People v. Hoskins

461 N.E.2d 941, 101 Ill. 2d 209, 78 Ill. Dec. 107, 1984 Ill. LEXIS 252

• Court: Illinois Supreme Court
• Decided: February 22, 1984
• Docket: 56657
• Status: Published

Opinions

JUSTICE WARD

delivered the opinion of the court:

This appeal involves a search of the defendant’s purse following her arrest for prostitution (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 14(a)(2)). Based on evidence seized from her purse, she was charged by a criminal information with unlawful possession of a controlled substance (Ill. Rev. Stat. 1981, ch. 56½, par. 1402(b)) and unlawful possession of a hypodermic syringe and needle (Ill. Rev. Stat. 1981, ch. 38, par. 22 — 50), as well as with prostitution and resisting a police officer (Ill. Rev. Stat. 1981, ch. 38, par. 31 — 1). The circuit court of Peoria County granted the defendant’s motion to suppress the evidence taken from her purse and reassigned the case for trial on the prostitution and resisting-a-police-officer charges. On the State’s appeal, the appellate court affirmed the suppression of evidence in a Rule 23 order. (105 Ill. App. 3d 1202.) We granted the State’s petition for leave to appeal. 87 Ill. 2d R. 315.

The parties stipulated that the arresting officers’ case report reflected what they would testify to at trial concerning the circumstances surrounding the defendant’s arrest and the search of her purse. Proceeding by stipulation at a hearing on a motion to suppress evidence is ordinarily not a felicitous decision. A police report typically does not contain the detail that testimony would provide; there can be no cross-examination to challenge or refute, or redirect examination to explain or develop. In this case, however, what did occur is sufficiently clear for us to conclude that the trial court’s order of suppression was manifestly erroneous.

On a motion to suppress evidence the 'defendant, of course, has the burden of proving that the search and seizure were unlawful. (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 12(b); People v. Berg (1977), 67 Ill. 2d 65; 3 W. La-Fave, Search & Seizure sec. 11.2(b) (1978); E. Cleary & M. Graham, Illinois Evidence sec. 502.10 (3d ed. 1979).) A trial court’s determination on a motion to suppress evidence will be overturned if it is manifestly erroneous. See People v. Holloway (1981), 86 Ill. 2d 78; People v. Conner (1979), 78 Ill. 2d 525; People v. Fuentes (1980), 91 Ill. App. 3d 71, 73.

On June 4, 1981, at about 12:23 a.m., the defendant approached an unmarked police car and allegedly, to .use the language of the statute, agreed to perform an act of deviate sexual conduct with two Peoria police officers. When told that she was under arrest for prostitution, the defendant ran from the officers and either threw her purse to the ground or dropped it as she fled. Sergeant G. Lock, one of the officers, overtook her approximately 10 to 20 feet from the police car. The officer subdued the defendant after a struggle and handcuffed her hands behind her back. Her purse was then searched by Officer J. Hill and a yellow envelope was found. The envelope contained a hypodermic syringe with a yellow plastic needle cover and a metal mayonnaise jar cap with a white powdery substance adhering to it. Officer Hill performed a field test and determined that the substance contained cocaine, which is a controlled substance (Ill. Rev. Stat. 1981, ch. 56V2, par. 1206(b)(4)).

At the hearing on the motion to suppress the envelope and its contents, the defendant conceded that her arrest for prostitution was “appropriate.” The State argued that the search of the purse was proper as incidental to a lawful arrest. Section 108 — 1 of the Code of Criminal Procedure of 1963 states the circumstances under which a search incident to a lawful arrest may be conducted:

“When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of:

(a) Protecting the officer from attack; or

(b) Preventing the person from escaping; or

(c) Discovering the fruits of the crime; or

(d) Discovering any instruments, articles, or things which may have been used in the commission of, or which may constitute evidence of, an offense.” Ill. Rev. Stat. 1981, ch. 38, par. 108 — 1.

Defense counsel argued at the hearing that the search was not justifiable either as a cheek for weapons to protect the officers from attack or to prevent escape, since the defendant was handcuffed and was in custody. The attorney claimed that there were no fruits of the crime of prostitution which could be found. He said, too, that the search was not a conventional inventory as it was conducted “in the field” and the purse’s contents were not itemized.

The trial court granted the motion and in doing so stated what it deemed was the issue for its decision:

“May a police officer, without consent or search warrant, and for the sole purpose of searching for weapons, search a person arrested for prostitution, when the arrested person is handcuffed and not in a position to escape nor use any weapon which may be found in the purse.” (Emphasis in original.)

The police report referred to the search as one to discover weapons, and the trial court limited its consideration to that aspect. This plainly was erroneous. The proper approach for evaluating compliance with the fourth amendment is to objectively assess the officer’s actions in light of the facts and circumstances before him at the time without regard to his underlying intent or motivation. (Scott v. United States (1978), 436 U.S. 128, 135-38, 56 L. Ed. 2d 168, 176-78, 98 S. Ct. 1717, 1722-23.) The issue here was broader than what the trial court by its own statement examined. The question was whether the search of the purse under the circumstances violated the protection against unreasonable searches and seizures provided under the fourth amendment to the Constitution of the United States (U.S. Const., amend. TV), and under section 6 of the bill of rights in our State Constitution (Ill. Const. 1970, art. I, sec. 6).

The Supreme Court has explicitly held in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, that there is a “distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons.” The court explained:

“The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v. United States [(1964), 376 U.S. 364, 367, 11 L. Ed. 2d 777, 780, 84 S. Ct. 881, 883], is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person.” 392 U.S. 1, 25, 20 L. Ed. 2d 889, 908, 88 S. Ct. 1868,1882.

The trial court, in ordering suppression, relied in part on United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476, where a warrantless search of a footlocker more than an hour after the defendant’s arrest was held not to be incident to the arrest. The trial court here granted the motion to suppress on the ground that the purse, when searched, was outside the area within which the defendant might have obtained a weapon.

Chadwick is not applicable here. There the Supreme Court stated that “[o]nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” (433 U.S. 1, 15, 53 L. Ed. 2d 538, 551, 97 S. Ct. 2476, 2485.) The footlocker in Chadwick understandably was not considered to be immediately associated with the arrestee’s person. A purse is obviously different in size and character and has been considered to be different. The court in United States v. Berry (7th Cir. 1977), 560 F.2d 861, 864, stated that a purse “might be characterized as ‘immediately associated with the person of the arrestee’ because it is carried with the person at all times.” (See also People v. Helm (1981), 89 Ill. 2d 34, 39-44 (Ward, Underwood, and Moran, JJ., dissenting), and cases cited therein; United States v. Graham (7th Cir. 1981), 638 F.2d 1111, cert. denied (1981), 450 U.S. 1034, 68 L. Ed. 2d 231, 101 S. Ct. 1748; United States v. Venizelos (S.D.N.Y. 1980), 495 F. Supp. 1277; Stewart v. State (Tex. Crim. App. 1981), 611 S.W.2d 434.) It seems clear in any sensible construction that a purse is “immediately associated with the person of the arrestee.” Moreover, the Supreme Court subsequently made it clear in New York v. Belton (1981), 453 U.S. 454, 461-62, 69 L. Ed. 2d 768, 776, 101 S. Ct. 2860, 2865, that the search in Chadwick was invalid because it was not conducted contemporaneously with the defendant’s arrest.

Before the appellate court, the State argued that the search was valid as incident to a lawful arrest, that the search was permissible since the defendant had abandoned her purse, and that the suppression motion should not have been granted since the contents of the purse inevitably would have been discovered during a routine and proper inventory search at the police station. The appellate court refused to consider the latter two arguments, saying that, as they were first raised on appeal, they had been waived. The court, relying principally on People v. Helm (1981), 89 Ill. 2d 34, and People v. Lafayette (1981), 99 Ill. App. 3d 830, affirmed the trial court’s suppression order.

Lafayette, however, was held to be erroneous and was reversed by the Supreme Court in Illinois v. Lafayette (1983), 462 U.S. 640, 77 L. Ed. 2d 65, 103 S. Ct. 2605. There the court held that a warrantless station house search of a “purse-type shoulder bag” containing drugs and an inventory of the possessions of the person arrested were reasonable even though less intrusive means of serving the purposes of inventory may have been available. The Supreme Court’s decision in Lafayette had the practical effect of overruling Helm, where this court, with three members dissenting, held that, if the purposes of an inventory could readily be accomplished by less intrusive means, a motion to suppress incriminating evidence discovered during a station house inventory of a purse should be allowed. See People v. Setteease (1983), 119 Ill. App. 3d 542.

The search here was proper under United States v. Robinson (1973), 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467. That case involved the warrantless search of the arrestee following his arrest for a traffic violation. In upholding the validity of the search and the seizure of drugs, the Supreme Court stated:

“The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” (414 U.S. 218, 235, 38 L. Ed. 2d 427, 440-41, 94 S. Ct. 467, 477.)

The Court declared that it was in “fundamental disagreement” with the suggestion in the court of appeals’ opinion “that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest.” 414 U.S. 218, 235, 38 L. Ed. 2d 427, 440, 94 S. Ct. 467, 477.

The search of the purse here was proper under Robinson as incident to the defendant’s lawful arrest. See also United States v. Moreno (9th Cir. 1978), 569 F.2d 1049 (court held a search of a woman’s purse after her arrest was a valid search incident to arrest); People v. McElroy (1976), 44 Ill. App. 3d 1047 (where a search of a purse disclosed a gun and marijuana, it was held that, upon lawful custodial arrest, full search as an incident thereto is proper).

Thus, Robinson authorizes a warrantless search of the defendant’s purse, which is immediately associated with defendant’s person, simply on the lawful, custodial arrest. The Supreme Court referred to its holding in Robinson as “a straight forward rule, easily applied, and predictably enforced.” (New York v. Belton (1981), 453 U.S. 454, 459, 69 L. Ed. 2d 768, 774, 101 S. Ct. 2860, 2863.) And it is to be observed that the court in Belton extended Robinson by holding that all containers within the defendant’s immediate control could also be searched regardless of the likelihood that a weapon or evidence of criminal conduct would be found. (453 U.S. 454, 461, 69 L. Ed. 2d 768, 775, 101 S. Ct. 2860, 2864.) It is important to observe that neither Robinson nor Belton can be distinguished on the ground that the holding rested upon the automobile exception to the fourth amendment discussed in Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 2d 543, 45 S. Ct. 280. The Supreme Court made it clear in Belton that its decision did not involve any consideration of the so-called “ ‘automobile exception.’ ” (New York v. Belton (1981), 453 U.S. 454, 462-63 n.6, 69 L. Ed. 2d 768, 776 n.6, 101 S. Ct. 2860, 2865 n.6.) The opinion in Robinson concerned only the validity of a search incident to arrest. Although Robinson had been stopped for a traffic violation, the search of the arrestee’s person which was discussed and decided there did not involve the automobile and the court made no reference to it in its opinion.

Any contention that it was intended that section 6 of the bill of rights in our own constitution was to be interpreted differently from the Supreme Court’s interpretations of the search provisions of the fourth amendment to the United States Constitution cannot be supported. The constitutional debates do not indicate any wish or intent to provide protections against unreasonable searches and seizures broader than those existing under decisional interpretations under the fourth amendment to the United States Constitution. (See 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1523-45.)

It can be pointed out, too, that the search here was proper under section 108 — 1(d), which authorizes a search in the area of the arrested person’s immediate presence for discovering “evidence of an offense.” A purse may furnish evidence that its owner is engaged in prostitution. It may contain, for example, names and phone numbers of other prostitutes, of motel and hotel personnel and physicians treating venereal diseases, and paraphernalia used in prostitution. That the defendant threw her purse away as she fled from the police because it contained incriminating materials would seem reasonably probable to an arresting officer. Police officers must often act on a quick appraisal of the circumstances (People v. Watkins (1960), 19 Ill. 2d 11, 19), and to say from the cool position of hindsight that the officer acted unreasonably would itself be unreasonable.

The State argued before the appellate court that the search was proper because (1) the purse had been abandoned by the defendant; (2) inevitably the drugs and drug paraphernalia would have been discovered through a police station inventory; and (3) it was a search incident to arrest. The appellate court held that, as the State had not urged the first two points at the suppression hearing, they were waived and the appellate court would not consider them. It is true of course that where a party raises a question for the first time on appeal it is considered waived and it may not be considered by the reviewing court. (The State acknowledges here that it waived these points by not arguing them at the hearing.) This court many times considers questions that a party has waived. (See People v. Myles (1981), 86 Ill. 2d 260, 271; People v. Rehbein (1978), 74 Ill. 2d 435, 439.) The party who waived the question is bound by his waiver, but the court, which has the responsibility of reaching a just decision, understandably is not. “However, the rule of waiver is a limitation on the parties and not on the courts, and a reviewing court may ignore the waiver rule in order to achieve a just result.” Augsburg v. Frank’s Car Wash, Inc. (1982), 103 Ill. App. 3d 329, 333; People v. Dickerson (1983), 119 Ill. App. 3d 568, 571.

We consider it proper to examine the State’s questions regarding abandonment and inevitable discovery in light of the trial court’s limiting its consideration on the hearing to the searching officer’s motive.

The defendant either dropped or threw her purse to the ground as she fled from the police officers. In either event it can be said that she abandoned it. If dropped unintentionally, she made no effort to pick it up. She obviously intended to flee and escape and not return for the purse. The intent at that time was to abandon it. If she deliberately threw it away so she would not be found in possession of the drugs, the purse would also of course be judged to have been abandoned. “[Ejffects have been held to be abandoned when they were thrown from a moving car or motorcycle, when they were dropped to the ground by a pedestrian, when they were left behind in a place accessible to the general public, and when they were thrown out of the window of a residence.” (1 W. LaFave, Search and Seizure sec. 2.6, at 369 (1978).) Certainly the defendant did not retain, but rather gave up, any expectation of privacy in the purse and its contents. She could not have an expectation that a purse lying in a public street would not be picked up and examined. (See Smith v. United States (D.C. App. 1972), 292 A.2d 150.) As Professor LaFave observed, “one can hardly expect privacy in an overcoat left on the street.” 1 W. LaFave, Search and Seizure sec. 2.5(a), at 353 (1978).

Reasonably and clearly the protections against unreasonable searches and seizures do not extend to abandoned property, as the right of privacy in the property has been terminated. Abandoned property may be seized without probable cause. (1 W. LaFave, Search and Seizure sec. 2.6(b) (1978), citing Mascólo, The Role of Abandonment in the Law of Search and Seizure: An Application of Misdirected Emphasis, 20 Buffalo L. Rev. 399 (1971).) People v. Sylvester (1969), 43 Ill. 2d 325, involved an examination of a brown paper bag containing drugs which the defendant had placed on a public street curb immediately before entering a police car. This court stated:

“In our judgment determination of the validity of the arrest is irrelevant as are the arguments relating to the reasonableness of a search, for in this case no ‘search’ ever occurred ***. The bag was sitting in plain and open view on the sidewalk curb where it had been abandoned by defendant, and its seizure by the officers under these circumstances in no way violated any constitutional rights of defendant. People v. Martinez, 257 Cal. App. 2d 270, 64 Cal. Rptr. 666; United States v. Clark (W.D. Pa.), 294 Fed. Supp. 1108.” 43 Ill. 2d 325, 328.

Similarly, there was no “search” within the meaning of the constitutional protections against unreasonable searches and seizures here.

Though of course we do not found our holding here on it, we would observe that the ground of inevitable discovery is also relevant. In the vast majority of appellate cases where it has been relied on, courts have accepted the inevitable-discovery test as proper in search and seizure questions. Broadly stated it is that, where the evidence of an offense obtained illegally would inevitably have been discovered lawfully, it will be considered admissible. See 3 W. LaFave, Search and Seizure sec. 11.4 (1978).

Here even if the warrantless street search and seizure of the defendant’s purse were to be considered unreasonable, suppression of the evidence would not be required. A station house inventory of arrestees’ possessions is a routine police administrative procedure. As stated, the Supreme Court held that such a search is reasonable in Illinois v. Lafayette (1983), 462 U.S. 640, 77 L. Ed. 2d 65, 103 S. Ct. 2605. An inventory search would have been made at the police station and it was inevitable that the evidence found in the defendant’s purse would have been discovered by the police. See Carlisle v. State (1982), 98 Nev. 128, 642 P.2d 596; Clough v. State (1976), 92 Nev. 603, 555 P.2d 840.

For the reasons given, the trial court’s order of suppression was manifestly erroneous. Accordingly, the judgments of the appellate and circuit courts are reversed and the cause is remanded to the circuit court of Peoria County for further proceedings consistent with this opinion.

Judgments reversed; cause remanded.