APPELLATE COURT OF ILLINOIS
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) for the 14th Judicial Circuit
) Henry County, Illinois,
v. ) No. 94--CF--234
CHRISTOPHER A. SWEBORG, ) Honorable
) Jay Hanson,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE SLATER delivered the opinion of the court:
The defendant, Christopher A. Sweborg, was convicted of
unlawful possession of a controlled substance (720 ILCS
570/402(c) (West 1994)) and unlawful possession of cannabis (720
ILCS 550/4(b) (West 1994)). He was sentenced to six months in
the county jail, a concurrent term of 30 months' probation and a
$500 drug assessment. On appeal, he contends that the trial
court erred in denying his motion to suppress. We find that the
defendant's motion to suppress should have been granted because
defendant did not consent to a search of the trunk and there were
no articulable facts justifying the officer's search of the
Just after midnight on September 12, 1994, the defendant's
car was stopped by a police officer because one of its taillights
was not illuminated. The officer informed the defendant of the
reason for the stop and asked the defendant to wait with him
inside the officer's car. The defendant exited his vehicle and
walked toward the police car. At that time, the officer asked
the defendant if he could search the defendant's person. The
defendant said he could, and the officer proceeded to pat down
the defendant and to go through all the defendant's pockets. The
pat down revealed no weapons or unlawful substances.
Inside the police car, the officer initiated a check of the
defendant's driver's license. From the check, he learned that
the defendant was required to wear corrective lenses. Since the
defendant was not wearing glasses, the officer questioned him
about whether he was wearing contact lenses. The defendant
attempted to show the officer his contacts, at which time the
officer noted that the defendant's eyes appeared "glassy, glossy
and bloodshot." Based upon this observation, the officer asked
the defendant if there was any open alcohol or cannabis in the
defendant's car. The defendant said, "No."
The officer then asked the defendant for permission to
search the interior of the defendant's car. The defendant gave
that permission. The officer searched the entire interior of the
defendant's car--the back seat area, the front seat area and the
glove compartment. He found only a small vial with brown-colored
liquid in it which the defendant explained was incense.
After searching the interior of the car, the officer asked
the defendant for permission to search the car's trunk. At the
hearing on the motion to suppress, the defendant testified that
the officer asked him what he had in the trunk and he replied
that his guitar case and guitar were in the trunk. When the
officer asked if he could search the trunk, the defendant
testified that he said, "No. I really don't want you to." The
defendant testified that he protested again once the trunk was
opened, saying, "I thought I told you I didn't want you to look
through my personal items." The officer testified that the
defendant consented to a search of the trunk.
Upon opening the trunk, the officer noted the presence of
the defendant's guitar case. He opened the case and found the
defendant's guitar and another smaller compartment with a fliptop
lid. When the officer attempted to open the compartment, the
defendant reached in and clasped his hand on top of the
compartment, effectively preventing the officer from opening the
lid. According to the defendant, he told the officer, "I thought
I told you that I didn't want you to look through my personal
The officer then asked the defendant what was in the
compartment and the defendant answered that there were just
personal items inside. The officer asked the defendant if there
were any weapons in the compartment and the defendant replied
that there were not. After inquiring about the contents of the
compartment, the officer told the defendant to take his hand off
the compartment and back away from the officer. The defendant
did so. Then, despite defendant's previous protests, the officer
opened the compartment and found a baggie containing a green
leafy substance later determined to be cannabis and a closed tin
box with eight square pieces of perforated paper containing LSD.
At that time, the officer arrested the defendant.
The trial court found that the defendant had consented to
the search of the interior of the vehicle and the search of the
trunk. It found, however, that the defendant revoked his consent
to search when the officer attempted to open the closed
compartment within the guitar case. Nevertheless, the court
concluded that the officer was justified in opening the
compartment to protect himself. The court therefore denied the
defendant's motion to suppress.
The defendant argues first on appeal that the trial court
erred in denying his motion to suppress. He urges us to hold
that the entire search of the vehicle--both the interior of the
passenger compartment and the trunk--were invalid. We find,
however, that we need not examine the validity of the entire
search because we hold that the officer was not justified in
searching the trunk of defendant's vehicle.
As a general matter, where there is no real question
regarding the facts, determinations of probable cause should be
reviewed de novo. Ornelas v. United States, 517 U.S. ___, 134 L.
Ed. 2d 911, 116 S. Ct. 1657 (1996); People v. Easley, 288 Ill.
App. 3d 487, 680 N.E.2d 776 (1997). Where more than one
inference may be drawn from the facts, however, the question
remains one for the trier of fact. People v. Besser, 273 Ill.
App. 3d 164, 652 N.E.2d 454 (1995). The trial court's
determination concerning factual matters, including the
reasonable inferences to be drawn from the testimony, is entitled
to deference (Ornelas, 517 U.S. ___, 134 L. Ed. 2d 911, 116 S.
Ct. 1657; People v. Luckett, 273 Ill. App. 3d 1023, 652 N.E.2d
1342 (1995); Besser, 273 Ill. App. 3d 164, 652 N.E.2d 454), and
this determination will not be disturbed on review unless
manifestly erroneous (People v. Free, 94 Ill. 2d 378, 447 N.E.2d
218 (1983); People v. Hamilton, 251 Ill. App. 3d 655, 622 N.E.2d
130 (1993)). It is only when neither the facts nor the
credibility of witnesses is questioned that de novo review is
appropriate. People v. Moore, 286 Ill. App. 3d 649, 676 N.E.2d
700 (1997). Because the defendant raises questions of fact and
challenges the credibility of witnesses, de novo review is
inappropriate here. Based on these cited cases, this court must
give deference to the trial court's finding of fact and reverse
its determination only if it is manifestly erroneous.
The fourth amendment of the United States Constitution is
designed to protect people from unreasonable searches and
seizures. U.S. Const., amend. IV. The scope of police conduct
is limited during traffic stops for minor traffic violations.
People v. Hood, 265 Ill. App. 3d 232, 638 N.E.2d 264 (1994). An
investigatory stop of a vehicle for a minor traffic violation is
considered a Terry stop and is limited by the rules governing
Terry. People v. Stewart, 242 Ill. App. 3d 599, 610 N.E.2d 197
(1993). A Terry stop contemplates a brief intrusion, as minimal
as possible, to verify information or to ascertain whether
criminal activities have in fact taken place. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
In the case at bar, after thoroughly searching the interior
of the car, the police officer testified that he asked the
defendant what was in the trunk. The defendant replied that his
guitar case and guitar were in the trunk. When the officer asked
if he could search the trunk, defendant replied, "No. I really
don't want you to." The officer, on the other hand, testified
that the defendant consented to a search of the trunk.
The trial court, faced with conflicting testimony regarding
the verbal exchange, reasoned that the defendant gave his consent
when he told the officer how to remove the keys from the
ignition. This, we find, is reversible error. The court erred
in attributing to defendant's actions acquiescence and consent to
a search of the trunk. The evidence showed that the officer had
difficulty removing the keys from the car's ignition and began
shaking it. Defendant's response was simply to tell the officer
to push a button under the steering wheel to release the keys.
Defendant's statement to the officer regarding the release
mechanism of the ignition cannot be construed as consent to
search the trunk.
It is evident from the trial transcript that the court gave
great relevance to defendant's statement regarding the keys.
Having decided there was no way to prove exactly what was said
between the defendant and the officer regarding consent to search
the trunk, the court stated:
"So we'd have to go to the actions, and
here -- and I realize a young man and a
police officer in a uniform, there's an
element here of coercion, but the Courts have
ruled that just the uniform isn't coercion,
which may be somewhat unrealistic, but I
think that's the law.
At any rate, Mr. Sweborg helped with the
keys. He, I believe, consented to the search
of the trunk area."
Ornelas dictates that the reasonable inferences drawn by the
trial court are entitled to deference by the reviewing court
unless they are manifestly erroneous. Ornelas, 517 U.S. ___, 134
L. Ed. 2d 911, 116 S. Ct. 1657. In the instant case, the
inference drawn by the judge was unreasonable and manifestly
erroneous. Consistent with the directions of Ornelas, we find
that defendant did not consent to a search of the trunk.
Further, the record shows that defendant continued to state
that he did not want the officer to search the trunk. Once the
trunk was opened, he stated, "I thought I told you I didn't want
you to look through my personal items." When the officer tried
to open the compartment inside the guitar case, defendant clasped
his hand on top of the lid to prevent the officer from opening
the lid. Whereas the court determined this action to be a
withdrawal of consent, we find that consent to search the trunk
and the items contained therein was never given. Defendant's
actions were consistent with a denial of consent to search.
We also find troubling the court's unreasonable expectations
of defendant and the efforts made at trying to rephrase how
defendant could have said "No." The court stated:
"I thought we had an idealistic Fourth
Amendment defendant here when he said, 'No, I
don't want you to,' but I think the 'No' is
as to the trunk, but I think he wasn't
concerned about privacy, and he wasn't -- he
may have been concerned about his search. If
he was, there's just a slight difference in
the terminology." (Emphasis added.)
Further on, the court stated:
"And then the question comes down
whether or not he consented to the box within
the guitar case. Had he said when the trunk
was opened, 'Go ahead and search, but leave
my guitar alone,' 'Go ahead and search, but
don't open that case,' anything like that,
that would have indicated --
Whatever his reasons are, I thought he
would be a little more forthright on the
stand, but maybe he hasn't studied his --
didn't study his civics quite hard enough.
He could have said on the stand today, 'Yes,
there was cannabis in there, and I didn't
want him to get it.' It's not the natural
thing to do, however."
We find the court's reasoning to be erroneous. A "No" means
literally that. There are no requirements for a defendant to
couch his denial of consent in anything but a simple statement
Having found that defendant did not give his consent to
search the trunk, we next determine if the warrantless search of
the trunk was based on articulable facts that the officer's
safety or the safety of others was in danger. The mere fact that
a person is stopped for a traffic violation does not afford a
reasonable basis for believing that the person is armed and
dangerous. People v. Day, 202 Ill. App. 3d 536, 560 N.E.2d 482
(1990). However, when an officer has properly stopped an
individual and reasonably believes, based on specific and
articulable facts, that his safety or the safety of others is in
danger, then he may conduct a limited search of an individual for
weapons. People v. Froio, 198 Ill. App. 3d 116, 555 N.E.2d 770
(1990). The sole purpose of the search is to protect the
officer, not to gather evidence. People v. Galvin, 127 Ill. 2d
153, 535 N.E.2d 837 (1989); People v. Morales, 221 Ill. App. 3d
13, 581 N.E.2d 730 (1991). The scope of the search must be a
limited intrusion designed to discover instruments endangering
the officer. People v. Kantowski, 98 Ill. 2d 75, 455 N.E.2d 1379
(1983). The search may extend beyond the individual's person to
the area within his immediate control and from which he might
gain access to a weapon. Froio, 198 Ill. App. 3d 116, 555 N.E.2d
In the instant case, the officer patted down the defendant
immediately after having pulled him over. A thorough search of
the interior of the car revealed nothing suspicious and provided
no basis for the officer to believe that defendant was armed and
dangerous. After all, the officer had stopped defendant for a
minor traffic violation--a faulty rear taillight. The officer
had not stopped the defendant based on a belief that he had
committed a dangerous felony, nor did the officer's radio check
on the defendant reveal that he was a convicted felon or that any
warrants were out for his arrest. The trial court agreed that
upon completing the search of the interior of the car there was
no reason for the officer to search the trunk. The court stated:
"As for the passenger area, I don't have
any question but [t]hat there was a consent.
Now, the officer could have stopped right
there, I realize, and -- and he didn't, and
they usually don't. They usually go on and
search the trunk, which makes sense
generally, especially if they find something
else, but that wasn't the case here."
Having found that the officer had no reason to search the
trunk, the court should have ruled that the search of the trunk
was improper and in violation of defendant's rights. An
officer's authority to investigate a traffic violation may not
become a subterfuge in order to obtain other evidence merely
based on the officer's suspicion. Stewart, 242 Ill. App. 3d 599,
610 N.E.2d 197; People v. Koutsakis, 272 Ill. App. 3d 159, 649
N.E.2d 605 (1995). This is even more true if there are no
articulable suspicions to search the trunk, as was the case here.
As cited earlier, case law is clear that the sole purpose of
the search is to protect the officer and not to gather evidence.
Galvin, 127 Ill. 2d 153, 535 N.E.2d 837; Morales, 221 Ill. App.
3d 13, 581 N.E.2d 730. The officer's safety was clearly not an
issue during the search of the interior of the car and did not
justify a search of the trunk. Any weapons that might have been
contained in the trunk and in the compartment of the guitar case
were not within the immediate control of defendant. While
defendant was stopped for the taillight violation, the
compartment was in a closed guitar case in a closed trunk. The
car keys had remained in the ignition and defendant had made no
attempt to remove them to unlock the trunk. Having found no
suspicious or dangerous evidence after a thorough search of the
interior of the car, the officer's search of the trunk was a
fishing expedition and exceeded the scope of his authority.
We find that the officer's search of the trunk was conducted
absent valid consent. Further, we find no articulable facts
justifying the search of the trunk. Based on our review of the
evidence produced at the hearing on the motion to suppress, and
following the dictates of Ornelas to defer to the trial court's
determination of factual matters unless they are clearly
erroneous, we conclude that the court committed reversible error
when it admitted evidence obtained in violation of defendant's
constitutional rights against illegal search and seizure.
For the foregoing reasons, we reverse the trial judge's
ruling denying the defendant's motion to suppress. Because the
State cannot prevail on remand without the evidence that we have
held should have been suppressed, we also reverse his conviction
and sentence outright. People v. Evans, 259 Ill. App. 3d 650,
631 N.E.2d 872 (1994). The remaining issues raised by the
defendant are rendered moot by our decision.
MICHELA, J., concurs.
PRESIDING JUSTICE LYTTON, specially concurring:
I agree with all of the majority's conclusions. I believe,
however, that its analysis of the "consent" issue could be more
succinctly stated. It is sufficient to say that consent to a
search is not given when the defendant does nothing more than tell
the officer how to remove the keys from the car. The defendant's
clear refusal to consent to a search was overridden by the officer,
leading to an illegal search. The rest of the analysis is
surplusage and unnecessary to this decision.