IL: Piece of plastic bag protruding from pocket is RS, not PC; search not justified without more

Defendant’s car was stopped for littering from the passenger side, and the passenger made a “snide” comment to the officer denying littering. The officer ordered him out of the car, and then could see a bit of a plastic bag protruding from his front pocket. That was reasonable suspicion and not probable cause. People v. Garcia, 2012 IL App (1st) 102940, 978 N.E.2d 366 (September 28, 2012):

[**P13] Nevertheless, even if Officer Romano had observed a clear knotted plastic baggie protruding from defendant’s front pants pocket, this observation may have created a reasonable suspicion justifying further investigation, but such an observation standing alone generally does not rise to the level of probable cause. See, e.g., Cauls v. Commonwealth, 683 S.E.2d 847, 852 (Va. Ct. App. 2009) (deputy’s observation of knotted and frayed end of plastic baggie protruding from defendant’s pants pocket, standing alone, not sufficient to provide probable cause under the plain-view exception because the baggie’s incriminating character was not immediately apparent).

[**P14] Suspicion is not a substitute for probable cause. See Hunter v. Bryant, 502 U.S. 224, 232 (1991) (Stevens, J., dissenting); see also People v. Symmonds, 18 Ill. App. 3d 587, 595 (1974) (“[t]he Illinois Supreme Court has said that the subjective belief of a police officer that an envelope contained in the pocket of a traffic offender contained gambling devices was an insufficient basis for a search of the envelope where it was not predicated upon other objective facts, such as something about the envelope itself or its visible contents which gave the police an indication of their illicit nature”) (citing People v. Tate, 38 Ill. 2d 184, 187 (1967))).