2022 IL App (1st) 190496
THIRD DIVISION
April 27, 2022
No. 1-19-0496
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 18 CR 13976
)
SPENCER WILLIAMS, ) Honorable
) James B. Linn,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE ELLIS delivered the judgment of the court.
Justice Burke concurred in the judgment.
Presiding Justice Gordon specially concurred.
ORDER
¶1 Held: Vacated and remanded with directions. Record is insufficient to determine
whether gun and ammunition would have been discovered during lawful
inventory search, such that inevitable-discovery doctrine would apply. State
proved defendant’s knowledge of gun’s presence in car beyond reasonable doubt.
Remanded for evidentiary hearing on inevitable discovery.
¶2 During a warrantless search of defendant Spencer Williams’s car, an officer removed a
purportedly loose panel covering the center console and found a hidden gun and ammunition.
Defendant was convicted of being an armed habitual criminal after a consolidated suppression
hearing and bench trial at which he challenged the search on fourth-amendment grounds.
1-19-0496
¶3 The trial court found, if implicitly, that the search violated the fourth amendment. But on
its own initiative, the trial court invoked the inevitable-discovery rule, finding that the gun and
ammunition would have been discovered during a lawful inventory search of the car, incident to
towing and impoundment. Thus, any fourth-amendment violation was attenuated from the
discovery of the gun. This ruling is the principal point of error raised on appeal.
¶4 Whether the court’s ruling will prove correct or incorrect, it was premature at this stage,
absent an evidentiary hearing or any evidence of inevitable discovery put forth by the State. The
doctrine of inevitable discovery, as the trial court applied it here, raises numerous questions that
cannot be answered based on the record as it stands. Some pertain to the facts of this particular
search; others pertain to the policies and standardized procedures, if any, that govern inventory
searches carried out by Chicago Police Department (CPD) officers. We thus vacate defendant’s
conviction and remand for an evidentiary hearing on inevitable discovery. We also reject
defendant’s challenge to the sufficiency of the State’s evidence that he had knowledge of the
gun’s presence in the car.
¶5 BACKGROUND
¶6 I. The search
¶7 The only witness at the consolidated suppression and trial proceeding was Chicago Police
Officer Jaeho Jung. Shortly before midnight on September 10, 2018, Officer Jung was on patrol
with his partners in Jackson Park, checking for after-hours parking (or any other) violations. One
lot, in particular, is open to the public until 11:00 p.m., but after that, it is restricted to cars that
have permit stickers from La Rabida Children’s Hospital.
¶8 Defendant was sitting in his car, alone and with the lights on, in the restricted lot. He did
not have a permit sticker. As Officer Jung approached, defendant bent forward and downward.
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But the officer did not see a weapon, and he did not consider defendant a threat at that time. The
conversation and events to follow were recorded by Officer Jung’s body worn camera (BWC).
That recording was introduced into evidence, as were several other officers’ BWC recordings.
¶9 On the BWC recording, Officer Jung explained to defendant that the park was closed.
Defendant clearly responded, “my people inside the hospital.” He asked the officer if he could
call “and tell her” (whomever he was referring to) that he would “meet her somewhere else” and
then move his car from the restricted lot. Officer Jung did not directly engage with that request.
Instead, he asked for defendant’s identification.
¶ 10 The officer told the story a bit differently on the stand. According to the officer,
defendant said his father was in the hospital, and since La Rabida is a children’s hospital, Officer
Jung asked to see defendant’s identification, the implication being that he found the explanation
suspicious. Officer Jung also noted that the security guard did not walk over to confirm that
defendant was a hospital visitor, which the officer apparently would have expected.
¶ 11 Defendant turned over his driver’s license. While Officer Jung was running a name
check, defendant got out of the car and opened the trunk. Another officer told him to get back in
the car, and he did.
¶ 12 As it happened, there was an outstanding warrant for defendant’s arrest. The offense of
arrest was never established at trial. Defendant stood by the officer’s squad car, handcuffed and
accompanied by four other officers, while Officer Jung searched defendant’s car.
¶ 13 The BWC footage shows the officer searching, at first, the driver’s side door, the center
console, and the glove compartment—the area within reach of the driver’s seat, as Officer Jung
said. Finding nothing of note, he continued to search. Eventually, he removed a panel covering
part of the center console, immediately to the right of the driver’s legs. Officer Jung testified that
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the “right side bottom” of the panel was “already loose,” so he “pulled it” off. A semi-automatic
pistol and additional magazine were hidden behind it, underneath the center console. The officer
acknowledged that these items were not visible until the panel was removed.
¶ 14 The BWC videos did not capture this part of the search; the events in question take place
out of frame. In particular, they do not show Officer Jung removing the panel, nor do they reveal
just how “loose” the bottom right side may have been. But much of the panel is visible for a
time, and what is visible appears to be intact and flush to the center console.
¶ 15 Upon discovering the gun, Officer Jung exclaimed, “got it,” and “Bingo-eee.” Despite
being handcuffed and surrounded by four officers, defendant started to run—and got nowhere.
Officer Jung searched the rest of the car. Defendant repeatedly asked the other officers, “What’s
in the car?” And when an officer asked defendant if he had a FOID card, defendant asked, “For
what?” The officer replied, “For a gun,” and defendant said, “I don’t got no gun.”
¶ 16 Defendant’s car was driven to the station, from which it was towed to the impound lot.
Officer Jung testified that a car improperly parked in that lot “can be towed.” He also testified,
however, that there was only one reason defendant’s car was removed and impounded, and that
was the discovery of the gun.
¶ 17 II. Evidence of knowledge
¶ 18 After he was Mirandized at the station, defendant agreed to talk to Officer Jung. The
interview was recorded on Officer Jung’s BWC. Defense counsel relied on that recording in the
motion for new trial, and the recording is included in the record on appeal. But, as the State
points out, it was not introduced into evidence at trial.
¶ 19 In any event, Officer Jung testified to statements defendant allegedly made after the
interview, when Officer Jung remained in the room with defendant to complete an inventory and
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other paperwork. Officers Aguirre and Gibbons came in and out of the room to discuss the case.
There is no BWC footage of the post-interview period.
¶ 20 According to Officer Jung, Officer Gibbons asked how the magazines should be
classified—regular, extended, or high capacity. Defendant interjected that the magazines came
with the gun and were not high capacity. Officer Jung testified that defendant made further
statements and kept changing his story about his knowledge of the gun. When Officer Gibbons
asked where it was found, defendant “like started talking—like, started stating there’s no way
that I could have seen it, because there were a lot of items within the center console.”
¶ 21 Officer Jung acknowledged that he did not mention these statements in his report, that his
trial testimony was the first time he had claimed that defendant commented on the magazines.
On redirect, the State refreshed Officer Jung’s recollection with his case report, which stated:
“Arresting officer informed RO about the recovered magazines, stating that they are factory and
not extended or high capacity. Offender also asks how Officer removed the center console when
he never observed RO recovering the weapon.” The State asked Officer Jung if “that was in
reference to the statements you heard the Defendant making at the station that you testified to?”
He answered “yes.”
¶ 22 III. Arguments and findings
¶ 23 After the State’s case, which comprised Officer Jung’s testimony and certified copies of
defendant’s qualifying convictions, the trial court heard defendant’s motion to suppress. Defense
counsel argued, in sum, that the search was invalid under Arizona v. Gant, 556 U.S. 332 (2009),
the controlling precedent for a warrantless automobile search incident to the driver’s arrest. The
State did not make any argument at all in defense of the search.
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¶ 24 The trial court asked counsel what to make of the fact that defendant’s car was parked
illegally. Counsel answered that “they could have called for a tow; and when the tow truck got
there, they could have searched the car, pursuant to the tow.” But, counsel noted, “[t]hey never
called for a tow.” And, counsel noted, Officer Jung testified that “the only reason they took the
car, was because they found a gun.”
¶ 25 The trial court acknowledged that testimony. Even still, the judge said, “I don’t think
they’re going to leave a car there indefinitely, when it’s not supposed to be there. It’s a restricted
area.” Thus, the court concluded, “it’s like an inevitable discovery, because they’re going to
search it anyway, because there’s no way when he’s arrested on a warrant in the car, and the car
is in a prohibited spot, that the car’s just going to be left there.” So the police “would have found
that gun, in any event.” The trial court thus denied the motion to suppress.
¶ 26 In closing, counsel argued, in so many words, that the State failed to prove that defendant
knew the gun was in the car, emphasizing that the State offered no proof that defendant owned
the car, that there was no forensic evidence tying him to the gun, and that gun was “behind the
hidden panel.” The State did not make a closing argument.
¶ 27 The trial court found Officer Jung “credible and compelling” and specifically credited the
officer’s testimony that defendant spontaneously told the officers about the magazine, thus
“indicating knowledge of the gun and certainly knowledge that he had it.” The court also noted
defendant’s shifting stories, as the officer testified; as well as defendant’s attempted flight, which
the court considered evidence of his consciousness of guilt.
¶ 28 In the motion for new trial, counsel reiterated that the police did not, in fact, tow the car
from the parking lot (they drove it, and then had it towed from the station), and asked the court to
reconsider its ruling on the motion to suppress on this basis. As for defendant’s knowledge of the
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gun, counsel argued that it was “quite significant” that everything but defendant’s allegedly
inculpatory statements was captured on video. The trial court seemed unaware that there was any
BWC footage from the stationhouse interview—recall that it was not introduced into evidence—
but counsel pointed out that there was, and that these alleged statements were not on it.
¶ 29 The trial court stood by its findings on the “credibility issues” and its “legal” rulings on
the “fourth amendment issues.” The court sentenced defendant to 90 months in prison.
¶ 30 ANALYSIS
¶ 31 I. Sufficiency of Evidence
¶ 32 We begin with defendant’s challenge to the sufficiency of the evidence, as no trial error
need be reviewed if defendant was not proven guilty beyond a reasonable doubt.
¶ 33 To prove defendant guilty of being an armed habitual criminal, the State had to prove that
he knowingly possessed the gun found behind the center-console panel. See 720 ILCS 5/4-2, 24-
1.7(a) (West 2018). The gun was in a concealed location, and the State did not offer any proof
that defendant owned the car or any forensic evidence, like DNA or fingerprints, linking him to
the gun. The trial court explicitly based its finding as to the knowledge element on two pieces of
evidence: (1) defendant’s statement to Officer Jung about the magazines, and (2) his attempted
flight from the scene when the officer found the gun. Defendant contends that this evidence was
insufficient to prove beyond a reasonable doubt that he knew the gun was in the car.
¶ 34 If defendant’s sufficiency challenge is to succeed, he must show that this evidence was so
“unreasonable, improbable, or unsatisfactory” that no rational trier of fact, viewing it in the light
most favorable to the State, could accept it as proof beyond a reasonable doubt that he knew the
gun was in the car. People v. Ross, 229 Ill. 2d 255, 272 (2008); see Jackson v. Virginia, 443 U.S.
307 (1979). The trier of fact’s findings regarding the credibility of the witnesses and the
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inferences to be drawn from the evidence are not conclusive, but they are entitled to significant
deference. Ross, 229 Ill. 2d at 272.
¶ 35 First, Officer Jung testified that he Mirandized and interviewed defendant at the station.
After the interview, the officer stayed in the room to complete some paperwork. Defendant was
still there with him. Officers Aguirre and Gibbons came in and out of the room to discuss the
case. Officer Gibbons asked whether the magazines should be classified as regular, extended, or
high capacity. According to Officer Jung, defendant interjected that the magazines came with the
gun and were not high capacity. And when Officer Gibbons asked where the gun was found,
defendant “like started talking—like, started stating there’s no way that I could have seen it,
because there were a lot of items within the center console.”
¶ 36 The trial court found that defendant’s knowledge of the gun could be inferred from these
statements, a reasonable inference that defendant does not dispute. But he does dispute the trial
court’s express finding that Officer Jung was credible. In particular, defendant points to the fact
that his alleged statements were not recorded by Officer Jung’s BWC, which was in use at the
station to record defendant’s in-station interview. And as Officer Jung acknowledged on the
stand, he made no mention of defendant’s statements in his case report, which stated: “Arresting
officer informed RO about the recovered magazines, stating that they are factory and not
extended or high capacity. Offender also asks how Officer removed the center console when he
never observed RO recovering the weapon.”
¶ 37 As to the BWC, the State first argues that we cannot consider it at all, since the relevant
recorded portions—at the station, rather than in the parking lot—were not put into evidence at
trial. Defendant responds that counsel relied on them in the post-trial motion, making them fair
game on appeal. The more important point, from our perspective, is that they do not help
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defendant at all. The BWC recording stops at the end of defendant’s interview. According to the
officer, defendant’s spontaneous statements came later. We do not find it unusual that the officer
would turn off his BWC at the end of the interview, apparently thinking there was no need to
record himself filling out paperwork. So we would not expect to find defendant’s statements on
the BWC. Thus, their absence from the recording does not bear in any meaningful way on the
credibility of the officer’s testimony that defendant did indeed make them.
¶ 38 As for the omission of this incriminating evidence from the officer’s case report, that is
certainly a point against the officer’s credibility. So, too, is the fact that the officer testified that
the reason he asked for defendant’s identification when he first encountered him was that
defendant claimed to be waiting for his father, which the officer found suspicious because La
Rabida is a children’s hospital. The video evidence, however, shows that defendant made no
mention of his father; when asked what he was doing parked in the lot, he told Officer Jung he
was waiting for “my people.”
¶ 39 But the trial court knew all of this and nevertheless found that the officer, all things
considered, was “credible and compelling” regardless. We cannot say that no reasonable person
would still believe the officer’s testimony, despite these counterpoints. On this basis alone, we
may not disturb the trial court’s credibility determination.
¶ 40 Next, the trial court found that defendant’s attempted flight from the scene, immediately
after Officer Jung announced that he found the gun, was evidence of his consciousness of guilt.
That inference is a familiar one, and it is usually deemed reasonable and sound. See, e.g., People
v. Jackson, 2019 IL App (1st) 161745, ¶ 30.
¶ 41 Here, defendant argues, that inference does not hold up, since he made only a “brief
attempt to flee, while handcuffed” and “standing with four police officers.” We might add that
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Jackson Park sits on the lakefront, and as one of the officers can be heard musing on the BWC,
“Where’s he gonna go? That’s the lake?” Small wonder that defendant got nowhere. But the fact
that he got nowhere, and never stood a chance, does not defeat the inference of his consciousness
of guilt. It simply shows the futility of his attempt.
¶ 42 Lastly, as the State points out, defendant bent down, toward the area where the gun was
found, when Officer Jung first approached. Although the officer did not claim to see a weapon,
and did not consider defendant a threat, our evaluation of the sufficiency of the evidence is not
limited to the officer’s own perspective at that time. The panel was loose, at least to some degree,
according to Officer Jung, and viewing these facts in the light most favorable to the State, a
rational trier of fact could infer that defendant was reaching down to stash, or otherwise check
on, the gun. That, too, supports an inference of knowledge.
¶ 43 All in all, the State’s proof of knowledge, if not overwhelming, was legally insufficient.
¶ 44 II. Inevitable Discovery
¶ 45 Defendant next argues that the trial court erred in denying his motion to suppress the gun
and ammunition that Officer Jung found behind what he described as a “loose” panel covering
the center console of his car. The trial court found that the doctrine of inevitable discovery saved
this evidence from suppression.
¶ 46 By moving directly to the question of inevitable discovery, the trial court implicitly held
that the search violated the fourth amendment in the first instance. That is the only sensible
interpretation of the court’s ruling, as the doctrine of inevitable discovery provides that evidence
obtained in an illegal search will not be suppressed if “the State can show that such evidence
‘would inevitably have been discovered without reference to the police error or misconduct.’ ”
(Emphases added.) People v. Sutherland, 223 Ill. 2d 187, 227-28 (2006) (quoting Nix v.
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Williams, 467 U.S. 431, 448 (1984)). The doctrine does not even come into play unless the
search at issue has been deemed unlawful under the fourth amendment in the first place; it is a
reason not to suppress evidence despite the fact that it was unconstitutionally obtained.
¶ 47 That is keeping with the general shifting of burdens in a suppression hearing: If the
defendant ultimately carries his burden of proving a fourth amendment violation, the burden
shifts to the State to demonstrate that suppression is nevertheless inappropriate because the
evidence was, or inevitably would have been, discovered by means sufficiently distinguished
from the taint of the unconstitutional search. See People v. Foskey, 136 Ill. 2d 66, 85-86 (1990);
Brown v. Illinois, 422 U.S. 590, 604 (1975) (burden of showing attenuation between
unconstitutional search and discovery of evidence “rests, of course, on the prosecution”); People
v. Schreiner, 2021 IL App (1st) 190191, ¶ 70. A discussion of inevitable discovery thus only
makes sense after a finding that the search violated the fourth amendment.
¶ 48 The State, for its part, has not claimed otherwise on appeal. The State does not argue that
the search complied with the fourth amendment. The State’s argument consists solely of arguing
that the fruits of the search should be not suppressed because, as the trial court ruled, they would
have been inevitably discovered in an inventory search, regardless.
¶ 49 We agree with the premise, shared by the parties and at least implicitly by the trial court,
that the actual search performed was unlawful. This search cannot be justified as a search
incident to arrest under Gant, 556 U.S. 332. A warrantless search of a vehicle may be justified if
incident to a lawful arrest, but only “if the arrestee is within reaching distance of the passenger
compartment at the time of the search or it is reasonable to believe the vehicle contains evidence
of the offense of arrest.” Id. at 351; People v. Bridgewater, 235 Ill. 2d 85, 95 (2009).
¶ 50 Here, of course, there is no claim that defendant was within reaching distance of an
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interior compartment of his vehicle at the time of the search. He was nowhere near his car when
the search was conducted; he was handcuffed by the hood of the police vehicle. And defendant
was being arrested for an outstanding warrant—the underlying offense was never mentioned at
trial—so there is no evidence that the officer was searching for evidence of that offense.
¶ 51 Nor has the State ever claimed, or would the evidence show, that the search was based on
probable cause, so the automobile exception to the warrant requirement does not apply. See
Gant, 556 U.S. at 347; United States v. Ross, 456 U.S. 798, 820-21 (1982). And it is clear that
defendant did not consent to the search.
¶ 52 Finally, the State understandably makes no attempt to claim that the search that
uncovered the gun was, itself, an inventory search. Officer Jung testified that the car was
impounded because a gun was found during the search. For that reason alone, the search, which
obviously preceded the decision to take the car into police custody, was clearly an investigative
search, not an inventory search. Nor does the video remotely suggest that the officer was
inventorying the contents; he was searching for contraband. The officer was not executing a
“police caretaking procedure[ ] designed to secure and protect vehicles and their contents within
police custody,” but, rather, was necessarily acting “for the sole purpose of investigation.”
Colorado v. Bertine, 479 U.S. 367, 372 (1987).
¶ 53 In sum, suffice it to say that the State did not produce, nor has it ever claimed to have
produced, any evidence to rebut defendant’s prima facie case that the warrantless search of his
car was unlawful. See People v. Gipson, 203 Ill. 2d 298, 306-07 (2003) (warrantless search of
car established prima facie case; thus, State had “burden of going forward with the evidence” to
establish exception to warrant requirement).
¶ 54 With that said, as previously noted, evidence secured by an unreasonable search will not
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be suppressed if the state can establish an exception to the exclusionary rule. Sutherland, 223 Ill.
2d at 227-28; see In re K.M., 2019 IL App (1st) 172322, ¶ 36 (attenuation, independent source,
and inevitable discovery have been recognized as related exceptions to exclusionary rule). The
exception at issue here, as we have noted, is the doctrine of inevitable discovery.
¶ 55 The State made almost no attempt to establish inevitable discovery. It said nothing about
whether the fruits of the search could avoid suppression based on one of the attenuation
doctrines. The only mention of anything about an inevitable inventory search during the
combination trial/suppression hearing was this exchange with Officer Jung on direct:
“Q. Now, a vehicle parked in the park parking lot, at that hour, what would
happen to that vehicle?
A. It can be towed.”
¶ 56 That was the only mention of a tow, and no mention was ever made of an inventory
search. Instead, the court made the finding of inevitable discovery, based on a future inventory
search, on its own initiative.
¶ 57 The trial court reasoned that, since defendant was being arrested on an outstanding
warrant, his illegally parked car would have been towed. Incident to that tow, the car would have
been subject to an inventory search that would have uncovered the gun. Thus, the evidence was
admissible under the doctrine of inevitable discovery, notwithstanding that the actual search of
defendant’s car by Officer Jung was unlawful.
¶ 58 The State echoes this position precisely on appeal, primarily focusing on the fact that the
car would have been towed even if Officer Jung hadn’t found a gun, because he was going to be
arrested on an outstanding warrant, and the car was illegally parked.
¶ 59 To be sure, a trial court may base its ruling on an issue that was not specifically argued
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by the parties. The problem here, however, is that the record was insufficient to make this
finding.
¶ 60 It is well settled that, for an inventory search to be lawful, (1) the car must be lawfully
impounded; (2) the search must be undertaken for caretaking (not investigative) purposes—
namely, to protect the owner’s property, to protect the police from claims of loss, theft, or
vandalism, and to protect the police from potential danger; and (3) the search must be conducted
in good faith pursuant to a reasonable, standardized police procedure that regulate an officer’s
discretion and thus guards against the use of an inventory search as a pretext for an investigative
search that the fourth amendment would not otherwise permit. People v. Hundley, 156 Ill. 2d
135, 138 (1993); see Florida v. Wells, 495 U.S. 1, 4 (1990); South Dakota v. Opperman, 428
U.S. 364, 369 (1976); Bertine, 479 U.S. at 372-73.
¶ 61 At a minimum, the record contains no evidence of the second and third requirements. The
record, for example, provides no information about a reasonable, standardized police procedure
regarding inventory searches.
¶ 62 In Wells, 495 U.S. at 4, the Supreme Court held that an inventory search that led to the
opening of a locked suitcase in the trunk was unreasonable, and thus violated the fourth
amendment, because there was no standardized police policy that regulated an officer’s
discretion to search closed containers found in the car during an inventory search. This was not
to say that a law-enforcement agency must enact a “mechanical ‘all or nothing’ ” policy, one that
either allows officers to search any closed container, or else to search none; a policy can afford
officers some reasonable discretion to determine whether the underlying purposes of an
inventory search would be served by opening a particular container, given the particular
circumstances of the case. Id. The point was that an officer may not be afforded “uncanalized
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discretion” or “so much latitude that inventory searches are turned into ‘a purposeful and general
means of discovering evidence of crime.’ ” Id. (quoting Bertine, 479 U.S. at 376 (Blackmun, J.,
concurring)).
¶ 63 In Hundley, 156 Ill. 2d at 137, a state trooper conducted an inventory search of a
unoccupied car that had been involved in an accident, before it was towed to an unguarded
storage facility. The trooper discovered a closed, snap-top cigarette case inside the vehicle and
opened it, finding a snorting tube containing cocaine. Id. At trial, the State introduced into
evidence a General Order of the Illinois State Police. Id. Our supreme court held that this policy
was a reasonable, standardized procedure, and the officer acted in good-faith pursuant to that
policy in opening the cigarette case, as the officer testified that women often put their driver’s
licenses in those containers, and he was trying to determine the identity of the vehicle owner. Id.
at 139. Thus, the contraband was properly allowed into evidence. Id.
¶ 64 Here, in contrast, there is no such evidence of a reasonable, standardized procedure, as in
Wells. The holding in Wells applied to closed containers, which is not exactly the situation here.
But if the fourth amendment cannot tolerate unfettered police discretion to open a locked suitcase
in a trunk (see Wells, 495 U.S. at 1), surely it cannot tolerate unfettered police discretion to
dismantle parts of the car itself, to “inventory” whatever items may be lurking, out of view,
within the car’s innards.
¶ 65 Does CPD have such a standardized policy? As best we can tell from CPD’s Department
Directives System, there is but one standing order, or rather one provision of a standing order,
that regulates inventory searches. It is sparse in its guidance. It simply directs officers to “remove
and inventory personal property found within the vehicle” when it is impounded, with the one
qualification that, “[i]f the vehicle keys are available, personal property within a locked glove
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compartment or trunk will be removed and inventoried.” Special Order S07-03-05,
Impoundment of Vehicles for Municipal Code Violations, § III.B.7, available at
http://directives.chicagopolice.org/#/directive/public/6831 (last visited March 15, 2022).
¶ 66 This provision does not speak to the issue at hand. But there may well be other provisions
that do, which our search of CPD’s website did not reveal. This is especially true in light of our
supreme court’s holding in Gipson, 203 Ill. 2d at 305-06, that inventory-search policies need not
be in writing, as long as there is some standardized department procedure to which an officer can
credibly testify at a suppression hearing. Which means that this is probably not a subject into
which a court can venture on its own or amenable to judicial notice.
¶ 67 To say nothing of the fact that any such policy must avoid using inventory searches as
pretexts for an investigative search (Wells, 495 U.S. at 4), which merges with the second
requirement for a valid inventory search—that the officer’s search be limited to caretaking, not
investigative functions, namely to protect the owner’s property, to protect the police from claims
of loss, theft, or vandalism, and to protect the police from potential danger. See id.; Hundley, 156
Ill. 2d at 138. At bottom, both the second and third factors are obviously aimed at ensuring that
inventory searches do not devolve into investigative searches.
¶ 68 And we can say at this stage, on this record, that there is at least a colorable question as to
whether a proper inventory search would have led to a discovery of the gun, as did the search
conducted by Officer Jung. The gun here was found inside part of the center console, down by
the foot of the driver. Officer Jung pulled off the panel to discover the gun. He testified that the
bottom right portion of the panel was “loose.” From our review of the video, we are unable to see
that bottom right portion. We can see most of that panel, however, and it appeared to be intact
and flush against the console.
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¶ 69 Does CPD policy permit officers to pull a panel off a console in search of something to
inventory that is otherwise not in plain view? Would removing a “loose” panel to look inside be
nothing more than a “caretaking” function necessary to protect the owner’s property, to protect
the police from claims of loss, or to protect the police from potential danger?
¶ 70 None of these questions were answered. Without those answers, we cannot say that a
proper inventory search would have revealed the presence of that weapon. And thus we cannot
find that the unconstitutional search is saved by the inevitable-discovery doctrine.
¶ 71 We will not reverse the suppression ruling outright, however, because the State never had
the opportunity to prove inevitable discovery. In this regard, this case is like Schreiner, 2021 IL
App (1st) 190191, ¶ 73, where the trial court found the police search constitutional, but on appeal
we disagreed. Though we found the search unconstitutional, we recognized that, because the
State had won the suppression ruling on the question of reasonableness, the burden never shifted
to the State to prove attenuation. We thus remanded for an attenuation hearing. Id.
¶ 72 Here, much the same is true. The burden never shifted to the State to prove inevitable
discovery or some other exception to the exclusionary rule, as the court raised and ruled on the
question on its own. Indeed, the argument on the motion to suppress did not even involve the
State. Defense counsel made its argument, and then the trial court gave its ruling based on
inevitable discovery without input from the State. Under circumstances like these, fairness
dictates that the State have the opportunity to be heard on the topic at an evidentiary hearing. See
id.; In re K.M., 2019 IL App (1st) 172322, ¶¶ 50-53; People v. Ollie, 333 Ill. App. 3d 971, 993-
94 (2002); People v. Wallace, 299 Ill. App. 3d 9, 21 (1998).
¶ 73 We thus vacate defendant’s conviction and remand this matter for an evidentiary hearing
on the question of inevitable discovery. If the trial court adheres to its prior ruling that the gun
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and ammunition inevitably would have been discovered during a lawful inventory search, and
the evidence is thus admissible, the court should reinstate its judgment of conviction. See
Schreiner, 2021 IL App (1st) 190191, ¶ 75. If the trial court determines that this evidence is not
admissible under the doctrine of inevitable discovery, then the court should proceed from that
finding.
¶ 74 CONCLUSION
¶ 75 Defendant’s conviction is vacated. The cause is remanded for proceedings consistent with
the directions given above.
¶ 76 Vacated and remanded with directions.
¶ 77 PRESIDING JUSTICE GORDON, specially concurring:
¶ 78 I agree with the majority’s order, but I must write separately, as I would make additional
findings to make sure that double jeopardy is no bar in the event the trial court reinstates the
conviction or provides a possible retrial. See People v. Lopez, 229 Ill.2d 322 (2008).
¶ 79 In the case at bar, the State never had the opportunity to shoulder their burden to show that
the inevitable discovery doctrine applies here, as the trial court pronounced that it applied without
giving its reasons or whether it took judicial notice of the procedures of the police department
when they search motor vehicles that are towed from a crime scene. As a result, the State should
be given that opportunity as the majority explains in its order.
¶ 80 However, in directing the trial court to hold an evidentiary hearing which would be similar
to an attenuation hearing, I believe this court must make a finding that we have reviewed the
supporting evidence and determined that it was sufficient to support the defendant’s conviction if
there is sufficient evidence that the inevitable discovery doctrine is applicable here. Lopez, 229
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Ill.2d at 367 (in determining the sufficiency of evidence for double jeopardy purposes, reviewing
courts may consider inadmissible as well as admissible evidence at the original trial).
¶ 81 I agree with the majority that defendant’s conviction be vacated and the matter remanded
for an evidentiary hearing on the issue of inevitable discovery, and if the trial court adheres to its
prior ruling that the gun and ammunition would inevitably have been discovered during a lawful
inventory search, the trial court should reinstate its judgment of conviction. However, I would find
that if the trial court determines after an evidentiary hearing that this evidence is not admissible
under the doctrine of inevitable discovery, the trial court should make a finding of not guilty and
find for the defendant.
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