ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Kowalski, 2011 IL App (2d) 100237
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MICHAEL G. KOWALSKI, Defendant-Appellant.
District & No. Second District
Docket No. 2-10-0237
Filed July 28, 2011
Rehearing denied September 6, 2011
Held Defendant’s conviction for unlawful possession of drug paraphernalia
(Note: This syllabus was reversed where the trial court erred in denying his motion to suppress
constitutes no part of a pipe with cannabis residue discovered in a warrantless search conducted
the opinion of the court pursuant to fire department policy in preparation to transport defendant
but has been prepared for medical treatment following a bar fight, since there was no evidence
by the Reporter of defendant committed a crime or was armed and dangerous or that the
Decisions for the search was limited to a search for weapons and there was no other
convenience of the justification for the search.
reader.)
Decision Under Appeal from the Circuit Court of Du Page County, No. 08-CM-5239; the
Review Hon. Karen M. Wilson, Judge, presiding.
Judgment JUSTICE BOWMAN delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice McLaren concurred in the
judgment and opinion.
Counsel on Thomas A. Lilien and Steven E. Wiltgen, both of State Appellate
Appeal Defender’s Office, of Elgin, for appellant.
Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman,
Assistant State’s Attorney, Lawrence M. Bauer and Gregory L. Slovacek,
both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for
the People.
Panel JUSTICE BOWMAN delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice McLaren concurred in the
judgment and opinion.
OPINION
¶1 Following a stipulated bench trial, defendant, Michael G. Kowalski, was convicted of
possession of drug paraphernalia (720 ILCS 600/3.5 (West 2008)). The trial court sentenced
him to 30 days in jail and 12 months’ probation. Defendant appeals, contending that the trial
court erred in denying his motion to suppress evidence. For the reasons that follow, we
reverse.
¶2 BACKGROUND
¶3 The only witness to testify at the hearing on defendant’s motion to suppress was Officer
John Gaw of the Lisle police department. He gave the following testimony. In the early
morning hours of September 7, 2008, he responded to a call of a bar fight. When Gaw
arrived, he observed defendant sitting on the stairs outside the bar. Defendant was highly
intoxicated and had blood on his face and clothing. It was “apparent” that defendant was the
victim of the fight. Because defendant required medical attention and because of defendant’s
intoxicated state, Gaw assisted defendant to the waiting ambulance. Prior to placing
defendant in the ambulance, and according to the fire department’s policy that anyone
involved in a call involving violence be searched before entering an ambulance, Gaw
conducted a search of defendant. In defendant’s front pants pocket, Gaw found a small, metal
pipe containing some burned cannabis residue in the bowl area. When Gaw searched
defendant, defendant was not under arrest, defendant was not a suspect of any kind, Gaw did
not possess a warrant to search defendant, and defendant did not consent to a search of his
person. In addition, defendant did not display any aggression toward Gaw or any other
person.
¶4 After taking the matter under advisement, the trial court denied defendant’s motion to
suppress. The trial court stated that it was extending the holding of Terry v. Ohio, 392 U.S.
1 (1968), to allow for a weapons search of a person who is to be transported in an ambulance
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where an officer reasonably believes the person might be armed. The trial court also likened
the situation to one where an officer conducts a weapons pat-down search before giving a
citizen a courtesy transport in a squad car. Defendant filed a motion to reconsider the ruling
on his motion to suppress, which the trial court denied.
¶5 The trial court found defendant guilty of possession of drug paraphernalia and sentenced
him to 30 days in the county jail and 12 months’ probation. Defendant timely appeals.
¶6 ANALYSIS
¶7 On appeal, defendant contends that the trial court erred in denying his motion to suppress
evidence, because Gaw lacked legal authority to conduct the search and, even if Gaw was
legally authorized to conduct a search, the search he conducted exceeded the legally
permissible scope. Because we agree with defendant’s latter argument, we reverse his
conviction.
¶8 In reviewing the trial court’s ruling on a motion to suppress, we will reverse the trial
court’s factual findings only if they are against the manifest weight of the evidence; however,
we will review de novo the ultimate question of whether the evidence should have been
suppressed. People v. Queen, 369 Ill. App. 3d 211, 214 (2006).
¶9 Although a defendant initially bears the burden of proof on a motion to suppress, where
a defendant makes a prima facie case that the evidence was obtained by an illegal search or
seizure, the burden shifts to the State to go forward with evidence countering the defendant’s
prima facie case. People v. Kveton, 362 Ill. App. 3d 822, 832 (2005). A defendant presents
a prima facie case when he demonstrates that the search was conducted without a warrant.
See People v. Gipson, 203 Ill. 2d 298, 307 (2003) (“Here, defendant made his prima facie
case by showing that Sergeant Byrd searched the trunk of defendant’s car without a
warrant.”). Here, defendant presented his prima facie case when he presented evidence that
Gaw did not have a warrant to search defendant. Accordingly, the burden shifted to the State
to present evidence that the search of defendant was justified under a recognized exception
to the warrant requirement.
¶ 10 The fourth amendment to the United States Constitution guarantees the “right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const., amend. IV. Generally, a warrant is necessary to satisfy
the reasonableness requirement of the fourth amendment. People v. Sorenson, 196 Ill. 2d
425, 432 (2001).
¶ 11 The trial court found that the warrantless search of defendant was justified, in part, by an
extension of the warrant exception recognized in Terry. Under Terry, an officer may stop a
person for temporary questioning if the officer reasonably believes that the person has
committed, or is about to commit, a crime. People v. Flowers, 179 Ill. 2d 257, 262 (1997).
In addition, if the officer reasonably believes that the person stopped is armed and dangerous,
the officer may conduct a limited pat-down search to determine whether the person is, in fact,
carrying a weapon. Sorenson, 196 Ill. 2d at 432; Flowers, 179 Ill. 2d at 262. Any search that
goes beyond what is necessary to determine if the person is armed is not valid under Terry,
and the fruits of such a search will be suppressed. Sorenson, 196 Ill. 2d at 432.
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¶ 12 The search in this case was not justified under Terry for several reasons. First, no
evidence indicated that defendant had committed or was about to commit a crime. Gaw
testified that it was “apparent” that defendant was the victim of the fight and that defendant
was not a suspect of any kind. Second, there was no evidence that Gaw reasonably believed
defendant to be armed and dangerous. Finally, the search that Gaw conducted went beyond
a pat-down search limited to determining whether defendant was armed. The evidence
indicated that Gaw reached into defendant’s pocket to remove the pipe. Yet, there was no
evidence presented that Gaw first conducted an external pat-down of defendant and that the
pipe felt like a weapon (Sorenson, 196 Ill. 2d at 432 (Terry searches must be limited to
determining whether the person is armed)) or was readily identifiable as contraband (see
Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (“If a police officer lawfully pats down
a suspect’s outer clothing and feels an object whose contour or mass makes its identity
immediately apparent, there has been no invasion of the suspect’s privacy beyond that
already authorized by the officer’s search for weapons ***.”)).
¶ 13 The trial court also found that the search was appropriate because it was analogous to a
search conducted by an officer prior to giving a citizen a courtesy ride in a squad car. This
court has recognized that, in the interest of the officer’s safety, he may conduct a protective
pat-down search for weapons prior to providing a citizen a courtesy ride in a squad car.
Queen, 369 Ill. App. 3d at 218, 220; People v. Smith, 346 Ill. App. 3d 146, 164 (2004), aff’d,
214 Ill. 2d 338 (2005), overruled in part on other grounds, People v. Luedemann, 222 Ill. 2d
530, 548 (2006).
¶ 14 The State argues, as the trial court found, that this warrant exception should be extended
to a situation where a citizen is to be transported in an ambulance. Even assuming that this
exception may be properly extended in such a manner, we believe that the search conducted
by Gaw exceeded the scope permitted under this exception. As the United States Supreme
Court stated in Terry, a search for weapons without probable cause must, like any other
search, be “strictly circumscribed by the exigencies which justify its initiation.” Terry, 392
U.S. at 25-26. Accordingly, if the purpose of searching a citizen prior to providing him with
a courtesy transport in a squad car or transporting him in an ambulance is to ensure the safety
of the transporting officers or paramedics, then such a search, like the protective pat-down
search permitted by Terry, should be limited to “an intrusion reasonably designed to discover
guns, knives, clubs, or other hidden instruments for the assault of the police officer” or
paramedic. See Terry, 392 U.S. at 29. As previously discussed, the State did not present any
evidence that indicated that Gaw initially limited his search of defendant to a pat-down
search for weapons or that the pipe felt like a weapon or other contraband. Accordingly, the
State failed to counter defendant’s prima facie case that the search conducted by Gaw was
illegal.
¶ 15 The State also argues that the trial court’s decision may be sustained on the ground that
defendant was receiving emergency medical treatment. In support, the State cites three cases:
Vauss v. United States, 370 F.2d 250 (D.C. Cir. 1966), Commonwealth v. Johnson, 969 A.2d
565 (Pa. Super. 2009), and Commonwealth v. Keenan, 11 Pa. D. & C.5th 289 (2010). In
these cases, the courts found that the searches of the defendants’ clothing, conducted while
the defendants were in the throes of medical emergencies, were justified by exigent
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circumstances. Vauss, 370 F.2d at 252 (search of the unconscious defendant for identification
was justified by need to assist the defendant); Johnson, 969 A.2d at 572 (same); Keenan, 11
Pa. D. & C.5th at 302-03 (where the defendant was not a suspect, the seizure of his burned
clothes was justified by the need to preserve evidence for the investigation of an arson). The
State also cites People v. Torres, 144 Ill. App. 3d 187, 191 (1986), where the seizure of
cannabis and LSD from the defendant’s person while he was in the emergency room was
justified by the plain-view doctrine and probable cause. Other than stating that defendant in
this case, like the defendants in those cases, required medical attention, the State does not
explain what exigent circumstances justified the search of defendant. Nor does the State
contend that the search of defendant was justified by the plain-view doctrine or probable
cause. Rather, the State simply states that a person receiving emergency medical treatment
has a diminished expectation of privacy. Yet, none of the cited cases supports such a
contention, and we decline to so hold.
¶ 16 In sum, we conclude that the trial court erred in denying defendant’s motion to suppress.
The search of defendant cannot be justified under Terry, because there was no evidence that
defendant had committed or was about to commit a crime, that defendant was armed and
dangerous, and that Gaw’s search was limited to a search for weapons. In addition, even
assuming that Gaw was justified in performing a protective search of defendant before
defendant was transported in the ambulance, any such search should have been limited to a
search for weapons, and there was no evidence that the search of defendant was so limited.
The State has offered no other viable justification for the search of defendant. Accordingly,
defendant’s motion to suppress should have been granted and evidence of Gaw’s discovery
of the pipe should not have been admitted. Without evidence of the pipe, defendant could not
have been convicted, and his conviction must be reversed. People v. Staple, 345 Ill. App. 3d
814, 821 (2004).
¶ 17 CONCLUSION
¶ 18 The judgment of the circuit court of Du Page County is reversed.
¶ 19 Reversed.
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