                                     NO. 4-05-0456     Filed 5/1/06

                             IN THE APPELLATE COURT

                                      OF ILLINOIS

                                  FOURTH DISTRICT

 THE PEOPLE OF THE STATE OF ILLINOIS,                  )   Appeal from
      Plaintiff-Appellant,                             )   Circuit Court of
      v.                                               )   Vermilion County
 JEROME J. HARRIS,                                     )   No. 04CF766
      Defendant-Appellee.                              )
                                                       )   Honorable
                                                       )   Thomas J. Fahey,
                                                       )   Judge Presiding.


             JUSTICE APPLETON delivered the opinion of the court:

             The State is appealing the trial court's order suppressing evidence found

during a search of defendant's vehicle. According to the State, the search was incident

to a lawful arrest after the front-seat passenger was taken into custody on a probation

violation. Defendant's motion to suppress alleged the search of the vehicle was illegal,

and the fruits of that search should be suppressed. The trial court agreed with

defendant, finding the arresting officer had no probable cause to believe that a crime

was being committed and had no reason to search the vehicle upon the passenger's

arrest for a probation violation. We reverse.

                                   I. BACKGROUND

             On December 17, 2004, at approximately 11:30 p.m., defendant, Jerome

J. Harris, was driving a vehicle with three passengers in the City of Danville when he

ran a stoplight in the presence of police officer Dennis Rogers. Rogers conducted a

traffic stop of defendant's vehicle. Because the front-seat passenger was not wearing a
seatbelt, the officer conducted identification checks on defendant and that passenger.

He found defendant had a valid driver's license and neither was the subject of an

outstanding warrant.

              Rogers began writing defendant a traffic citation for his failure to obey the

traffic signal when Vermilion County probation officer James Dunavan, who had

overheard Rogers's radio communication about the traffic stop, arrived at the scene.

Dunavan had recognized the name of the front-seat passenger as one of his

probationers. Dunavan had the probationer exit the vehicle and submit to a Breathalyz-

er test. The probationer had, in fact, been drinking and was out past his curfew--both

violations of his probation. Rogers testified he had finished writing defendant the traffic

ticket, but had not issued it, before Dunavan had completed the Breathalyzer test on the

probationer. Once the test confirmed that the probationer had been drinking, Dunavan

arrested him and Rogers conducted a search of the vehicle incident to that arrest.

Under the driver's seat, Rogers found a semiautomatic nine-millimeter handgun.

              On December 20, 2004, the State charged defendant with unlawful

possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2004)). On April 19,

2005, defendant filed a motion to suppress evidence and quash the arrest. On May 24

and 25, 2005, the trial court conducted a hearing on defendant's motion. Rogers, the

only witness, testified to the events as described above. After considering the evidence

and arguments of counsel, the court granted defendant's motion. On May 25, 2005, the

State filed its certificate of substantial impairment. This appeal followed.

                                       II. ANALYSIS

              The State claims the trial court erred in suppressing the evidence because

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the search of the vehicle was a lawful warrantless search incident to an arrest. It claims

the detention of a probationer by a probation officer at the scene of a traffic stop justifies

a search of the vehicle in which the probationer was riding. The court disagreed with

the State and granted defendant's motion on the basis that the search was improper.

The court declined to extend the vehicle-search-incident-to-arrest theory to the

detainment of a probationer/passenger.

              In its alternative argument, the State claims the officer's search of the

vehicle was also justified as a reasonable investigation of further probation violations,

relying on People v. Lampitok, 207 Ill. 2d 231, 798 N.E.2d 91 (2003). Defendant

responds to the State's claims, arguing the officer had (1) no authority to search the

vehicle when defendant was unreasonably detained beyond the purpose of the traffic

stop, (2) no authority to search the vehicle incident to a probation-violation arrest of the

passenger, and (3) no purpose in conducting a "reasonable investigation" into further

probation violations.

              A review of a motion to suppress involves both questions of fact and law.

People v. Moss, 217 Ill. 2d 511, 517, 842 N.E.2d 699, 704 (2005). We review questions

of fact upon the manifestly erroneous standard. "[W]e review de novo the ultimate

question of whether the evidence must be suppressed, undertaking our own

assessment of the facts in relation to the issues presented." Moss, 217 Ill. 2d at 518,

842 N.E.2d at 704.

              For the reasons that follow, we find the officer's search of defendant's

vehicle was in line with the holding of New York v. Belton, 453 U.S. 454, 460, 69 L. Ed.

2d 768, 774-75, 101 S. Ct. 2860, 2864 (1981). Before analyzing the circumstances of

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the search, we first note the statutory authority of a probation officer to arrest a

probationer found in violation of his probation conditions. See 730 ILCS 110/11 (West

2004). The passenger's arrest was just that and not some other form of detention.

              A warrantless search or seizure is per se unreasonable unless it falls

within one of several recognized and limited exceptions. People v. Stehman, 203 Ill. 2d

26, 34, 783 N.E.2d 1, 5 (2002). One exception is a search incident to a lawful arrest.

Stehman, 203 Ill. 2d at 34, 783 N.E.2d at 5. The rationale of such a search is to (1)

disarm the suspect to take him into custody and (2) preserve evidence. Chimel v.

California, 395 U.S. 752, 762-63, 23 L. Ed. 2d 685, 694, 89 S. Ct. 2034, 2040 (1969).

               In Belton, 453 U.S. at 457, 69 L. Ed. 2d at 773, 101 S. Ct. at 2862, the

United States Supreme Court applied these warrantless search principles to a search of

an automobile incident to the arrest of an occupant of the vehicle. The Court held that a

police officer may search the passenger compartment of a vehicle and all areas,

including containers, that were within the arrestee's immediate possession or control.

              Historically, it was implicit within the search-incident-to-arrest principles

that the arrestee had committed a crime. This court has since extended the general

warrantless-search-incident-to-arrest principle to "arrests" that have not necessarily

involved criminal action. See People v. Miller, 354 Ill. App. 3d 476, 820 N.E.2d 1216

(2004); People v. Allibalogun, 312 Ill. App. 3d 515, 520, 727 N.E.2d 633, 637-38 (2000)

(police have a right to search a vehicle incident to an arrest based upon a civil writ of

body attachment).

              The testimony presented at the suppression hearing indicated that the

police officer did not suspect any criminal activity by the driver or the passengers. After

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identifying both individuals in the front seat, the officer conducted a driver's license

check and warrant search, which revealed nothing suspect or illegal. He began writing

defendant a traffic citation. While he was writing the citation, the probation officer

arrived within "a minute or two." The probation officer approached the front-seat

passenger and, for reasons not explained in the record, required him to submit to a

Breathalyzer test. By the time the results of the Breathalyzer were complete, the police

officer had finished writing defendant's citation. Based on the results of the

probationer's Breathalyzer test, the probation officer discovered the probationer had

been drinking and arrested him. The police officer then searched the vehicle incident to

the front-seat passenger's arrest. We find there was no unreasonable delay beyond

that necessary to effectuate the purpose of the traffic stop. The officers did not subject

defendant to any improper interrogation or shift the focus of the stop until the moment

the probationer was arrested.

              Consistent with this court's holdings in Allibalogun and Miller, we find the

distinction between arresting the passenger for a criminal offense as the officers did in

Belton and arresting the passenger for a probation violation as in the case sub judice is

of no consequence to the justification for the search.

              In Miller, this court noted that "while the officers may not have had a need

to prevent defendant from destroying evidence, they did have a legitimate interest in

determining whether defendant had a weapon. [Citation.] When an officer takes a

suspect into custody, it does not matter if it is for a criminal offense or on a civil

warrant." Miller, 354 Ill. App. 3d at 480, 820 N.E.2d at 1220. The same is true for

custody incident to a probation violation. In fact, the sweep for weapons in this case

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was even more critical than that in Miller because the vehicle here was unlocked and

accessible with three other passengers in the vicinity. This distinguishing fact

substantiated the need for the search. In light of Belton, this court's decisions in

Allibalogun and Miller, and the State's interest in officer safety, we find the search of the

vehicle's passenger compartment was not violative of the fourth amendment upon the

probationer's arrest.

                                     III. CONCLUSION

              For the foregoing reasons, we reverse the trial court's order granting

defendant's motion to suppress.

              Reversed.

              TURNER, P.J., and KNECHT, J., concur.




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