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Docket No. 93422-Agenda 4-November 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 
CURTIS GIPSON, Appellee.

Opinion filed February 21, 2003.

JUSTICE THOMAS delivered the opinion of the court:

At issue are two questions concerning inventory searches: (1)whether a police officer's unrebutted testimony about police policyon inventory searches can be sufficient evidence of such a policyif the State does not introduce a written policy into evidence; and(2) whether a policy requiring the police to inventory items ofvalue is sufficient to allow the opening of closed containers if thepolicy does not specifically mention closed containers.

BACKGROUND

The State charged defendant in the circuit court of CookCounty with one count of possession of a controlled substance(cocaine) with the intent to deliver (720 ILCS 570/401(a)(2)(A)(West 1996)). Defendant moved to quash his arrest and tosuppress the evidence that was found during a search of his car.

At the hearing on the motion to suppress, defendant testifiedas follows. At 12:25 a.m. on January 8, 1998, defendant wasdriving home from work. When defendant reached the intersectionof Jackson and Homan in Chicago, a police car began to followhim. The police car followed him for several minutes. The policecar's lights went on when defendant crossed Kedzie, anddefendant pulled over. The police officer approached defendant'scar and told defendant that he was driving on a revoked license.Defendant gave the officer his identification and proof ofinsurance, following which the officer put defendant into the backseat of his squad car and locked it. The officer put someinformation into his computer and told defendant that if he did nothave any outstanding warrants, he was free to go.

According to defendant, the officer never told him that he wasunder arrest. The officer then got out of the squad car and lookedunder the hood of defendant's car. He searched the passengercompartment of the car and then came back to the squad car. Theofficer started typing on his computer again and then went back todefendant's car, took the keys out of the ignition, and opened thetrunk. Defendant testified that he had a yellow plastic Ameritechbag tied closed in the trunk. Inside of the Ameritech bag was ablack plastic bag, containing rocks of cocaine, that was also tiedclosed. According to defendant, he never gave the officerpermission to search his car, and the officer never told him that thecar would be towed or that the officer was conducting an inventorysearch. The officer never told defendant he was under arrest beforehe searched the car.

The State presented the testimony of Sergeant David Byrd ofthe Illinois State Police. Byrd testified that he initially beganfollowing defendant's car because it had a cracked windshield. A"registration response" on defendant's license plate revealed thatthe owner's name was Curtis Gipson and that Gipson's driver'slicense had been revoked. Byrd pulled over defendant andinformed him that the reason for the stop was that the car had adefective windshield and that the car's owner had a revokedlicense. When defendant confirmed that he was Curtis Gipson,Byrd placed defendant in the back of his squad car.

Once defendant was in the car, Byrd called a tow truck andconducted an inventory search of defendant's vehicle. Byrdexplained that the State Police policy is to tow the vehicle whensomeone is arrested for driving on a revoked license. When avehicle is towed following an arrest, the police policy is that a towinventory search should be conducted. When asked to explain thepolice policy on tow inventory searches, Byrd responded:

"We are required to check the passenger compartment,and trunk area for any valuables, or just for our own-wedon't want anything to leave us that might be of valuewithout checking it first and putting it down on the towsheet."

When Byrd opened the trunk, he found a yellow Ameritechbag. He opened the bag and noticed two smaller bags inside. Heopened these and observed what appeared to be crack cocaine.Byrd testified that he never told defendant that he would be free togo at some point. Rather, defendant was arrested and taken intocustody. Byrd gave defendant a ticket for having a crackedwindshield and driving on a revoked license.

Following arguments by the attorneys, the trial judge recalledSergeant Byrd to the stand. The following colloquy ensued:

"THE COURT: You are still under oath, sergeant.

Is there a printed procedure regarding towing by theIllinois State police?

THE WITNESS: Yes, there is, your Honor. It's in ourpolicy manual.

THE COURT: It's in the policy manual?

THE WITNESS: Right, and we teach it to all our cadetswhen they come out on the road.

THE COURT: Is it a manual that you might havehandy?

THE WITNESS: No, it's a-

THE COURT: Big?

THE WITNESS: Six hundred pages.

THE COURT: But it is printed in the police procedure?

THE WITNESS: It is printed, tow searches and vehiclesbeing towed and if I may, the reason we do that is becauseeven if somebody is revoked and if they just said, okay,okay, you are going to write the ticket-

MR. DRAPER [defendant's attorney]: Objection,judge.

THE COURT: Okay, all right."

Following further arguments from counsel, the trial courtdecided to reserve ruling on the motion until the parties submittedfurther case law. Two months later, the court granted defendant'smotion to suppress. The trial judge stated that the police had noright to tow the car and that State Police policy could notsupercede the law. The State filed a motion to reconsider in whichit pointed out that the court had erroneously relied on cases thatdid not involve inventory searches. At the hearing on the motion,the State argued that a lawful inventory search pursuant to StatePolice policy had occurred. The trial judge responded that he wasnot sure what the State Police policy was because he had neverseen it and the officer might have just given his own interpretation.The trial judge then stated that the police could not use a minortraffic ticket to create a basis for a search and that defendant hadonly been stopped for "a little, minor thing like a crackedwindshield." The court questioned why the police had to tow thecar. The State responded that defendant had been arrested fordriving on a revoked license and that a proper tow inventorysearch had occurred. The court denied the motion to reconsider.

The State appealed, and the Appellate Court, First District,issued an unpublished order reversing the trial court. The appellatecourt held that the type of tow and impoundment carried out herewere authorized by statute. The court then held that Officer Byrd'suncontradicted and unimpeached testimony provided sufficientevidence of the State Police policy on tow inventory searches andthat the State was not required to admit the written policy intoevidence. Defendant filed a petition for rehearing, which the courtgranted. The appellate court issued a second unpublished order,this time affirming the trial court. No. 1-99-1811 (unpublishedorder under Supreme Court Rule 23). The court continued to holdthat the tow and impoundment were lawful. This time, however,the court agreed with the trial court that Sergeant Byrd's testimonywas insufficient and that the State should have introduced theactual written State Police policy. Further, the court noted thatByrd's testimony was also deficient in that he never stated thatthere was a specific police policy authorizing him to open closedcontainers during inventory searches. We granted the State'spetition for leave to appeal.

ANALYSIS

On review of a trial court's ruling on a motion to suppress, weaccord great deference to the trial court's factual findings, and wewill reverse those findings only if they are against the manifestweight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431(2001). However, we review de novo the ultimate legal questionof whether suppression is warranted. Sorenson, 196 Ill. 2d at 431.

The State first argues that the appellate court erred in holdingthat Officer Byrd's testimony was insufficient to establish theState Police policy on inventory searches and that there is noconstitutional requirement that the State produce the actual writtenpolicy. We agree with the State.

An inventory search of a lawfully impounded vehicle is ajudicially created exception to the warrant requirement of thefourth amendment. People v. Hundley, 156 Ill. 2d 135, 138 (1993).In South Dakota v. Opperman, 428 U.S. 364, 369, 49 L. Ed. 2d1000, 1005, 96 S. Ct. 3092, 3097 (1976), the Supreme Courtidentified three objectives that are served by allowing inventorysearches: (1) protection of the owner's property; (2) protection ofthe police against claims of lost or stolen property; and (3)protection of the police from potential danger.

In conducting such a search, the police must be actingpursuant to standard police procedures. Colorado v. Bertine, 479U.S. 367, 372-74, 93 L. Ed. 2d 739, 746-47, 107 S. Ct. 738, 741-42 (1987). " ' "[A] single familiar standard is essential to guidepolice officers, who have only limited time and expertise to reflecton and balance the social and individual interests involved in thespecific circumstances they confront." ' " Illinois v. Lafayette, 462U.S. 640, 648, 77 L. Ed. 2d 65, 72, 103 S. Ct. 2605, 2610-11(1983), quoting New York v. Belton, 453 U.S. 454, 458, 69 L. Ed.2d 768, 774, 101 S. Ct. 2860, 2863 (1981), quoting Dunaway v.New York, 442 U.S. 200, 213-14, 60 L. Ed. 2d 824, 836, 99 S. Ct.2248, 2257 (1979). However, as Professor LaFave has noted, thecourts have generally not read Bertine as requiring that theseprocedures be in writing. 3 W. LaFave, Search & Seizure