NO. 4-02-0272

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

On February 1, 2002, the trial court found defendant,Dupree Staple, guilty of possession of more than 2.5 but lessthan 10 grams of cannabis (720 ILCS 550/4(b) (West 2000)) andsentenced defendant to 21 days in jail plus costs and fees. Defendant filed a posttrial motion, which the trial court denied. Defendant appeals, arguing that (1) the trial court erred indenying his motion to suppress, (2) he did not knowingly waive inopen court his right to a jury trial, (3) he is entitled to a $15credit against his fines, and (4) the trial court erred inordering him to pay a $15 "anticrime" fine. We reverse.

I. BACKGROUND

In August 2001, the State charged defendant by information with unlawful possession of cannabis (720 ILCS 550/4(b)(West 2000)), alleging he knowingly and unlawfully possessed morethan 2.5 grams, but not more than 10 grams, of a substancecontaining cannabis. On November 26, 2001, defendant filed amotion to suppress evidence, alleging that at the time of thedetention, he was not observed in the commission of a crime, nordid the police have probable cause to believe that he had committed a crime. Defendant also alleged that he was detained andsearched without exigent circumstances, without a warrant, andwithout consent, and, therefore, such detention and search wereillegal.

On November 29, 2001, the trial court held a hearing ondefendant's motion. Because the parties are familiar with theevidence presented, we will summarize it only to the extentnecessary for a complete understanding of our disposition. InAugust 2001, defendant's brother was driving his automobile. Defendant was the front-seat passenger, and another person wasthe backseat passenger. Officer Robert Benschneider stopped thevehicle after observing no visible license plates or registration. Benschneider asked everyone in the car for their identification, which they produced. Benschneider returned to his squadcar to run a criminal check on their driver's licenses. Benschneider discovered that the driver had a suspended driver'slicense and had an outstanding warrant for his arrest. Benschneider radioed for another officer to assist with the stop. When the officer arrived, the driver was arrested, handcuffed,and placed in the squad car. Benschneider then reapproached thecar and told defendant that "his brother was under arrest. Andwe would be searching the car and everyone in it." Prior tosearching defendant, Benschneider asked defendant if he had anyweapons or contraband on his person. Defendant stated that hehad a bottle of Crown Royal in his pocket. Benschneider removedthe bottle from defendant's pant's pocket. Benschneider thenconducted a pat down of defendant's clothing and a frisk of hiscrotch area where he found a "hard lump[-]like [sic] in the seatof his pants. *** It felt like a round object. I could feelplastic around it." Benschneider testified that the purpose ofthe pat down was to make sure that no one had any weapons in thecar before the police searched the car.

Upon questioning by the trial court, Benschneidertestified that his standard "speech is to tell everyone sincesomeone was arrested[,] out of the car[,] we're going to searchthe car and everyone in it." The following colloquy transpired:

"Q. [THE COURT:] The question I've gotis, tell me why you think you've gotauthority to search everybody else justbecause you know the driver's suspended andhas a DOC warrant?

A. [BENSCHNEIDER:] Well, we have a search incident to arrest in the vehicle--

Q. Uh-huh?

A. --so we're going to secure thevehicle.

Q. How about the passengers, though? Iknow you can search [the] arrestee incidentto the arrest and his vehicle. Do you thinkthat you can also search any passengers?

A. Yes.

Q. Okay. Tell me why.

A. They're in the car when someone wastaken out of the car under arrest."

The court made the following remarks:

"The officer discovered that the driver wassuspended. Made the occupant of the car waitfor seven or eight minutes while he went backto his squad car, during which time I'm surehe discovered the suspension of the driverand the, the department of correctionswarrant, all of which is permissible seizurebecause the--I have no evidence that thedriver hadn't committed a violation in thefirst place. Came back. Arrested thedriver. *** The officer ordered the occupantsout of the car, which he can do, told theoccupants he was preparing to search them. *** [The officer] discovered the defendanthad a bottle of booze on him *** before hecommenced the frisk.

He then frisked the defendant, found,plucked out the bottle of Crown Royal fromhis pocket. I did not hear testimony whetherit was sealed or unsealed. Then ran hishands up and down defendant's inner thigh. And in the crotch area of the defendant foundsomething that ultimately he learned wascannabis ***.

Under these circumstances an officer, Ibelieve can order everyone out of the car. Can he frisk them? I would have to be shownsome authority on that because maybe,[o]fficer, you've been to a seminar and havelearned something that I don't know. Whether, whether you can do that, I don'tknow of authority that let's you do that. But you did ask him if he had anything and headmitted it. And I think after that, we havea different situation. That is you developedprobable cause that he had committed anoffense. And I believe at that time you hadthe right to conduct a light outer pat down."

The court found that defendant's admission that he had CrownRoyal on him gave the officer probable cause that defendant mayhave committed an offense of illegal transportation of alcohol,i.e., if the seal were broken, which gave the officer the rightto search defendant. The court denied defendant's motion tosuppress.

In January 2002, defense counsel informed the courtthat defendant was requesting a stipulated bench trial. InFebruary 2002, the cause was called for a stipulated bench trial. The trial court found defendant guilty of possessing more than2.5 but less than 10 grams of cannabis (720 ILCS 550/4(b) (West2000)). Pursuant to the parties' agreement, the court sentenceddefendant to 21 days in jail and a $200 mandatory drugassessment. In its sentencing order, the court also imposed a$15 anticrime fee, but did not award defendant any sentencecredit for time served. Defendant filed a posttrial motion,which the trial court denied.

This appeal followed.

II. ANALYSIS

Defendant argues that the trial court erred in denyinghis motion to suppress because his detention and subsequentsearch violated his fourth amendment rights. U.S. Const., amend.IV. Further, defendant contends that his possession of liquordid not provide probable cause for a search of weapons, and thepolice officer's subsequent rubbing manipulation of defendant'scrotch area was not based on the reasonable belief that defendantwas armed and dangerous, exceeded the scope of a weapons frisk,and was without probable cause. Therefore, the marijuana laterdiscovered was tainted. The State concedes the error, and weagree.

A. Standard of Review and Burden of Proof

The appeal of a ruling on a motion to suppress presentsmixed questions of fact and law. People v. Gherna, 203 Ill. 2d165, 175, 784 N.E.2d 799, 805 (2003). We will not disturb thetrial court's factual determinations and assessment of witnesses'credibility unless they are manifestly erroneous. People v.Anthony, 198 Ill. 2d 194, 200-01, 761 N.E.2d 1188, 1191 (2001). We review de novo the ultimate decision of whether evidenceshould be suppressed. People v. Crane, 195 Ill. 2d 42, 51, 743N.E.2d 555, 562 (2001).

On a motion to suppress, the defendant has the burdenof proving the search and seizure were unlawful. 725 ILCS 5/114-12 (West 2000). "However, once the defendant makes a prima facieshowing of an illegal search and seizure, the burden shifts tothe State to produce evidence justifying the intrusion." Peoplev. Ortiz, 317 Ill. App. 3d 212, 220, 738 N.E.2d 1011, 1018(2000).

B. The Traffic Stop

The fourth amendment to the United States Constitutionguarantees "[t]he right of the people to be secure in theirpersons, houses, papers, and effects, against unreasonablesearches and seizures." U.S. Const., amend. IV. Similarly, theIllinois Constitution affords citizens with "the right to besecure in their persons, houses, papers[,] and other possessionsagainst unreasonable searches, [and] seizures." Ill. Const.1970, art. I,