                         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-


                                - 3 -
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


                                - 4 -
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.)


                               - 5 -
           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-


                               - 6 -
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


                                 - 8 -
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


                                 - 9 -
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.


                              - 10 -
            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


                               - 11 -
          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


                                   - 12 -
          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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