People v. Hilt

No. 2--97--0656
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellant, ) No. 95--CF--1070
)
v. )
)
CARMEL R. HILT, ) Honorable
) Judith M. Brawka,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________

JUSTICE DOYLE delivered the opinion of the court:

Defendant, Carmel Hilt, was charged with unlawful possession
of a controlled substance (720 ILCS 570/402(c) (West 1994)) and
possession of drug paraphernalia (720 ILCS 600/3.5 (West 1994))
after rock cocaine and drug paraphernalia were found in the car in
which she was riding. The trial court granted her motion to quash
her arrest and suppress the evidence obtained from the car. The
State appeals, contending that police officers had probable cause
to search the car or, alternatively, the driver consented to the
search.
Evidence at the suppression hearing showed that Vernon Hilt,
defendant's husband, had owned a 1988 Dodge Omni. On April 3,
1995, he bought a 1985 Ford Tempo at Joyce Pontiac. Joyce agreed
to transfer the plates to the Tempo.
On May 27, 1995, defendant and her husband were in the area of
Second and Loucks Streets in Aurora about 3 a.m. Vernon Hilt was
driving the Tempo, and Milton, a friend of defendant, was with
them. Milton asked the Hilts to drop him off at an apartment
complex on Second Street, which they did. After leaving the
complex, Vernon Hilt drove west on Second Street and stopped at a
stop sign. As he was signaling for a left turn, he noticed a
marked Aurora police car behind him.
The squad car was occupied by Officer John Pavlinec, who was
patrolling the area with his partner, Virgil Null. Their patrol
area included the Woodlands Apartments. About 3 a.m., Pavlinec had
seen a car leave the Woodlands parking lot. The car attracted his
attention because he did not recognize it and because he knew that
drug trafficking often took place in the area at that hour. He
thus "ran a 28," or a license plate check, on the car and was
informed that the plates were registered to a different car and
were expired. He decided to effect a traffic stop.
Pavlinec approached the passenger's side of the car while Null
approached the driver's side. Pavlinec shined a flashlight toward
the car to check for weapons and contraband. As he did so, he saw
a knotted piece of a baggie on the car's rear floorboard.
Pavlinec testified that in his experience based on having made
50 to 100 drug arrests, drug dealers often packaged cocaine by
tying a knot in a corner of a plastic bag, then tearing off the
rest of the bag to make a very small package. Thus, his
observation of the torn and knotted baggie increased his suspicion.
He believed that the baggie was a container for crack cocaine.
At this time, Null was speaking with the car's driver.
Pavlinec then asked both the driver and defendant to get out and go
to the rear of the car. He asked both if they had purchased
cocaine or knew where the baggie had come from. Both responded in
the negative.
According to Pavlinec, he then asked for and received
permission to search the car. Defendant and her husband denied
that they were asked for permission to conduct a search. In any
event, Pavlinec searched the car. In the glove box, he saw what he
believed to be a crack pipe. When asked, defendant admitted that
the crack pipe was hers. Pavlinec arrested her for possession of
drug paraphernalia. He then resumed his search and found a small
rock-like substance on the passenger's side of the car's front
floorboard.
After defendant was arrested, Null explained to the driver why
he had been stopped. Vernon Hilt explained that the plates had
recently been changed over and produced the form documenting the
transfer of the plates.
The trial court granted the motion to quash and suppress. The
court found that the initial stop was proper. However, the court
ruled that the torn baggie was not obviously contraband or evidence
of a crime. Thus, Pavlinec had only a "hunch" that a crime had
occurred or was about to occur. The court further ruled that,
based on the totality of the circumstances, any consent to search
was not free and voluntary. Finally, the court rejected the
contention that the drugs would inevitably have been discovered
because it was clear that no one was going to be arrested for a
license plate violation.
The State filed a certificate of impairment and a timely
notice of appeal. On appeal, the State advances several reasons
why the search was proper. The State argues that Pavlinec's
observation of the torn baggie in plain view gave him probable
cause to search the car under the automobile exception to the
fourth amendment's warrant requirement. Alternatively, the State
contends that Pavlinec obtained a valid consent to search or that
the contraband would inevitably have been discovered in a search
incident to arrest. We agree with the first contention.
A trial court's ultimate determination of the reasonableness
of a warrantless search is reviewed de novo. Ornelas v. United
States, 517 U.S. 690, ___, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657,
1663 (1996). However, the court's resolution of factual issues is
entitled to deference on review and will not be disturbed unless
manifestly erroneous. People v. Perez, 288 Ill. App. 3d 1037, 1043
(1997).
A warrantless search of a vehicle is proper where police have
probable cause to believe that it contains contraband. People v.
Schrems, 224 Ill. App. 3d 988, 995 (1992). Where an item is seen
in plain view, it must be " 'immediately apparent' " that the
object is contraband or evidence of a crime before the object's
presence will establish probable cause for a search. Texas v.
Brown, 460 U.S. 730, 737, 75 L. Ed. 2d 502, 510, 103 S. Ct. 1535,
1540-41 (1983) (opinion of Rehnquist, J., joined by Burger, White,
and O'Connor, JJ.), quoting Coolidge v. New Hampshire, 403 U.S. 443, 466, 29 L. Ed. 2d 564, 583, 91 S. Ct. 2022, 2038 (1971)
(opinion of Stewart, J., joined by Douglas, Brennan, and Marshall,
JJ.).
Citing Texas v. Brown, the State argues that the totality of
the circumstances gave Pavlinec probable cause for the search. The
State contends that the knotted corner of a baggie was a "single-
purpose container" which could not have had any purpose other than
to carry cocaine. Pavlinec testified that he had seen baggies used
in such a manner approximately 50 times. Thus, the State maintains
that his observation of the baggie, combined with his knowledge of
drug packaging and his knowledge that drug dealing often occurred
in the area in the early morning hours, combined to provide the
requisite probable cause.
Defendant responds that a plastic bag may have uses other than
the packaging of narcotics. He cites cases in which courts held
that containers such as a prescription bottle, a film canister, and
a wooden box did not provide probable cause to believe that drugs
were present because these objects can be used to carry legal
substances as well.
In Brown, an officer made a traffic stop. After asking the
driver for his license, the officer observed a tied-off party
balloon in the driver's hand. He was aware from his previous
participation in drug arrests that balloons tied in similar fashion
were frequently used to carry drugs. When defendant opened the
glove compartment, the officer saw vials containing white powder.
The Supreme Court held that the officer possessed probable cause to
believe that contraband was present. The court noted that "the
distinctive character of the balloon itself spoke volumes as to its
contents--particularly to the trained eye of the officer." Brown,
460 U.S. at 743, 75 L. Ed. 2d at 514, 103 S. Ct. at 1544.
In People v. Smith, 95 Ill. 2d 412 (1983), an officer saw in
plain view what he recognized as a "one-hitter box," a device
frequently used for carrying marijuana. The observation of the
box, as well as a syringe and an open alcohol container in the car,
established probable cause to believe that drugs were present.
Smith, 95 Ill. 2d at 420; see also People v. Bibbs, 176 Ill. App.
3d 521, 524 (1988) (mirrored tray with razor; green, leafy
substance; and white, powdery substance provided probable cause).
Other cases have held that the observation of inherently
innocuous objects did not provide probable cause to believe that
they contained contraband. See People v. Evans, 259 Ill. App. 3d
650, 655 (1994) (wooden box); People v. Wiest, 246 Ill. App. 3d 96,
100-01 (1993), rev'd on other grounds sub nom. People v. Bailey,
159 Ill. 2d 498 (1994) (film canister); People v. Williamson, 241
Ill. App. 3d 574, 583 (prescription bottle); People v. Penny, 188
Ill. App. 3d 499, 503 (1989) (package wrapped in opaque plastic);
Jackson v. State, 669 N.E.2d 744, 749 (Ind. App. 1996)
(prescription bottle). The courts in those cases held that the
objects were inherently innocuous and could be used for many
legitimate purposes. The Penny court stressed that the package was
not distinctive. Penny, 188 Ill. App. 3d at 505. Similarly, the
Evans court observed that nothing about the wooden box "was
sufficiently distinctive so as to announce its contents." Evans,
259 Ill. App. 3d at 657.
We agree with the State that the present case is more like
Brown than the Penny-Evans line of cases. Unlike in the latter
cases, the container here was distinctive enough to announce that
it formerly contained narcotics. As Justice Powell noted in his
concurring opinion in Brown, "We are not advised of any innocent
item that is commonly carried in uninflated, tied-off balloons such
as the one *** seized." Brown, 460 U.S. at 746, 75 L. Ed. 2d at
517, 103 S. Ct. at 1546 (Powell, J., concurring).
Also similar to this case is State v. Courcy, 48 Wash. App. 326, 739 P.2d 98 (1987). There, the suspect was seen with a paper
bindle. The arresting officer testified that he had seen many
similar bindles in his experience and that they always contained
drugs. Courcy, 48 Wash. App. at 329, 739 P.2d at 100. Thus, the
court found that it fit within the single purpose container
doctrine. Courcy, 48 Wash. App. at 329-30, 739 P.2d at 100-01.
We note that this case is distinguishable from Commonwealth v.
Houston, 689 A.2d 935 (Pa. Super. 1997). There, the court held
that a baggie with the corners torn off did not establish probable
cause to search the vehicle in which it was found. However, in
that case there was no evidence of the character of the
neighborhood where the arrest occurred or of the officers' previous
experience with similar containers. In fact, one officer
specifically testified that he had not planned to search the car on
that basis alone. Here, by contrast, Officer Pavlinec knew that
drug transactions were common in the area and had previously
observed drugs packaged in similar containers.
The totality of the circumstances here--the presence of the
unique container, the officer's previous experience with such
containers, and the fact that the stop occurred in the early
morning hours in an area known for drug transactions--provided the
officers with probable cause to search defendant's car. Thus, the
trial court erred in suppressing the fruits of the search. Because
of our disposition of this issue, we need not determine whether the
search was justified by consent or as a search incident to arrest.
The judgment of the circuit court of Kane County is reversed,
and the cause is remanded for further proceedings.
Reversed and remanded.
GEIGER, P.J., and INGLIS, J., concur.