                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Kowalski, 2011 IL App (2d) 100237




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MICHAEL G. KOWALSKI, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-10-0237


Filed                      July 28, 2011
Rehearing denied           September 6, 2011
Held                       Defendant’s conviction for unlawful possession of drug paraphernalia
(Note: This syllabus       was reversed where the trial court erred in denying his motion to suppress
constitutes no part of     a pipe with cannabis residue discovered in a warrantless search conducted
the opinion of the court   pursuant to fire department policy in preparation to transport defendant
but has been prepared      for medical treatment following a bar fight, since there was no evidence
by the Reporter of         defendant committed a crime or was armed and dangerous or that the
Decisions for the          search was limited to a search for weapons and there was no other
convenience of the         justification for the search.
reader.)


Decision Under             Appeal from the Circuit Court of Du Page County, No. 08-CM-5239; the
Review                     Hon. Karen M. Wilson, Judge, presiding.



Judgment                   JUSTICE BOWMAN delivered the judgment of the court, with opinion.
                           Presiding Justice Jorgensen and Justice McLaren concurred in the
                           judgment and opinion.
Counsel on                 Thomas A. Lilien and Steven E. Wiltgen, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman,
                           Assistant State’s Attorney, Lawrence M. Bauer and Gregory L. Slovacek,
                           both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for
                           the People.


Panel                      JUSTICE BOWMAN delivered the judgment of the court, with opinion.
                           Presiding Justice Jorgensen and Justice McLaren concurred in the
                           judgment and opinion.



                                            OPINION

¶1          Following a stipulated bench trial, defendant, Michael G. Kowalski, was convicted of
        possession of drug paraphernalia (720 ILCS 600/3.5 (West 2008)). The trial court sentenced
        him to 30 days in jail and 12 months’ probation. Defendant appeals, contending that the trial
        court erred in denying his motion to suppress evidence. For the reasons that follow, we
        reverse.

¶2                                         BACKGROUND
¶3          The only witness to testify at the hearing on defendant’s motion to suppress was Officer
        John Gaw of the Lisle police department. He gave the following testimony. In the early
        morning hours of September 7, 2008, he responded to a call of a bar fight. When Gaw
        arrived, he observed defendant sitting on the stairs outside the bar. Defendant was highly
        intoxicated and had blood on his face and clothing. It was “apparent” that defendant was the
        victim of the fight. Because defendant required medical attention and because of defendant’s
        intoxicated state, Gaw assisted defendant to the waiting ambulance. Prior to placing
        defendant in the ambulance, and according to the fire department’s policy that anyone
        involved in a call involving violence be searched before entering an ambulance, Gaw
        conducted a search of defendant. In defendant’s front pants pocket, Gaw found a small, metal
        pipe containing some burned cannabis residue in the bowl area. When Gaw searched
        defendant, defendant was not under arrest, defendant was not a suspect of any kind, Gaw did
        not possess a warrant to search defendant, and defendant did not consent to a search of his
        person. In addition, defendant did not display any aggression toward Gaw or any other
        person.
¶4          After taking the matter under advisement, the trial court denied defendant’s motion to
        suppress. The trial court stated that it was extending the holding of Terry v. Ohio, 392 U.S.
        1 (1968), to allow for a weapons search of a person who is to be transported in an ambulance

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       where an officer reasonably believes the person might be armed. The trial court also likened
       the situation to one where an officer conducts a weapons pat-down search before giving a
       citizen a courtesy transport in a squad car. Defendant filed a motion to reconsider the ruling
       on his motion to suppress, which the trial court denied.
¶5          The trial court found defendant guilty of possession of drug paraphernalia and sentenced
       him to 30 days in the county jail and 12 months’ probation. Defendant timely appeals.

¶6                                            ANALYSIS
¶7         On appeal, defendant contends that the trial court erred in denying his motion to suppress
       evidence, because Gaw lacked legal authority to conduct the search and, even if Gaw was
       legally authorized to conduct a search, the search he conducted exceeded the legally
       permissible scope. Because we agree with defendant’s latter argument, we reverse his
       conviction.
¶8         In reviewing the trial court’s ruling on a motion to suppress, we will reverse the trial
       court’s factual findings only if they are against the manifest weight of the evidence; however,
       we will review de novo the ultimate question of whether the evidence should have been
       suppressed. People v. Queen, 369 Ill. App. 3d 211, 214 (2006).
¶9         Although a defendant initially bears the burden of proof on a motion to suppress, where
       a defendant makes a prima facie case that the evidence was obtained by an illegal search or
       seizure, the burden shifts to the State to go forward with evidence countering the defendant’s
       prima facie case. People v. Kveton, 362 Ill. App. 3d 822, 832 (2005). A defendant presents
       a prima facie case when he demonstrates that the search was conducted without a warrant.
       See People v. Gipson, 203 Ill. 2d 298, 307 (2003) (“Here, defendant made his prima facie
       case by showing that Sergeant Byrd searched the trunk of defendant’s car without a
       warrant.”). Here, defendant presented his prima facie case when he presented evidence that
       Gaw did not have a warrant to search defendant. Accordingly, the burden shifted to the State
       to present evidence that the search of defendant was justified under a recognized exception
       to the warrant requirement.
¶ 10       The fourth amendment to the United States Constitution guarantees the “right of the
       people to be secure in their persons, houses, papers, and effects, against unreasonable
       searches and seizures.” U.S. Const., amend. IV. Generally, a warrant is necessary to satisfy
       the reasonableness requirement of the fourth amendment. People v. Sorenson, 196 Ill. 2d
       425, 432 (2001).
¶ 11       The trial court found that the warrantless search of defendant was justified, in part, by an
       extension of the warrant exception recognized in Terry. Under Terry, an officer may stop a
       person for temporary questioning if the officer reasonably believes that the person has
       committed, or is about to commit, a crime. People v. Flowers, 179 Ill. 2d 257, 262 (1997).
       In addition, if the officer reasonably believes that the person stopped is armed and dangerous,
       the officer may conduct a limited pat-down search to determine whether the person is, in fact,
       carrying a weapon. Sorenson, 196 Ill. 2d at 432; Flowers, 179 Ill. 2d at 262. Any search that
       goes beyond what is necessary to determine if the person is armed is not valid under Terry,
       and the fruits of such a search will be suppressed. Sorenson, 196 Ill. 2d at 432.

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¶ 12       The search in this case was not justified under Terry for several reasons. First, no
       evidence indicated that defendant had committed or was about to commit a crime. Gaw
       testified that it was “apparent” that defendant was the victim of the fight and that defendant
       was not a suspect of any kind. Second, there was no evidence that Gaw reasonably believed
       defendant to be armed and dangerous. Finally, the search that Gaw conducted went beyond
       a pat-down search limited to determining whether defendant was armed. The evidence
       indicated that Gaw reached into defendant’s pocket to remove the pipe. Yet, there was no
       evidence presented that Gaw first conducted an external pat-down of defendant and that the
       pipe felt like a weapon (Sorenson, 196 Ill. 2d at 432 (Terry searches must be limited to
       determining whether the person is armed)) or was readily identifiable as contraband (see
       Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (“If a police officer lawfully pats down
       a suspect’s outer clothing and feels an object whose contour or mass makes its identity
       immediately apparent, there has been no invasion of the suspect’s privacy beyond that
       already authorized by the officer’s search for weapons ***.”)).
¶ 13       The trial court also found that the search was appropriate because it was analogous to a
       search conducted by an officer prior to giving a citizen a courtesy ride in a squad car. This
       court has recognized that, in the interest of the officer’s safety, he may conduct a protective
       pat-down search for weapons prior to providing a citizen a courtesy ride in a squad car.
       Queen, 369 Ill. App. 3d at 218, 220; People v. Smith, 346 Ill. App. 3d 146, 164 (2004), aff’d,
       214 Ill. 2d 338 (2005), overruled in part on other grounds, People v. Luedemann, 222 Ill. 2d
       530, 548 (2006).
¶ 14       The State argues, as the trial court found, that this warrant exception should be extended
       to a situation where a citizen is to be transported in an ambulance. Even assuming that this
       exception may be properly extended in such a manner, we believe that the search conducted
       by Gaw exceeded the scope permitted under this exception. As the United States Supreme
       Court stated in Terry, a search for weapons without probable cause must, like any other
       search, be “strictly circumscribed by the exigencies which justify its initiation.” Terry, 392
       U.S. at 25-26. Accordingly, if the purpose of searching a citizen prior to providing him with
       a courtesy transport in a squad car or transporting him in an ambulance is to ensure the safety
       of the transporting officers or paramedics, then such a search, like the protective pat-down
       search permitted by Terry, should be limited to “an intrusion reasonably designed to discover
       guns, knives, clubs, or other hidden instruments for the assault of the police officer” or
       paramedic. See Terry, 392 U.S. at 29. As previously discussed, the State did not present any
       evidence that indicated that Gaw initially limited his search of defendant to a pat-down
       search for weapons or that the pipe felt like a weapon or other contraband. Accordingly, the
       State failed to counter defendant’s prima facie case that the search conducted by Gaw was
       illegal.
¶ 15       The State also argues that the trial court’s decision may be sustained on the ground that
       defendant was receiving emergency medical treatment. In support, the State cites three cases:
       Vauss v. United States, 370 F.2d 250 (D.C. Cir. 1966), Commonwealth v. Johnson, 969 A.2d
       565 (Pa. Super. 2009), and Commonwealth v. Keenan, 11 Pa. D. & C.5th 289 (2010). In
       these cases, the courts found that the searches of the defendants’ clothing, conducted while
       the defendants were in the throes of medical emergencies, were justified by exigent

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       circumstances. Vauss, 370 F.2d at 252 (search of the unconscious defendant for identification
       was justified by need to assist the defendant); Johnson, 969 A.2d at 572 (same); Keenan, 11
       Pa. D. & C.5th at 302-03 (where the defendant was not a suspect, the seizure of his burned
       clothes was justified by the need to preserve evidence for the investigation of an arson). The
       State also cites People v. Torres, 144 Ill. App. 3d 187, 191 (1986), where the seizure of
       cannabis and LSD from the defendant’s person while he was in the emergency room was
       justified by the plain-view doctrine and probable cause. Other than stating that defendant in
       this case, like the defendants in those cases, required medical attention, the State does not
       explain what exigent circumstances justified the search of defendant. Nor does the State
       contend that the search of defendant was justified by the plain-view doctrine or probable
       cause. Rather, the State simply states that a person receiving emergency medical treatment
       has a diminished expectation of privacy. Yet, none of the cited cases supports such a
       contention, and we decline to so hold.
¶ 16       In sum, we conclude that the trial court erred in denying defendant’s motion to suppress.
       The search of defendant cannot be justified under Terry, because there was no evidence that
       defendant had committed or was about to commit a crime, that defendant was armed and
       dangerous, and that Gaw’s search was limited to a search for weapons. In addition, even
       assuming that Gaw was justified in performing a protective search of defendant before
       defendant was transported in the ambulance, any such search should have been limited to a
       search for weapons, and there was no evidence that the search of defendant was so limited.
       The State has offered no other viable justification for the search of defendant. Accordingly,
       defendant’s motion to suppress should have been granted and evidence of Gaw’s discovery
       of the pipe should not have been admitted. Without evidence of the pipe, defendant could not
       have been convicted, and his conviction must be reversed. People v. Staple, 345 Ill. App. 3d
       814, 821 (2004).

¶ 17                                   CONCLUSION
¶ 18      The judgment of the circuit court of Du Page County is reversed.

¶ 19      Reversed.




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