author: JUSTICE STEIGMANN JUSTICE McCULLOUGH,

text:
      In re SUBPOENA DUCES TECUM TO BOB ARYA (The People of the State of Illinois, Plaintiff-Appellee, v. Robert Arya, Defendant-Appellant).
    Fourth District
    No. 4—91—0825
    Opinion filed February 28, 1992.

      McCULLOUGH, J., dissenting.
    Donald M. Craven, of Donald M. Craven, P.C., of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Robert Arya, a reporter for a Peoria television station, possesses videotapes and notes pertaining to a triple murder and armed robbery. The State believes these materials contain the names and interviews of at least three persons who have significant information pertinent to its investigation of these crimes. The State also believes that an as yet uncharged participant in these crimes admitted his participation to at least one of these individuals. On the State’s petition, the trial court divested defendant of his reporter’s privilege, as provided in section 8 — 901 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 8—901), and ordered defendant to produce the videotapes and notes. Defendant refused to do so. The court held him in contempt of court and ordered him jailed until he produced these materials. Defendant appeals, and we vacate and remand.

I. Facts

On October 27, 1988, an armed robbery was committed at the S & S Liquor Store in Bloomington, Illinois. During the robbery, three patrons were killed and the store clerk was severely beaten. As a result of a three-year, intensive investigation, which consumed more than 2,000 hours of investigators’ time, the State gathered sufficient evidence to charge two suspects with these crimes. However, the State has delayed proceeding with those prosecutions until it can charge a third suspect, whom the State wishes to try jointly with the other suspects.

Defendant conducted an independent investigation of the S & S robbery as a reporter for Peoria television station WHOI. During the course of that investigation, he spoke "with several people who provided defendant with what he termed “important information” regarding the S & S crimes. Some of these people allowed defendant to videotape or audiotape his interviews of them, while others limited defendant to merely taking notes. All of these individuals told defendant that they wanted their identity shielded and that they would not speak to the police. One of these individuals told defendant that the third suspect had admitted to that individual that he had driven the getaway car in the S & S robbery.

Between August 1 and August 15, 1991, defendant spoke to Officer Dan Katz of the Bloomington police department and told him about the tapes and notes. Defendant told Katz that he thought the police should have them because of the seriousness of the crimes. However, although defendant told Katz the name of the uncharged suspect (based upon what defendant’s sources had told him), defendant did not tell Katz the names of his sources. Defendant expressed doubt over whether he should turn his material over to the police because of his duty to protect the confidentiality of his sources. Since those discussions, defendant’s doubts about revealing his sources have solidified from hesitancy to an outright refusal to disclose.

On September 17, 1991, the State brought this action under section 8 — 903 of the Code to divest defendant of his statutory reporter’s privilege. (Ill. Rev. Stat. 1989, ch. 110, par. 8—903.) Specifically, the State requested the circuit court to divest defendant of any privilege regarding the following material:

“Any and all memoranda, notes, statements, written or otherwise recorded, including video or audio tape recordings, of or concerning statements or conversations with or concerning individuals professing to have personal information concerning the S & S armed robbery/triple homicide case, including persons professing to have heard confessions or admissions of individuals purporting to have been involved in the commission of said offense or in aiding or abetting the commission of said offense.”

At the hearing on the petition, both Katz and Arya testified. Other evidence at the hearing revealed that the police investigation had produced 12,000 to 15,000 pages of discovery in the prosecutions against the two charged suspects. The record suggests that the police have spoken with the uncharged suspect, his family, and many of his friends and acquaintances, but have not received any evidence of the suspect’s alleged confession. For whatever reason, the third suspect has not yet been charged.

The trial court granted the State’s petition for divestiture and ordered defendant to give his tapes and notes on the S & S murders to the grand jury. Defendant refused to comply with the court’s order. On November 7, 1991, the court found him in indirect contempt of court and ordered him imprisoned until he complied with the order to produce the tapes and notes. Arya appeals that order and was released on bond pending this appeal.

II. The Reporter’s Privilege

A. The Reporter’s Privilege Generally

In Branzburg v. Hayes (1972), 408 U.S. 665, 33 L. Ed. 2d 626, 92 S. Ct. 2646, the United States Supreme Court rejected the argument that a reporter had an absolute privilege not to testify about a crime that he had himself witnessed. (Branzburg, 408 U.S. at 692, 33 L. Ed. 2d at 646, 92 S. Ct. at 2662.) However, the Court left open the question of whether a reporter has a qualified privilege not to testify about information obtained from the reporter’s sources. Branzburg, 408 U.S. at 703-09, 33 L. Ed. 2d at 653-56, 92 S. Ct. at 2668-70.

Since Branzburg, many courts and legislatures have addressed the issue of a reporter’s privilege, and several States have adopted rules governing that privilege similar to those suggested by Justice Stewart in his dissent in Branzburg. In that dissent, Justice Stewart proposed the following test that the government must meet before reporters would be compelled to testify about confidential information they obtained from their sources:

“[T]he government must (1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.” Branzburg, 408 U.S. at 743, 33 L. Ed. 2d at 676, 92 S. Ct. at 2681 (Stewart, J., dissenting).

The objective of the reporter’s privilege is to preserve the autonomy of the press by allowing reporters to assure their sources of confidentiality, thereby permitting the public to receive complete, unfettered information. (Smith v. Zerilli (D.C. Cir. 1981), 656 F.2d 705, 710-11.) In United States v. Criden (3d Cir. 1980), 633 F.2d 346, 356, the court asserted that the privilege protects anonymous sources from retribution for revealing publicly valuable — though damaging or even damning — information. In addition, the privilege allows information to flow more freely from confidential, anonymous sources if they can tell the reporter, “[Djon’t tell anyone I told you, but....” (See Criden, 633 F.2d at 355.) Also, the privilege allows public figures and politicians, who have access to crucial information, to test new ideas by anonymously providing information and ideas to the press without adverse consequences if the new ideas are not well received by the public. Criden, 633 F.2d at 356.

B. Illinois Law

In 1971, Governor Ogilvie stated the following upon his signing the Illinois reporter’s privilege into law:

“[‘This] Act is more than a declaration of fair play for newsmen. It also assures a better informed public, for it allows reporters to seek the truth wherever it is to be found, without fear that their sources of information will be cut off by unnecessary disclosures.[’]
Editor & Publisher, October 10, 1971, [at] 14, col. 2.” Baker v. F & F Investment (2d Cir. 1972), 470 F.2d 778, 782 n.7.

In Illinois, reporters have a statutory, qualified privilege that protects the anonymity of their sources, whether confidential or non-confidential. (Ill. Rev. Stat. 1989, ch. 110, par. 8—901.) However, a court is statutorily authorized to order the reporter’s privilege divested when the petitioner seeking divestiture (in a nonlibel case like this) proves that (1) no other law prevents it, (2) all other available sources have been exhausted, and (3) the information obtained by the reporter is essential to protect the public interest involved. (Ill. Rev. Stat. 1989, ch. 110, pars. 8—907(1), (2).) The statutes pertinent to the present case read as follows:

“8 — 901. Source of information. No court may compel any person to disclose the source of any information obtained by a reporter except as provided in *** this Act.” Ill. Rev. Stat. 1989, ch. 110, par. 8—901.
“8 — 902. Definitions. As used in this Act:
(a) ‘reporter’ means any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium ***.
(b) ‘news medium’ means *** a television station ***.
(c) ‘source’ means the person or means from or through which the news or information was obtained.” Ill. Rev. Stat. 1989, ch. 110, par. 8—902.
“8 — 903. Application to court, (a) In any case, except a libel or slander case, *** the person *** seeking the information so privileged may apply in writing to the circuit court *** for an order divesting the person named therein of such privilege and ordering him or her to disclose his or her source of the information.” Ill. Rev. Stat. 1989, ch. 110, par. 8—903(a).
“8 — 904. Contents of application. The application *** shall allege: the name of the reporter ***; the specific information sought and its relevancy to the proceedings; and *** a specific public interest which would be adversely affected if the factual information sought were not disclosed ***.” Ill. Rev. Stat. 1989, ch. 110, par. 8—904.
“8 — 905. Civil Proceeding. All proceedings in connection with obtaining an adjudication upon the application *** shall be as in other civil cases.” Ill. Rev. Stat. 1989, ch. 110, par. 8—905.
“8 — 906. Consideration by court. In granting or denying divestiture of the privilege *** the court shall have due regard to the nature of the proceedings, the merits of the claim or defense, the adequacy of the remedy otherwise available, if any, the relevancy of the source, and the possibility of establishing by other means that which it is alleged the source requested will tend to prove.” Ill. Rev. Stat. 1989, ch. 110, par. 8—906.
“8 — 907. Court’s findings. An order granting divestiture of the privilege provided in *** this Act shall be granted only if the court, after hearing the parties, finds:
(1) that the information sought does not concern matters, or details in any proceeding, required to be kept secret under the laws of this State or of the Federal government; and
(2) that all other available sources of information have been exhausted and *** disclosure of the information sought is essential to the protection of the public interest involved ***.” Ill. Rev. Stat. 1989, ch. 110, par. 8—907.

No law requires the information in the present case to be kept secret, and defendant conceded at oral argument that he was not challenging the trial court’s finding that the sought-after information is essential to protect the public interest involved. Thus, this appeal presents the sole question of whether the State met its burden of proving that it has exhausted all other available sources of information. See Ill. Rev. Stat. 1989, ch. 110, par. 8—907(2).

Although the State’s petition to divest defendant of his reporter’s privilege concerns a criminal investigation, the civil burden of proof-proof by a preponderance of the evidence — applies because section 8— 905 of the Code directs that divestiture proceedings shall be conducted as civil proceedings. (Ill. Rev. Stat. 1989, ch. 110, par. 8—905.) Likewise, we cannot reverse the trial court’s factual findings on appeal unless they are against the manifest weight of the evidence. See Kalata v. Anheuser-Busch Cos. (1991), 144 Ill. 2d 425, 433-34, 581 N.E.2d 656, 660-61.

Only two reported Illinois cases have dealt with the Illinois reporter’s privilege. The first, People ex rel. Scott v. Silverstein (1980), 89 Ill. App. 3d 1039, 412 N.E.2d 692, rev’d & remanded on other grounds (1981), 87 Ill. 2d 167, 429 N.E.2d 483, did not address the issue of exhaustion of all other available sources. Instead, the appellate court reviewed the trial court’s order that the reporter must produce the sought-after information because, by disclosing some of his sources, he had waived the reporter’s privilege as to all of his sources. (Scott, 89 Ill. App. 3d at 1042, 412 N.E.2d at 694.) The appellate court reversed, holding that the reporter had not waived the privilege by disclosing some of his sources. (Scott, 89 Ill. App. 3d at 1045, 412 N.E.2d at 696.) The court then declined to consider other issues, holding instead that its decision on the waiver issue disposed of the appeal. Scott, 89 Ill. App. 3d at 1042, 412 N.E.2d at 694.

The second case to address the Illinois reporter’s privilege, In re Special Grand Jury Investigation of Alleged Violation of the Juvenile Court Act (1984), 104 Ill. 2d 419, 472 N.E.2d 450 (hereinafter Warden), asked all the right questions regarding exhaustion of other available sources (see Warden, 104 Ill. 2d at 425, 472 N.E.2d at 452-53), but supplied very few answers. However, the supreme court did note that “[t]he controlling standard [on exhausting all other available sources] has not been defined uniformly [from State to State].” (Warden, 104 Ill. 2d at 426, 472 N.E.2d at 453.) After listing the varying standards from other States and from the Federal courts (and noting that when applying the same standards, courts have reached inconsistent results), the supreme court did not adopt a legal standard for this State for determining exhaustion. Instead, the court wrote that “the extent to which an investigation must be carried before the reporter’s privilege should be divested cannot be reduced to any precise formula or definition but must, in view of the competing interests involved, depend on the facts and circumstances of the particular case.” Warden, 104 Ill. 2d at 427, 472 N.E.2d at 453-54.

In Warden, the Chicago Lawyer newspaper published an article written by defendant Warden that quoted inappropriate language used by a trial judge during a confidential juvenile proceeding. The Illinois Judicial Inquiry Board subsequently brought, but later dismissed, a complaint against the judge for those remarks. The circuit court then appointed a special prosecutor to investigate who leaked the transcripts of the juvenile proceeding to the press. The special prosecutor sought to compel Warden to testify before the grand jury and to disclose who had provided him with the transcripts. Warden invoked the reporter’s privilege and refused to reveal his source. The special prosecutor then brought an action in circuit court to divest Warden of that privilege.

The circuit court granted the State’s petition, divested Warden of the reporter’s privilege, and ordered him to disclose his source. The circuit court found him in contempt of court when he refused. The supreme court reversed, holding that the State had not exhausted all other available sources as required by section 8 — 907(2) of the Code. (See Ill. Rev. Stat. 1989, ch. 110, par. 8—907(2).) In so holding, the court noted that four Du Page County prosecutors had access to the transcripts, but the special prosecutor had called only one to testify before the grand jury. (Warden, 104 Ill. 2d at 428-29, 472 N.E.2d at 454.) The court then said that “[t]he sworn testimony of these [other three] persons could easily have been obtained, and the possibility that they might have provided relevant information to the grand jury is apparent.” (Warden, 104 Ill. 2d at 428, 472 N.E.2d at 454.) The court rejected the special prosecutor’s suggestion that he need not call the other three prosecutors before the grand jury if he could first divest Warden of the privilege and obtain from him the name of the person who leaked the information. (Warden, 104 Ill. 2d at 428-29, 472 N.E.2d at 454.) The court held that this suggestion “is precisely the reverse of that intended by the General Assembly.” (Warden, 104 Ill. 2d at 428, 472 N.E.2d at 454.) The court concluded by holding that in order to prove that it has exhausted all its available sources, the State must call those other witnesses before seeking to divest Warden of his reporter’s privilege. Warden, 104 Ill. 2d at 428, 472 N.E.2d at 454.

C. The Law in Other States and Federal Courts

Because this case presents an issue not yet definitively resolved in Illinois, we have analyzed decisions from other jurisdictions to see what light they shed. We do so even though no law in other jurisdictions reads precisely the same as Illinois’ law on the reporter’s privilege.

The case we found most similar to the present one is a Florida criminal case, Tribune Co. v. Green (Fla. Dist. Ct. App. 1983), 440 So. 2d 484, 486, in which the court held that the State had not met its burden of showing that it had exhausted all available resources. In Green, a reporter conducted interviews with several people concerning the alleged influence one judge exerted upon another judge not to impose a prison sentence on a convicted defendant. That defendant was the daughter of a friend of the first judge. The friend had allegedly forgiven some of the first judge’s gambling debts and provided other financial favors in return for his favorable influence. Green, 440 So. 2d at 485.

The State brought criminal charges against the first judge, and as a part of its case in chief, subpoenaed the reporter to testify concerning certain aspects of his investigation. The reporter moved to quash the subpoena, but the trial court denied that motion. He appealed, and the appellate court quashed his subpoena, vacated the order requiring him to testify, and explained its action as follows:

“[A]ny person who can provide the same information as [the reporter] is an alternative source.
The record before us demonstrates that the state has failed to take any steps to obtain testimony from any other available source.” (Green, 440 So. 2d at 486.)

The court then named several potential witnesses other than the reporter whom the State could have, but did not, contact, and who could have supplied essentially the same information that the State sought from the reporter. (Green, 440 So. 2d at 486.) The court concluded by noting,

“[i]n view of their involvement in the charged misconduct, we feel that not only are they alternative sources but far better sources. It is inconceivable that [the reporter] could add anything more to the testimony of these ‘first hand players.’ ” Green, 440 So. 2d at 486.

Florida does not have a reporter’s privilege statute, but instead relies on the common law privilege established in that State. Some differences exist between the Florida common law reporter’s privilege and the Illinois statutory reporter’s privilege; for instance, the Florida privilege protects only confidential sources (CBS, Inc. v. Jackson (Fla. 1991), 578 So. 2d 698, 700), while the Illinois privilege protects both confidential and nonconfidential sources (Scott, 89 Ill. App. 3d at 1043, 412 N.E.2d at 695). However, the exhaustion prong of the test for divesting a reporter of the reporter’s privilege is essentially the same in Florida as it is in Illinois: the petitioner must show that it has exhausted all alternative sources to obtain the sought-after information. (Jackson, 578 So. 2d at 699.) Thus, the analysis in Green applies to the exhaustion issue before us in the present case.

Three courts in civil cases have required a petitioner seeking divestiture of a reporter’s privilege to depose all possible known sources of information before divestiture would be ordered. The most notable of these cases is Zerilli v. Smith (D.C. Cir. 1981), 656 F.2d 705, 707, in which the Justice Department, during its investigation of Zerilli and others for organized crime activity, eavesdropped on many of Zerilli’s conversations. A Federal district court found these eavesdrops violated the fourth amendment and ordered their contents suppressed and sealed. (Zerilli, 656 F.2d at 707.) Despite that order, the Detroit News obtained information derived from these eavesdrops and published a news story entitled, “Inside the Mafia.” (Zerilli, 656 F.2d at 707.) The article identified Zerilli as the Detroit mob leader. Zerilli, 656 F.2d at 707.

Zerilli and the others named in the news story sued the Justice Department for violating the Federal Privacy Act (5 U.S.C. §552a (1976)) and the fourth amendment. (Zerilli, 656 F.2d at 706 n.2.) In order to learn who at the Justice Department leaked the information contained in the news story, the aforementioned plaintiffs sought to depose the Detroit News reporter who wrote the story. However, claiming a reporter’s privilege under the first amendment, the reporter refused to name his source at his deposition. Zerilli, 656 F.2d at 706-07.

Zerilli sought a court order directing the reporter to answer Zerilli’s questions, but the trial court denied it and the appellate court affirmed. In affirming, the court noted that the petitioners knew whom to depose in order to receive the sought-after information, but instead sought first to compel the reporter to reveal his source of the information. (Zerilli, 656 F.2d at 714-15.) Although the petitioners argued that requiring them to depose a large number of Justice Department employees in pursuit of the sought-after information imposed an insurmountable barrier, the court disagreed and wrote the following:

“Appellants cannot escape their obligation to exhaust alternative sources simply because they feared that deposing Justice Department employees would be time-consuming, costly, and unproductive. At the very least, they could have deposed the four employees who had the greatest knowledge about the [sought-after information]. It is quite possible that interviewing these four individuals could have shed further light on the question of whether the Justice Department was responsible for the leaks.” Zerilli, 656 F.2d at 715.

In Riley v. City of Chester (3d Cir. 1979), 612 F.2d 708, 717, the court similarly reversed a lower court’s contempt order against a reporter because the petitioners seeking divestiture had not shown that they had exhausted alternative sources. Riley involved a libel suit in which the plaintiff sought to compel a reporter to reveal the names of persons who leaked to her internal police department information that allegedly contained defamatory statements. (Riley, 612 F.2d at 710-11.) In reversing, the court in Riley noted that the trial court had merely found that “ ‘the information appears not to be available from other sources.’ ” (Riley, 612 F.2d at 717.) The appellate court held that “[t]he trial court’s findings contain only a general assertion of necessity. The conclusory statements fall far short of the type of specific findings of necessity which may overcome the privilege.” Riley, 612 F.2d at 717.

In another civil case, Clampitt v. Thurston County (1983), 98 Wash. 2d 638, 644, 658 P.2d 641, 645, the court dealt with a request to divest a reporter of the reporter’s privilege and held that “the record does not support the trial court’s finding that respondents had exhausted reasonably available alternative sources” because “the record does not indicate what alternatives the trial court considered and its reasons for rejecting them.” The court specifically noted that the petitioner had not deposed 25 or more potential witnesses, of whom the petitioner would need to ask only two questions each in order to determine who among those 25 or more persons leaked the information in question. Clampitt, 98 Wash. 2d at 945, 658 P.2d at 645.

At least one court has not required a petitioner to depose all possible sources before a court will order divestiture of the reporter’s privilege. In Carey v. Hume (D.C. Cir. 1974), 492 F.2d 631, 638, the appellant (defendant) could not describe an unknown source any more specifically than “an employee of the [United Mine Workers of America].” The court held that the appellee (petitioner) need not depose every union member in order to prove exhaustion, explaining as follows:

“The courts must always be alert to [minimizing] impingements upon press freedom *** and one way of doing so is to make compelled disclosure by a journalist a last resort after pursuit of other opportunities has failed. But neither must litigants be made to carry wide-ranging and onerous discovery burdens where the path is as ill-lighted as that emerging from appellant’s deposition.” Carey, 492 F.2d at 639.

D. The Reporter’s Privilege As Applied to This Case

Defendant first argues on appeal that the State failed to prove that it had exhausted all other available sources for obtaining the information it seeks from defendant. In particular, defendant argues that in order for the State to show that it has exhausted all other available sources, it must show that it has unsuccessfully used specific, alternative methods of investigation, such as undercover agents, informants, or other surreptitious forms of investigation, to obtain the sought-after information. We disagree with defendant’s interpretation of what the Illinois reporter’s privilege statute requires.

We have not found any case which required the petitioner to prove exhaustion of specific alternative methods of obtaining the sought-after information when the petitioner seeks to divest a reporter of his privilege. While courts require exhaustion of sources, none has required (as defendant in the present case suggests we require) the State in a criminal investigation to prove exhaustion of “alternative sources” of information by either conducting an undercover investigation or using informants in order to obtain evidence from witnesses who do not wish to speak to the police. We reject defendant’s argument because law enforcement procedures or methods of investigation do not constitute sources of information; instead, these methods produce sources of information.

Justice Stewart referred to exhausting “alternative means” of obtaining the sought-after information. (Branzburg, 408 U.S. at 743, 33 L. Ed. 2d at 676, 92 S. Ct. at 2681 (Stewart, J., dissenting).) Although the reporter’s privilege statute in some States uses the word “means” (see, e.g., Tenn. Code Ann. §24 — 1—208(c)(2)(B), at 9 (Supp. 1991) (“[t]he person has demonstrated that the information sought cannot reasonably be obtained by alternative means”); State v. Rinaldo (1984), 102 Wash. 2d 749, 755, 689 P.2d 392, 395-96 (“a reasonable effort has been made to acquire the desired information by other means”)), other State and Federal courts have instead held that the petitioner must exhaust all other sources of information (see, e.g., Zerilli, 656 F.2d at 713; Criden, 633 F.2d at 358-59; Riley, 612 F.2d at 716-17; NLRB v. Mortensen (D.D.C. 1988), 701 F. Supp. 244, 248; Jackson, 578 So. 2d at 699; State v. Boiardo (1980), 82 N.J. 446, 449-50, 462-63, 414 A.2d 14, 16, 22-23). Further, some courts that have used the word “means” have either misstated a prior case that used the word “sources” (see, e.g., United States v. Cuthbertson (3d Cir. 1981), 651 F.2d 189, 195-96, citing Criden, 633 F.2d at 358-59) or have been reversed by a higher court using the term “sources” (compare Kridos v. Vinskus (Fla. Dist. Ct. App. 1985), 483 So. 2d 727, 729 (employing the term “alternative means” in exhaustion element), with Jackson, 578 So. 2d at 699 (employing the word “sources”)). Moreover, the Illinois statute uses the word “sources” and not “means.” (See Ill. Rev. Stat. 1989, ch. 110, par. 8—907(2).) We do not think this choice of words was inadvertent. Accordingly, we hold that “sources of information,” as used in section 8 — 907(2) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 8—907(2)), means specific persons or things that can themselves provide the sought-after testimony or evidence.

We view the circumstances of the present case more like those in Carey than Warden, Green, Zerilli, or Clampitt. In Carey, the appellee (petitioner) and appellant (defendant) could not identify the alternative sources involved, while, in the other four cases, the courts could name other witnesses that the petitioner could have interviewed or subpoenaed in lieu of compelling the reporter to speak. Accordingly, Carey held that the appellee (petitioner) had exhausted all alternative sources, while Warden, Green, Zerilli, and Clampitt held that the petitioner had not.

The Illinois reporter’s privilege reflects this distinction. Section 8 — 907(2) of the Code requires the petitioner to prove that it has exhausted “all other available sources.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 8—907(2).) Consistent with the authority from other jurisdictions discussed above, we. hold that “available sources” in section 8 — 907(2) means those sources that are identified or known, or those sources that are likely to become identified or known as a result of a thorough and comprehensive investigation.

In the present case, the State appears to have contacted all available sources. This record suggests that the police have conducted a thorough and comprehensive investigation, and the only things the State knows about defendant’s sources are that some of them might live in Springfield and none of them will talk to the police.

We emphasize that the legislature did not intend to compel reporters to become investigators for the State or anyone else. Accordingly, in order to satisfy the “exhaust all other available sources” requirement of section 8 — 907(2) of the Code, a petitioner must satisfy the court that its investigation has been sufficiently thorough and comprehensive that further efforts to obtain the sought-after information would not likely be successful. It is not sufficient investigation for the State to merely assert that its investigation has not revealed the information sought. See Zerilli, 656 F.2d at 715.

In the present case, we are concerned about the sufficiency of the record to support the trial court’s finding that the State has exhausted all other available sources. In particular, the trial court took judicial notice of only the quantity of discovery material that the State’s murder investigation produced. For reasons we do not understand, the trial court specifically chose to not consider the contents of any of the 12,000 to 15,000 pages of discovery to assess for itself how thorough and comprehensive the State’s investigation has been.

We sympathize with the trial court as it tried to resolve the issues presented by the State’s divestiture petition in the absence of any Illinois authority specifically addressing the issues we have addressed in this opinion. However, given the guidelines we have now provided for trial courts as they decide such petitions, and further given the serious public policy considerations which underlie the reporter’s privilege, we conclude that the court’s divestiture order in this case should be vacated and the cause remanded for further proceedings on the State’s petition. Doing so will give the trial court the opportunity to further consider the exhaustion issue of section 8 — 907(2) of the Code in light of this opinion. Ill. Rev. Stat. 1989, ch. 110, par. 8—907(2).

On remand, we are directing the trial court to consider the discovery material the State has filed in the murder prosecutions. We deem these materials relevant to the court’s resolution of the exhaustion issue. If the trial judge believes that reviewing these materials would affect his ability to preside at the murder trial to which he has been assigned, then some other judge should preside over either the murder case or this case on remand.

Katz’s testimony provided a brief, general overview of the State’s entire investigation into these crimes, but he did not provide any details of his or any other police officer’s investigation into the identity of the unknown witnesses and whether those witnesses will cooperate with the State when asked directly to do so. On remand, we would expect this point to be more fully explored.

Because the legislature intended divestiture of a reporter’s privilege to be the last resort to get the sought-after information, the petitioner seeking divestiture must prove compliance with the statutory requirements by a preponderance of the evidence. We acknowledge that with regard to the issue of exhaustion, this burden amounts to requiring the petitioner to prove a negative. Nonetheless, that is the burden the legislature imposed.

Finally, we note that the trial court divested defendant of his reporter’s privilege regarding “any and all information” defendant holds regarding the S & S triple-murder case. However, the evidence at the divestiture hearing focused primarily on the necessity of divesting defendant of his reporter’s privilege with regard to the witness to whom the uncharged suspect had admitted his participation in the S & S case.

When divesting a reporter of his privilege, the court should narrowly tailor the order to require production of only that information for which the petitioner (here, the State) has met all the statutory prerequisites as discussed herein. (See Ill. Rev. Stat. 1989, ch. 110, par. 8—907.) If an issue arises as to the appropriate scope of a divestiture order, the trial court should conduct an in camera inspection of the material in question before directing it to be produced to the petitioner. The trial court should scrutinize the material in camera to ensure that its production does not violate the protections the legislature intended to provide reporters.

For the reasons stated, we vacate the circuit court’s divestiture order, reverse defendant’s finding of contempt that was based upon his violation of that order, and remand for further proceedings on the State’s petition for divestiture, consistent with the views expressed herein.

Vacated and remanded with instructions.

LUND, J., concurs.

JUSTICE McCULLOUGH,

dissenting:

Considering the burden of proof required of the State, preponderance of the evidence, and the standard of review that adheres, i.e., we will not reverse unless the trial court’s findings are against the manifest weight of the evidence, the trial court should be affirmed.

It is readily apparent to this court and the parties agree that the “disclosure of the information sought is essential to the protection of the public interest.” (Ill. Rev. Stat. 1989, ch. 110, par. 8—907(2).) As the majority points out, the only issue on appeal is whether the State met its burden under the statute “that all other available sources of information have been exhausted.” Ill. Rev. Stat. 1989, ch. 110, par. 8-907(2).

Warden does give us the necessary guidance to decide this appeal. In Warden, the supreme court dealt specifically with the provisions of section 8 — 907 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 8—907). With respect to the provision “that all other available sources of information have been exhausted” (Ill. Rev. Stat. 1989, ch. 110, par. 8—907(2)), the supreme court stated:

“[Ejvery jurisdiction which has recognized a qualified reporter’s privilege has also required a showing, prior to divestiture, that other sources of information have been exhausted. [Citations.] The extent to which these alternatives must be pursued, however, is not entirely clear, and that question presents the courts with perhaps the most difficult problems in this area.
The controlling standard has not been defined uniformly. Depending on the jurisdiction, it must be established that: ‘reasonable efforts’ have been made to obtain the information elsewhere [citations]; proof by a preponderance of the evidence establishes the unavailability of less intrusive sources [citation]; the ‘only practical access to crucial information *** is through the newsman’s sources’ [citation]; ‘possible alternative sources’ have not been exhausted [citation]; ‘reasonably available alternative sources’ have been exhausted [citations]; ‘the party seeking the information has unsuccessfully attempted to obtain other sources less chilling of the First Amendment freedoms’ [citation]; ‘the litigant has exhausted all other means of obtaining the information’ [citation]; the party has ‘attempted to obtain the information from other sources’ [citation]; the material sought is not ‘available from a nonjournalistic source’ [citation]; or that the information ‘is unavailable from any other source’ [citation].
* * *
While the phrase ‘available source’ is not easily defined, section 8 — 906 of the Code directs the court, in granting or denying divestiture, to consider ‘the adequacy of the remedy otherwise available, if any, the relevancy of the source, and the possibility of establishing by other means that which it is alleged the source requested will tend to prove’ [citation]. In our judgment, these provisions, when read with section 8— 907, reflect a clear legislative intent to create a standard which balances the reporter’s first amendment rights against the public interest in the information sought and the practical difficulties in obtaining the information elsewhere. Thus, the extent to which an investigation must be carried before the reporter’s privilege should be divested cannot be reduced to any precise formula or definition but must, in view of the competing interests involved, depend on the facts and circumstances of the particular case.” (Warden, 104 Ill. 2d at 425-27, 472 N.E.2d at 453-54.)

In Warden, Justice Underwood quoted the specially concurring opinion of Justice Powell in Branzburg, stating:

“ ‘The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.’ ” (Warden, 104 Ill. 2d at 427-28, 472 N.E.2d at 454, quoting Branzburg, 408 U.S. at 710, 33 L. Ed. 2d at 656, 92 S. Ct. at 2671 (Powell, J., concurring).) ■

Warden then states:

“We think it clear that the statute requires more than a showing of inconvenience to the investigator before a reporter can be compelled to disclose his sources ***.” Warden, 104 Ill. 2d at 428-29, 472 N.E.2d at 454.

In this case, we need to strike a balance between freedom of the press and the obligation of a citizen to give relevant testimony with respect to criminal conduct. The strong public interest and the practical difficulties that have been met in this investigation mandate disclosure.

The majority opinion herein states:

“In the present case, the State appears to have contacted all available sources. This record suggests that the police have conducted a thorough and comprehensive investigation, and the only things the State knows about defendant’s sources are that some of them might live in Springfield and none of them will talk to the police.” (226 Ill. App. 3d at 861.)

I see no useful purpose to give publicity to criminal acts based upon a privilege and not require disclosure to the prosecution, especially where authorities have made an effort, as the majority points out, to investigate and determine witnesses to this serious case.

In my view, the civil cases cited by the majority lend little weight and credence to this case. Public interest in civil cases is certainly different than that inherent in serious criminal cases such as this; in the latter circumstance, the public interest becomes more important.

Additionally, as pointed out by the majority, intensive investigation has consumed more than 2,000 hours of investigators’ time and the State had garnered sufficient evidence to charge two suspects with the crimes. The evidence presented to the trial court more than adequately satisfies the requirement that the State prove by a preponderance of the evidence that it has exhausted “all other available sources of information” (Ill. Rev. Stat. 1989, ch. 110, par. 8—907(2)) as defined in Warden.

Applying Justice Stewart’s test stated in Branzburg, there is probable cause to believe the defendant has information clearly relevant to a specific violation of law, there is a compelling and overriding interest in the information, and the information cannot be obtained by alternative means less destructive of first amendment rights. Branzburg, 408 U.S. at 743, 33 L. Ed. 2d at 676, 92 S. Ct. at 2681 (Stewart, J., dissenting).

The trial court’s decision is not against the manifest weight of the evidence. I agree that the scope of the trial court’s order needs to be tailored. The order should be restricted specifically to matters concerning confessions or admissions of individuals involved in the commission of the offense or in aiding or abetting the commission of the offense.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDY HARRELL, Defendant-Appellant.
    Fourth District
    No. 4—91—0320
    Opinion filed March 19, 1992.

      D. Peter Wise, of Metnick, Barewin & Wise, of Springfield, for appellant.
    John Turner, State’s Attorney, of Lincoln (Kenneth R Boyle, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

The State’s Attorney for Logan County charged defendant, Randy Harrell, by information with unlawful possession of more than 500 grams of cannabis (count I) (Ill. Rev. Stat. 1989, ch. 56½, par. 704(e)); unlawful possession with intent to deliver more than 500 grams of cannabis (count II) (Ill. Rev. Stat. 1989, ch. 56½, par. 705(e)); unlawful possession of less than 15 grams of a controlled substance (cocaine) (count III) (Ill. Rev. Stat. 1989, ch. 56½, par. 1402(b)); unlawful use of weapons (count IV) (Ill. Rev. Stat. 1989, ch. 38, par. 24— 1(a)(7)); and two counts of armed violence (counts V and VI) (Ill. Rev. Stat. 1989, ch. 38, par. 33A—2).

Prior to trial, defendant filed a motion to suppress evidence. Defendant alleged that on April 27, 1990, members of the Illinois State Police, without a warrant or his voluntary consent, wrongfully entered and searched his residence, conducted an unconstitutional search of a room other than the one where he was arrested, and unlawfully seized items found in this room.

At the hearing on defendant’s motion to suppress, Trooper Mack-ins testified that on April 27, 1990, he was operating radar on Route 121 and clocked a truck exceeding the speed limit. The driver drove to a house and ran inside. Mackins knocked on the door of the house and asked for the man who just ran inside. He explained to the woman who answered the door (later to be identified as Mrs. Harrell) he had just seen a suspect — who had been speeding — enter the house. She stated if he had a warrant he could search the house. He indicated to her he would be back and testified she appeared to be distraught.

Sergeant Anthony L. Walker testified he overheard a radio transmission by Mackins requesting assistance at a residence in Latham, Illinois. Walker then went to the residence. After speaking with Mack-ins, he knocked on the door, and Mrs. Harrell, holding a washcloth to her head, answered the door. He advised her Mackins had observed a suspect park a truck in her driveway and run into the house. He testified Mrs. Harrell appeared to have been lying down, and she stated she had a migraine. Mrs. Harrell stated no one else was in the house and responded the truck outside belonged to her son. She indicated she did not know where her son was, and she did not believe he had run into the house while she was lying down. Walker testified she said, “You’re welcome to look if you want to.” Walker asserted once they were in the house he advised her if she knew where her son was hiding, she should tell them because she would be charged with obstructing justice if she, in fact, had knowledge the man had fled into the residence. He acknowledged the report he had written did not state he was in the house when he told Mrs. Harrell this. Rather, the report indicated he said this to her immediately after she answered the door. However, he testified the report was not in chronological order.

Conversely, Lois Harrell testified she was lying down because she had a migraine when she heard the doorbell. She answered the door, and a trooper asked to see the man who had run into the house. She told the trooper she had been lying down and had not seen or heard anybody run into the house. The trooper responded, “Oh, yep, you did,” and said he knew somebody had run into the house. He asked who the truck belonged to and if his name was Randy. She responded he seemed to know all the answers, and he told her he would handle this in another way and left. She lay back down and approximately 15 minutes later the doorbell rang, and there was beating on the door. Three troopers were standing on the porch. She again indicated she had not heard anyone enter the house and asked if they had a warrant. She testified the troopers told her they did not need a warrant, and they had a right to come in. If they found the suspect in the house, they were going to charge her with a felony. She testified she “sort of stepped back and they stepped in the house.” She stated she did not give them permission to come into the house.

Once in the house, Walker searched the main floor. Trooper Lindemulder initially searched the basement. When nothing was found, he went to the upstairs bedroom to search. (This search will hereinafter be referred to as the first search.) While looking under a bed, which was raised six inches above the floor, he observed cannabis seeds, a pan with a screen which had cannabis seeds on it, a strong odor of cannabis, and paraphernalia on the shelves adjacent to the bed. This contraband was not removed until after the defendant had been located. He estimated 5 to 10 grams of cannabis and cannabis seeds were discovered in this initial sighting. After he found the cannabis seeds, he noticed a section of paneling which was not properly intact to the wall. He peeled the paneling back and crawled through a narrow passageway which led to an unfinished portion of the attic, where he then observed the defendant. Defendant, while still in the attic, was handcuffed with his hands behind his back. He was escorted downstairs assisted by two troopers, one in front and one in back of him, and placed in Mackins’ squad car.

Lindemulder, who stayed in the house while defendant was escorted to the squad car, returned to the area where he had discovered the cannabis and collected it. This recovery was clearly permissible. Walker also returned to this area to search further, in what will be referred to hereinafter as the second search. Because of the strong odor of cannabis, Lindemulder then began to pull objects from under the bed. As he pulled things out, he noticed more cannabis. This “second search” revealed a green Tupperware container containing cannabis, a brown paper bag containing a syringe and three test tubes, several baggies containing cannabis, and a red duffel bag containing several bags of cannabis. A loaded shotgun in a zippered bag (count V) was also found behind the bed. Walker indicated he could not tell it was a shotgun until it was uncased, and he did not know what was inside the red duffel bag until it was opened. Lindemulder testified the amount of cannabis found in this second search was approximately 200 to 250 grams.

After the second search, Walker and Lindemulder went downstairs and called headquarters in an attempt to obtain a search warrant. After waiting about five hours to get a warrant, Walker contacted headquarters again and was instructed to “secure the scene.” Walker indicated “secure the scene” actually meant they were to leave the scene. However, the troopers instead decided to finish “the probable cause search of the subject’s room” and the area where defendant had been found. No other part of the house was searched. This subsequent “third search” revealed another duffel bag containing cannabis and a sawed-off shotgun. The weapon was found under some clothing on an unused bed (count VI), and the bag was found behind the unused bed. Various containers with cannabis and cocaine also were recovered during this search from the shelves adjacent to the bed, and several bags of cannabis were found in drawers next to the bed.

During the five hours the troopers were trying to obtain a warrant, friends and family arrived at the residence. Mackins was assigned to watch them, and he had a clear view of them. Mrs. Harrell, as well as the guests, was in the living room. Natalie Foster, defendant’s sister, was one of the people who came to the house. After the troopers tried to obtain a warrant, they told her they had probable cause to search the defendant’s room. She testified the officers did not restrain her movement in the house.

Based on this evidence, the circuit court denied defendant’s motion to suppress. Viewed in the totality of the circumstances, the court found Mrs. Harrell gave a voluntary consent and resolved the issue of credibility in favor of the State. Based on the facts — (1) the officer’s discovery of contraband in plain view during the first search; (2) the diligent attempt to obtain a warrant; (3) the knowledge individuals were entering the residence; (4) the knowledge contraband could be altered, disposed of, or concealed; and (5) the fact the contraband was found in an area usually controlled by the defendant — the court maintained the officers could have believed exigent circumstances existed justifying their search. Therefore, the court concluded the officers acted reasonably, and the warrantless entry was permissible.

A bench trial was held, and the court again concluded the searches were reasonable. It stated that based on the initial entry and what was found, it was not convinced the officers needed to obtain a search warrant since “search probable cause appeared to exist.” Turning to the charges, the judge entered a judgment of guilty on counts I, II, III, IV and VI; and found count V was not proved beyond a reasonable doubt. Thereafter, the court found the judgment on count I was merged with count II, and judgment on count I therefore was vacated and set aside. Defendant was sentenced to six years’ incarceration on count II, three years on count III, five years on count IV, and six years on count VI, all to run concurrently.

The defendant appeals, contending (1) the trial court erred in ruling the State Police had obtained consent from Mrs. Harrell to enter the residence, (2) the evidence found by the police during the second search was not within his “immediate control,” (3) exigent circumstances did not exist which would allow a warrantless search of a portion of his residence, and (4) the State failed to prove he committed the offense of armed violence. We hold the trial court erred in not suppressing certain of the evidence obtained during the second and third searches, i.e., that not first discovered in plain view during Lindemulder’s first search of the room for defendant, and we therefore reverse defendant’s convictions and remand this case with directions.

I. Consent

The fourth amendment generally prohibits “unreasonable searches and seizures.” A warrantless search is per se unreasonable unless it falls within one of the recognized exceptions. (Katz v. United States (1967), 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507, 514.) In Illinois, those few exceptions are (1) a search based on consent, (2) a search incident to arrest, and (3) a search predicated upon probable cause where there are exigent circumstances which make it impractical to obtain a warrant. (People v. Gardner (1984), 121 Ill. App. 3d 464, 468, 459 N.E.2d 676, 679.) Here, the initial search was based on the theory of the consent of Mrs. Harrell.

At the hearing on the motion to suppress, there was conflicting testimony relating to whether Mrs. Harrell actually gave consent to the troopers to search the house. However, on appeal, defendant does not argue Mrs. Harrell did not consent, but rather her consent was involuntary because (1) she had a migraine; (2) was “scared to death”; and (3) was told by the police they did not need a search warrant and had a right to come in, and if they found the suspect in the house, she would be charged with obstructing justice. Alternatively, defendant argues if her consent was given voluntarily, it was strictly limited to searching for the person who had allegedly entered the house. Therefore, the troopers exceeded the scope of the consent by continuing to search the house after defendant had been apprehended and removed from the premises.

A circuit court’s determination on a motion to suppress will not be overturned unless manifestly erroneous. (People v. Winters (1983), 97 Ill. 2d 151, 158, 454 N.E.2d 299, 303; People v. Holloway (1981), 86 Ill. 2d 78, 91, 426 N.E.2d 871, 877.) Further, a trial court’s finding on the issue of whether consent was voluntary involves credibility determinations, and thus a reviewing court will not overturn the circuit court’s findings unless they are contrary to the manifest weight of the evidence. (People v. Kenning (1982), 110 Ill. App. 3d 679, 684, 442 N.E.2d 1337, 1340-41; People v. Casazza (1991), 144 Ill. 2d 414, 417-18, 581 N.E.2d 651, 653 (the trial court’s determination on voluntariness will not be disturbed unless clearly erroneous).) “ ‘Because a court of review is not in a position to observe the witness as he testifies, questions of credibility and the weight to be given his testimony must be left largely in the discretion of the trial court.’ ” (People v. DeMorrow (1974), 59 Ill. 2d 352, 358, 320 N.E.2d 1, 5, quoting People v. Peterson (1959), 17 Ill. 2d 513, 515, 162 N.E.2d 380, 381.) The rule for determining the voluntariness of a consent is as follows: it must be shown from the totality of the circumstances that the consent was not the result of duress or coercion, express or implied, but was, in fact, freely given. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248, 36 L. Ed. 2d 854, 875, 93 S. Ct. 2041, 2059.

The voluntariness of the consent is, in part, dependent upon the testimony concerning events leading up to the search. Viewing the totality of the circumstances, it was not contrary to the manifest weight of the evidence for the court to determine the testimony of the troopers was more credible, and Mrs. Harrell’s consent had been given voluntarily. Based on Mrs. Harrell’s relationship to the defendant and Officer Walker’s testimony that his report was not in chronological order, the court could reasonably conclude the trooper’s testimony was more credible. In evaluating the voluntariness of the consent, the court could have disbelieved Mrs. Harrell’s testimony that she was advised she would be arrested for obstructing justice before she consented to the search for the defendant, as well as her statement that the police said they could enter without a warrant. Mrs. Harrell’s feeling ill and distraught does not render her consent involuntary. Nothing in the evidence indicated conduct by the police which rose to the level of coercion or duress. See People v. Posey (1981), 99 Ill. App. 3d 943, 426 N.E.2d 209; People v. Pauli (1988), 176 Ill. App. 3d 960, 531 N.E.2d 1008.

We turn next to determine whether the searches exceeded the scope of the consent. Although consenting to a search waives the warrant requirement, it does so only within the scope of the consent. People v. Corral (1986), 147 Ill. App. 3d 668, 674, 498 N.E.2d 287, 291; People v. Sckmoll (1943), 383 Ill. 280, 284, 48 N.E.2d 933, 934.

In Officer Walker’s testimony, he stated he explained to Mrs. Harrell that Mackins saw the suspect park his truck in the driveway and run into the house. He indicated she stated she did not believe anyone was in the house, but they were welcome to look. Based on this testimony, Mrs. Harrell’s consent was limited to a search for the suspect and did not include authorization for the troopers to continue to search the house once the defendant was apprehended and removed. The police never asked permission to search the house after defendant was found and taken from the premises. There is no indication Mrs. Harrell’s consent was continuing in nature or extended to subsequent searches of the house for things other than the suspect, nor is there any indication in the record the officers believed it was or did. (See People v. Kelk (1991), 208 Ill. App. 3d 313, 566 N.E.2d 835; People v. Jackson (1978), 57 Ill. App. 3d 720, 373 N.E.2d 729.) Additionally, courts have stated it is the general rule that consent is normally given upon the understanding that such a search would be conducted forthwith and only a single search would be conducted. (People v. Shelton (1982), 110 Ill. App. 3d 625, 629-30, 442 N.E.2d 928, 932.) Therefore, the second and third searches were outside the scope of Mrs. Harrell’s consent. This does not mean the evidence seized during these searches is inadmissible. Rather, it means the evidence seized without the benefit of a warrant must fall within another exception to the warrant requirement in order to be admissible.

II. Plain view

Although the defendant does not seem to argue the first search was unconstitutional, it should be explained this search was constitutional under the “plain view doctrine.” In Horton v. California (1990), 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301, the Supreme Court ruled the fourth amendment permitted the warrantless seizure of evidence in plain view even though the discovery was not inadvertent. For warrantless seizures to be valid under the plain view doctrine, the court held two conditions must be met in addition to the essential predicate “the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.” (Horton, 496 U.S. at 136, 110 L. Ed. 2d at 123, 110 S. Ct. at 2308.) The two requirements are straightforward: (1) the object’s incriminating character must be “ ‘immediately apparent’ ” (Horton, 496 U.S. at 136, 110 L. Ed. 2d at 123, 110 S. Ct. at 2308, quoting Coolidge v. New Hampshire (1971), 403 U.S. 443, 466, 29 L. Ed. 2d 564, 583, 91 S. Ct. 2022, 2038), and (2) the officer must have a “a lawful right of access to the object itself” (Horton, 496 U.S. at 137, 110 L. Ed. 2d at 123, 110 S. Ct. at 2308).

Applying these requirements to this case, it is clear the recovery and seizure of the evidence discovered in plain view during the initial search for defendant was properly admitted. The troopers were lawfully in the house searching for the defendant pursuant to Mrs. Harrell’s consent. The trooper had a right to be in the position he was in when the cannabis seeds on the screen were spotted because he was looking for the defendant in a place where he could be located. Additionally, based on the officer’s training, it was immediately apparent to the officer that certain of the evidence, e.g., the cannabis seeds, likely constituted contraband.

However, the State argues the seizure of additional items first discovered during the second and third searches was also lawful under the plain view doctrine. We hold the evidence initially discovered during the subsequent searches was not lawfully obtained under this doctrine. For this doctrine to apply, the police must have a lawful right to be on the premises. While the police had a right to reenter and recover the evidence of contraband which had been spotted in plain view in the first and lawful search for defendant, they had no right to go beyond collecting this contraband, i.e., to seek to discover additional contraband. Accordingly, much of which we have referred to as the second and third search exceeded the scope of consent and no other exception rendered further searching permissible. Even though the police lawfully reentered the room to retrieve evidence discovered during the first search, the officers did not have a right to continue searching. Therefore, as to certain of the evidence initially discovered in the second and third searches, the police violated the fourth amendment because they arrived at the place from which the evidence was viewed in derogation of the fourth amendment.

Additionally, the incriminating character of certain of this evidence was not “immediately apparent.” The evidence was not discovered until Lindemulder began pulling things out from under the bed. Moreover, some of the contraband was found in duffel bags under the beds and in drawers. One gun was found behind a bed (count V), and the other was found under some clothing (count VI). It was not until the evidence was opened that its allegedly illegal contents was discovered. It is clear the doctrine of plain view cannot be utilized to validate these later searches.

III. Immediate Control

Defendant argues the gun and contraband discovered during the second search should have been suppressed because these items were not in his immediate control. The basic guidelines for a permissible search incident to a lawful arrest were set forth in Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034. In Chimel, the Supreme Court stated:

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Chimel, 395 U.S. at 762-63, 23 L. Ed. 2d at 694, 89 S. Ct. at 2040.

Without specifically defining what constituted the area within an arrestee’s “immediate control,” the Court emphasized:

“There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs— or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The ‘adherence to judicial process’ mandated by the Fourth Amendment requires no less.” Chimel, 395 U.S. at 763, 23 L. Ed. 2d at 694, 89 S. Ct. at 2040.

Viewing the totality of the circumstances, we hold the area searched was not within the immediate control of the defendant. When defendant was located, he was found in an unfinished portion of the attic. To obtain entrance to this area, one must remove a piece of paneling and walk through a narrow passageway, approximately three or four feet high, before entering the unfinished portion of the attic. The entrance to the unfinished attic was eight feet to the right of the stairs to defendant’s bedroom and approximately 20 feet from his bed. Subsequent to defendant being located, he was handcuffed in the unfinished portion with his hands behind his back and escorted outside to the squad car. As he was being escorted downstairs, there was a policeman in front and one in back of him. Defendant did not have access to the area the police officer later searched, nor did he walk by this area as he was escorted downstairs. Defendant was handcuffed and the troopers had complete control of the situation, so there was no fear of defendant destroying evidence or obtaining weapons to resist arrest or escape. Therefore, the evidence first discovered during the second and third search cannot be admitted under the exception for a search incident to arrest. See People v. Williams (1974), 57 Ill. 2d 239, 311 N.E.2d 681; People v. Bishop (1978), 60 Ill. App. 3d 940, 377 N.E.2d 585.

IV. Exigent Circumstances

The trial court also held exigent circumstances existed to justify the second and third searches.

In People v. Kelley (1982), 104 Ill. App. 3d 51, 53, 432 N.E.2d 630, 632, this court noted that in Jones v. United States (1958), 357 U.S. 493, 497-98, 2 L. Ed. 2d 1514, 1518-19, 78 S. Ct. 1253, 1256-57, the Supreme Court concluded “probable cause for belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a warrant.” Further, this court stated “[t]he destructibility of evidence [did] not by itself excuse the lack of a warrant.” (Kelley, 104 Ill. App. 3d at 54, 432 N.E.2d at 632.) Because the deputies were not in danger and did not know whether the defendant had arranged for the disposal of the contraband, this court held exigent circumstances did not exist.

In People v. Cohen (1986), 146 Ill. App. 3d 618, 496 N.E.2d 1231, the State asserted an exigent circumstance was supplied because drugs could be destroyed, and the defendant had warned others the police were in the house. The court stated “[t]he general rule in Illinois is that the potential destruction of evidence, standing alone, does not excuse obtaining a warrant.” (Cohen, 146 Ill. App. 3d at 625, 496 N.E.2d at 1236 (and cases cited therein).) Therefore, the court concluded exigent circumstances were not present to validate the officer’s warrantless entry and search of the residence. See generally Vale v. Louisiana (1970), 399 U.S. 30, 26 L. Ed. 2d 409, 90 S. Ct. 1969; 2 W. LaFave, Search & Seizure §6.5(a), at 655, 658 (2d ed. 1978); United States v. Rubin (3d Cir. 1973), 474 F.2d 262; People v. Ouellette (1979), 78 Ill. 2d 511, 401 N.E.2d 507; People v. Condon (1992), 148 Ill. 2d 96.

Based on these cases, the searches to discover additional contraband — in contrast to the trooper’s conduct directed at recovering the contraband he had already seen in plain view while lawfully searching for defendant — after defendant’s arrest could not be based upon exigent circumstances. Here, there was no evidence the officers knew or believed any contraband Trooper Lindemulder had seen would be destroyed. Although there were people in the house, they remained on the first floor in the presence of an officer. Neither was there any indication these people knew drugs were located in the house or would attempt to conceal, destroy, or remove the drugs. Additionally, the defendant no longer posed a threat. He was handcuffed and was sitting in the squad car. Therefore, no exigency existed, and the seizure was in derogation of the defendant’s fourth amendment rights.

V. Armed Violence

Because of resolution of the other issues in this case, we need not address defendant’s argument that the State failed to prove he committed the offense of armed violence (count VI). The sawed-off shotgun identified in count VI was discovered during the illegal third search and, therefore, is inadmissible. Defendant’s conviction of armed violence (count VI) is reversed.

VI. Conclusion

Accordingly, we reverse defendant’s convictions insofar as they were based on evidence initially discovered during the second and third searches. We conclude any contraband first discovered as a result of Officer Lindemulder’s initial search for the defendant, i.e., the cannabis and seeds on the screen Lindemulder observed under the bed, which he testified had a weight of 5 to 10 grams, and any contraband on the shelves which he first saw and perceived as such while lawfully searching for the defendant, was recoverable without a warrant and was admissible for criminal prosecution. We remand to the trial court for further hearing with the limited purpose of determining what items and what amounts were properly recovered as a result of Trooper Lindemulder seeing them in plain view during his initial search of defendant’s room and then perceiving them to be contraband. As to counts I to IV, any amounts lawfully recovered may support the entry of convictions on the charged offenses or any included offenses thereof, e.g., unlawful possession of cannabis, and defendant may thereafter be sentenced on those convictions with credit for time served to date.

Reversed and remanded with directions.

STEIGMANN and LUND, JJ., concur.