People v. Seiler , 406 Ill. App. 3d 352 ( 2010 )

NO. 4-10-0426 Filed 12/22/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Coles County
JOSEPH G. SEILER, ) No. 09CF434
Defendant-Appellant. )
) Honorable
) Mitchell K. Shick,
) Judge Presiding.
_________________________________________________________________
JUSTICE POPE delivered the opinion of the court:
In March 2010, the trial court held a hearing on
defendant Joseph G. Seiler's motion to suppress evidence found
during a warrantless search of a closed bullet-shaped container.
The court denied defendant's motion to suppress. In May 2010,
after a stipulated bench trial, the court found defendant guilty
of methamphetamine possession (720 ILCS 646/60(a) (West 2008)).
Defendant appeals, arguing the court erred in denying his motion
to suppress evidence for the following reasons: (1) the nature or
configuration of the closed container did not proclaim its
contents; (2) his rights, as a nonprobationer, were violated
during the probation search; and (3) the probation officer’s
search of the closed container was not incident to an arrest.
Defendant asks this court to reverse his conviction.
The State argues the trial court properly denied defendant's
motion to suppress because the search of the container was
justified (1) as a probation search, (2) as a search incident to
arrest, and (3) because the bullet-shaped container was a single-
purpose container. We affirm the court’s denial of defendant’s
motion to suppress as the search of the closed container was
justified as part of a valid probation search.
I. BACKGROUND
In September 2009, the State charged defendant by
information with one count of methamphetamine possession, less
than five grams of a substance containing methamphetamine (720
ILCS 646/60(a) (West 2008)). In January 2010, defendant filed a
motion to suppress the contents of the closed container, which
were discovered as a result of a warrantless search of the
container.
In March 2010, the trial court held a hearing on
defendant's motion to suppress. Jini Watson, an officer with the
court services department for Coles and Cumberland Counties,
testified she received information from a reliable confidential
source who related that he or she had detected the odor of
anhydrous ammonia at Teri Owen’s residence and that Owen and
defendant were injecting methamphetamine at the residence.
Watson testified she forwarded the information to Stacey Fisher,
Owen’s supervising probation officer.
Stacey Fisher, a probation officer, testified she was
supervising Owen in September 2009. Owen was on probation for
driving under the influence of alcohol. After receiving the
information from Watson, she consulted with her supervisor,
Officer Steve Kelly, deputy director of Coles County court
services, and they decided to conduct a home visit.
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On the evening of September 24, 2009, probation offi-
cers Fisher, Kelly, Maria Moran, and Brandon Stollard executed a
home visit at Owen’s home. Owen answered the door. Fisher asked
Owen permission to enter the home and then the officers went
inside. Chad Greisheimer and defendant were in the immediate
area when they entered the home. Fisher testified she told Owen,
Greisheimer, and defendant to stay in one spot and sit down.
At first, Owen, Greisheimer, and defendant all sat
down. (Apparently, defendant did not comply with the request to
sit down for very long, if at all. The stipulated evidence for
the bench trial reflects Fisher requested Owen, Greisheimer, and
defendant to sit down and keep their hands visible for officer-
safety purposes. According to the stipulated evidence, defendant
did not comply with Fisher's request to sit down and continued
wandering around the common area of the residence.) Fisher
testified it appeared as if defendant could not control his
movements. He was moving his hands and his torso and appeared
anxious and nervous. Based on her training and experience,
Fisher believed defendant was under the influence, possibly of
methamphetamine.
Fisher testified she observed defendant lunge at a
table in the living room. While Kelly dealt with defendant,
Fisher took Owen into another room to talk. Owen told Fisher she
snorted, smoked, and injected methamphetamine with defendant the
day before and used cannabis that day.
Kelly testified he had worked for Coles County proba-
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tion for nearly 30 years. Kelly stated he had been involved in
hundreds of visits to the homes of individuals on probation.
According to Kelly, when they arrived at Owen's home,
Fisher made contact with Owen, identified herself, and asked if
the officers could enter the home. Owen gave the officers
permission to enter. Besides Owen, defendant and Greisheimer
were present in the living room of the home. Kelly testified the
room appeared to be a room used for common gathering and common
access.
When the officers went into the home, Fisher requested
the people inside the home to sit down. Defendant kept standing
up and sitting down and started to walk around the table. After
Fisher explained she wanted him to sit down for purposes of
officer safety, defendant sat down near Kelly but continued to
move his hands in and out of his pockets. Kelly asked defendant
to stop moving his hands and keep them in plain sight.
Kelly described defendant's demeanor as erratic.
Defendant was making involuntary gestures with his head, neck,
arms, eyes, and legs. Kelly described defendant's behavior as
one of the more extreme cases he had seen. Based on his training
and experience, Kelly testified defendant appeared to be under
the influence of either amphetamine or methamphetamine.
At that point, defendant lunged toward a table in the
living room, which was in a common area of the house. It ap-
peared to Kelly defendant grabbed something off the table. Kelly
did not see any one particular object on the table and did not
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know what, if anything, defendant grabbed. Kelly grabbed defen-
dant's arm and asked him what he got off the table. Defendant
answered "nothing" or he "didn't know." Kelly observed the
bullet-shaped container after he asked defendant to open his
hand.
Kelly testified he was not sure at first if the object
was a bullet or a container for contraband. After Kelly removed
the container from defendant's hand, he saw the item appeared to
be a container. Kelly then unscrewed the end of the container
and found a small, clear-plastic Baggie with a white, powdery
substance Kelly thought to be methamphetamine. At that point,
according to Kelly, defendant continued with his erratic ges-
tures. Kelly informed defendant he was not under arrest but was
going to be handcuffed for his and the officers’ safety.
Kelly testified the silver, bullet-shaped container was
similar to other containers he had known to contain contraband.
He testified these type of containers do not always contain
contraband (presumably because the contents have been consumed
prior to discovery). At defendant's preliminary hearing, Kelly
testified that over his "career in dealing with probationers with
drug issues, [he had] found that that container, in [his] knowl-
edge, to have no other purpose except to hide or be used to
contain drugs or substances, that they would want to keep that
away from being observed." (Testimony from the preliminary
hearing was admitted as evidence at the hearing on the motion to
suppress.)
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Kelly explained he intervened in the situation because
he saw defendant make a "rapid reach" for an unknown item. Out
of concern for his own safety and the safety of the other offi-
cers present, as well as his own curiosity, Kelly testified he
felt he should investigate what was in defendant's hand. Nothing
identified the container as defendant’s. Kelly believed the
material inside the container was methamphetamine.
The trial court denied defendant's motion to suppress.
The court noted its disagreement with defense counsel's arguments
that defendant, by grabbing the container off the table, was not
trying to conceal the container but was calling attention to the
item. Based on the totality of the circumstances, the court
concluded defendant's grabbing the container from the table and
sealing it in his grip was an effort to conceal something. The
court found defense counsel rightly conceded it was appropriate
for Kelly to remove the item from defendant's hand.
As for Kelly's action in opening the container, the
trial court noted the officers' concern was that Owen and defen-
dant were manufacturing and using methamphetamine. The court
stated defendant's behavior, which the officers described as
"tweaking," gave even more credibility to the information the
officers received from their confidential source.
The trial court noted the item grabbed off the table by
defendant was in an open area in the middle of the room. Kelly
recognized the item as a container commonly used for concealing
illegal substances. Consequently, the court found no constitu-
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tional violation by Kelly in opening the container.
The trial court held a stipulated bench trial on May
11, 2010. Defendant preserved the arguments made in his motion
to suppress. He also preserved his position the stipulated
evidence was not sufficient to convict. The court found the
evidence set forth in the stipulation was sufficient to prove
defendant guilty beyond a reasonable doubt.
This appeal followed.
II. ANALYSIS
A. Standard of Review
This court applies a two-part standard of review when
reviewing a ruling on a motion to suppress. We will only reject
a court's factual findings if they are against the manifest
weight of the evidence. People v. Johnson, 237 Ill. 2d 81, 88,
927 N.E.2d 1179, 1184 (2010). However, the court's ultimate
ruling is reviewed de novo. Johnson, 237 Ill. 2d at 88-89, 927
N.E.2d at 1184.
B. Burden of Proof
A defendant bears the burden of proof at a hearing on a
motion to suppress. People v. Lampitok, 207 Ill. 2d 231, 239,
798 N.E.2d 91, 98 (2003). "If the defendant makes a prima facie
case that the evidence was obtained through an illegal search,
then the State can counter with its own evidence." Lampitok, 207
Ill. 2d at 239, 798 N.E.2d at 98.
C. Permissible Probation Search
The issue in this case is whether the probation
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officers violated defendant's constitutional rights by opening
the bullet-shaped container found in defendant’s hand after he
lunged for something on a table in the common area of Owen's
residence during a probation search.
An individual on probation has a reduced expectation
of privacy compared to a citizen who is not on probation.
Lampitok, 207 Ill. 2d at 250-51, 798 N.E.2d at 104. An individ-
ual's expectation of privacy is affected by living with another
individual. Lampitok, 207 Ill. 2d at 242, 798 N.E.2d at 100.
However, "cohabitation does not completely remove a person's
expectation of privacy." Lampitok, 207 Ill. 2d at 243, 798
N.E.2d at 100. Defendant lived with Owen, a probationer, at the
residence.
In analyzing the propriety of a probation search, a
court must "balance the level of intrusion on personal privacy
against the degree of need for the search to promote legitimate
government interests." Lampitok, 207 Ill. 2d at 249, 798 N.E.2d
at 103. The Illinois Supreme Court has noted Illinois has a
"legitimate interest in promoting its probation system effec-
tively." Lampitok, 207 Ill. 2d at 250, 798 N.E.2d at 104.
Citing its belief that "imposing the traditional
warrant and probable-cause requirements would unduly interfere
with the effective administration of the Illinois probation
system," our supreme court has stated the importance of the
probation system can justify a warrantless search of a proba-
tioner without probable cause. Lampitok, 207 Ill. 2d at 250, 798
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N.E.2d at 104. However, the court held a probation search
without any individualized suspicion is constitutionally unrea-
sonable. Lampitok, 207 Ill. 2d at 252, 798 N.E.2d at 105. A
probation search is only valid under the fourth amendment if the
officers can support the search based on reasonable suspicion of
a probation violation. Lampitok, 207 Ill. 2d at 253, 798 N.E.2d
at 105.
Defendant does not argue the probation officers were
not entitled to be in the residence. Such an argument would be
futile, as Owen gave permission to enter. Nor does defendant
argue the officer would have been prohibited from opening the
container if they had found it lying on the table in the common
area of the residence.
Had it been on the table in the common area of the
home, Kelly would have been justified in opening the bullet-
shaped container because the search would have been " 'reasonably
related in scope to the circumstances which justified the inter-
ference in the first place.' " Lampitok, 207 Ill. 2d at 259, 798
N.E.2d at 109, quoting Terry v. Ohio, 392 U.S. 1, 19-20, 20 L.
Ed. 2d 889, 905-06, 88 S. Ct. 1868, 1879 (1968). The probation
officers had received information from a reliable confidential
source that Owen and defendant were using and manufacturing
methamphetamine at Owen's residence. Kelly testified this type
of container is often used to hide illegal drugs. As a result,
the search of the container would have been reasonably related to
the circumstances of the initial interference, i.e., a search of
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Owen's residence for controlled substances.
The question then becomes whether Kelly violated
defendant's fourth-amendment rights by removing the container
from defendant's possession and opening it after defendant
grabbed the container on a table in a common area of the house.
Both parties agree this appears to be a question of first impres-
sion in Illinois. Both parties also agree on the proposition
that, in order to search a particular item during a warrantless
probation search, the probation officer must have reasonable
suspicion the item in question is owned, controlled, or possessed
by the probationer. See United States v. Davis, 932 F.2d 752,
758 (9th Cir. 1991); People v. Boyd, 224 Cal. App. 3d 736, 744-
45, 274 Cal. Rptr. 100, 105-06 (1990) (parole search); Milton v.
State, 879 P.2d 1031, 1034-35 (Alaska App. 1994). We agree with
this standard.
In this case, an objectively reasonable probation
officer could have reasonably suspected this container was owned,
controlled, or possessed by Owen. Defendant lunged toward a
table in the common area of the residence and made a grabbing
motion. The only item in defendant’s hand was the bullet-shaped
container. Defendant and Owen were both in the same area of the
residence. The police had information both defendant and Owen
had been using methamphetamine at the residence. Defendant
either could not or would not identify the object in his hand.
As a result, we cannot say defendant’s fourth-amendment rights
were violated by the search of the container.
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Defendant argues, "[O]nce [d]efendant exercises direct
control over that container all reasonable suspicion that it is
owned or possessed by the probationer is lost and the privacy
interest of the non-probationer comes into play." We disagree.
As the State points out, if the container at issue was found on
the table, an objective officer could have reasonable suspicion
it was owned, possessed, or controlled by Owen. Defendant’s
simple act of grabbing the item off the table would not extin-
guish any reasonable suspicion. The trial court clearly believed
the container was sitting on the table and defendant grabbed it
in an effort to conceal it.
Defendant’s reliance on People v. Gross, 124 Ill. App.
3d 1036, 465 N.E.2d 119 (1984), is misplaced. In Gross, the
police obtained a warrant to search an individual named Tom
Sawyer and his premises. Gross, 124 Ill. App. 3d at 1037, 465
N.E.2d at 120. The defendant, Kathleen A. Gross, was present at
Sawyer’s apartment when the search warrant was executed. Gross,
124 Ill. App. 3d at 1037, 465 N.E.2d at 120. The police searched
the defendant’s purse, which was lying on a table near her, and
discovered cocaine. Gross, 124 Ill. App. 3d at 1037, 465 N.E.2d
at 120. The State argued the search of the defendant’s purse was
within the scope of the search warrant because the defendant did
not assert ownership over the purse and the police reasonably
believed it may have belonged to someone who lived at the pre-
mises. However, the Third District noted:
"The record of the suppression hearing
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establishes that the purse was lying on a
table right next to the defendant. It is
clear from the following excerpt from the
record that the officer who conducted the
search knew that the purse belonged to the
defendant:
'Q. How did you determine it
was her purse?
A. I believe I asked her at
that time if that was her purse,
and then upon opening it I found--I
believe I found a picture of her
and some other things.’
The State cannot now argue that the police
reasonably believed that the purse was a part
of the premises described in the search war-
rant rather than the defendant’s personal
property." Gross, 124 Ill. App. 3d at 1040-
41, 465 N.E.2d at 122.
Unlike the purse in Gross, the container in question in this case
was gender-neutral and nothing about the container itself
identified it as belonging to someone other than Owen.
Because we find the search of the container was a valid
probation search, we need not address the other arguments raised
by either defendant or the State.
III. CONCLUSION
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For the reasons stated, we affirm defendant’s
conviction. As part of our judgment, we award the State its
statutory $75 assessment against defendant as costs of this
appeal.
Affirmed.
TURNER and APPLETON, JJ., concur.
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