The State appealed. The appellate court affirmed with one justice specially concurring and one justice dissenting. 246 Ill. App.3d 96. We granted leave to appeal in these two cases (134 Ill.2d R. 315(a)) and consolidated them for review.
(76219) People v. Westbrook Rule 23 Order No. 5-88-0780, filed 05/15/90 .............. Denied. (76036) People v. Wiest 246 Ill. App.3d 96 ...................................... Allowed. (Above consolidated with cause No. 75994.)
Other cases have held that the observation of inherently innocuous objects did not provide probable cause to believe that they contained contraband. See People v. Evans, 259 Ill. App.3d 650, 655 (1994) (wooden box); People v. Wiest, 246 Ill. App.3d 96, 100-01 (1993), rev'd on other grounds sub nom. People v. Bailey, 159 Ill.2d 498 (1994) (film canister); People v. Williamson, 241 Ill. App.3d 574, 583 (prescription bottle); People v. Penny, 188 Ill. App.3d 499, 503 (1989) (package wrapped in opaque plastic); Jackson v. State, 669 N.E.2d 744, 749 (Ind. App. 1996) (prescription bottle).
Other decisions have reached similar conclusions where the appearance of the container alone was not sufficiently distinctive to show that its contents were contraband and therefore to support probable cause for a warrantless search. (See, e.g., People v. Wiest (1993), 246 Ill. App.3d 96, appeal allowed (1993), 153 Ill.2d 557 (officer's prior experience that 35-mm film container was commonly used for illicit drugs did not support probable cause to open container; followed Penny); see also People v. Gulley (1982), 111 Ill. App.3d 1091 (black opaque, unlabeled, plastic container which rattled when shaken was opened out of suspicion or curiosity rather than based on probable cause despite officer's information from unidentified informant that defendant may have been involved with drugs); Rinaldo, 80 Ill. App.3d 433 (police search of sealed box found in defendant's trunk was unjustified in absence of warrant, was nonconsensual and not part of inventory procedure or on the basis of plain view where police had no firsthand knowledge of content of box despite informant's representation that there would be contraband inside).) "Probable cause requires more than simply having seen an item associated with criminal activity on an earlier occasion."