                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Cregan, 2011 IL App (4th) 100477




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    CARLOS DAX CREGAN, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-10-0477


Filed                      November 29, 2011


Held                       The denial of defendant’s motion to suppress the cocaine discovered in
(Note: This syllabus       one of defendant’s bags after he was arrested as he got off a train was
constitutes no part of     affirmed, since defendant was carrying the bags when he was arrested on
the opinion of the court   an outstanding warrant for failing to pay child support, the bags were
but has been prepared      within his reach at all times, even though he was handcuffed, the bags
by the Reporter of         were not locked, he had not turned the bags over to the woman who met
Decisions for the          him, defendant was a known gang member, the arresting officers were
convenience of the         concerned he might be carrying a weapon, the search took place at the
reader.)
                           train station and in his presence, and the search was not limited by the
                           fact that the officers did not expect to find evidence of defendant’s failure
                           to pay child support but, rather, the officers had wide latitude to conduct
                           a thorough search, including the container of hair gel in which the cocaine
                           was found.


Decision Under             Appeal from the Circuit Court of McLean County, No. 09-CF-1014; the
Review                     Hon. Charles G. Reynard, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Amber Gray, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           William A. Yoder, State’s Attorney, of Bloomington (Patrick Delfino,
                           Robert J. Biderman, and Luke McNeill, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      PRESIDING JUSTICE KNECHT delivered the judgment of the court,
                           with opinion.
                           Justices Steigmann and Pope concurred in the judgment and opinion.




                                             OPINION

¶1          The trial court denied defendant Carlos Dax Cregan’s motion to suppress evidence.
        Following a stipulated bench trial, the court found defendant guilty of unlawful possession
        of less than 15 grams of a controlled substance (cocaine) (720 ILCS 570/402(c) (West
        2008)). The court sentenced defendant to an extended term of 5 1/2 years in prison.
        Defendant appeals, arguing the court erred in denying his motion to suppress because the
        search of his luggage was neither (1) a valid search incident to arrest nor (2) a lawful
        inventory search. We affirm.

¶2                                        I. BACKGROUND
¶3          In November 2009, the State charged defendant by indictment with unlawful possession
        of less than 15 grams of a controlled substance (cocaine) (720 ILCS 570/402(c) (West
        2008)). In December 2009, defendant filed a motion to suppress evidence, arguing the
        officers’ search exceeded the scope of a search incident to arrest. In January 2010, the trial
        court held a hearing on defendant’s motion to suppress, and the following evidence was
        introduced.
¶4          On November 3, 2009, officers received an anonymous tip defendant would be traveling
        by train to Normal, Illinois. The tipster informed officers defendant had an outstanding arrest
        warrant. Officers investigated the tip and learned defendant had an active civil arrest warrant
        for failure to pay child support. Officers also discovered defendant was an active gang
        member. Officer Kevin Kreger of the Normal police department and other officers were
        dispatched to the train station to arrest defendant. Kreger was a member of the ProActive
        Unit, which focused on drug and gang activity.
¶5          Kreger and two other members of the ProActive Unit located an individual matching
        defendant’s description getting off a train. Defendant was carrying a laundry bag and

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       wheeling a luggage bag behind him. Kreger and two other officers approached defendant and
       ordered him to drop his bags. Defendant dropped both bags and placed his hands behind his
       back. Officers placed defendant in handcuffs.
¶6         Kreger testified he initially intended to take defendant’s bags into police custody after
       arresting defendant. Kreger stated because defendant was alone, department policy required
       officers to take his possessions and conduct an inventory search. A female, later identified
       as Lindsey Collins, approached defendant “very briefly” after police made contact with him.
       Defendant asked officers if Collins could take his bags, and Kreger told him “we need to go
       through [the] bags first.” Neither bag was locked. Kreger found a container of hair gel inside
       the “main compartment” of defendant’s bag. Though he did not see anything suspicious
       inside the container, Kreger removed the lid and found suspected cocaine in a plastic bag
       inside. Kreger did not release defendant’s luggage to Collins because he found contraband.
¶7         Officer Christopher Nyman of the Normal police department was a member of the
       ProActive Unit involved in defendant’s arrest on November 3, 2009. Nyman testified
       defendant made contact with a female immediately before police approached him and placed
       him under arrest. Nyman also stated defendant complied with orders and placed his bags on
       the ground. When asked if defendant attempted to take control of his bags after he dropped
       them, Nyman responded, “No, he was in handcuffs.”
¶8         Defendant testified he made contact with Collins immediately before police approached
       him. Defendant dropped both bags and placed his hands behind his back when ordered to by
       officers. After he was handcuffed, defendant asked the officers to release his bags to Collins,
       but officers told him they had to search the bags first. Defendant and his bags were moved
       to the side of the train station, where the bags were searched in defendant’s presence.
¶9         The trial court denied defendant’s motion, finding the bags were in defendant’s
       immediate control during the arrest. The court explained defendant could not “insulate the
       property from being searched” by attempting to hand the bags off to another party. The court
       further found requiring officers to release the bags to Collins without searching them first
       potentially involved taking a weapon away from defendant and placing it in Collins’s hands,
       which represented a serious risk to officer safety. During its analysis, the court emphasized
       defendant’s status as a known gang member in evaluating the officer’s actions.
¶ 10       In February 2010, the trial court held a stipulated bench trial. The court took judicial
       notice of testimony from the suppression hearing. In addition, the parties stipulated (1) the
       substance found inside the hair gel container in defendant’s luggage contained 9.77 grams
       of cocaine, and (2) defendant confessed to possessing the cocaine in a taped interview with
       police officers. The court found defendant guilty of unlawful possession of less than 15
       grams of cocaine.
¶ 11       In March 2010, the trial court sentenced defendant to an extended term of 5 1/2 years in
       prison. In April 2010, defendant filed a motion to reconsider his sentence. In May 2010, the
       court denied defendant’s motion to reconsider his sentence.
¶ 12       This appeal followed.




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¶ 13                                        II. ANALYSIS
¶ 14       On appeal, defendant argues the trial court erred in denying his motion to suppress
       because the search of his luggage was neither (1) a valid search incident to arrest nor (2) a
       lawful inventory search. The State contends the issue is forfeited because defendant failed
       to raise it in a posttrial motion. In the alternative, the State argues the search constituted a
       valid search incident to defendant’s arrest, and the court properly denied defendant’s motion
       to suppress.

¶ 15                              A. The State’s Forfeiture Argument
¶ 16       Generally, both a trial objection and a posttrial motion raising an issue are required to
       preserve the issue for appeal. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130
       (1988). An issue not properly preserved will result in its forfeiture. Id. However, the court
       in Enoch, 122 Ill. 2d at 190, 522 N.E.2d at 1132, recognized the following exceptions to
       forfeiture: (1) constitutional issues properly raised at trial and cognizable in a postconviction
       petition, (2) sufficiency of the evidence challenges, and (3) plain errors. Relying on Enoch,
       this court stated “because defendant’s contention that the court erroneously denied his
       motion to suppress is a constitutional issue, it is reviewable on appeal even though defendant
       failed to raise it in a written posttrial motion.” People v. Cox, 295 Ill. App. 3d 666, 670, 693
       N.E.2d 483, 485 (1999). Defendant’s argument regarding the trial court’s denial of his
       motion to suppress is not forfeited.

¶ 17                       B. The Constitutionality of the State’s Search
¶ 18       When examining a trial court’s decision regarding a motion to suppress, the reviewing
       court gives great deference to the trial court’s factual findings but reviews de novo the court’s
       ultimate decision on whether suppression is warranted. People v. Luedemann, 222 Ill. 2d
       530, 542, 857 N.E.2d 187, 195 (2006). On a motion to suppress evidence, defendant, as the
       moving party, has the burden of proving the search and seizure were unlawful. People v.
       Hoskins, 101 Ill. 2d 209, 212, 461 N.E.2d 941, 942 (1984).

¶ 19                              1. Searches Incident to Arrest
¶ 20       The fourth amendment to the United States Constitution prohibits unreasonable searches
       and seizures which violate the right of the people to be secure in their persons, houses,
       papers, and effects. U.S. Const., amend. IV. Similarly, the Illinois Constitution guarantees
       the people the “right to be secure in their persons, houses, papers[,] and other possessions
       against unreasonable searches, seizures, [and] invasions of privacy.” Ill. Const. 1970, art. I,
       § 6. Illinois courts have interpreted the search and seizure language of the Illinois
       Constitution in a manner consistent with the United States Supreme Court’s fourth-
       amendment decisions. See People v. Caballes, 221 Ill. 2d 282, 313-14, 851 N.E.2d 26, 44-45
       (2006).
¶ 21       “The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of
       a search is determined by assessing, on the one hand, the degree to which it intrudes upon


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       an individual’s privacy and, on the other, the degree to which it is needed for the promotion
       of legitimate governmental interests.” (Internal quotation marks omitted.) United States v.
       Knights, 534 U.S. 112, 118-19 (2001). Warrantless searches and seizures are generally
       unreasonable, “subject only to a few specifically established and well-delineated exceptions.”
       Katz v. United States, 389 U.S. 347, 357 (1967). “It is well settled that a search incident to
       a lawful arrest is a traditional exception to the warrant requirement of the Fourth
       Amendment.” United States v. Robinson, 414 U.S. 218, 224 (1973). A search incident to a
       lawful arrest may include a search of the person of the arrestee and the area within his
       immediate control. Id. The term “ ‘within his immediate control’ ” has been defined as “the
       area from within which he might gain possession of a weapon or destructible evidence.”
       Chimel v. California, 395 U.S. 752, 763 (1969). The search-incident-to-lawful-arrest
       exception is justified by concerns for officer safety and the preservation of evidence. Id.
¶ 22       “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.” Hoskins, 101 Ill. 2d at 213-
       14, 461 N.E.2d at 943 (citing Scott v. United States, 436 U.S. 128, 136, 138 (1978)). As the
       United States Supreme Court explained in Robinson, 414 U.S. at 235:
           “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.”
¶ 23                The United States Supreme Court in United States v. Chadwick, 433 U.S. 1, 15
       (1977), abrogated on other grounds in California v. Acevedo, 500 U.S. 565, 580 (1991),
       stated “[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.” The
       Court in Chadwick, 433 U.S. at 15, found a warrantless search of a 200-pound, locked
       footlocker conducted more than an hour after the defendant’s arrest unreasonable. In
       Hoskins, 101 Ill. 2d at 217, 461 N.E.2d at 945, our supreme court dealt with the issue of
       whether a search of the defendant’s purse was authorized by her lawful, custodial arrest. The
       court in Hoskins, 101 Ill. 2d at 214-15, 461 N.E.2d at 943-44, found the defendant’s purse
       was immediately associated with her person, and the search was reasonable incident to the
       defendant’s arrest, differentiating the defendant’s purse from the footlocker in Chadwick. See
       also United States v. Garcia, 605 F.2d 349, 350 (1979) (“[A] warrantless search of the
       contents of hand-carried luggage, seized incident to and inspected contemporaneous with a
       lawful custodial arrest[,] does not constitute an impermissible invasion of privacy in

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       contravention of the Fourth Amendment.”). The defendant in Hoskins was handcuffed when
       police searched her purse. Hoskins, 101 Ill. 2d at 212, 461 N.E.2d at 942.
¶ 24       Defendant, relying on the recent decision in Arizona v. Gant, 556 U.S. 332, 129 S. Ct.
       1710 (2009), argues the search of his luggage was unreasonable because he was handcuffed
       and surrounded by three officers and could not have accessed the luggage when it was
       searched. Defendant further argues officers could not expect to find evidence of his failure
       to pay child support inside his luggage, and they were limited to scanning the interior for
       weapons. Even assuming the initial search was reasonable, defendant contends officers
       exceeded the scope of the search by opening the container of hair gel. See People v. Seymour,
       84 Ill. 2d 24, 35, 416 N.E.2d 1070, 1075 (1981) (A search that is reasonable at its inception
       “may violate the fourth amendment by virtue of its intolerable intensity and scope.”). Finally,
       defendant argues officers should have released the luggage to his female companion upon
       his request. We find defendant’s reliance on Gant misplaced and disagree with his other
       contentions.
¶ 25       The United States Supreme Court recently stated “[i]f there is no possibility that an
       arrestee could reach into the area that law enforcement officers seek to search, both
       justifications for the search-incident-to-arrest exception are absent and the rule does not
       apply.” Gant, 556 U.S. at ___, 129 S. Ct. at 1716. However, the narrow holding in Gant
       applies only to searches and seizures involving a vehicle the arrestee recently occupied. Gant,
       556 U.S. at ___, 129 S. Ct. at 1723 (holding “[p]olice may search a vehicle incident to a
       recent occupant’s arrest only if the arrestee is within reaching distance of the passenger
       compartment at the time of the search or it is reasonable to believe the vehicle contains
       evidence of the offense of arrest”); see also United States v. Lee, No. 10-CR-30058, 2010
       WL 5573614, at *6 (C.D. Ill. Nov. 10, 2010); United States v. Harris, No. 09 CR 0028-2,
       2009 WL 3055331, at *4 (N.D. Ill. Sept. 21, 2009). Further, Gant’s language regarding the
       defendant’s ability to access the area to be searched closely tracks the language of Chadwick,
       which was distinguished by the court in Hoskins, as discussed above. We find Hoskins is
       more on point as it analyzed the search of personal items and not vehicles.
¶ 26       Defendant was carrying the bags when he was arrested and was within arm’s reach the
       entire time, though he was secured in handcuffs prior to the search. The bags were not locked
       and were associated with defendant’s person, similar to the defendant’s purse in Hoskins.
       The record shows the bags were in defendant’s possession when he was approached by
       officers and were never turned over to another party. In addition, defendant was a known
       gang member, and Nyman testified to being concerned he might be carrying a dangerous
       weapon. The search was contemporaneous to defendant’s arrest and took place at the train
       station, in his presence. We conclude the search was reasonable and valid incident to
       defendant’s arrest.
¶ 27       Defendant next contends officers were limited to a brief search for weapons as they could
       not expect to find any evidence of defendant’s failure to pay child support in the luggage. We
       conclude the scope of the search was not limited in any way by the absence of evidence of
       failure to pay child support as a justification for the search. The court in Robinson, 414 U.S.
       at 234-35, made it clear a search for weapons is just as important and thorough as a search
       for evidence. The mere fact an officer cannot expect to uncover evidence of the crime

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       charged during a search in no way limits the scope or intensity of the search. See Robinson,
       414 U.S. at 234 (narrower Terry standards do not limit a search merely because officers do
       not expect to uncover evidence of the particular crime for which the defendant was arrested
       during the search).
¶ 28        Officers admitted they were not searching for evidence of the crime of failure to pay child
       support. This did not limit the search to a more restrictive sweep for weapons. Defendant’s
       argument the officers’ search should have been confined to a quick weapons check fails. The
       situation afforded officers wide latitude to conduct a thorough search of defendant’s luggage,
       including the container of hair gel located inside.
¶ 29        We find defendant’s argument the luggage should have been released to his female
       companion without being searched lacks merit. The idea the officers should have given
       possession of the luggage to an associate of a known gang member without first searching
       it goes against the overriding concern for officer safety. Defendant points to no authority for
       his contention officers were required to release the bags to his friend. Defendant possessed
       the luggage when approached by officers. The search was proper to insure officer safety prior
       to releasing the bags. When officers discovered contraband, they retained possession of the
       luggage.

¶ 30                                    2. Inventory Searches
¶ 31       Inventory searches are another exception to the general prohibition against warrantless
       searches. People v. Gipson, 203 Ill. 2d 298, 304, 786 N.E.2d 540, 544 (2003). In conducting
       an inventory search, officers “must be acting pursuant to standard police procedures.” Id. An
       inventory search satisfies the fourth amendment “as long as the police regulations are
       reasonable and administered in good faith.” People v. Clark, 394 Ill. App. 3d 344, 348, 914
       N.E.2d 734, 737-38 (2009). Defendant argues the search of his luggage does not fall within
       the inventory search exception because Kreger was required to release the bag to Collins
       pursuant to Normal police department policy. The State does not address this issue in its
       brief. In light of our resolution of the previous issue we need not address the issue.

¶ 32                                    III. CONCLUSION
¶ 33       We affirm the trial court’s judgment. As part of our judgment we grant the State its $50
       statutory assessment against defendant as costs of this appeal.

¶ 34      Affirmed.




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