April 2014 • Volume 102 • Number 4 • Page 162
Thank you for viewing this Illinois Bar Journal article. Please join the ISBA to access all of our IBJ articles and archives.
Police can search handcuffed arrestee’s luggage, high court rules
The Illinois Supreme Court rules that police can search an arrestee's luggage after he was handcuffed on a civil warrant for failure to pay child support.
In a ruling that inspired a strongly worded dissent, the Illinois Supreme Court held that police did not violate a suspect's Fourth Amendment rights by searching a small piece of luggage by his side after he was arrested and handcuffed on a civil warrant for failure to pay child support.
At issue in the case, People v. Cregan, 2014 IL 113600, was whether a search of a suspect's property incident to an arrest is lawful when the suspect cannot get to the property to destroy evidence or access a weapon that could put the arresting officers in danger. The ruling also raised questions about when something is in a suspect's "immediate" control. Chief Justice Garman, who wrote the majority opinion on behalf of herself and Justices Thomas, Kilbride, Karmeier, and Theis, interpreted both U.S. and Illinois Supreme Court case law as allowing such a search.
Justices Burke and Freeman countered that the search was unlawful and said the majority crafted an "unworkable rule that finds no support in any case law, including the cases the majority cites in support."
Items in close association
The defendant in the case, Carlos Cregan, was convicted of unlawful possession of less than 15 grams of cocaine that officers found in a jar of hair gel in a rolling piece of luggage near Cregan on a train platform in Normal in November 2009. Police were waiting for Cregan when he got off the train carrying a laundry bag over his shoulder and the luggage. Also waiting for Cregan was a friend.
Cregan had put the luggage down and was then placed under arrest and handcuffed. He asked the officers if his friend could take his belongings, but police said they had to first search them and did so on the side of the platform. Police testified that Cregan was a known gang member, but lawyers for the prosecution could not make a case that Cregan posed a threat since he was already in handcuffs at the time his luggage was searched. They could not claim Cregan was in control of the luggage since police took it and Cregan was handcuffed. Nor did they claim that the luggage likely contained large amounts of cash that could prove he was capable of making child support payments.
The majority cited several cases to support its holding that items in close association to a defendant during an arrest are subject to a search without a warrant. One case was People v. Hoskins, 101 Ill. 2d 209 (1984), in which the court held that a suspected prostitute's purse, which she had dropped as she was fleeing from police, was "immediately associated" with her person and could be searched incident to arrest.
The majority also relied on U.S. v. Robinson, 414 U.S. 218 (1973), interpreting that case as allowing a search of belongings immediately near the arrestee as an exception to the warrant rule because it is an extension of the permissible search of the person. In Robinson, the court held that it was permissible during a traffic stop for police to inspect a cigarette package that the driver had in his pocket. The package contained heroin and the issue was whether a search of the suspect's person for anything other than weapons was permissible. The majority held that it was.
The majority also cited Arizona v. Gant, 556 U.S. 332 (2009), a case in which the U.S. Supreme Court held that a search of an automobile incident to arrest must be justified by the possibility that the arrestee might gain possession of a weapon or destroy evidence of the crime for which he or she is being arrested. The lawful search is therefore limited to the area of the car that is in the arrestee's "immediate" control. But ever since Gant was handed down, commentators and lower courts have struggled with determining whether its holding and reasoning applies to all searches incident to arrest or whether they are confined to only searches of automobiles incident to arrest. Obviously, the majority in Cregan adopted the latter position.
In addition, the majority discussed two other U.S. Supreme Court cases addressing search and seizure incident to arrest. In United States v. Chadwick, 433 U.S. 1 (1977), the Court ruled that it was improper for authorities to take possession of, and subsequently search, a locked footlocker containing marijuana that was located in the trunk of the defendant's car while he was standing away from it, handcuffed, and therefore had no control over it. The Court reasoned that because the footlocker was no longer in the defendant's control, its warrantless search was not a permissible search incident to arrest. Had the footlocker been taken while the defendant was loading it into the trunk or standing right beside it, without handcuffs, the case may have been decided differently, one legal expert said.
Meanwhile, in California. v. Chimel, 395 U.S. 752 (1969), the Court held that it was unconstitutional for police to search an entire home of a suspect incident to arrest, but could only search whatever was within the reach of the defendant.
The majority's decision in Cregan seems to turn on whether Cregan's luggage was within his reach and in his immediate control, which the court answered in the affirmative.
Scholars: the dissent 'correctly stated the law'
John Decker, a professor emeritus of criminal law at DePaul University College of Law and co-author of the ISBA book Illinois Decisions on Search and Seizure, said the Illinois Supreme Court has muddied the waters on permissible searches incident to arrest. "The whole business of search incident to arrest is predicated on two policy concerns. We are concerned about the defendant accessing a weapon. The other policy consideration is to make sure the defendant is not hiding evidence," Decker said. He said the facts in the Cregan case are similar to Chadwick, and the Illinois Supreme Court failed to follow that case.
"The police took control of that situation," Decker said of the facts in Cregan. "How is that any different from Chadwick? [Cregan] was handcuffed. And then police searched the luggage."
Another question raised by the case is whether the subject of the arrest warrant justified the search. Ralph Ruebner, Associate Dean of Academic Affairs at John Marshall Law School and co-author with Decker of the ISBA book, noted that Cregan was arrested on a civil warrant.
"He wasn't arrested for any criminal act so right away you have to look at this with greater caution," Ruebner said. "He was arrested on a civil warrant. Not for drugs, armed robbery, or murder. So right away, this should put us all on notice that the Fourth Amendment becomes even more critical.
"This cannot be justified as a search of the person and it can't be justified as a search incident to arrest because the item was away from him and he was incapable of either reaching into the bag for the purpose of getting a weapon [or destroying evidence]. The dissent by Burke and Freeman correctly stated the law," Ruebner said.
Decker's and Ruebner's analysis of Cregan appears in the new 2014 edition of Illinois Decisions on Search and Seizure, which is available in the ISBA bookstore at www.isba.org.