January 4,2001

No. 3--98--1001

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

PRESIDING JUSTICE HOMER delivered the opinion of the court:

While on probation for a prior drug conviction, thedefendant, Xavier Holliday, was charged with resisting a peaceofficer and unlawful possession of a controlled substance withintent to deliver in a drug-free zone. 720 ILCS 5/31--1,570/401(c)(2), 407(b)(1) (West 1998). As a result of thesecharges, the State also filed a petition to revoke thedefendant's probation. The defendant moved to suppress certainevidence at his trial and his probation revocation hearing. Thecourt conducted a suppression hearing and denied the motion. Subsequently, in a consolidated jury trial and revocationhearing, the defendant was convicted of the charges and hisprobation was revoked. He now claims, inter alia, that hismotion to suppress should have been granted because he wassubjected to an illegal search. Since we agree, we reverse hisconvictions and his probation revocation.

Officer Landi's Testimony At the suppression hearing, Officer Landi testified that hewas driving a marked squad car on patrol with Officer Collinswhen they encountered the defendant. As they passed an alley,which took one or two seconds, Collins told Landi to stop becausehe had seen a drug transaction. Landi stopped the car and pulledinto the alley, where he saw the defendant standing, with abicycle, near Deborah Martin. He did not observe a drugtransaction, but he recognized the defendant on sight. Thedefendant rode his bicycle toward the officers, and Collins beganquestioning him about what he was doing in the alley. Thedefendant said he was talking to his aunt. The defendantconsented when Collins requested permission to search him. Landithen asked the defendant to get off his bicycle and place hishands on the squad car.

Although Martin was standing near the defendant, Collins andLandi did not detain her or request permission to search her. Landi testified that he was concerned with the defendant at thetime. Landi said he was looking for crack cocaine or other drugslike marijuana. While searching the defendant, Landi performed a"crotch check" and felt an object he believed was a bag of crackcocaine. He said he recognized the object from his experiencewith drug dealers who had concealed cocaine "underneath thescrotum or around the genital area." Landi acknowledged thatsuch concealment would require the drugs to be taped or otherwiseattached to the subject's body. He said that the defendant'spants were loose and that he did not determine whether thedefendant was wearing underwear.

During the search, Landi attempted to handcuff the defendantwhile announcing, "he has a bag of crack in his crotch." Hetestified that the defendant broke away and ran at that point. The officers chased the defendant into his house. Landi wentupstairs but did not find the defendant.

Officer Collins' Testimony

Officer Collins testified that he was riding in thepassenger seat of the squad car when he saw the defendant andMartin standing 50 to 60 feet away in the alley. He said hefirst believed the defendant was urinating because his pants wereundone. However, he said he then saw the defendant "take hisright hand and hand Martin an item, and then [take] an item fromher and put it in his right pocket." He did not see what theyexchanged, but he told Landi to stop the car because he hadwitnessed a drug deal. Collins acknowledged that only a fewseconds passed between the time he saw the defendant and whenLandi stopped the car.

According to Collins, the defendant was riding his bicyclesouthbound and Martin was walking southbound when Landi pulledinto the alley. Collins asked him what he was doing, and he saidhe was talking to his aunt. Martin advised that the defendantwas her son's friend. Collins did not ask her if she hadparticipated in a drug transaction or request permission tosearch her. He testified that the defendant consented to a pat-down search for "drugs or weapons." Landi conducted a search andadvised that the defendant had "rock cocaine in his pants." Thedefendant ran away as Landi attempted to handcuff him, and theofficers chased him to his house.

When they entered the house, Landi went upstairs and Collinswent downstairs. Collins testified that he entered the basementhallway and saw the defendant exiting a bathroom. The defendantput his hands in the air and said, "I've got nothing on me." Collins handcuffed him and searched the bathroom, finding a smallbag of cocaine on a ledge at the top of the shower. At the timeof the arrest, Collins knew the defendant was serving a sentenceof probation.

The Defendant's Testimony

The defendant testified that while en route to get his haircut, he stopped to talk with Deborah Martin, his friend's mother. He said he was riding his bicycle and was wearing jeans, socks,and shoes, but no shirt. After conversing with Martin, thedefendant was stopped by police officers Jeff Collins and RichardLandi. Collins had previously arrested the defendant forpossession of marijuana, although the ensuing charges weredismissed. He also recognized Landi. The officers had him placehis hands on their squad car and performed a pat-down search. The defendant stated that he did not consent to the search. Collins recovered $10 from the defendant's pocket, and Landigrabbed his crotch. The defendant ran to his house after Landiannounced that the defendant had something.

Upon entering the house, the defendant went into thebasement and tried to locate his mother. He was sitting on hisbrother's bed when Collins entered the basement. He stood up andwalked into the hallway, where Collins threw him against a walland handcuffed him. Collins then entered a nearby bathroom.

Martin's Testimony

Deborah Martin testified at the hearing, as well, and saidthat she was talking to the defendant in the alley before theofficers approached him. She asked what was going on, but theofficers did not respond. They did not ask her if she hadparticipated in a drug transaction or request permission tosearch her. She denied that she had purchased cocaine from thedefendant.

The judge denied the defendant's motion to suppress,concluding that the officers' conduct in the alley was justifiedby either probable cause or consent. He also concluded that theofficers had exigent circumstances to enter the defendant's houseand conduct a warrantless search. The case then proceeded to aconsolidated jury trial and probation revocation hearing.

Officer Collins' testimony at trial was substantiallysimilar to his testimony at the suppression hearing. Additionally, however, he explained that he and Landi did notquestion Martin in the alley because "[they] were dealing withMr. Holliday, he was the one holding the drugs, [they] focused[their] attention on him." Collins also testified that defendantplaced the object he received from Martin in his right hand,rather than his right pocket.

Officer Landi testified that when he performed the "crotchcheck," he immediately felt a foreign object that he recognizedas a package of crack cocaine. His conclusion was based on thelocation of the object and the information Collins had given him. He acknowledged having no indication that the defendant possesseda weapon at the time of the search. He also said the defendantwas not under arrest before he felt the object.

At the close of the evidence, the judge revoked thedefendant's probation in case number 97--CF--1026. The juryfound the defendant guilty of the charges in case number 98--CF--706. The defendant was sentenced in case number 98--CF--706 tonine years' imprisonment for the unlawful possession of acontrolled substance with intent to deliver in a drug-free zoneand 364 days for resisting a peace officer. He was sentenced to seven years for unlawful delivery of a controlled substance andthree years for unlawful possession of a controlled substance incase number 97--CF--1026. The sentences were ordered to beserved concurrently. Subsequently, the defendant filed thisappeal claiming, inter alia, that his motion to suppress shouldhave been granted because he was subjected to an illegal search.

A reviewing court will not reverse a trial court's factualfindings unless they are found to be manifestly erroneous. People v. Perez, 288 Ill. App. 3d 1037, 1043, 681 N.E.2d 173, 177(1997). However, the trial court's ultimate determinationregarding the reasonableness of a warrantless search is subjectto de novo review. Perez, 288 Ill. App. 3d at 1043, 681 N.E.2dat 177.

A police officer may stop a person in a public place fortemporary questioning if he reasonably infers from thecircumstances that the person is involved in criminal activity. 725 ILCS 5/107--14 (West 1998); Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889, 88 S. Ct. 1868 (1968). During this so-called Terrystop, the officer may search the person if he "reasonablysuspects that he or another is in danger of attack." 725 ILCS5/108--1.01 (West 1998). However, the scope of the search mustbe strictly limited to discovering weapons. People v. Blake, 268Ill. App. 3d 737, 739, 645 N.E.2d 580, 582 (1995). If theofficer wishes to search for other evidence of criminal activity,such as drugs, he must have probable cause to do so. Blake, 268Ill. App. 3d at 741, 645 N.E.2d at 583. Probable cause existswhen the facts and circumstances within the officer's knowledgeare sufficient to warrant a reasonable person in believing that acrime has been committed and that evidence of the crime is in theplace to be searched. People v. Adams, 169 Ill. App. 3d 284,287, 523 N.E.2d 1103, 1105 (1988). When the question is whethera crime has been committed, rather than whether a suspectcommitted a known crime, more evidence is required to establishprobable cause. In re D.G., 144 Ill. 2d 404, 410, 581 N.E.2d648, 650 (1991).

Officer Landi testified that he had no indication that thedefendant possessed a weapon at the time of his search. He alsotestified that he was looking for drugs during the search. Thus,even assuming arguendo that the defendant was subjected to avalid Terry stop, Landi still needed probable cause to justifythe search he performed. We conclude that probable cause did notexist.

The basis for the search was Officer Collins' belief that hehad observed a drug transaction between the defendant and DeborahMartin. That belief was based upon his observation that thedefendant and Martin had exchanged items and that the defendant'spants were undone. However, Collins admitted that he could notsee what items the defendant and Martin purportedly exchanged. Additionally, his observation occurred from a moving vehicle 50to 60 feet away from the defendant and Martin and lasted only oneto two seconds. Although Collins' observations arguablysupported the officers' reasonable suspicion that a drugtransaction had taken place, thereby justifying a Terry stop anda protective weapons search, those observations were insufficientto establish probable cause for a search of the defendant'scrotch for drugs.

In People v. Rainey, 302 Ill. App. 3d 1011, 706 N.E.2d 1062(1999), a marked squad car entered a gas station parking lotwhere Rainey and a few others were loitering. An officer in anunmarked car observed Rainey step away from the group, turn hisback to the marked car, and place "items" inside his mouth whileappearing to stretch or yawn. The officer did not see the items,but he knew that hiding drugs in one's mouth was a commonpractice. He and his partner consequently approached Rainey andsearched his mouth, finding three small packages of cocaine. This court noted that a Terry stop may have been warranted whenRainey "furtively" put something in his mouth. However, thecourt then stated: "But such equivocal conduct cannot, if theprobable cause requirement of the fourth amendment is to havemeaning, justify a warrantless arrest." Rainey, 302 Ill. App. 3dat 1015, 706 N.E.2d at 1065.

The fact that the defendant's pants were undone adds no moreto the probable cause analysis in the instant case than thefurtive conduct of the defendant in Rainey. The State citesPeople v. Morales, 221 Ill. App. 3d 13, 581 N.E.2d 730 (1991), insupport of its argument; however, the facts in Moralesdistinguish that case from the case at bar. In Morales, anofficer made a Terry stop under circumstances not unlike thosepresent in the instant case. The officer frisked the defendantupon observing a large bulge in the defendant's jean jacketpocket which the officer thought was a weapon. When the officersqueezed the bulge, it made a crackling sound and felt like a bagof cannabis. After asking the defendant what was in the bag andreceiving no response, the officer reached in and retrieved a bagof cannabis. In that case the court appropriately held that theofficer obtained probable cause while conducting a protectivesearch for weapons. Morales, 221 Ill. App. 3d at 18-19, 581N.E.2d at 734-35. In the instant case, Officer Landi lackedprobable cause to search the defendant's crotch for drugs becausehe initiated that search at a point where the fourth amendmentonly permits protective searches.

Alternatively, the State contends that Landi's search wasjustified by the defendant's consent. The defendant, however,contends that Landi's "crotch check" exceeded the scope of hisconsent.

It is well settled that a search conducted pursuant tovoluntary consent is not subject to the fourth amendment'swarrant and probable cause requirements. People v. Sanchez, 292Ill. App. 3d 763, 769, 686 N.E.2d 367, 371 (1997). However, whenan officer relies on consent to conduct a warrantless search, hehas no more authority than the defendant apparently gave throughthe consent. People v. Baltazar, 295 Ill. App. 3d 146, 149, 691N.E.2d 1186, 1189 (1998). The scope of such consent isdetermined by considering what a reasonable person would haveunderstood from the exchange between the defendant and theofficer. Baltazar, 295 Ill. App. 3d at 149-150, 691 N.E.2d at1189.

In our society, individuals possess a heightened privacyinterest in their bodies. Winston v. Lee, 470 U.S. 753, 84 L.Ed. 2d 662, 105 S. Ct. 1611 (1985). This interest is reflectedin the criminalization of inappropriate touching of a person'ssex organs. See, e.g., 720 ILCS 5/12--15(a)(1), (a)(2), 5/12--12(e) (West 1998). At least one court observed that "'the finalbastion of privacy is to be found in the area of humanprocreation and excretion,'" and that "'[if] a person is entitledto any shred of privacy, then it is to privacy as to thesematters.'" Sterling v. Cupp, 290 Or. 611, 624, 625 P.2d 123, 132(1981), quoting Sterling v. Cupp, 44 Or. App. 755, 761, 607 P.2d206, 208 (1980); see also United States v. Blake, 888 F.2d 795,800 n.11 (11th Cir. 1989) (holding that a frontal touching of thedefendant's crotch in an airport terminal exceeded the scope ofhis general consent to search him for drugs).

In light of these principles, we conclude that Landi's"crotch check" exceeded the scope of the defendant's consent tosearch him. The consent arose from Collins' general request tosearch for drugs or weapons. There is no evidence that therequest singled out any particular area of the defendant's body,and we are convinced that a reasonable person would have expectedno more than a general frisk or pat-down of the outer clothingfrom this exchange. We are equally convinced that such a person,having given such consent, would be surprised to find anofficer's hand grabbing his crotch and probing his genital area.

The State cites Florida v. Jimeno, 500 U.S. 248, 114 L. Ed.2d 297, 111 S. Ct. 1801 (1991), and other cases, for theproposition that a defendant's unqualified consent to searchencompasses containers within the item to be searched. Suchcases are inapposite, as the defendant's crotch can hardly beequated with an inanimate container. See, e.g., Lee, 470 U.S. at758-60, 84 L. Ed. 2d 667-69, 105 S. Ct. 1615-16 (noting adifference between privacy interests in the human body andprivacy interests in houses, papers, and effects). Landi'ssearch was unreasonable and thus prohibited by the fourthamendment. An officer must be more particular in explaining thescope of a proposed genital search before a defendant's ensuingconsent will justify it.

Accordingly, the defendant's motion to suppress should havebeen granted in case number 98--CF--706. This conclusionencompasses the drugs found in the defendant's bathroom becausethey were the fruit of the poisonous tree.⁽¹⁾ Since the defendantcould not have been convicted without the evidence stemming fromLandi's illegal search, we reverse his convictions outright. SeePeople v. Morgan, 138 Ill. App. 3d 99, 484 N.E.2d 1292 (1985).

The defendant also claims that we should reverse the orderrevoking his probation in case number 97--CF--1026 because theevidence should have been suppressed at his probation revocationhearing as well as his trial. We note that the exclusionary rulegenerally does not apply at probation revocation hearings. People v. Dowery, 62 Ill. 2d 200, 207, 340 N.E.2d 529, 533(1975). However, an exception to this general principle has beenacknowledged:

"'[W]hen the police at the moment of search know that asuspect is a probationer, they may have a significantincentive to carry out an illegal search even thoughknowing that evidence would be inadmissible in anycriminal proceeding. The police have nothing to risk:If the motion to suppress in the criminal proceedingswere denied, defendant would stand convicted of a newcrime; and if the motion were granted, the defendantwould still find himself behind bars due to revocationof probation. Thus, in such circumstances, extensionof the exclusionary rule to the probation revocationproceeding may be necessary to effectuate FourthAmendment safeguards.'" People v. Knight, 75 Ill. 2d291, 298, 388 N.E.2d 414, 418 (1979), quoting UnitedStates v. Winsett, 518 F.2d 51, 54 n.5 (9th Cir. 1975).

To invoke this exception, a probationer who has moved forsuppression of evidence must allege that he was subjected to anillegal search and that the search resulted from policeharassment. People v. Grubb, 143 Ill. App. 3d 822, 826, 493N.E.2d 699, 702 (1986). A showing of police harassment requiresmore than mere evidence that the officer knew the suspect was onprobation at the time of their encounter. People v. Stewart, 242Ill. App. 3d 599, 612, 610 N.E.2d 197, 206 (1993). There mustalso be evidence of a nexus between that knowledge and theofficer's action toward the suspect. Stewart, 242 Ill. App. 3dat 612, 610 N.E.2d at 206.

During the suppression hearing, the defendant orally amendedhis motion to include an allegation that the officers targetedhim because they knew he was a probationer. The record supportsthis allegation. The defendant testified that Collins hadarrested him for possession of marijuana before their encounterin the alley. Landi testified that he did not see a drugtransaction when he pulled into the alley, but he knew thedefendant on sight. Both officers were apparently familiar withthe defendant. Additionally, in its oral argument before thiscourt, the State conceded that the officers knew the defendantwas on probation when they encountered him.

In light of these facts, the officers' complete inactiontoward Deborah Martin signals police harassment of the defendant. The officers said they entered the alley because they believedthe defendant had made a drug transaction with Martin. Nevertheless, they did not question Martin about the suspectedtransaction or ask for permission to search her. She was notdetained in any way. The officers focused their attention solelyon the defendant even though, under their asserted reason forinitiating the encounter, Martin was also guilty of a drugoffense and would presumably have had illegal drugs in herpossession.

Accordingly, we conclude that the defendant has made asufficient showing to warrant application of the exclusionaryrule at his probation revocation hearing. We consequentlyreverse the revocation outright because the State could not haveobtained it without the evidence from Landi's illegal search.

For the foregoing reasons, the defendant's convictions incase number 98--CF--706 and his probation revocation in casenumber 97--CF--1026 are reversed.

Judgments reversed.

SLATER and HOLDRIDGE, J.J., concurring.

1. The State has not argued that the defendant's convictionfor resisting a peace officer should survive suppression of thephysical evidence.