People v. Trejo, No. 2-98-1537

2nd District, 1 March 2000

JUSTICE GEIGER delivered the opinion of the court:

The State appeals the circuit court's order that granted the motion of the defendant, Enrique Trejo, to suppress evidence. TheState contends that the court erred in suppressing a gun found in the defendant's car where the search was conductedpursuant to the defendant's arrest.

On July 17, 1998, West Chicago police officer Eric Shipman received a call on his police radio from another officerrequesting that he stop a certain vehicle for violating the sound amplification law. See 625 ILCS 5/12--611 (West 1998).Shipman spotted the car and pulled it over. He recognized the car as defendant's because it had been used in a drive-byshooting about a year earlier.

Shipman ran a license check on defendant, and the dispatcher told Shipman that there was a warrant for the defendant'sarrest. Shipman placed defendant under arrest. Another occupant of the car was asked to get out and Shipman searched thecar. He noticed that the seat cushion felt much looser than it should have been, as though it had been removed or was notbolted back properly. It was "very loose" and "moveable" to the extent that a hand could reach back there. Shipman thoughtthere might be a weapon there because one had been stored there before. In the previous shooting incident, a gun had beenfound between the seat cushion and the trunk liner of the defendant's car.

Shipman testified that he was reluctant to reach behind the seat because he did not know in what direction the weapon wasfacing. He testified that drug smugglers and gang members sometimes booby-trap weapons to kill police officers. Shipmanthen opened the trunk, pulled back the trunk liner, and retrieved a gun from the space behind the backseat.

The defendant was charged with the unlawful possession of a weapon by a felon (720 ILCS 5/24--1.1(a) (West 1998)). Hemoved to suppress the gun, arguing that a search of an automobile incident to a passenger's arrest does not permit the policeto search the trunk. The trial court granted the motion and the State appeals.

The State argues that the court erred in suppressing the gun. According to the State, the gun was located in the car'spassenger compartment, which is within the scope of a search incident to arrest, and that the officer went through the trunkmerely to reach the gun safely.

In New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981), the Supreme Court held that after making alawful, custodial arrest of an occupant of an automobile, a police officer may search the car's passenger compartment.Belton, 453 U.S. at 460, 69 L. Ed. 2d at 775, 101 S. Ct. at 2864. The court made clear that its holding applies only to theinterior of the passenger compartment and "does not encompass the trunk." Belton, 453 U.S. at 460 n. 4, 69 L. Ed. 2d at 775n. 4, 101 S. Ct. at 2864 n. 4.

The court emphasized its desire to create a bright-line rule covering such situations, remarking that " '[a] single, familiarstandard is essential to guide police officers.' " Belton, 453 U.S. at 458, 69 L. Ed. 2d at 774, 101 S. Ct. at 2863, quotingDunaway v. New York, 442 U.S. 200, 213-14, 60 L. Ed. 2d 824, 836, 99 S. Ct. 2248, 2257 (1979). In discussing Belton, theIllinois Supreme Court also commented on " 'the desirability of a rule under which police could in most instances reach acorrect determination beforehand.' " People v. Bailey, 159 Ill. 2d 498, 503-04 (1994), quoting United States v. Karlin, 852F.2d 968, 970 (7th Cir. 1988).

In suppressing the evidence at issue, the trial court concluded that the search represented an unwarranted extension of theBelton rule, which expressly excludes the trunk from the scope of a search incident to arrest. The court observed that othermeans were available to search the area behind the seat, such as pulling the seat forward and shining a flashlight in the areabehind it.

Upholding the search here would not only expand the Belton rule but also would blur the bright line that Belton sought tocreate. Belton drew a clear distinction between the passenger compartment and the trunk. To hold that an officer maysometimes open the trunk would create precisely the sort of uncertainty Belton sought to avoid.

The cases the State cites are distinguishable. Although they involved similar types of spaces, there is no indication in thosecases that the police accessed those areas through the trunk. United States v. Veras, 51 F.3d 1365 (7th Cir. 1995), forexample, involved an area very similar to that at issue here. However, it does not appear that the officers searched that areaby way of the trunk.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS and THOMAS, JJ., concur.