                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Carter, 2011 IL App (3d) 090238




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    CEDRIC S. CARTER, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-09-0238


Filed                      October 5, 2011


Held                       Defendant’s conviction for unlawful possession of a controlled substance
(Note: This syllabus       was upheld over his contention that he was subjected to a strip search in
constitutes no part of     violation of his statutory and constitutional rights, since there was no strip
the opinion of the court   search where the officer did not arrange defendant’s clothing “so as to
but has been prepared      permit a visual inspection of” defendant’s underwear, and even if there
by the Reporter of         was, the search was reasonable under the circumstances, but the trial
Decisions for the          court erred in imposing the $100 public defender fee without conducting
convenience of the         a hearing on defendant’s ability to pay the fee.
reader.)


Decision Under             Appeal from the Circuit Court of Peoria County, No. 08-CF-764; the
Review                     Hon. Michael E. Brandt, Judge, presiding.



Judgment                   Affirmed in part and reversed in part; cause remanded.
Counsel on                  Catherine K. Hart, of State Appellate Defender’s Office, of Springfield,
Appeal                      for appellant.

                            Jerry Brady, State’s Attorney, of Peoria (Terry A. Mertel and Robert M.
                            Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of
                            counsel), for the People.


Panel                       JUSTICE HOLDRIDGE delivered the judgment of the court, with
                            opinion.
                            Presiding Justice Carter and Justice O’Brien concurred in the judgment
                            and opinion.




                                              OPINION

¶1          After a stipulated bench trial, the defendant, Cedric S. Carter, was found guilty of
        unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2008)) and
        sentenced to 30 months’ probation. He appeals his conviction and argues that the trial court
        committed reversible error by denying his motion to suppress evidence. He also argues that
        the trial court erred by ordering him to pay a $100 public defender fee without first
        determining his ability to pay. We affirm in part and reverse in part.

¶2                                               FACTS
¶3          On May 2, 2008, at approximately 6 p.m., the defendant was pulled over for failing to
        stop at a stop sign. The officer who stopped him ran a license check and discovered that the
        defendant’s license was suspended. The officer returned to the vehicle and informed the
        defendant that he was being arrested for driving on a suspended license.
¶4          After placing the defendant in handcuffs, the officer conducted a search of the
        defendant’s person. During the search, the officer found a small amount of cocaine in the
        defendant’s crotch area.
¶5          On November 13, 2008, the defendant filed a motion to suppress the cocaine, alleging
        that the officer conducted an illegal strip search. Specifically, the defendant claimed that the
        officer’s strip search violated his rights under the fourth amendment of the United States
        Constitution and article I, section 6, of the Illinois Constitution. U.S. Const., amend. IV; Ill.
        Const. 1970, art. I, § 6. He also alleged the strip search violated his statutory rights under the
        Code of Criminal Procedure of 1963 (Code). 725 ILCS 5/103-1 (West 2008).
¶6          The hearing on the motion to suppress took place that same day. The officer who
        conducted the search was called to testify. The officer stated that after he cuffed the

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       defendant, he conducted a pat down search. During that search, he squeezed the defendant’s
       crotch because, in his experience, it was a known spot where individuals hid contraband.
       Because the material did not “mesh” together, the officer believed that the defendant was
       hiding drugs. While still on the street, the officer unzipped the defendant’s pants and saw a
       plastic bag sticking out of a hole in the defendant’s clothing, which he removed. The officer
       did not state whether he was able to see the defendant’s underwear once he pulled the zipper
       down. The officer admitted that the defendant’s underwear was exposed during the search,
       but he also explained that the defendant’s underwear was exposed prior to the search because
       the defendant wore his pants low. The officer further testified that, to the best of his
       understanding, the policy of his department was that in order to conduct a strip search, he
       would have to first get permission from a shift lieutenant.
¶7          The defendant testified that, after he was handcuffed, the officer unbuckled the
       defendant’s belt, unbuttoned his pants, and unzipped his pants as well. He also stated that,
       during the search, his pants slid down below his crotch area.
¶8          After hearing all the evidence, the trial court found that the defendant was subjected to
       a search incident to a lawful arrest and not a strip search. The court also concluded that,
       although the strip search statute places certain limits upon the performance of strip searches,
       a violation of the statute is merely “a form of official misconduct” that “does not *** directly
       implicate the Fourth Amendment as far as excluding evidence.” The trial court found that
       the search in this case was reasonable under the circumstances and therefore did not violate
       the fourth amendment. Thus, the court held that the plaintiff’s motion to suppress should be
       denied.
¶9          The stipulated bench trial proceeded on December 2, 2008, and the defendant was found
       guilty of possessing a controlled substance. The defendant’s motion for a new trial was
       denied, and on March 23, 2009, the defendant was sentenced to 30 months’ probation. The
       trial court also applied the defendant’s bond to a $100 laboratory fee and a $100 public
       defender fee. The defendant timely appealed.

¶ 10                                         ANALYSIS
¶ 11       On appeal, the defendant argues that the trial court erred by denying his motion to
       suppress evidence and by imposing a $100 public defender fee without first holding a hearing
       to determine his ability to pay the fee. We first consider whether the search of the defendant
       violated the defendant’s statutory and constitutional rights. On review, all findings of fact
       made by the trial court will be accepted unless they are manifestly erroneous, but the ultimate
       decision regarding the reasonableness of a warrantless search is reviewed de novo. People
       v. Holliday, 318 Ill. App. 3d 106 (2001).
¶ 12       The Illinois legislature has passed a statute limiting the use of strip searches. 725 ILCS
       5/103-1 (West 2008). The statute states:
                “(c) No person arrested for a traffic, regulatory or misdemeanor offense, except in
           cases involving weapons or a controlled substance, shall be strip searched unless there
           is reasonable belief that the individual is concealing a weapon or controlled substance.
                (d) ‘Strip search’ means having an arrested person remove or arrange some or all of

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           his or her clothing so as to permit a visual inspection of the genitals, buttocks, anus,
           female breasts or undergarments of such person.
                (e) All strip searches conducted under this Section shall be performed by persons of
           the same sex as the arrested person and on premises where the search cannot be observed
           by persons not physically conducting the search.” 725 ILCS 5/103-1 (West 2008).
¶ 13       In this case, the trial court concluded that the officer’s search of the defendant did not
       constitute a strip search under the statute. In order to reach this conclusion, the court
       necessarily had to make a factual finding that the officer did not arrange the defendant’s
       clothing so as to permit a visual inspection of his underwear. 725 ILCS 5/103-1(d) (West
       2008). We may reverse this factual finding only if it is against the manifest weight of the
       evidence. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). Here, there was conflicting
       testimony regarding the extent of the search performed on the defendant. The defendant
       testified that his pants slid down below his crotch area during the search. However, the
       arresting officer testified that he merely unzipped the defendant’s pants and removed a
       plastic bag sticking out of a hole in the defendant’s clothing. Although the officer admitted
       that the defendant’s underwear was exposed during the search, he testified that defendant’s
       underwear was already exposed prior to the search because the defendant wore his pants low.
       This testimony arguably supports the circuit court’s finding that the officer did not arrange
       the defendant’s clothing “so as to permit a visual inspection of” the defendant’s underwear.
       Accordingly, we hold that the trial court’s factual determination was not manifestly
       erroneous and, therefore, the defendant was not strip searched.
¶ 14       We also agree with the trial court that the search in this case was a valid search incident
       to arrest that did not violate the fourth amendment. At the time of the arrest, the officer
       conducted a pat down search of the defendant and squeezed the defendant’s crotch area. This
       action was permissible as part of a search incident to a lawful arrest. A search incident to a
       lawful arrest is a warrantless search of an arrestee where an arresting officer searches for
       weapons or any evidence of a crime on the arrestee’s person. People v. Williams, 28 Ill. App.
       3d 189 (1975). An officer is allowed to search any area where “an arrestee might reach in
       order to grab a weapon or evidentiary items.” (Internal quotation marks omitted.) Williams,
       28 Ill. App. 3d at 193-94. Thus, an arresting officer may conduct a “full search of the
       [defendant’s] person” incident to a lawful arrest, even if the officer is searching for
       contraband or other evidence that is not directly related to the crime for which the individual
       is being arrested. (Internal quotation marks omitted.) Id. at 193. In this case, the officer
       squeezed the defendant’s crotch because it was a known spot where individuals hide illegal
       drugs and, thus, the search was permissible. See United States v. Robinson, 414 U.S. 218
       (1973) (holding that search of defendant’s clothing after he was arrested for driving with a
       revoked license was reasonable as search incident to lawful arrest even though officer did not
       fear for his safety and was not looking for evidence of traffic violation); Gustafson v.
       Florida, 414 U.S. 260 (1973). Once the defendant’s clothing failed to “mesh,” the officer had
       the reasonable suspicion necessary to conduct a limited search for concealed drugs in the
       zipper area of the defendant’s pants. As the trial court found, the limited search performed
       by the officer in this case was reasonably related to his reasonable belief that the defendant
       might have concealed drugs in that area. Thus, we hold that the officer’s unzipping the

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       defendant’s pants and extracting readily accessible contraband did not exceed the scope of
       a search incident to a lawful arrest.1
¶ 15        Even if the search constituted a strip search under the statute, however, we would still
       affirm the trial court’s judgment because we find that the search was reasonable under the
       circumstances. The defendant argues that the search was unreasonable under the statute
       because subsection (c) prohibits officers from strip searching individuals who are arrested
       for traffic offenses. 725 ILCS 5/103-1(c) (West 2008). However, subsection (c) allows the
       officer to do a strip search if the officer has a reasonable belief that the individual is
       concealing a controlled substance. 725 ILCS 5/103-1(c) (West 2008). Contrary to the
       defendant’s assertion, the officer had reasonable belief in this case. As noted above, once the
       defendant’s clothing failed to “mesh,” the officer had the reasonable suspicion necessary to
       search for a concealed controlled substance in the zipper area of the defendant’s pants, even
       if that search constituted a strip search under the statute.
¶ 16        However, even though the circumstances presented here would have justified a properly
       conducted strip search under the statute, the search conducted in this case was not conducted
       in the manner prescribed by the statute. Subsection (e) requires that all strip searches be
       conducted in an area where the arrestee cannot be observed by individuals not performing
       the search. 725 ILCS 5/103-1(e) (West 2008). Here, the search was conducted on a public
       street while it was still daylight. Furthermore, the officer made no attempt to shield the
       defendant from view. Accordingly, assuming that the search was a strip search under the
       statute, the officer failed to comply with the statute.
¶ 17        Nevertheless, we agree with the trial court that violation of the statute does not
       automatically trigger fourth amendment concerns. See U.S. Const., amend. IV (protecting
       individuals from unreasonable searches). We find the case of Doe v. Burnham, 6 F.3d 476
       (7th Cir. 1993), persuasive. In that case, an Illinois plaintiff filed a civil rights suit claiming
       that she was improperly subjected to a strip search for a misdemeanor offense in violation
       of the strip search statute. Doe, 6 F.3d 476. The reviewing court was forced to consider
       whether a jury instruction directing the jury to evaluate “Fourth Amendment reasonableness”
       in terms of the Illinois strip search statute was correct. Doe, 6 F.3d at 480. The court held that
       such an instruction was incorrect because, while the plaintiff may have been strip searched
       in violation of Illinois law, that did not automatically mean that the search was unreasonable
       under the fourth amendment. Doe, 6 F.3d 476.
¶ 18        Moreover, the defendant does not argue that the Illinois Constitution provides greater
       protection from strip searches than the federal constitution. In general, a court “will not
       expand the state exclusionary remedy beyond the federal one, unless the proponent of the
       expansion can show either that (1) the framers of the 1970 constitution intended the


               1
                Our holding is based in large part on the limited scope of the search conducted in this case.
       A more intrusive search involving the removal of a defendant’s clothing and the full exposure of his
       or her underwear at the scene of a traffic stop might not be permissible as a search incident to arrest.
       See, e.g., Illinois v. Lafayette, 462 U.S. 640, 645 (1983) (stating, in dictum, that “the interests
       supporting a search incident to arrest would hardly justify disrobing an arrestee on the street”).

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       expansion; or that (2) denying the expansion would be antithetical to ‘state tradition and
       value as reflected by long-standing case precedent.’ ” People v. Glorioso, 398 Ill. App. 3d
       975, 985 (2010) (quoting People v. Caballes, 221 Ill. 2d 282, 314 (2006)). As no such
       argument is forthcoming from the defendant, we choose, at this juncture, not to expand the
       exclusionary remedy under the state constitution.
¶ 19       Accordingly, even assuming that the search violated the Illinois strip search statute, the
       dispositive question is whether the search, as a whole, was reasonable under the fourth
       amendment. The court in People v. Johnson, 334 Ill. App. 3d 666 (2002), identified four
       factors to consider when evaluating the reasonableness of a strip search. These factors
       include: (1) the scope of the intrusion; (2) the manner the search was conducted; (3) the
       justification for initiating it; and (4) the place where it was conducted. Johnson, 334 Ill. App.
       3d 666.
¶ 20       In this case, the fourth factor clearly favors the defendant because the search was
       conducted on a public street in daylight, while the third factor clearly favors the State
       because, as described above, the officer had a reasonable suspicion that the defendant
       possessed contraband. In evaluating the other two factors, we do not think the scope or
       manner of the search was unreasonable. As noted above, unzipping the defendant’s zipper
       and extracting readily accessible contraband did not exceed the scope of a search incident to
       a lawful arrest. See Williams, 28 Ill. App. 3d at 193 (holding that during search incident to
       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.” (Emphasis added.) (quoting Robinson, 414 U.S. at 235)). Moreover, because
       the defendant voluntarily chose to dress in a manner that exposed his underwear, he cannot
       complain that the officer violated his privacy rights by exposing a portion of his underwear.
       See generally United States v. Santana, 427 U.S. 38, 42 (1976) (“What a person knowingly
       exposes to the public *** is not a subject of Fourth Amendment protection.” (Internal
       quotation marks omitted.)); see also People v. Sutherland, 92 Ill. App. 3d 338, 342 (1980).
       Further, while the officer admitted to exposing the defendant’s underwear, there is no
       indication from the record that anyone, other than the officer, would have been able to see
       the portion of the defendant’s underwear that was exposed by the search. Consequently,
       because the search was conducted in a way that provided minimal embarrassment to the
       defendant while still allowing the officer to extract the cocaine which he reasonably believed
       to be present, we hold that the officer’s actions did not constitute an unreasonable search.
¶ 21       The defendant also contends on appeal that the trial court erred by not holding a hearing
       to determine whether the defendant could afford the $100 public defender fee pursuant to
       section 113-3.1(a) of the Code. 725 ILCS 5/113-3.1(a) (West 2008). The State concedes that
       this was an error. We agree with the parties that a hearing should have been conducted prior
       to ordering reimbursement. People v. Love, 177 Ill. 2d 550 (1997). We reverse and remand
       for further proceedings consistent with this order.

¶ 22                                   CONCLUSION
¶ 23       We hold that the search of the defendant in this case was not a “strip search” under


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       section 103-1 of the Code. 725 ILCS 5/103-1 (West 2008). Moreover, even if the search
       constituted a strip search under that section, we hold that the search was not unreasonable
       in scope as a search incident to a lawful arrest. We further hold that the defendant is entitled
       to a hearing on his ability to the pay the public defender fee.

¶ 24       Affirmed in part and reversed in part; cause remanded.




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