{
  "id": 5378206,
  "name": "The People of the State of Illinois, Appellee, vs. Aaron McGhee, Appellant",
  "name_abbreviation": "People v. McGhee",
  "decision_date": "1966-09-23",
  "docket_number": "No. 39764",
  "first_page": "302",
  "last_page": "305",
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      "cite": "35 Ill. 2d 302"
    }
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  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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    {
      "cite": "65 Ill. App. 2d 17",
      "category": "reporters:state",
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  "last_updated": "2023-07-14T18:37:37.175519+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Appellee, vs. Aaron McGhee, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Solfisburg\ndelivered the opinion of the court:\nThe defendant, Aaron McGhee, was tried by the court on a charge of petty larceny, found guilty, and sentenced to one year at Vandalia. The appellate court affirmed his conviction, (People v. McGhee, 65 Ill. App. 2d 17,) and we granted leave to appeal.\nAt the outset we are faced with defendant\u2019s argument that the appellate court erred in refusing to transfer the case to this court since only a constitutional question is presented. This court has jurisdiction on direct appeal of all cases involving a substantial constitutional question, (111. Const, art. VI, sec. 5,) and defendant should have appealed directly to this court. However, under the new Supreme Court Rule 28 \u2014 1, defendant did not waive his right to present the constitutional issue in the appropriate court.\nThe sole substantive issue on this appeal is the reasonableness of the search of defendant\u2019s automobile which resulted in the seizure of certain payroll checks identified as the fruits of a burglary. Defendant duly filed a motion to suppress the evidence of the checks.\nAt the hearing on the motion only police officer Rinaldi testified. It appears from his testimony that a woman, Lupe Gonzales, made a controlled sale of narcotics to a police informant, and then proceeded to get into an automobile which defendant drove away. The police stopped the car and searched Gonzales and defendant. Thereafter the police searched defendant\u2019s car and found thirteen payroll checks under the floor mat of the car.\nRinaldi testified that defendant was out of the car when it was searched. He was then asked whether, at the time of the search of the automobile, defendant was \u201cat the scene or was he in the station.\u201d Rinaldi answered, \u201cHe was in the process of being transported to the station.\u201d\nThe appellate court, in affirming the refusal of the trial court to suppress, stated that officer Rinaldi\u2019s testimony as to where defendant was at the time of the search did not affirmatively show that defendant\u2019s automobile was searched at a time and place remote from his arrest or that the search was not made in \u201cthe area within such person\u2019s immediate presence.\u201d See 111. Rev. Stat. 1963, chap. 38, par. 108 \u2014 1.\nWe cannot agree with this conclusion. There is no question but that the police had complete control of defendant\u2019s automobile, and that defendant had been removed from it. When officer Rinaldi replied to the inquiry as to whether defendant was at the scene or the station, he testified that he was being transported to the station. If defendant had been at the scene, we think the officer\u2019s obvious response to the question would have established this fact. We believe that the fair construction of officer Rinaldi\u2019s testimony is that defendant had been taken into custody and removed from the scene of his arrest before the search of his automobile was conducted. This being so, we consider that the logic of Preston v. United States, 376 U.S. 364, 11 L. ed. 2d 777; People v. Lewis, 34 Ill.2d 211; and People v. Erickson, 31 Ill.2d 230, is applicable.\nAs we stated in People v. Lewis, 34 Ill.2d 211, 215 :\n\u201c \u2018A search incident to an arrest is authorized when it is reasonably necessary to protect the arresting officer from attack, to prevent the prisoner from escaping, or to discover fruits of a crime.\u2019\n\u201cIn the present case defendant was lawfully arrested for a traffic violation, and we believe that the police bulletin gave the officers reasonable basis for the belief that they were dealing with more than an ordinary traffic offender. However, the particular search complained of was accomplished after the defendant was taken into custody and was therefore totally unnecessary to protect the arresting officers or to prevent escape. Nor was it possible for the defendant to dispose of evidence before a search warrant was obtained, since the police took possession of the car at the time they took custody of the defendant.\u201d\nThe only conclusion we can reach from the testimony before us is that this search, being outside the immediate presence of the defendant, like that in Lewis, was unnecessary to protect the arresting officers, to prevent escape or to prevent disposal of the evidence before a search warrant was obtained. While our new \"Criminal Code permits a search pursuant to a lawful arrest for \u201cevidence of an offense,\u201d in addition to a search for the fruits of a crime, this right only applies to the area within the defendant\u2019s \u201cimmediate presence.\u201d 111. Rev. Stat. 1963, chap. 38, par. 108 \u2014 1.\nWe therefore conclude that the search was unreasonable within the guidelines established by the United States Supreme Court, and the trial court erred in denying the motion to suppress evidence. The judgment of the trial court, is, therefore, reversed and the cause remanded with directions to grant the motion to suppress, and for a new trial.\nReversed and remanded, with directions.",
        "type": "majority",
        "author": "Mr. Justice Solfisburg"
      }
    ],
    "attorneys": [
      "Thad B. Eubanks and Wendell P. Marbly, both of Chicago, for appellant.",
      "William G. Clark, Attorney General, of Springfield, and Daniel P. Ward, State\u2019s Attorney, of Chicago, (Fred G. Leach, Assistant Attorney General, and Elmer C. Kissane and Matthew J. Moran, Assistant State\u2019s Attorneys, of counsel,) for appellee."
    ],
    "corrections": "",
    "head_matter": "(No. 39764.\nThe People of the State of Illinois, Appellee, vs. Aaron McGhee, Appellant.\nOpinion filed September 23, 1966.\nThad B. Eubanks and Wendell P. Marbly, both of Chicago, for appellant.\nWilliam G. Clark, Attorney General, of Springfield, and Daniel P. Ward, State\u2019s Attorney, of Chicago, (Fred G. Leach, Assistant Attorney General, and Elmer C. Kissane and Matthew J. Moran, Assistant State\u2019s Attorneys, of counsel,) for appellee."
  },
  "file_name": "0302-01",
  "first_page_order": 304,
  "last_page_order": 307
}
