful search incident to arrest. The opined court that any pretense of an at- tempt to make a lawful search incident to arrest vanished when the officers did not search the to the arrest. Thus, it concluded that the search was unconstitutional.

ANALYSIS appeal, argues On the State that the search of the the car was a lawful search incident to arrest under New York v. Bel- ton, result, S. Ct. 2860 As a the State concludes that suppress motion to should have been denied.

A reviewing court will not reverse a trial court’s factual find ings on a they manifestly unless are erroneous. Perez, People

a trial court’s regarding ultimate determination the reasonableness of a warrantless subject to a de nova review. Ornelas v. United

Generally, a warrantless per or seizure is se unreason *3 able unless it comes recognized within one of the few and limited exceptions. Coolidge 443, v. New Hampshire, 403 U.S. 29 L. Ed. 2d (1971). 564, 91 S. Ct. 2022 exception One such is a search incident to a Robinson, lawful arrest. United 218, States v. 414 U.S. 38 L. Ed. 2d 427, 94 S. Ct. 467 A search incident to arrest is lawful because of the need to any weapons remove that might be within the defendant’s immediate control and the prevent need to the destruc tion or concealment California, 752, of evidence. Chimel v. 23 685, L. Ed. 2d These principles apply equally to of an searches automobile. See People Bailey, 498, 159 Ill. 2d 639 (1994). Thus, N.E.2d 1278 when an officer has made a “lawful custodial arrest occupant automobile, of the of an may, he as a contemporaneous arrest, incident of that passenger search the compartment of that Belton, 454, automobile.” New York v. 453 U.S. 460, 2860, 101 S. Ct. 2864 Here, the defendant challenge does not the of the of lawfulness stop ficer’s the or arrest that followed. the Given lawfulness of the ar rest, was, course, it as a matter of permissible to Nichols search the defendant’s vehicle immediately following the defendant’s arrest. Belton, 768, 2860; Bailey, See 101 S. Ct. 159 reason have been a search would 1278. Such 639 N.E.2d However, evidence. preserve or to a need disarm upon able based to his ar vehicle did not search defendant’s Nichols and waited in the Instead, the defendant placed he rest. unit searched later, the canine to arrive. Five the canine unit detecting an specific purpose for the the automobile ar as incidental cannot be viewed illegal The search substance. Accordingly, the trial any exigent circumstance. justified by or rest proper. was granting court’s of the County is affirmed. the circuit court of Knox judgment Affirmed. J.,

McDADE, concurs. concurring: PRESIDING JUSTICE properly that the trial court agree I with the steering upon removing wheel the evidence found officers contemporaneous to car. The that occurred was not exception. justified the arrest and thus not under Belton was read as majority’s opinion may to the extent be Belton search holding that the instant search would have been lawful arrest, immediately following defendant’s if it had occurred disagree. must may pas an officer that, although

The law is clear therein without a senger any of a containers “ to an ‘the during an automobile search warrant ” dismantling portions of the vehicle.’ exemption does not extend to 157, 164 736 N.E.2d Gonzalez, App. People v. (7th (2000), Patterson, 65 F.3d Cir. quoting United States v. 1995). in it neces steering In order to remove drugs that there probable had cause were sary for the officers have Gonzalez, Ill. 3d at in the column. See probable cause arose 164; Patterson, 65 F.3d at 71. Such N.E.2d at However, by canine column. alerting from exception. Belton longer justified under the point, the search was no