People v. Fulton

                                        THIRD DIVISION
                                        JUNE 30, 1997



1-95-3938

THE PEOPLE OF THE STATE            )  Appeal from the
OF ILLINOIS,                       )  Circuit Court of
                                   )  Cook County.
     Plaintiff-Appellee,           )   
                                   )
          v.                       )
                                   )
DAVID FULTON,                      )  The Honorable
                                   )  James M. Schreier,
     Defendant-Appellant.          )  Judge Presiding.


     Justice Leavitt delivered the opinion of the Court:
     After a bench trial, the defendant, David Fulton, was found
guilty of possession of cocaine and sentenced to three years
probation and six months in prison.  Police discovered the
cocaine after entering the defendant's car following his arrest
for driving without a license.  The defendant contends, among
other things, that the trial judge erred in denying his motion to
reconsider the denial of his motion to suppress the cocaine. 
Because the police lacked authority to enter the car and seize
the property therein, the judge erred as a matter of law in
denying the defendant's motion to suppress.  We find, therefore,
that his failure to grant the motion on that ground constituted
an abuse of discretion.  We reverse the defendant's conviction.  
     At a hearing on the defendant's motion to suppress, the
defendant testified that on March 24, 1993, his father had asked
him to retrieve the father's car and drive it home.  The
defendant did so, and, at around 8 p.m., he had been driving the
car for only a few minutes when he stopped at a red light.  The
defendant stated that he waited for two minutes, but the light
did not change.  Believing that it was broken, he proceeded
through the red light.  Soon after, police stopped his vehicle. 
The defendant testified that he immediately produced a traffic
citation and his State of Illinois identification card in lieu of
his driver's license.  Officer Michael Jedlowski contradicted the
defendant, asserting that the defendant had not produced a
traffic citation until he arrived at the police station.  The
defendant also could not produce proof of insurance.
     The remaining facts are not in dispute.  The officers
arrested the defendant for driving without a valid driver's
license and without proof of insurance.  Before ushering the
defendant into their car, the officers patted him down.  They
reached into the defendant's pockets and removed four to five
hundred dollars.  Without asking for the defendant's consent, the
officers also searched the interior of the defendant's car.  This
search included at least the immediate area where the defendant
had been.  Following this search, Officer Jedlowski got into the
defendant's car and began driving it to the police station. 
Officer Jedlowski testified that he did this to secure the car. 
Officer Jedlowski drove a short while before noticing a clear
plastic bag protruding from an air vent.  He stopped the car to
investigate, pulled the vent out and discovered the bag
containing cocaine.
     Based on this evidence, the defendant initially argued that
the cocaine should be suppressed because the officers did not
have a warrant to search the car.  Despite the defendant's
unrebutted testimony that the officers never asked for his
permission to search the car, as well as his testimony that he
produced a traffic citation and a state identification card at
the scene, the judge denied the motion to suppress and issued
findings inconsistent with the record in that he stated the
defendant did not testify that he produced a ticket at the scene:
          "There is no testimony, as I understand it, from the
     defendant that he produced a ticket at the time of the      
     arrest.  Just that he was driving on a ticket.  It would    
     seem that no valid license being produced and the defendant
     then having to be in the status of an arrestee, not allowed
     to receive a ticket or summons and go on his way, but having
     to be brought to the station for bond purposes, that the    
     officer had a right to enter the car and bring the car down
     to the station where in such trip he discovered the drugs   
     open from the vent."  
Sometime later, but before trial, the defendant filed a motion
for reconsideration, contending that this court's decision in
People v. Buffo, 202 Ill. App. 3d 240, 242, 559 N.E.2d 908
(1990), required the judge to have granted the motion.  The judge
denied this motion on its merits, ruling that Buffo was not
controlling.     
     We will reverse a trial judge's decision to deny a motion to
reconsider only if it constituted an abuse of discretion.  People
v. Diana F., 265 Ill. App. 3d 419, 638 N.E.2d 368 (1994).  The
purpose of a motion to reconsider is to bring to the court's
attention errors in the court's previous application of existing
law.  Diana F., 265 Ill. App. 3d at 426.  Furthermore, although
we ordinarily review a trial judge's ruling on a motion to
suppress to determine whether it was manifestly erroneous, where
the facts are not in dispute, and the question as to the
reasonableness of a search can be characterized as one of law, we
will review the ruling de novo.  People v. James, 163 Ill. 2d 302, 310, 645 N.E.2d 195 (1994).  Because the facts surrounding
the officer's entry into the defendant's car are not in dispute,
we review the trial judge's decisions as a matter of law.
     Both the United States and Illinois Constitutions protect
every person from unreasonable searches and seizures.  U.S.
Const. Amend. IV;  Ill. Const. 1970, art. I, sec. 6.  The primary
purpose of these provisions is "to protect the legitimate
expectations of privacy that citizens possess in their persons,
their homes, and their belongings" (James, 163 Ill. 2d at 311),
while according "'fair leeway for enforcing the law in the
community's protection.'"  James, 163 Ill. 2d  at 311, quoting
Dunaway v. New York, 442 U.S. 200, 208, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979).  
     Generally, searches and seizures are only reasonable if the
government has first obtained a warrant authorizing the action. 
Illinois v. Rodriguez, 497 U.S. 177, 181, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990).  Warrantless searches "are per se
unreasonable under the Fourth Amendment subject only to a few
specifically established and well delineated exceptions***.  The
burden is on the one seeking the exception to show the need for
it."  Coolidge v. New Hampshire, 403 U.S. 443, 455, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971).  Consent can render a search
reasonable.  Rodriguez, 497 U.S.  at 183.   A search incident to a
lawful arrest also does not require a warrant.  Rodriguez, 497 U.S.  at 185.  However, the scope of such a search must be
"strictly tied to and justified by" the circumstances which led
to the arrest.  Terry, 392 U.S.  at 19.  Thus, the police may
search the arrestee and areas within his reach to prevent him
from obtaining weapons or destroying evidence.  Chimel v.
California, 395 U.S. 752, 23 L. Ed. 685, 89 S. Ct. 2034 (1969). 
     We do not consider that general principles of fourth
amendment jurisprudence validate the officer's actions in this
case.  The record does not show, and the State does not claim,
that the officers here had either a warrant, probable cause or
the defendant's consent to conduct a search.  Nonetheless, the
defendant's car was searched twice.  First, Officer Jedlowski
looked into the defendant's car and felt for weapons on the seat
and the floor.  This search was arguably incident to a lawful
arrest, and was never at issue in this case.  The defendant
sought to suppress evidence gained during the second search,
conducted by the same officer after he entered the defendant's
car without permission and drove it away from the area in which
the arrest occurred.
     The State argues that exigent circumstances--the need to
secure the defendant's car and the need to ensure the safety of
the roadway by removing the defendant's car from the spot where
he parked it--justified the officer's intrusion into the
defendant's vehicle.  We note that the record contains no
evidence establishing that the spot where the defendant curbed
his car was dangerous or illegal.
     In People v. Buffo, 202 Ill. App. 3d 240, 559 N.E.2d 908
(1990), the defendant was lawfully stopped by the police for a
routine traffic violation.  After obtaining the defendant's
driver's license, the officer ran the defendant's name through a
mobile computer and learned that his license had been suspended. 
The officer arrested the defendant and, because the defendant's
car was parked illegally, got into the car to back it into a
legal parking spot.  Once in the car, the officer found a gun on
the floor.  The trial court granted the defendant's motion to
suppress the gun, ruling that the officer had no right to enter
the defendant's vehicle without first either obtaining the
defendant's consent or assuring that someone else could not move
the vehicle for him.  On appeal, the State asserted that the
officer had a right to be in the defendant's vehicle based on the
need to secure the defendant's car and the need to ensure the
safety of the public highways by removing the defendant's car
from its illegally parked location near a traffic light.  Justice
Freeman, writing for this court, stated:  
          "The State completely ignores that it was [the
     officer's] failure, in the first place, to ensure that
     defendant parked his vehicle legally before stopping him
     that created the allegedly exigent circumstance upon which
     it now relies to justify [the officer's] subsequent entry 
     into the vehicle.  Given that fact, a finding that [the
     officer] was justified by exigent circumstances in entering
     defendant's car would provide the police an incentive to    
     create exigent circumstances in order to validate other
     impermissible searches and seizures in the future.  We do   
     not believe that the exigent circumstances exception to the
     fourth amendment's search warrant requirement should be so  
     perverted.  In this regard it may be argued that [the       
     officer] did not know that an arrest would result from an   
     otherwise routine traffic stop conducted for the purpose of
     issuing a citation and that, absent such knowledge, his     
     failure to have required defendant to stop at a legal       
     parking space should not invalidate his entry into the      
     stopped vehicle after an arrest became necessary.  However,
     we believe that the possibility of an arrest resulting from
     a routine traffic stop is sufficiently high that the police 
     should pull a vehicle over to a legal parking space or, at  
     least, to a point in the road at which the vehicle will not
     obstruct traffic.  Having failed to do so, [the officer]    
     could not take advantage of that failure to enter           
     defendant's car on the pretext of an exigent circumstance."
     Buffo, 202 Ill. App. 3d at 242-43.      
We find the significant facts in Buffo indistinguishable from
those in this case.  Here, as in Buffo, the defendant was stopped
for a routine traffic offense.  He was subsequently lawfully
arrested for an offense related to his operation of the vehicle. 
Police did not suspect that the defendant was involved in any
unlawful activity beyond driving without a license.  Without
asking the defendant for permission or inquiring what the
defendant wanted done with his vehicle, the officer got in the
car and drove it away, subsequently discovering and seizing the
contraband at issue.
     The trial judge denied the defendant's motion to suppress
calling Buffo "a case unto itself***.  [Buffo] cited no other
case."  The State argues that Buffo was "an ill-conceived and
illogical decision without any reliance on common sense" and "an
aberration."  The State considers that the holding in Buffo to
place upon the police officer the "onus***to insure that during a
traffic stop the driver of the vehicle pulls into a legal parking
space."  The State contends this holding is "ridiculous
considering that there are numerous areas in the City of Chicago
which are extremely congested and street parking is at a premium,
and areas where there is no street parking***.  Are police
officers now***going to be required to follow a vehicle for what
could be several blocks until a lawful parking space can be
obtained?"
     We disagree with the State's characterization of the holding
in Buffo.  Buffo stands solely for the proposition that a police
officer cannot, by stopping a car for a routine violation which
results in arrest, create the exigent circumstance which permits
him to enter the car.  Therefore, absent consent or other
considerations not present here or in Buffo, the officer's search
of the defendant's vehicle cannot be justified.  We consider the
decision in Buffo to be required by a citizen's right to be free
from unwarranted intrusions into his personal freedom.  As this
court has recognized, "[s]topping a vehicle for a minor traffic
violation does not, by itself, justify a search of the detainee's
person or vehicle.  The officer must reasonably believe that he
is confronting a situation more serious than a routine traffic
violation."  People v. Penny, 188  Ill. App. 3d 499, 502, 544 N.E.2d 1015 (1989).
     We have noted that in a finding directly contradicted by the
record, the trial judge asserted that there had been no testimony
by the defendant that he produced a ticket at the scene.  It is
immaterial whether the defendant merely passed through a red
light, or was driving on a ticket which he was momentarily unable
to produce when stopped.  Neither circumstance, alone or
together, justified the nature of the intrusion which occurred
here.  Because the search was wrongful, the evidence seized ought
to have been suppressed.   
     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,
659,.631 N.E.2d 872 (1994).  The remaining issues raised by the
defendant are rendered moot by our decision.         
     Reversed.
     Cousins, P.J., and Cahill, J., concur.