                          NO. 4-04-1055       Filed: 12/12/06

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Woodford County
DAVID L. NEFF,                         )    No. 03CF207
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    John B. Huschen,
                                       )    Judge Presiding.
_________________________________________________________________

          PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

          Following a November 2004 stipulated bench trial, the

trial court convicted defendant, David L. Neff, of possession of

a controlled substance (15 grams or more but less than 100 grams

of a substance containing methamphetamine) (720 ILCS

570/402(a)(6.5) (West 2002)) (count I) and possession of a
controlled substance with intent to deliver (15 grams or more but

less than 100 grams of a substance containing methamphetamine)

(720 ILCS 570/401(a)(6.5)(A) (West 2002)) (count II).   The court

later sentenced him to 10 years in prison on the possession-with-

intent-to-deliver conviction and imposed fines totaling $10,577.
(The court did not enter judgment on the other conviction, having

determined that it merged into defendant's conviction for posses-

sion with intent to deliver.)

          Defendant appeals, arguing that (1) the trial court

erred by denying his motion to suppress the items seized from his

car following his arrest for driving with a suspended driver's
license and (2) he is entitled to a $200 credit against his

fines, pursuant to section 110-14 of the Code of Criminal Proce-

dure of 1963 (725 ILCS 5/110-14 (West 2002)).     Because we agree

only with defendant's second argument, we affirm as modified and

remand with directions.

                           I. BACKGROUND

          Following defendant's January 2004 indictment on the

two drug charges, he filed a motion to suppress the evidence

seized from his car following his arrest.     At an April 2004

hearing on that motion, the only witness was El Paso police

officer Joseph Holt, who testified that on the morning of Decem-

ber 31, 2003, he was driving his police car in El Paso when he

saw defendant driving a car.   Holt recognized defendant because

two days earlier he had responded to a domestic call that in-

volved defendant and his girlfriend.   Holt knew that defendant's

driver's license was suspended.   When defendant pulled his car

into a parking space at a local park, Holt followed and activated

his overhead lights.   Defendant got out of his car, but Holt
directed him to return, and defendant complied.

          Holt explained to defendant why Holt had followed him

and that Holt was going to confirm the status of defendant's

driver's license.   After confirming that defendant's driver's

license was suspended, Holt placed defendant under arrest.

Before placing defendant in handcuffs, Holt allowed him to get

out of his car and throw a donut wrapper away in a garbage can

located a few feet from the squad car.     When defendant did so,


                               - 2 -
Holt noticed that he also pulled something out of his pocket and

threw it away with the donut wrapper.

          Holt then placed defendant in handcuffs and asked him

to sit in the squad car.    Holt informed defendant that he would

be conducting a search of defendant's car, and when he did so, he

found drug paraphernalia in the front passenger compartment.

Holt then went to the garbage can and retrieved the item defen-

dant had thrown in there, along with the donut wrapper.    That

item was a Ziploc Baggie, which contained a small white rock.

The garbage can was otherwise empty.    The white rock field-tested

positive for methamphetamine.

          Holt then asked defendant if there was anything else in

his car that Holt should know about, and defendant replied that,

"[i]f there was anything else in the car, it would be in the

black bag in the back."    Holt returned to defendant's car and

found a gym bag in the backseat.    The bag contained several large

Ziploc Baggies with white residue, several hypodermic needles, a

digital scale, pipes, and other miscellaneous items.    The residue
field-tested positive for methamphetamine.

          The parties later submitted written arguments to the

trial court in support of their respective positions regarding

defendant's motion to suppress evidence.    Defendant argued that

the search was unreasonable and in violation of the fourth

amendment because it was conducted pursuant to the El Paso police

department's inventory policy, which did not pass constitutional

muster.   The State argued that the search of the car's passenger


                                - 3 -
compartment was lawful as incident to defendant's arrest.   In a

June 2004 written order, the trial court agreed with the State

that Holt had authority to search defendant's car incident to

defendant's arrest.   In view of that ruling, the court declined

to address defendant's inventory-policy arguments.

          In reaching its decision, the trial court discussed the

then-recent opinion of the Supreme Court of Illinois in People v.

Stehman, 203 Ill. 2d 26, 783 N.E.2d 1 (2002), as follows:

          "Where the officer initiates contact with the

          defendant either by actually confronting the

          defendant or by signaling confrontation with

          the defendant while the defendant is still in

          the automobile and the officer subsequently

          arrests the defendant (regardless of whether

          the defendant has been removed from or has

          exited the vehicle) a subsequent search of

          the automobile's passenger compartment falls

          within the scope of [New York v. Belton, 453

          U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860

          (1981),] and will be upheld as reasonable.

          Where the defendant has voluntarily exited

          the automobile before the officer initiated
          contact with him, the facts do not fit within

          [Belton's] bright[-]line rule. [The defendant

          in Stehman] had voluntarily exited his auto-

          mobile prior to the police confrontation and


                               - 4 -
          as a result, the Supreme Court of Illinois

          found the subsequent search of the passenger

          area of [the defendant's] vehicle to be un-

          reasonable.

               The facts here are distinguishable from

          Stehman.    A routine traffic stop was con-

          ducted by Officer Holt upon seeing an indi-

          vidual he knew to [have a] suspended [li-

          cense].    Based on the suspended driving priv-

          ileges of the defendant, he was placed under

          arrest and removed from his vehicle to be

          transported to the jail.      Although the police

          officer allowed the defendant to freely move

          about and around his vehicle, he was always

          under the control of the officer.      The search

          [of] the passenger area of defendant's vehi-

          cle incident to his arrest was therefore

          reasonable."    (Emphases in original.)

          In November 2004, defendant waived his right to a jury

trial, and the parties proceeded to a stipulated bench trial.

The stipulated testimony consisted of the following:      (1) the

transcript of Holt's testimony from the hearing on the motion to

suppress, (2) a laboratory report regarding the items seized

following defendant's arrest, which indicated that the substance

seized weighed 19.6 grams and tested positive for methamphet-

amine, (3) Holt's testimony that in a postarrest interview,

                                - 5 -
defendant admitted that he had sold methamphetamine, and (4) an

El Paso police officer's testimony regarding the chain of custody

as to the items seized from defendant's car.       The trial court

accepted the stipulation, found defendant guilty, and sentenced

him as earlier stated.

            This appeal followed.

                             II. ANALYSIS

     A. The Search of Defendant's Car Incident to His Arrest

            Defendant first argues that the trial court erred by

denying his motion to suppress the items seized from his car.

Specifically, he contends that (1) the search incident to arrest

in this case did not possess the necessary strict spatial and

temporal limitations in relation to the arrest that allegedly

justified the search and (2) the court erred by determining that

Stehman was distinguishable.

                         1. Standard of Review

            "Review of a motion to suppress presents both questions

of law and fact."    In re Christopher K., 217 Ill. 2d 348, 373,

841 N.E.2d 945, 960 (2005).    A trial court's credibility determi-

nations and factual findings will be upheld unless they are

against the manifest weight of the evidence.       Christopher K., 217
Ill. 2d at 373, 841 N.E.2d at 960.       "However, the ultimate legal

question of whether the evidence should be suppressed is reviewed

de novo."   Christopher K., 217 Ill. 2d at 373, 841 N.E.2d at 960.

"The defendant bears the burden of proof at a hearing on a motion

to suppress."    People v. Gipson, 203 Ill. 2d 298, 306, 786 N.E.2d


                                 - 6 -
540, 545 (2003).

           2. "Temporal and Spatial Concerns" in This Case

           The record makes clear that defendant's claimed "tempo-

ral and spatial concerns" have no basis.   All of the events Holt

testified about happened during an otherwise routine traffic stop

during which defendant's car was not moved.   Further, the record

suggests that the entire interaction between defendant and Holt

lasted only a matter of minutes.    We are not sure at what point a

search that is otherwise lawful as incident to a defendant's

arrest becomes unlawful due to the passage of time, but whatever

time limit may exist, it was not close to being met under the

circumstances of this case.

      3.   The Supreme Court of Illinois Decision in Stehman

           In its thoughtful written opinion, the trial court

discussed the supreme court's decision in Stehman at length.

Because we believe that Stehman may no longer be good authority,

we provide the following analysis.

           Stehman, a 2002 opinion, is the most recent decision of

the Supreme Court of Illinois to address the search of a vehicle

incident to the driver's arrest.    The Stehman court wrote, in
pertinent part, the following:

           "In New York v. Belton, 453 U.S. 454, 460, 69

           L. Ed. 2d 768, 775, 101 S. Ct. 2860, 2864

           (1981), the Court addressed the applicability

           of [the search-incident-to-arrest] doctrine

           to searches of automobiles, holding that


                                 - 7 -
'when a policeman has made a lawful custodial

arrest of the occupant of an automobile, he

may, as a contemporaneous incident of that

arrest, search the passenger compartment of

that automobile.'

     By applying the bright-line rule that

the passenger compartment lies within the

reach of the arrested occupant, Belton sought

to avoid case-by-case evaluations of whether

the arrestee's area of control within the

automobile extended to the precise place

where the officer found the weapon or evi-

dence.   [Citation.]   Indeed, 'the Court in

Belton "remarked upon the desirability of a

rule under which police could in most in-

stances reach a correct determination before-

hand, and the undesirability of litigation in

every case over the existence of supporting

reasons."'   [Citations.]      This court [cita-

tion] adopted the bright-line rule of Belton,
and the courts of this state have consis-

tently applied this bright-line principle to

analogous situations. ***

     ***

     The issue presented in the case at bar

is whether Belton's bright-line rule extends


                       - 8 -
          to a situation where the first contact the

          defendant has with the officer occurs after

          exiting the vehicle."   Stehman, 203 Ill. 2d

          at 34-36, 783 N.E.2d at 5-6.

The supreme court ultimately held that Belton's bright-line rule

does not apply where a suspect has voluntarily exited his vehicle

and begun walking away from it before the officer initiated

contact with him.   Stehman, 203 Ill. 2d at 37, 783 N.E.2d at 7.

     4. The United States Supreme Court Decision in Thornton

          In Thornton v. United States, 541 U.S. 615, 158 L. Ed.

2d 905, 124 S. Ct. 2127 (2004), the United States Supreme Court

addressed the same issue that was raised in Stehman--namely,

whether Belton's bright-line rule extends to a situation where

the first contact a suspect has with an officer occurs after the

suspect exits his vehicle.   In Thornton, the Supreme Court

answered that question "yes," explaining as follows:

          "We *** held [in Belton] that 'when a police-

          man has made a lawful custodial arrest of the

          occupant of an automobile, he may, as a con-

          temporaneous incident of that arrest, search

          the passenger compartment of that automo-

          bile.' [Belton, 453 U.S. at 460, 69 L. Ed. 2d
          at 775, 101 S. Ct. at 2864.]

               In so holding, we placed no reliance on

          the fact that the officer in Belton ordered

          the occupants out of the vehicle, or initi-


                               - 9 -
ated contact with them while they remained

within it.   ***   There is simply no basis to

conclude that the span of the area generally

within the arrestee's immediate control is

determined by whether the arrestee exited the

vehicle at the officer's direction, or

whether the officer initiated contact with

him while he remained in the car. ***

     In all relevant aspects, the arrest of a

suspect who is next to a vehicle presents

identical concerns regarding officer safety

and the destruction of evidence as the arrest

of one who is inside the vehicle.      An officer

may search a suspect's vehicle under Belton

only if the suspect is arrested.      [Citation.]

A custodial arrest is fluid and '[t]he danger

to the police officer flows from the fact

of the arrest, and its attendant proximity,

stress, and uncertainty' [citations].      The

stress is no less merely because the arrestee

exited his car before the officer initiated

contact, nor is an arrestee less likely to

attempt to lunge for a weapon or to destroy

evidence if he is outside of, but still in

control of, the vehicle.      In either case, the

officer faces a highly volatile situation.

                     - 10 -
It would make little sense to apply two dif-

ferent rules to what is, at bottom, the same

situation.

     In some circumstances it may be safer

and more effective for officers to conceal

their presence from a suspect until he has

left his vehicle.   Certainly that is a judg-

ment officers should be free to make.   But

under the strictures of petitioner's proposed

'contact initiation' rule, officers who do so

would be unable to search the car's passenger

compartment in the event of a custodial ar-

rest, potentially compromising their safety

and placing incriminating evidence at risk of

concealment or destruction.   The Fourth

Amendment does not require such a gamble.

     ***

     *** The need for a clear rule, readily
understood by police officers and not depend-

ing on differing estimates of what items were

or were not within reach of an arrestee at

any particular moment, justifies the sort of

generalization which Belton enunciated.     Once

an officer determines that there is probable

cause to make an arrest, it is reasonable to

allow officers to ensure their safety and to


                    - 11 -
          preserve evidence by searching the entire

          passenger compartment.

                 *** So long as an arrestee is the sort

          of 'recent occupant' of a vehicle such as

          petitioner was here, officers may search that

          vehicle incident to the arrest."     (Emphasis

          in original.)   Thornton, 541 U.S. at 620-24,

          158 L. Ed. 2d at 913-15, 124 S. Ct. at 2130-

          32.

                       5. Current Illinois Law

          Given the decision of the United States Supreme Court

in Thornton, the question arises as to the current state of

Illinois law regarding the search of a suspect's vehicle incident

to his arrest.   In other words, does Stehman remain good law

after the Thornton decision?

          In People v. Dieppa, 357 Ill. App. 3d 847, 852, 830

N.E.2d 870, 874-75 (2005), the Second District Appellate Court

addressed this issue and wrote the following:

                 "Stehman predates Thornton, and, argu-
          ably, the cases conflict.     The issue, as

          framed by the Stehman court, was 'whether
          Belton's bright-line rule extends to a situa-

          tion where the first contact the defendant

          has with the officer occurs after exiting the

          vehicle.'   Stehman, 203 Ill. 2d at 36[, 783

          N.E.2d at 6].   The court found that Belton


                               - 12 -
          did not apply in such circumstances, but

          qualified its rule, noting that the occupants

          of a vehicle cannot avoid a Belton search by

          merely stepping outside a vehicle as officers

          approach but that, on the other hand, the

          police may not artificially create a situa-

          tion as a pretext for a search.   Stehman, 203

          Ill. 2d at 39, 41[, 783 N.E.2d at 9].   Thorn-

          ton flatly held that Belton governs even when

          an officer does not make contact until the

          person arrested has left the vehicle.   Argu-

          ably, then, given our supreme court's adher-

          ence to the lockstep doctrine [citation],

          Stehman is no longer good law in the wake of

          Thornton.

               However, given the details of the su-

          preme court's opinion in Stehman, it appears

          that the supreme court may very well decide

          to interpret our state constitution more

          broadly [than the United States Supreme Court

          interpreted the federal constitution in

          Thornton]."
          Since Dieppa was decided, the Supreme Court of Illinois

has addressed whether it would continue to adhere to the lockstep

doctrine, in which the supreme court interprets and applies the

search and seizure provision of article I, section 6, of the


                             - 13 -
Illinois Constitution of 1970 in lockstep with the United States

Supreme Court's interpretation and application of the search and

seizure clause of the fourth amendment to the United States

Constitution.   In People v. Caballes, 221 Ill. 2d 282, 316-17,

851 N.E.2d 26, 46 (2006), the supreme court stated its continued

adherence to that doctrine, which it referred to as the "limited

lockstep approach," explaining as follows:

                "We conclude that the search and seizure

          clause of article I, section 6, of the state

          constitution, as construed under our limited

          lockstep approach, strikes the proper balance

          between protecting the people from unreason-

          able intrusion by the state and providing the

          people with effective law enforcement.   We

          will not depart from the intent of the fram-

          ers of the Illinois Constitution of 1970 or

          the understanding of voters who adopted it--

          to the extent we are able to discern it from

          the language used, the committee comments,

          and the debate--to tip the balance in favor

          of expanding the scope of the right to be

          free from unreasonable searches and seizures

          that is already guaranteed by the fourth

          amendment.   The expansion of the protections

          guaranteed by the state constitution can be

          brought about by amending the constitution or

                              - 14 -
          by the enactment of statutes by the General

          Assembly.    Such expansion of rights, however,

          is not the function of this court."

          Based upon the supreme court's decision in Caballes, we

disagree with Dieppa that the Supreme Court of Illinois may very

well choose to interpret our state constitution more broadly

regarding the search of a suspect's vehicle incident to his

arrest than the United States Supreme Court has interpreted the

federal constitution.    For the reasons expressed by the Supreme

Court of Illinois in Caballes, we believe that our supreme court

will apply the limited lockstep doctrine, and adopt the reasoning

and holding of the United States Supreme Court in Thornton.

Accordingly, consistent with Thornton, we conclude that the trial

court did not err by denying defendant's motion to suppress the

items seized from his car incident to his arrest.

                        B. Credit Against Fines

          Defendant also argues that he is entitled to a $200

credit against his fines based upon the 40 days he spent in jail

before sentencing.    See 725 ILCS 5/110-14 (West 2002).    The State

concedes this argument, and we accept the State's concession.

Accordingly, we affirm defendant's conviction and remand with

directions to the trial court to correct the sentencing order to

give defendant credit against his fines.

                            III. CONCLUSION

          For the reasons stated, we affirm the trial court's

judgment as modified and remand with directions.

                                - 15 -
Affirmed as modified and remanded with directions.

APPLETON and MYERSCOUGH, JJ., concur.




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