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People v. Nadermann, No. 2-99-0096

2nd District, 21 January 2000

JUSTICE RAPP delivered the opinion of the court:

Defendant, Gerald M. Nadermann, was charged with unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1998)) and unlawful possession of cannabis (720 ILCS 550/4(c) (West 1998)). Defendant filed a motion to suppress the evidence against him, and the trial court granted the motion. The State filed a certificate of impairment and appealed under Supreme Court Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1)). The State argues that the trial court erred in granting defendant's motion to suppress because the police officers had probable cause to search the van defendant was driving. We affirm.

I. FACTS

Evidence presented at the suppression hearing revealed the following. On August 23, 1998, defendant, who was over 21 years old, was driving a van in East Dubuque, Illinois. The van was owned by defendant's friend, Danny Birch. Another of defendant's friends, Gabino Casarrubias, who was also over 21 years old, was a passenger in the van. Around 2 a.m. on August 23, 1998, Officer Bradley Finn pulled the van over because it had neither license plates with a valid registration sticker nor a temporary registration tag. Finn asked defendant for his driver's license and told defendant that he pulled the van over because it appeared that there was no registration for the van. Defendant told Finn that there was no proof of registration because the van was just purchased the previous week. Defendant gave Finn the bill of sale for the van. Officer Steven O'Connell, who arrived at the scene sometime after Finn, testified that defendant said that the proof of registration was in the glove compartment. At that point, Finn asked defendant to exit the van, and O'Connell went to the passenger side of the van to look in the glove compartment for the vehicle registration.

While O'Connell was looking for the registration, he was also talking with Casarrubias, who was sitting in the front passenger seat. O'Connell stated that Casarrubias spoke with a Spanish accent and appeared very intoxicated. Specifically, O'Connell stated that Casarrubias smelled of alcohol, had bloodshot and watery eyes, and had slurred speech. Casarrubias denied ever speaking with O'Connell.

While O'Connell was talking with Casarrubias, Finn performed a pat down search on defendant. Finn asked defendant if he had, among other things, any guns, drugs, or ammunition in the van. Defendant told Finn that he did not. Finn also asked defendant repeatedly for consent to search the van. Defendant refused consent.

O'Connell walked back to where Finn and defendant were standing and told Finn that he failed to find any proof of registration in the van. O'Connell stated that he observed Finn asking defendant for consent to search the van. O'Connell also stated that the more Finn spoke with defendant, the more nervous defendant appeared to get.

O'Connell then walked back to the van, walked around the vehicle, and, with the aid of a flashlight, looked inside the van's windows. While doing this, O'Connell observed a cardboard package of beer behind the driver's seat. The package had been torn open. O'Connell walked back to Finn and informed him that, "there was open--not container, open cardboard wrap from the alcohol container."

Defendant testified that he had not been drinking on the night in question. He further testified that Casarrubias was not drinking in the van. Defendant denied awareness of any open alcohol in the van. Defendant also told the trial court that Casarrubias was not drinking before defendant and Casarrubias got into the van, but Casarrubias stated that he had two beers before he got into the van. Further, both defendant and Casarrubias testified that Casarrubias may have appeared tired from working all day pulling up flooring.

Even though defendant and Casarrubias testified that they had not been drinking that night, there were 12 cans of beer in the van. The 12 cans of beer had been placed in a cardboard package that was intended to hold between 16 to 18 cans of beer. Casarrubias had recently purchased the beer from a bar in Dubuque, and the bartender had placed the 12 cans in the larger cardboard package. Casarrubias testified that none of the 12 cans of beer had been opened.

Defendant further testified that Finn placed him in the squad car, and then Finn walked to the passenger's side of the van and spoke with Casarrubias. Finn stated, as O'Connell did, that Casarrubias spoke with a Spanish accent, smelled strongly of alcohol, slurred his speech, and had watery and bloodshot eyes. Casarrubias denied ever speaking with Finn. Finn then searched the van while O'Connell stood by the driver's side with a flashlight. A search warrant was never executed before the van was searched.

As Finn was exiting the van on the driver's side after completing his search, he noticed a plastic baggy in plain view. The baggy contained a green leafy substance that the officers believed was cannabis and a tannish powdery substance. The baggy was found partially stuck under the plastic shroud covering the engine. This plastic shroud was located between the driver's seat and the front passenger's seat. Both officers testified that no open cans of beer were found. Based on the evidence, defendant was charged with possession of a controlled substance and possession of cannabis. Defendant was never charged with an open container violation or any other traffic offense.

After completion of the testimony, the trial court granted defendant's motion to suppress the evidence. The trial court found that the officers did not have probable cause to search the van because no open cans of beer were observed. Without probable cause, the officers did not have a right to be in the van, and, thus, the drugs found in plain view could not be legally seized. This timely appeal followed.

On appeal, the State argues that the torn-open cardboard package of beer found behind the driver's seat with some of the cans missing coupled with the fact that Casarrubias appeared intoxicated provided probable cause for the officers to search the van. Defendant argues that the officers searched the van merely because they had a hunch that they would find contraband.

II. DISCUSSION

Both the United States and Illinois Constitutions protect every person from unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I,