{ "id": 2815960, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ANDREW SANDERS, Defendant-Appellee", "name_abbreviation": "People v. Sanders", "decision_date": "1976-12-16", "docket_number": "No. 75-328", "first_page": "510", "last_page": "519", "citations": [ { "type": "official", "cite": "44 Ill. App. 3d 510" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "416 U.S. 904", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 84160, 84484, 84261, 84164, 84583, 84204, 84688, 84438, 84442, 84093, 84222 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/416/0904-10", "/us/416/0904-06", "/us/416/0904-04", "/us/416/0904-11", "/us/416/0904-05", "/us/416/0904-09", "/us/416/0904-02", "/us/416/0904-07", "/us/416/0904-03", "/us/416/0904-01", "/us/416/0904-08" ] }, { "cite": "380 U.S. 102", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524630 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0102-01" ] }, { "cite": "299 N.E.2d 134", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "pin_cites": [ { "page": "139" } ], "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 869", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2851012 ], "year": 1973, "pin_cites": [ { "page": "875" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0869-01" ] }, { "cite": "186 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "pin_cites": [ { "page": "359" } ], "opinion_index": 0 }, { "cite": "26 Ill. 2d 395", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5356906 ], "year": 1962, "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0395-01" ] }, { "cite": "403 U.S. 443", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027286 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "461-62" }, { "page": "580" }, { "page": "2035" } ], "opinion_index": 0, "case_paths": [ "/us/403/0443-01" ] }, { "cite": "347 N.E.2d 764", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "766" } ], "opinion_index": 0 }, { "cite": "38 Ill. App. 3d 419", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2808634 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0419-01" ] }, { "cite": "358 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3650729 ], "weight": 3, "year": 1959, "opinion_index": 0, "case_paths": [ "/us/358/0307-01" ] }, { "cite": "320 N.E.2d 340", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "24 Ill. App. 3d 330", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5308995 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0330-01" ] }, { "cite": "237 N.E.2d 466", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "pin_cites": [ { "page": "481" } ], "opinion_index": 0 }, { "cite": "393 U.S. 410", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11317375 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/393/0410-01" ] }, { "cite": "12 L. Ed. 2d 723", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6165107 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/378/0108-01" ] }, { "cite": "378 U.S. 109", "category": "reporters:federal", "reporter": "U.S.", "weight": 2, "opinion_index": 0 }, { "cite": "341 N.E.2d 483", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 298", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5307139 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0298-01" ] }, { "cite": "471 F.2d 109", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 268891 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/f2d/471/0109-01" ] }, { "cite": "208 F.2d 916", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 561651 ], "year": 1953, "pin_cites": [ { "page": "919" } ], "opinion_index": 0, "case_paths": [ "/f2d/208/0916-01" ] }, { "cite": "445 F.2d 126", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 818517 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "129-31" } ], "opinion_index": 0, "case_paths": [ "/f2d/445/0126-01" ] }, { "cite": "311 Ill. 392", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5113987 ], "opinion_index": 0, "case_paths": [ "/ill/311/0392-01" ] }, { "cite": "48 N.E.2d 933", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1943, "pin_cites": [ { "page": "934" } ], "opinion_index": 0 }, { "cite": "383 Ill. 280", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2487189 ], "weight": 2, "year": 1943, "pin_cites": [ { "page": "283-84" } ], "opinion_index": 0, "case_paths": [ "/ill/383/0280-01" ] }, { "cite": "323 N.E.2d 846", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 737", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2702102 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0737-01" ] }, { "cite": "412 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172008 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/412/0218-01" ] }, { "cite": "94 S. Ct. 1608", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1974, "opinion_index": 0 }, { "cite": "40 L. Ed. 2d 108", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "cite": "304 N.E.2d 81", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "55 Ill. 2d 344", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2939655 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-2d/55/0344-01" ] }, { "cite": "86 S. Ct. 1900", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1966, "opinion_index": 0 }, { "cite": "16 L. Ed. 2d 1009", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1966, "opinion_index": 0 }, { "cite": "384 U.S. 993", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12088133, 12088101, 12087943, 12088043, 12087799, 12087865, 12087834, 12087900, 12087997 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0993-09", "/us/384/0993-08", "/us/384/0993-05", "/us/384/0993-07", "/us/384/0993-01", "/us/384/0993-03", "/us/384/0993-02", "/us/384/0993-04", "/us/384/0993-06" ] }, { "cite": "215 N.E.2d 214", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "34 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2878124 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-2d/34/0282-01" ] }, { "cite": "389 U.S. 347", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11339173 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "357" }, { "page": "585" }, { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/us/389/0347-01" ] }, { "cite": "275 N.E.2d 356", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "49 Ill. 2d 416", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2910872 ], "opinion_index": 1, "case_paths": [ "/ill-2d/49/0416-01" ] }, { "cite": "345 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "36 Ill. App. 3d 542", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2630300 ], "pin_cites": [ { "page": "548-51" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/36/0542-01" ] }, { "cite": "394 U.S. 965", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6289763, 6287940, 6290730, 6289118, 6288270, 6289487, 6290074, 6290398, 6288607 ], "opinion_index": 1, "case_paths": [ "/us/394/0965-06", "/us/394/0965-01", "/us/394/0965-09", "/us/394/0965-04", "/us/394/0965-02", "/us/394/0965-05", "/us/394/0965-07", "/us/394/0965-08", "/us/394/0965-03" ] }, { "cite": "241 N.E.2d 419", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "41 Ill. 2d 7", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2851872 ], "opinion_index": 1, "case_paths": [ "/ill-2d/41/0007-01" ] }, { "cite": "407 U.S. 143", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9137003 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/us/407/0143-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "39 Ill. 2d 489", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857193 ], "opinion_index": 1, "case_paths": [ "/ill-2d/39/0489-01" ] }, { "cite": "93 L. 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App. 3d", "case_ids": [ 5343239 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/13/0204-01" ] }, { "cite": "399 U.S. 42", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168334 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/us/399/0042-01" ] }, { "cite": "319 N.E.2d 225", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "59 Ill. 2d 45", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2958205 ], "opinion_index": 1, "case_paths": [ "/ill-2d/59/0045-01" ] }, { "cite": "413 U.S. 433", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11341150 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/us/413/0433-01" ] }, { "cite": "267 U.S. 132", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6137701 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/us/267/0132-01" ] }, { "cite": "237 N.E.2d 466", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 1 } ], "analysis": { "cardinality": 1096, "char_count": 22056, "ocr_confidence": 0.872, "pagerank": { "raw": 3.2775197391848236e-07, "percentile": 0.8705706394465469 }, "sha256": "3cc9eb6f4b477a8764148b02d2696a9b8308d2dc447bdcb18eaa4b786e02acf5", "simhash": "1:a394302907519a04", "word_count": 3806 }, "last_updated": "2023-07-14T18:25:08.154218+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ANDREW SANDERS, Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE KARNS\ndelivered the opinion of the court:\nThis is an appeal by the State from an order of the Circuit Court of Randolph County granting the motion of defendant-appellee Andrew G. Sanders to suppress evidence seized from the trunk of his car pursuant to a warrantless search.\nThe defendant was indicted for possession of more than 30 grams but less than 500 grams of cannabis, in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56\u00bd, par. 704(d)). A preliminary hearing was held at which only one witness, the arresting officer, testified. At the conclusion of the testimony, an oral motion by the defense to suppress the evidence was denied, on the ground that the defendant had consented to the search. The trial court did, however, grant defense counsel\u2019s request to reconsider the issue upon submission of briefs. No additional evidentiary hearing was held on the motion to suppress; the parties agreed that the evidence adduced at the preliminary hearing could be considered along with the briefs in determining the motion. After consideration of the motion and the briefs, the court entered an order granting the motion on the grounds that the defendant had a right to revoke his consent to the search, and any search after revocation of consent was illegal and in derogation of the defendant\u2019s rights under the State-and Federal constitutions. This appeal pursuant to Supreme Court Rule 604 (Ill. Rev. Stat. 1973, ch. 110A, par. 604) followed.\nThe relevant facts, as adduced at the preliminary hearing, are not in dispute. Michael Thomas Korando, Jr., a patrolman in the Chester police department, testified that in the early morning hours of June 29,1974, he was on patrol in a marked squad car with two other police officers. About 1:30 a.m., Patrolman Korando observed the defendant in a telephone booth on State Street in Chester. When the defendant finished his conversation, he returned to his automobfie and drove to Reaban\u2019s parking lot, some 3M blocks away. Just as the defendant was leaving the phone booth, according to Korando\u2019s testimony, \u201cwe received a caE from our dispatcher that there had been someone made a report by phone to her that Andrew Sanders was carrying three lids of grass and some beer in the trunk of his car.\u201d Therefore the police officers followed him to the parking lot, at which time, according to Korando, the following sequence of events occurred:\n\u201cI walked over to the car and I said, Andy did you caE the police station just then. I saw you were on the phone there. And he says, no, I didn\u2019t call the pohce station. I was talking to a girl. If you want to check, caE and ask him [sic] and at that time I said I believed him and asked if we would [sic] look into his trunk.\nQ. What did the defendant do or say at that time?\nA. At that time the defendant took the keys from the ignition of his car and walked to the rear and opened his trunk.\nft ft ft\nQ. Did he say anything to you prior to opening the trunk?\nA. No, sir.\nQ. After he opened the trunk what did you do, if anything?\nA. He opened the trunk and opened the beer cooler and I looked in the beer cooler and I started moving towards the right and I picked up the top of the air cleaner that was laying there and I started moving over to the right side further yet, and I went to reach for a paper sack that was sat on top of the styrofoam cooler\u2014\nQ. Officer, let me interrupt you for a minute. What did that paper sack look like, if you recaU?\nA. Brown paper bag like you get in stores.\nQ. And go ahead, and you started, you reached for the paper sack.\nA. Whenever I reached for the sack, the defendant stated I couldn\u2019t look at everything. He grabbed it from me and said I couldn\u2019t look in there.\nQ. And what did you do, if anything?\nA. I grabbed the sack back from the defendant and whenever I grabbed at the sack it tore and I saw there were smaller plastic bags inside the brown sack and they contained green substance and so I opened them up after I got away and found green substances in small bags that appeared to be marijuana, cannabis. # # #\nQ. Officer, after you grabbed the bag back from the defendant, what did the defendant say, if anything, if you recall?\nA. Nothing at this time.\nQ. What did you do at that time?\nA. At this time I placed him under arrest for possession of cannabis.\u201d\nOn cross-examination, Officer Korando testified that the dispatcher did not say who made the call that the defendant was carrying marijuana and beer in the trunk of his car, and that the officer had never determined who made the call. The defendant had not committed any crime in the officer\u2019s presence, there were no charges pending againt him and the only reason for stopping him was the dispatcher\u2019s report as to the anonymous call. On cross-examination the officer repeated that he had asked defendant \u201cif we could look into his trunk.\u201d The defendant was not under arrest at this time. The officer did not advise the defendant of his right not to consent to the warrantless search.\nOn appeal, the State makes two arguments: first, that a consent search is valid where the defendant does not communicate his. withdrawal of consent until the officer is in the process of seizing the evidence; second, that the officer had probable cause to seize the paper bag even absent consent, because the anonymous tip was sufficiently corroborated by the officer\u2019s observation of the beer cooler and the brown paper bag in the trunk. The defendant responds first that the scope of consent was limited by both the officer\u2019s request and the defendant\u2019s words to looking into the trunk, and that his consent was effectively withdrawn; second, that there were no corroborative facts, and that in any event the State has waived this contention for purposes of appeal by its ioncession at the preliminary hearing, where it relied solely on consent to legitimate the search, that no probable cause existed.\nWe must start from the settled proposition that \u201csearches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment\u2014 subject only to a few specifically established and well-delineated exceptions.\u201d (Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507, 514 (1967).) Consent to a search, which waives constitutional protection, is one of these recognized exceptions. (See, e.g., People v. Harris, 34 Ill. 2d 282, 215 N.E.2d 214 (1966), cert. denied, 384 U.S. 993, 16 L. Ed. 2d 1009, 86 S. Ct. 1900 (1966).) Protection extends wherever the subject of a search possesses a reasonable expectation of privacy. (Katz v. United States; People v. Nunn, 55 Ill. 2d 344, 304 N.E.2d 81 (1973), cert. denied, 416 U.S. 904, 40 L. Ed. 2d 108, 94 S. Ct. 1608 (1974).) The test of a valid consent is voluntariness under the totality of the circumstances, which include the subject\u2019s knowledge of his constitutional right to refuse consent. (People v. Nunn; Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973).) In each case the determination of the factual question whether a valid consent was given is for the trial court, whose finding will be accepted by a court of review unless it is clearly unreasonable. People v. Cannon, 25 Ill. App. 3d 737, 323 N.E.2d 846 (1st Dist. 1975), and cases cited therein.\nWe have carefully reviewed the record in this case, and the authorities cited by the parties, and cannot find the trial court\u2019s determination that the police officer\u2019s search exceeded the scope of the defendant\u2019s consent to be clearly unreasonable. The officer asked the defendant, with whom he was on a first-name basis and who was not under arrest, if he could look into the trunk. The defendant might reasonably have expected that the officer was looking for some bulky item of stolen property that would be immediately apparent if present in the trunk of an automobile. By acquiescing in the request to look into his trunk, he did not, we think, consent to a probing exploration into a closed container within the trunk.\nTwo cases add support to our conclusion. In People v. Schmoll, 383 Ill. 280, 48 N.E.2d 933 (1943), the defendant, a physician, agreed that the State\u2019s attorney could go to his office to obtain his records in one case. Instead, all the doctor\u2019s records were taken, and subsequently he was convicted of performing an illegal abortion on the basis of some of the other records. In holding that the defendant\u2019s motion to suppress the evidence should have been allowed, Chief Justice Stone of the Illinois Supreme Court wrote:\n\u201c* # \u201d An arresting officer has no more right to make a search beyond the limit prescribed in a consent to search, than he has to exceed the limit prescribed in a search warrant. The latter he has no right whatever to do. * * *\nAs was said in People v. Castree, 311 Ill. 392: \u2018A search without a warrant is an unreasonable search, and a search of a place not described is without a warrant and is unreasonable.\u2019 It is true that one who consents to a search of his property waives his constitutional right to complain that the search and seizure were unlawful. [Citations.] But since consent amounts to a waiver of such warrant, the consent must, in our opinion, be considered a waiver of such warrant only to the extent granted by the defendant in his consent. To that extent, only, does the consent embrace the character of a valid search warrant.\u201d 383 Ill. 280, 283-84, 48 N.E.2d 933, 934.\nIn United States v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971), defendant was convicted of tax evasion, largely on the basis of evidence seized during a search of his home. Defendant had been arrested on the basis of a warrant charging him with a sale of narcotics. When asked whether he had any narcotics in his home, defendant replied that he had never seen any narcotics, and said: \u201cYou guys come over to the house and look, you are welcome to.\u201d After the search had progressed for about 45 minutes, one of the Federal narcotics agents began to remove certain papers from a drawer. The defendant asked, \u201cDoes that look like narcotics if that is what you want to search for?\u201d and the agent replied, \u201cSorry, Pal, we are here now and this is what we are going to do.\u201d The defendant announced: \u201cThe search is over. I am calling off the search.\u201d The agents, however, continued their search and seized a number of documents which were subsequently turned over to internal revenue agents. In holding that the evidence should have been suppressed, Chief Judge Swygert wrote:\n\u201cA consent search is reasonable only if kept within the bounds of the actual consent. Honig v. United States, 208 F.2d 916, 919 (8th Cir. 1953).\n* * #\n\u00b0 * \u00b0In our view, consent is a waiver of the right to demand that government agents obtain the authorization of a warrant to justify their search; and the need for a warrant is waived only to the extent granted by the defendant in his consent. A defendant\u2019s consent may limit the extent or scope of a warrantless search in the same way that the specifications of a warrant limit the search pursuant to that warrant. Both limit the officers\u2019 activity by stipulating the areas into which they may look. Both may limit a search to certain areas or even to certain specified items within an area. [Citations.]\nOf course, if the government agents acting within the parameters of defendant\u2019s consent had come upon contraband, fruits or instrumentalities of crime, or clear evidence of criminal behavior which was lying in plain view, they could have seized those items. [Citation.] 0 0 0 Even assuming that these items were evidence of crime and thus subject to seizure, their criminal character was not apparent on a mere surface inspection, and defendant\u2019s limited consent did not authorize the agents\u2019 opening and reading them.\u201d 445 F.2d 126, 129-31, and n. 3.\nUnited States v. Young, 471 F.2d 109 (7th Cir. 1972), cited by the State, is clearly distinguishable from the case at bar. There, the attempted rescission of consent took place only after the evidence which was the subject of the motion to suppress had been seized in plain .view. When the defendant told the officers to stop their search, they did so.\nHere, when the officer began to reach for the brown paper bag \u201clike you get in stores,\u201d whose criminal character was not apparent on mere surface inspection, the defendant grabbed it from him and told him that he could not look in there. We cannot see how the defendant could have expressed more clearly that his consent did not extend to looking inside the paper bag. Thus the officer\u2019s grabbing the bag from him was an unreasonable search and seizure, the fruits of which were properly ruled inadmissible into evidence.\nWe do not think that the State\u2019s other contention, that the officer had probable cause to search the defendant\u2019s trunk and seize the marijuana even absent consent, was properly preserved for review. At the preliminary hearing which was the evidentiary basis for the trial court\u2019s ruling on the motion to suppress, the State\u2019s attorney stated that he did not consider probable cause important in the determination of the matter, and that \u201cthe whole point is that this was a consent search.\u201d We see no compelling reason to treat waiver by the State any differently from waiver by the defendant. See, e.g., People v. DeBoise, 35 Ill. App. 3d 298, 341 N.E.2d 483 (5th Dist. 1976).\nHad the argument been made below, we would nonetheless be constrained to reject it. In Aguilar v. Texas, 378 U.S. 109, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (378 U.S. 109) (1964), and Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969), the United States Supreme\nCourt set out a \u201ctwo-pronged test\u201d that an affidavit for a search warrant based on an informer\u2019s tip must meet. First, it must demonstrate some of the underlying circumstances from which the informer concluded that the law was being violated (the so-called \u201cbasis of knowledge\u201d prong), and second, the affiant\u2019s reasons for concluding that the informer was credible or his information rehable (the so-called \u201cveracity\u201d prong). Even if we were to accept the State\u2019s assertion that the unidentified informer here must be presumed to be an ordinary citizen with no motive to falsify, and thus that his or her veracity need not be shown (see People v. Hester, 39 Il. 2d 489, 514, 237 N.E.2d 466, 481 (1968)), there would still be absolutely no indication of the basis of the informer\u2019s knowledge. The tip might be the product of mere suspicion or common rumor, which do not afford probable cause. In re Brewer, 24 Ill. App. 3d 330, 320 N.E.2d 340 (5th Dist. 1974).\nNor is Draper v. United States, 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329 (1959) helpful to the State\u2019s position. The tip here could hardly be said to contain a plethora of neutral details from which it could reasonably be inferred that the informant gained his information in a rehable way. The informer said only that the defendant had beer and grass in the trunk of his car. The State\u2019s argument that the tip was corroborated by the officer\u2019s finding beer in the trunk is not borne out by the record: there was no evidence that any beer was discovered.\nA recent case also arising from Randolph County and involving possession of marijuana, People v. Blitz, 38 Ill. App. 3d 419, 347 N.E.2d 764 (5th Dist. 1976), is distinguishable from the instant case on the issue of probable cause primarily by the fact that there the police had an ostensible reason besides the anonymous tip \u2014 a faulty license plate light \u2014 for arresting the defendant. Responding to the State\u2019s argument that \u201ccorroborative\u201d observations operated to cure whatever deficiency existed with reference to the reliability of the State\u2019s unidentified informant, we said:\n\u201cWhile the legality of warrantless searches of automobiles differs from searches of stationary structures [citations], the police must still have \u2018 \u201creasonable or probable cause\u201d to believe that they will find an instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search.\u2019 [Citation.] The record before us does not contain evidence that deputy sheriff Beam had reasonable or probable cause to believe that evidence pertaining to a crime would be found in defendant\u2019s vehicle. As far as the record shows, Officer Beam conducted a search of the defendant\u2019s vehicle because he suspected that there might be illegal substances in such car, however, the facts related by Beam are insufficient to constitute probable cause.\u201d 38 Ill. App. 3d 419, 422, 347 N.E.2d 764, 766.\nThe record here is equally devoid of any showing of probable cause. We are mindful, as the dissent states, that courts have recognized a distinction in certain circumstances between a search of a house and a search of an automobile. But \u201c[t]he word \u2018automobile\u2019 is not a talisman in whose presence the Fourth Amendment fades away and disappears.\u201d (Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 29 L. Ed. 2d 564, 580, 91 S. Ct. 2022, 2035 (1971).) Probable cause remains a prerequisite to a search. As our supreme court said in People v. Pitts, 26 Ill. 2d 395, 399, 186 N.E.2d 357, 359 (1962), if we were to validate a search such as this one, \u201cwe would not dilute the constitutional guarantees, we would abolish them.\u201d\nFor the foregoing reasons, the order of the Circuit Court of Randolph County granting the motion to suppress evidence is affirmed.\nAffirmed.\nG. J. MORAN, J., concurs.\nThe instant case well illustrates the definitions set out in People v. Carroll, 12 Ill. App. 3d 869, 875, 299 N.E.2d 134, 139 (1st Dist. 1973):\n\u201cA \u2018search\u2019 is a probing or exploration for something that is concealed or hidden from the searcher. A \u2018seizure\u2019 is a forcible or secretive dispossession of something against the will of the possessor-owner, both terms connoting hostility between the searcher and the person whose property or possession are being searched or sought. [Citations.] A search is an invasion, a quest with some sort of force, either actual or constructive.\u201d\nThe same test applies where, as here, a warrantless search is attacked by a motion to suppress, with the distinction that in a marginal case a search under a warrant might be sustained which would fall without a warrant. See United States v. Ventresca, 380 U.S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965).", "type": "majority", "author": "Mr. PRESIDING JUSTICE KARNS" }, { "text": "Mr. JUSTICE JONES,\ndissenting:\nI believe that the result reached by the majority is manifestly erroneous and accordingly I respectfully dissent.\nDespite my agreement with the majority\u2019s conclusion that defendant did not consent to the search of the paper bag found in the trunk of his car and the seizure therefrom of marijuana, I cannot agree that the warrantless search and seizure were unlawful.\nCourts have long held there exists a constitutional difference between automobiles and homes, a difference that may in some situations justify a warrantless search. (Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280; Cady v. Dombrowski, 413 U.S. 433, 37 L. Ed. 2d 706, 93 S. Ct. 2523; People v. Wiseman, 59 Ill. 2d 45, 319 N.E.2d 225.) This difference primarily turns on the mobility of automobiles and the impracticability of obtaining a warrant in many circumstances. (E.g., Carroll v. United States; Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975; People v. Johnson, 13 Ill. App. 3d 204, 300 N.E.2d 535.) The lesser expectation of privacy in an automobile is also important. South Dakota v. Opperman,_U.S._, 49 L. Ed. 2d 1000, 96 S. Ct. 3092.\nWhether or not the actions of Officer Korando were justifiable depends upon \u201cfactual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.\u201d (Brinegar v. United States, 338 U.S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302; People v. Hester, 39 Ill. 2d 489, 237 N.E.2d 466.) The anonymous tip here provided sufficient justification based on the objective standard of reasonable suspicion articulated in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, for the stop of the car (Adams v. Williams, 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921; People v. Tassone, 41 Ill. 2d 7, 241 N.E.2d 419, cert. denied, 394 U.S. 965; People v. Miller, 36 Ill. App. 3d 542, 548-51, 345 N.E.2d 1) and initial questioning of defendant. When the officer later observed the paper bag on top of the beer cooler in defendant\u2019s trunk and heard defendant\u2019s protestations, both of which were corroborative of the tip, he gained sufficient knowledge to warrant a reasonable belief that the bag contained an ffiegal substance. In light of these circumstances this belief gave him probable cause to search. Chambers v. Maroney; People v. Canaday, 49 Ill. 2d 416, 275 N.E.2d 356; People v. Miller.\nOnce probable cause had been established in the present case, the officer was justified in grabbing and then searching the paper bag he saw in defendant\u2019s trunk for the reasons articulated in the foregoing cases. Exigent circumstances were present. If aUowed to go on his way, defendant could easily have disposed of the contraband. The time was early morning and in this case it would have been impractical to obtain a warrant. Moreover, the reason for conducting the search was the same one that had prompted the officer to stop and question defendant. Consequently, I am convinced that the instant warrantless search was a reasonable one.\nI would reverse the order of the circuit court of Randolph County and remand the cause for further proceedings.", "type": "dissent", "author": null } ], "attorneys": [ "Herbert J. Lantz, Jr., State\u2019s Attorney, of Chester (Bruce D. Irish and Raymond F. Buckley, Jr., both of Illinois State\u2019s Attorneys Association, of counsel), for the People.", "Michael J. Rosborough and A. Michael Kopec, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ANDREW SANDERS, Defendant-Appellee.\nFifth District\nNo. 75-328\nOpinion filed December 16, 1976.\nJONES, J., dissenting.\nHerbert J. Lantz, Jr., State\u2019s Attorney, of Chester (Bruce D. Irish and Raymond F. Buckley, Jr., both of Illinois State\u2019s Attorneys Association, of counsel), for the People.\nMichael J. Rosborough and A. Michael Kopec, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellee." }, "file_name": "0510-01", "first_page_order": 540, "last_page_order": 549 }