NO. 5-00-0351

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)  Appeal from the

							)  Circuit Court of

     Plaintiff-Appellant,				)  Marion County.

							)  

v.							)  No. 97-CF-91

							)

STERLING A. MOORE,				)  Honorable

							)  John W. McGuire,

     Defendant-Appellee.				)  Judge, presiding.

________________________________________________________________________

	JUSTICE GOLDENHERSH delivered the opinion of the court:

	After a bench trial in the circuit court of Marion County, Sterling A. Moore

(defendant) was convicted of unlawful possession of a weapon by a felon (720 ILCS 5/24-

1.1(a) (West 1996)).  Defendant appealed his conviction.  This court reversed and remanded

for further proceedings after finding that trial counsel was ineffective for failing to file

motions to quash arrest and to suppress evidence.  People v. Moore, 307 Ill. App. 3d 107, 716 N.E.2d 851 (1999).  On remand, new counsel for defendant filed motions to quash arrest

and to suppress evidence.  After a hearing on the motions, the trial court denied the motion

to quash arrest but granted the motion to suppress evidence.  The State now appeals.  The

issue we are asked to consider is whether the trial court erred in granting defendant's motion

to suppress.  We reverse and remand.

	BACKGROUND

	On March 27, 1997, defendant was charged by information with the offense of

unlawful possession of a weapon by a felon.  Defense counsel did not file a motion to quash

arrest or a motion to suppress evidence.  A bench trial ensued, after which defendant was convicted and sentenced to, inter alia, 30 months' probation and 60 days in the county jail and ordered to pay costs and fees.  Defendant appealed his conviction, arguing that he was

denied the effective assistance of counsel due to his counsel's failure to file a motion to quash

arrest and a motion to suppress.  As previously stated, this court agreed and remanded the

case for further proceedings.   

	Upon the remand, new counsel was appointed to represent defendant.  Defense

counsel filed a motion to quash arrest and a motion to suppress evidence.  Specifically,

defense counsel moved to suppress a gun found during the search of defendant's car after his

arrest and statements defendant made to the police after his arrest.  On March 1, 2000, a

hearing was held on defendant's motions.  Both parties stipulated to the testimony presented

at the first bench trial conducted in September 1997.  Those facts were set forth in Moore.  We borrow liberally from the "FACTS" portion of that opinion (Moore, 307 Ill. App. 3d at 109-10, 716 N.E.2d at 853) in setting forth the evidence adduced at the first trial.    

	On March 22, 1997, Officer Alan Rose, a patrol officer for the City of Centralia, was

looking for Mark McClain, a suspect who had allegedly committed a battery "somewhat

earlier."  Rose learned that McClain might be staying at 402 North Maple Street, so he went

to that location.  Upon his arrival, Rose observed defendant in a vehicle leaving the driveway

of the apartment building at that location.  Because he thought McClain might be in the

vehicle, Rose pulled his marked car in front of the driveway to prevent the vehicle from

leaving.  However, defendant turned out to be the only person inside the car.  Rose admitted

that defendant had to stop when Rose blocked the driveway with his patrol car.

	Rose, who was wearing his uniform, got out of his car and gestured to defendant to

back up his car so Rose could pull into the driveway.  Instead of backing up his vehicle,

defendant looked at Rose for a couple of minutes, got out of the car, and ran.  Rose chased

defendant.  Rose believed he saw defendant pull a gun from his right rear pocket and throw it away during the chase.  Because of previous encounters Rose recognized defendant as soon

as defendant exited the car.  Rose knew that defendant was not McClain.  Rose was aware

that defendant was a convicted felon, but Rose did not have any arrest warrants for defendant

on the day in question.

	Officer James Ramsey, another Centralia police officer, assisted Rose at 402 North

Maple.  Rose started chasing defendant at the southwest corner of the building.  Ramsey was

at the northeast corner.  Rose radioed Ramsey that he thought defendant was armed with a

weapon.  Accordingly, when defendant ran toward Ramsey, Ramsey drew his gun and told

defendant to stop.  Defendant complied.  Defendant put his hands in the air and dropped to

the ground.  Ramsey and Rose then arrested and handcuffed defendant approximately 150

feet from defendant's car.  The police did not recover any weapons outside of defendant's

vehicle.

	After defendant was arrested, Ramsey and Rose went back and looked through the

windows into defendant's vehicle.  Both saw a green, zippered gun case in plain view

between the driver's seat and the console.  Ramsey retrieved the case and found a .38-caliber

revolver, a speed loader, and six live rounds of ammunition inside.  Ramsey gave the gun to

Rose.  

	The police took defendant to the police department and gave him his Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)).  Rose asked defendant about the other weapon that Rose thought he saw defendant throw during

the chase.  Defendant denied that he had a weapon while he was running.  Rose then stopped

the interview but reinitiated the interview a short time later.  Defendant explained to Rose

that he ran from the car because he reached down and felt the gun and feared that Rose would

think it was his.  

	Defendant testified that over a police scanner he heard police officers being dispatched to 402 North Maple and that he drove to that location to alert his nephew that

police were on their way.  As defendant was exiting the driveway, a police car pulled in front

of his vehicle.  Defendant recognized Officer Rose because Rose had previously arrested him

and questioned him.  When defendant hit the brakes, a gun slid out from under his seat. 

Defendant got out of the car and ran because he feared that the police would think the gun

was his.  Defendant knew that Rose knew that he was a convicted felon who had only

recently been released from prison.  Defendant claimed that the gun case was on the floor

near the pedals rather than between the seat and the console.  Defendant admitted he knew

that the case was a gun case.

	Defendant's wife testified that the gun was hers.  She bought it for protection and

placed it under her front seat.  She testified that she did not tell defendant the gun was in the

car and that defendant was unaware that it was there.  However, on cross-examination, she

admitted that she did not know how to load the gun. 

	Defendant presented no additional evidence at the hearing on his motions to quash

arrest and to suppress evidence.  The State presented additional testimony by Rose and

Ramsey.  The State explained its reason for the officers' additional testimony: "[It is in order]

to clarify some things that we were not allowed to bring out at trial because they were

basically irrelevant as to the issue of guilt [but] are important as to probable cause for our

reasonable suspicion."   

	Officer Rose testified that when he arrived at 402 North Maple, defendant was

blocking the area where Rose wanted to park.  Defendant refused to move the vehicle. 

Defendant jumped out of the vehicle and started running.  At that point, Rose recognized

defendant and started chasing him.  Rose had previous encounters with defendant and knew

him to be a convicted felon.  He obtained weapons from defendant in at least one previous

stop.  During the chase, defendant put his hand in his right rear pocket and pulled out what appeared to be a handgun and tossed it.  According to Rose, "there were quite a few people

around in that back yard and in the front yard area" where defendant tossed the object.  Rose

could not say what someone might have done with the object, because he was too busy

securing defendant to know what happened to the object.  However, Rose testified that it was

possible that someone had taken the object that he thought was a gun, without him witnessing

it.

	After defendant was handcuffed, Rose and Ramsey both looked into defendant's car. 

Rose testified that he glanced in the vehicle and immediately noticed a gun case, "[p]robably

to the right of where his right leg would be if he was driving the car, between there and the

console."  Officer Ramsey then searched the car and found the gun and the ammunition.  The

events occurred between 3 p.m. and 4 p.m.

	Officer Ramsey testified that Officer Rose advised him via radio transmission that

defendant was armed, in that defendant was pulling a weapon out of his pocket while

defendant was being chased.  Officer Ramsey also knew defendant from previous encounters. 

Ramsey had never actually encountered defendant while defendant was armed, but he had

heard from detectives that defendant carried weapons.  Almost immediately after hearing the

radio transmission, Ramsey saw defendant come around the corner of the building and throw

some type of chrome object out into a field.  Ramsey already had his weapon drawn, and he

ordered defendant to stop and go to the ground.  Ramsey said he did not pay a lot of attention

to the object thrown by defendant because he was concentrating his attention on defendant. 

Ramsey said that the object was silver and landed approximately 20 to 25 feet away from

defendant.  Ramsey said that there were people all over the yard where the incident occurred

and that it would have been physically possible for one of the spectators to pick up the item

thrown by defendant. 

	After securing defendant, Ramsey approached defendant's vehicle with Rose. Officer Ramsey observed a green, zippered handgun case between the console and the driver's seat. 

He stated that the weapon that was found within the case was within reach of where

defendant had been sitting.  Officer Ramsey testified that he had been to 402 North Maple

on several previous occasions with search warrants for narcotics.  At that address is an

apartment building.  It contains three separate apartments.     

	After hearing all the evidence, the trial court denied defendant's motion to quash

arrest, finding that when they placed him under arrest, the police officers had sufficient

information to believe that defendant had committed a crime.  As to defendant's motion to

suppress evidence, the trial court found that the automobile exception to the warrant rule did

not apply because the car was parked on private property and a police car was blocking its

path.  The trial court also found that the plain view exception did not apply, and the court

granted defendant's motion to suppress.  On March 13, 2000, the State filed a motion to

reconsider, which the trial court denied on May 5, 2000.  The State then filed this

interlocutory appeal pursuant to Supreme Court Rule 604(a) (188 Ill. 2d R. 604(a)).

	ISSUE

	The issue we are asked to consider is whether the trial court erred in granting

defendant's motion to suppress evidence.  The State argues that two justifications exist to

support a search of the gun case:  (1) the gun and related items were properly seized under

the automobile exception to the warrant requirement and/or (2) the gun and related items are

admissible under the plain view doctrine.  The State also contends that defendant's statements

to the police were admissible.  After careful consideration, we agree with the State that the

plain view doctrine applied to authorize the seizure of the gun case, the gun, and the

ammunition and that defendant's statements to the police were likewise improperly

suppressed.  Because of our determination that the plain view doctrine applies, we need not

consider whether the search was permissible under the automobile exception to the warrant requirement.

	On a motion to suppress evidence, the defendant has the burden of establishing that

the search and seizure were unreasonable.  725 ILCS 5/114-12(b) (West 1998).  Generally,

a ruling on a motion to quash arrest or a motion to suppress evidence will be disturbed only

if the decision is manifestly erroneous.  People v. Mourecek, 208 Ill. App. 3d 87, 91, 566 N.E.2d 841, 844 (1991).  However, the issue is subject to de novo review if neither the facts nor the credibility of the witnesses is questioned.  Mourecek, 208 Ill. App. 3d at 91, 566 N.E.2d at 844.  While there was little disagreement concerning the sequence of events

leading to defendant's arrest and the seizure of evidence, defendant testified that the gun was

on the floor of the car rather than between the console and the seat.  Moreover, the credibility

of the witnesses, particularly defendant and his wife, was an issue.  Therefore, we review this

issue under the manifest-weight-of-the-evidence standard.   

	The United States Constitution's fourth amendment protects citizens against

unreasonable searches and seizures.  U.S. Const., amend. IV.  This case involves an

application of the plain view exception, first addressed in the plurality in Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971).  Generally, evidence seen in a police officer's plain view may be seized without violating the fourth amendment. 

People v. Garcia, 296 Ill. App. 3d 769, 776, 695 N.E.2d 1292, 1297 (1998).  The plain view doctrine authorizes the warrantless seizure of an item when the following three requirements

are met:  "(1) the officer must be lawfully present in the location from which he can plainly

see the evidence; (2) it must be immediately apparent that the object in plain view is

evidence; and (3) the officer must have a lawful right of access to the object."  Garcia, 296 Ill. App. 3d at 776, 695 N.E.2d at 1297 (citing People v. Pierini, 278 Ill. App. 3d 974, 977, 664 N.E.2d 140, 143 (1996)).    

	In Texas v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1983), the United States Supreme Court rejected a fourth amendment challenge to a police officer's plain view

seizure of "an opaque, green party balloon, knotted about one half inch from the tip," that fell

from the defendant's hand to the seat beside him in the vehicle in which he was traveling.  Brown, 460 U.S. at 733, 75 L. Ed. 2d at 508, 103 S. Ct. at 1539 (opinion of Rehnquist, J., joined by Burger, C.J., and White and O'Connor, JJ.).  The seizing officer, Maples, testified

that because of his previous experience in arrests for drug use, he was aware that narcotics

are frequently packaged in balloons like the one the defendant held in his hand.  Brown, 460 U.S. at 734, 75 L. Ed. 2d at 508, 103 S. Ct. at 1539.  Justice Powell, in a concurring opinion,

emphasized the uniqueness of the container, noting:  "We are not advised of any innocent

item that is commonly carried in uninflated, tied-off balloons such as the one Officer Maples

seized."  Brown, 460 U.S. at 746, 75 L. Ed. 2d at 517, 103 S. Ct. at 1546 (Powell, J., concurring, joined by Blackmun, J.).

	The plurality in Brown concluded, "[I]t must be 'immediately apparent' to the police that the items they observe may be evidence of a crime ***."  Brown, 460 U.S. at 737, 75 L. Ed. 2d at 510, 103 S. Ct. at 1540-41 (opinion of Rehnquist, J., joined by Burger, C.J., and

White and O'Connor, JJ.).  The plurality reiterated that probable cause involves a flexible,

common sense standard:

	" 'The process does not deal with hard certainties, but with probabilities.  Long before

the law of probabilities was articulated as such, practical people formulated certain

common-sense conclusions about human behavior; jurors as factfinders are permitted

to do the same–and so are law enforcement officers.  Finally, the evidence thus

collected must be seen and weighed not in terms of library analysis by scholars, but

as understood by those versed in the field of law enforcement.' "  Brown, 460 U.S. at 742, 75 L. Ed. 2d at 51402, 103 S. Ct. at 1543 (quoting United States v. Cortez, 449 U.S. 411, 418, 66 L. Ed. 2d 621, 629, 101 S. Ct. 690, 695 (1981)).

	With these considerations in mind, it is clear that, in the instant case, the police

officers possessed the requisite probable cause to seize and open the gun case.  Officer Rose

knew defendant from previous encounters and had seized weapons from defendant during

at least one previous stop.  He was also aware that defendant was a convicted felon.  Rose

testified that defendant fled from his vehicle, and during the ensuing chase, Rose saw

defendant pull a handgun from his right rear pocket and toss it aside.

	Officer Ramsey likewise had experienced previous encounters with defendant. 

During Ramsey's other encounters with defendant, defendant was not armed; however,

Ramsey was cognizant that defendant was known to carry weapons.  Police detectives had

told Ramsey as much.  On the date in question, Officer Ramsey received a radio dispatch

from Officer Rose that defendant was armed.  As defendant rounded the corner of the

building, Ramsey observed defendant toss a chrome object from his hand.

	After defendant was secured, both Rose and Ramsey went to defendant's vehicle,

which was parked approximately 150 feet away from where defendant was apprehended. 

Both glanced in the car and saw a green, zippered gun case in plain view between the driver's

seat and the console.  Defendant testified that the gun was on the floor of the car in front of

the gas pedal.  We point out that the gun would have also been visible through the window

if it had been on the floor.  It was between 3 p.m. and 4 p.m., leaving plenty of daylight to

see the contents of the vehicle. 

	Probable cause was both immediate and apparent.  When the officers observed a gun

case in plain view in a car driven by a convicted felon, there was certainly evidence that a

crime may have been committed.  A gun case by its very nature cannot support any

reasonable expectation of privacy because its content can be inferred from its outward

appearance.  Arkansas v. Sanders, 442 U.S. 753, 7654 n.13, 61 L. Ed. 2d 235, 245 n.13, 99 S. Ct. 2586, 2593 n.13 (1979).  Even defendant admitted that the green case was a gun case.  Probable cause was even more obvious here, given the police officers' knowledge of

defendant's propensity to carry weapons and their reasonable belief that defendant was

carrying a weapon only moments earlier.  Accordingly, we find that the fourth amendment

was not violated.  The trial court erred in finding that the plain view exception did not apply

in the instant case.

	Defendant asserts that even if we determine that the fourth amendment was not

violated, the suppression of the evidence should be upheld pursuant to article I, section 6, of

the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §6).  While it is true that our State

constitution may be interpreted to give our citizens greater degrees of constitutional

protection than the federal constitution (People v. McCauley, 163 Ill. 2d 414, 426, 645 N.E.2d 923, 930 (1994)), the Illinois Supreme Court has determined that State search and

seizure protections are no greater than those offered by the federal constitution, at least in the

context of a warrantless arrest.  People v. Tisler, 103 Ill. 2d 226, 469 N.E.2d 147 (1984).  While the instant case concerns a warrantless search in plain view, we believe that the same

analysis is appropriate.  Like the Tisler court, we reject defendant's contention that State protection in this particular context was intended to be any more extensive than the protection

provided at the federal level.  We note, however, that we are not blindly following the

dictates of the United States Supreme Court in this matter.  See Tisler, 103 Ill. 2d at 264, 469 N.E.2d at 166 (Goldenhersh, J., dissenting).  Our determination rests squarely on the facts

in this case.  A review of those facts makes it clear that the police officers acted lawfully, no

matter what constitutional protections defendant may be afforded. 

	By all accounts, the gun was in plain view.  After securing defendant, the officers

were certainly entitled to look into defendant's car through the windows.  After viewing the

green, zippered gun case in plain view, they had probable cause to seize the gun case and its

contents.  Had the officers not seized the gun case and its contents, they would have been derelict in their law enforcement duties.  Because the seizure of the gun case and its contents,

including the gun, wasere lawful and because defendant's arrest was lawful, defendant's later

statements referring to the gun are admissible.  We, therefore, reverse the trial court's order

suppressing evidence of the gun case and gun found after defendant's arrest and the

incriminating statements made by defendant after his arrest.     

	For the foregoing reasons, the order of the circuit court of Marion County granting

defendant's motion to suppress is hereby reversed, and the cause is remanded for further

proceedings consistent with this opinion. 

	Reversed; cause remanded.

	MAAG, P.J., and HOPKINS, J., concur.

	NO. 5-00-0351

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)  Appeal from the

							)  Circuit Court of

     Plaintiff-Appellant,				)  Marion County.

							)  

v.							)  No. 97-CF-91

							)

STERLING A. MOORE,				)  Honorable

							)  John W. McGuire,

     Defendant-Appellee.				)  Judge, presiding.

___________________________________________________________________________________

Opinion Filed:	April 12, 2002

___________________________________________________________________________________

Justices:	Honorable Richard P. Goldenhersh, J.

	Honorable Gordon E. Maag, P.J., and

	Honorable Terrence J. Hopkins, J.,

	Concur

___________________________________________________________________________________

Attorneys	Hon. James W. Creason, State's Attorney, Marion County Courthouse, P.O. Box

for	130, Salem, IL 62881; Norbert J. Goetten, Director, Stephen E. Norris, Deputy

Appellant	Director, Sharon Shanahan, Contract Attorney, Office of the State's Attorneys

	Appellate Prosecutor, Route 15 East, P.O. Box 2249, Mt. Vernon, IL 62864

___________________________________________________________________________________

Attorneys	Daniel M. Kirwan, Deputy Defender, Dan W. Evers, Assistant Defender, Office of

for	the State Appellate Defender, Fifth Judicial District, Route 15 East, P.O. Box 2430,

Appellee	Mt. Vernon, IL 62864-0047

___________________________________________________________________________________