                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Garcia, 2012 IL App (1st) 102940




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    CESAR GARCIA, Defendant-Appellant.



District & No.             First District, Sixth Division
                           Docket No. 1-10-2940


Filed                      September 28, 2012


Held                       Standing alone, an officer’s observation of the end of a plastic baggie
(Note: This syllabus       protruding from defendant’s pants pocket did not provide probable cause
constitutes no part of     for defendant’s warrantless arrest under the plain-view exception to the
the opinion of the court   warrant requirement.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 08-CR-7107; the
Review                     Hon. William T. O’Brien, Judge, presiding.



Judgment                   Reversed; sentence vacated.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Jonathan Krieger, all of State
Appeal                     Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Carol
                           L. Gaines, and Kathleen E. Hagerty, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      JUSTICE HALL delivered the judgment of the court, with opinion.
                           Justices Garcia and Gordon concurred in the judgment and opinion.




                                             OPINION

¶1          Defendant Cesar Garcia was arrested and charged with possession of less than 15 grams
        of cocaine in violation of section 402(c) of the Illinois Controlled Substances Act (720 ILCS
        570/402(c) (West 2006)). Following a stipulated bench trial he was found guilty and
        sentenced to two years’ felony probation.
¶2          The primary issue on appeal is whether the trial court erred in denying defendant’s
        motion to quash arrest and suppress evidence of drugs found in a plastic baggie for lack of
        probable cause. Defendant maintains the trial court erred in finding that Chicago police
        officer Romano had probable cause to seize a clear plastic baggie protruding from his front
        pants pocket. The trial court determined that the seizure was justified under the plain-view
        exception to the fourth amendment’s warrant requirement. We find the trial court erred in
        this regard.
¶3          In reviewing a trial court’s ruling on a motion to suppress evidence, we apply the two-
        part standard of review adopted by the United States Supreme Court in Ornelas v. United
        States, 517 U.S. 690, 699 (1996). See People v. Luedemann, 222 Ill. 2d 530, 542 (2006).
        Under this standard of review, findings of fact made by the trial court are given great
        deference and will be upheld unless they are against the manifest weight of the evidence,
        since the trial court is in a superior position to observe the witnesses’ demeanor, weigh their
        credibility, and resolve conflicts in their testimony. People v. Jones, 215 Ill. 2d 261, 268
        (2005). However, reviewing courts remain free to undertake their own assessment of the
        facts in relation to the issues and may draw their own conclusions when deciding what relief
        should be granted. Luedemann, 222 Ill. 2d at 542; Jones, 215 Ill. 2d at 268. Therefore, we
        review de novo the trial court’s ultimate legal ruling as to whether suppression is warranted.
        Luedemann, 222 Ill. 2d at 542; Jones, 215 Ill. 2d at 268.
¶4          The fourth amendment of the United States Constitution protects individuals from
        unreasonable searches and seizures. U.S. Const., amend. IV. The central requirement of the
        fourth amendment is reasonableness. Illinois v. McArthur, 531 U.S. 326, 330 (2001). The

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       general rule is that searches and seizures are unreasonable unless conducted pursuant to a
       judicial warrant issued by a neutral magistrate after a finding of probable cause. McArthur,
       531 U.S. at 330. However, courts have established certain exceptions to the warrant
       requirement. One such exception relevant to this case is the plain-view exception. This
       exception allows a police officer to seize an object without a search warrant if the officer is
       lawfully located in the place where he observed the object, the object is in plain view, and
       the object’s incriminating nature is immediately apparent. People v. Chavez, 228 Ill. App.
       3d 54, 69 (1992).
¶5         At issue in this case is the third element of the plain-view exception. Whether the
       incriminating nature of the plastic baggie protruding from defendant’s front pants pocket was
       immediately apparent.
¶6         The facts in this case reveal that on March 10, 2008, at approximately 2 a.m., defendant
       was riding as a passenger in a vehicle when Officer Romano observed him throw an object
       or a large can out of the passenger-side window. The officer stopped the vehicle to issue
       defendant a citation for littering. At this point, the officer’s stop of the vehicle was supported
       by probable cause and was therefore justified at its inception.
¶7         Defendant allegedly made a “snide” remark, denying that he threw anything out of the
       car. Officer Romano then ordered defendant to exit the vehicle. Although making a “snide”
       remark should not occasion police removing someone from his car, Officer Romano was
       justified in ordering defendant to step out of the vehicle based upon his conduct of throwing
       the can out of a moving vehicle. It is well established that following a lawful traffic stop, the
       police may, as a matter of course, order the driver and any passengers out of the vehicle
       pending completion of the stop without violating the protections of the fourth amendment.
       Maryland v. Wilson, 519 U.S. 408, 410 (1997); People v. Sorenson, 196 Ill. 2d 425, 433
       (2001).
¶8         When defendant exited the vehicle, Officer Romano noticed “plastic” protruding two to
       three inches from the defendant’s right front pants pocket. On cross-examination, the officer
       testified that what she observed was a “clear knotted plastic bag.” Based upon her 13½ years
       of experience as a police officer, which included 300 to 400 narcotics-related arrests, Officer
       Romano believed that the clear knotted plastic bag might contain illegal narcotics. Without
       defendant’s consent, the officer removed the plastic bag from the defendant’s pocket and
       discovered a white powdery substance believed to be cocaine. At this point defendant was
       placed under arrest.
¶9         In order for Officer Romano to have had probable cause to seize the plastic baggie under
       the plain-view exception, it must have been immediately apparent to her that the plastic
       baggie was evidence of a crime or contraband. “The requirement that an item’s criminal
       nature be ‘immediately apparent’ essentially translates into a probable cause requirement.”
       People v. Watkins, 293 Ill. App. 3d 496, 502 (1997).
¶ 10       Probable cause is a flexible, commonsense standard (People v. Taggart, 233 Ill. App. 3d
       530, 554 (1992)), which has both a subjective and an objective component. People v. Velleff,
       94 Ill. App. 3d 820, 823 (1981); People v. Long, 369 Ill. App. 3d 860, 867 (2007). Probable
       cause exists where the police have knowledge of facts that would lead a reasonable person


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       to believe that a crime has occurred and that it has been committed by the defendant (People
       v. Bradford, 187 Ill. App. 3d 903, 919 (1989)), and this belief must be objectively reasonable
       under the totality of the circumstances (Long, 369 Ill. App. 3d at 867). “The determination
       of probable cause to search is to be made after examining the totality of the circumstances,
       including the police officer’s knowledge based on his prior law enforcement experience.”
       People v. Jones, 269 Ill. App. 3d 797, 805 (1994).
¶ 11       Based on the circumstances of the traffic stop and objectively looking at the totality of
       the circumstances known to Officer Romano when she made the stop, we find that the officer
       did not have probable cause to seize the plastic baggie from defendant’s front pants pocket.
       Officer Romano initially stopped the vehicle to issue defendant a citation for littering from
       a moving vehicle. After defendant complied with the officer’s directive to exit the vehicle,
       she did not conduct a protective pat-down search and did not believe defendant was armed.
¶ 12       Once defendant exited the vehicle, Officer Romano noticed “plastic” protruding from
       defendant’s right front pants pocket. The officer gave conflicting testimony as to the amount
       of “plastic” she initially observed. On direct examination, Officer Romano testified that she
       only saw two to three inches of plastic protruding from the pocket. However, on cross-
       examination, she answered “yes” to the following inquiry: “And when you were speaking to
       the defendant, you saw what was a clear knotted plastic bag, correct?” We believe that the
       officer’s direct testimony is more specific and worthy of more credence than her mere
       response of “yes” to counsel’s leading question on cross-examination. Moreover, the
       “Incident Narrative” in Officer Romano’s arrest report stated in relevant part that, “[d]uring
       a field interview, A/O observed a piece of plastic sticking out of subjects right front coin
       pocket. Believing this to be narcotics, A/O removed this item and found it to be one clear
       knotted plastic bag containing white powder substance, suspect cocaine.”
¶ 13       Nevertheless, even if Officer Romano had observed a clear knotted plastic baggie
       protruding from defendant’s front pants pocket, this observation may have created a
       reasonable suspicion justifying further investigation, but such an observation standing alone
       generally does not rise to the level of probable cause. See, e.g., Cauls v. Commonwealth, 683
       S.E.2d 847, 852 (Va. Ct. App. 2009) (deputy’s observation of knotted and frayed end of
       plastic baggie protruding from defendant’s pants pocket, standing alone, not sufficient to
       provide probable cause under the plain-view exception because the baggie’s incriminating
       character was not immediately apparent).
¶ 14       Suspicion is not a substitute for probable cause. See Hunter v. Bryant, 502 U.S. 224, 232
       (1991) (Stevens, J., dissenting); see also People v. Symmonds, 18 Ill. App. 3d 587, 595
       (1974) (“[t]he Illinois Supreme Court has said that the subjective belief of a police officer
       that an envelope contained in the pocket of a traffic offender contained gambling devices was
       an insufficient basis for a search of the envelope where it was not predicated upon other
       objective facts, such as something about the envelope itself or its visible contents which gave
       the police an indication of their illicit nature” (citing People v. Tate, 38 Ill. 2d 184, 187
       (1967))).
¶ 15       In this case, Officer Romano acknowledged that she was not aware of the contents of the
       plastic baggie before she removed the baggie from defendant’s pants pocket. Moreover, there


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       was no evidence that the officer observed anything in the vehicle or in the conduct of the
       defendant or the occupants of the vehicle that would have given her probable cause to seize
       the baggie. There was no evidence that Officer Romano stopped the vehicle during off hours
       in an area known for high drug activity, as in People v. Hilt, 298 Ill. App. 3d 121, 126
       (1998). And unlike People v. Washington, 238 Ill. App. 3d 371, 372 (1992), there was no
       evidence that Officer Romano received information that defendant was selling drugs in a
       particular area or that he fled the scene when she approached him.
¶ 16       Innocuous objects such as plastic baggies, spoons, mirrors, and straws are often used in
       the narcotics trade. Allowing police officers to conduct warrantless searches whenever they
       observe one of these objects, with nothing more, could permit random searches condemned
       by the fourth amendment. Commonwealth v. Garcia, 614 N.E.2d 1031, 1035 (Mass. App.
       Ct. 1993). Absent some additional evidence of illicit activity, the mere possession of a clear
       plastic baggie protruding from a person’s front pants pocket does not constitute probable
       cause to seize the baggie.
¶ 17       For the foregoing reasons, we reverse the trial court’s denial of defendant’s motion to
       quash arrest and suppress evidence, and we vacate his conviction for possession of a
       controlled substance.

¶ 18      Reversed; sentence vacated.




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