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People v. Allibalogun, No. 4-99-0675

4th District, 28 March 2000

PRESIDING JUSTICE COOK delivered the opinion of the court:

In May 1999, the State charged defendant, Ola Allibalogun, with unlawful possession of cannabis and unlawful possession with intent to deliver a substance containing cannabis. 720 ILCS 550/4(b), 5(b) (West 1998). In July 1999, defendant filed a motion to suppress evidence and dismiss the complaint. The trial court granted that motion, and the State filed an interlocutory appeal. We reverse and remand.

Defendant's motion asked the court to suppress the cannabis taken from his car and statements that he made to the police concerning the cannabis. Defendant alleged that he was taken into custody, based on a civil writ for a rule to show cause with body attachment, after a traffic stop for speeding. Defendant argued that the police officers had no legally justifiable grounds to search his car, even assuming he was properly "arrested" under the Code of Criminal Procedure of 1963 (725 ILCS 5/100-1 et seq. (West 1998)).

In August 1999, the trial court heard defendant's motion. Defendant testified that he was stopped by Urbana police officers who told him that he had been speeding. One officer asked to see defendant's driver's license, but defendant did not present it to the officer. After obtaining some information from defendant, the officer returned to his squad car to check defendant's driving record. When the officer returned to defendant's car, he informed defendant that there was a civil warrant, a body attachment, for defendant's arrest. The body attachment, dated December 30, 1998, and signed by the clerk of the court, commanded any peace officer to take and keep defendant, so that he might appear to show cause why he should not be held in contempt for failing to appear in a civil case, Manzella v. Allibalogun, Champaign County case No. 97-SC-02780. The officer then took defendant into custody. During this exchange between defendant and the officers, the officers never told defendant that he was being arrested for speeding, driving without a license, or any other criminal offense.

Defendant testified that the officers then searched his car while he sat handcuffed in the squad car. The officers did not ask for defendant's consent, defendant did not give consent, and the officers did not present a search warrant. During this search, the officers found bags of marijuana in the back pouch of the passenger seat. The State did not present evidence.

Defense counsel argued that (1) defendant was not arrested for a criminal matter, the criminal code did not apply, and the search was not justified; (2) no evidence existed that the officers feared defendant would attack them or the search was necessary to prevent defendant's escape; (3) the only possible crimes in connection with the traffic stop were speeding and driving without a license, and no fruits of these crimes existed in the vehicle; (4) the police officers had no probable cause to search defendant's car because, in defense counsel's words, "the arrest for a minor traffic violation or every valid arrest does not permit a search" (People v. Watkins, 19 Ill. 2d 11, 17-20, 166 N.E.2d 433, 436-37 (1960)); and (5) because defendant was arrested on a civil warrant, the officers should not be allowed to search defendant's car incident to that arrest.

The trial court rejected defendant's argument that it mattered whether the arrest warrant was civil or criminal and made reference to various legal changes since Watkins. The trial court, however, found that the officers did not conduct an inventory search, nor did they have defendant's consent to search his car. Therefore, the trial court stated:

"[T]he other times that officers can search a vehicle would be if there is probable cause to search that vehicle for some reason or the officers *** testified that they had a belief that there was a weapon in [the vehicle], that the defendant could have access to ***. There is no testimony to show that there was any fear by the officers."

The trial court also noted that the State did not provide "any case law showing that[,] on a valid arrest warrant, officers can search a vehicle where the defendant is stopped." The trial court then allowed the motion to suppress.

In August 1999, the State filed a notice of interlocutory appeal, certifying that the trial court's suppression order substantially impaired its ability to prosecute the case.

Defendant argues that this court must not substitute its judgment for that of the trial court unless it finds the trial court's ruling is manifestly erroneous. People v. Kozlowski, 278 Ill. App. 3d 40, 45, 662 N.E.2d 630, 633 (1996). This court generally applies the manifestly erroneous standard where the trial court's ruling on a motion to suppress involves determinations of facts and an assessment of witness credibility. People v. Wright, 183 Ill. 2d 16, 21, 697 N.E.2d 693, 695 (1998); People v. Gray, 305 Ill. App. 3d 835, 837-38, 713 N.E.2d 781, 782 (1999) (inquiry whether only one conclusion can be drawn from undisputed facts). This case, however, requires this court to determine a question of law. Therefore, this court will conduct a de novo review. People v. Krueger, 175 Ill. 2d 60, 64, 675 N.E.2d 604, 607 (1996).

The issue presented for review by this court is whether police may search a person's vehicle incident to that person's arrest on a civil warrant. We hold that the police may conduct such a search.

Normally, when an accused person or a subpoenaed witness fails to appear in court, the judge will issue a bench warrant ordering that person arrested and brought before the court. Such warrants are clearly valid and based on probable cause. United States v. Evans, 574 F.2d 352, 355 (6th Cir. 1978) (judge did not issue a bench warrant; he issued an arrest warrant based on the underlying traffic ticket without determining whether probable cause existed to believe that the underlying offense had been committed). A bench warrant constitutes a finding made by a neutral magistrate that the defendant has failed to appear. True, a bench warrant does not amount to a judicial finding of probable cause to arrest in the traditional sense, i.e., that a crime had been committed and that defendant had committed it. United States v. Spencer, 684 F.2d 220, 223 (2d Cir. 1982). "Nonetheless, the police, armed with the warrant, had authority to find and seize [defendant] anywhere they could find him for his failure to appear in court." Spencer, 684 F.2d at 223. When the presence of the police in defendant's room is pursuant to a direction made by a neutral magistrate, defendant's rights under the fourth amendment (U.S. Const., amend. IV) have been satisfied. Spencer, 684 F.2d at 223. The nature of the offense supporting the arrest does not affect the validity of a search of defendant's vehicle incident to that arrest. The fact that the body attachment was signed by the clerk, under the supervision of the judge, is not a problem. See Shadwick v. City of Tampa, 407 U.S. 345, 32 L. Ed. 2d 783, 92 S. Ct. 2119 (1972) (clerk of court neutral and detached and capable of determining whether probable cause exists).

Defendant argues that even if he was lawfully taken into custody, nothing justified a search of his car, other than perhaps for impoundment, which the trial court found did not occur. The rationale underlying a search incident to arrest is the need to prevent the arrestee from obtaining a weapon or destroying evidence. Chimel v. California, 395 U.S. 752, 762-63, 23 L. Ed. 2d 685, 694, 89 S. Ct. 2034, 2040 (1969). When a defendant is arrested on a bench warrant, there may be no need to prevent him from destroying evidence. An officer taking an individual into custody on a bench warrant, however, does have a legitimate interest in determining whether the individual has a weapon. Certainly, an officer in that situation would have the right to search the arrestee's person. The traditional rule, stated in Chimel, was that a search incident to arrest could extend only to the arrestee's person and the area within his immediate control. Chimel, 395 U.S. at 763, 23 L. Ed. 2d at 694, 89 S. Ct. at 2040. In 1981, however, the United States Supreme Court determined that a bright-line rule was necessary and came up with the following: "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," inclusive of "the contents of any containers found within the passenger compartment." New York v. Belton, 453 U.S. 454, 460, 69 L. Ed. 2d 768, 775, 101 S. Ct. 2860, 2864 (1981). A search of a vehicle under Belton is permissible even after the defendant has been removed from the car, handcuffed, and placed in a squad car, and even if he is in the custody of several officers. Belton has been criticized as "an invitation to subterfuge" (2 W. LaFave, J. Israel, & N. King, Criminal Procedure