People v. Cole

• Decision Date: 04 June 1973
• Docket Number: No. 44627,44627
• Citation: 298 N.E.2d 705,54 Ill.2d 401
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Stuart COLE, Appellee.
• Court: Illinois Supreme Court

Page 705

298 N.E.2d 705

54 Ill.2d 401

The PEOPLE of the State of Illinois, Appellant, v. Stuart COLE, Appellee.

No. 44627.

Supreme Court of Illinois.

June 4, 1973.

William J. Scott, Atty. Gen., and Richard A. Hollis, State's Atty., Springfield (James B. Zagel and Melbourne A. Noel, Jr., Asst. Attys., Gen., of counsel), for the People.

Bruce L. Herr, of Defender Project, Springfield, for appellee.

Harry G. Fins, Chicago, amicus curiae.

RYAN, Justice:

Following a jury trial in the circuit court of Sangamon County, defendant, Stuart cole, was convicted of murder and sentenced to a term of from 50 to 75 years in the penitentiary. This judgment was reversed by the Appellate Court for the Fourth District, which held that defendant was unconstitutionally denied his right to a jury trial by an impartial jury. (132 Ill.App.2d 1041, 271 N.E.2d 385.) We allowed the State's petition for leave to appeal.

The defendant's first contention is that the State has no right to petition for leave to appeal from the appellate court's decision under our Rule 315, Ill.Rev.Stat.1971, ch. 110A, § 315 (50 Ill.2d R. 315). We do not agree with his contention. In People v. Perry, 52 Ill.2d 156, 287 N.E.2d 129, this court has recently recognized the right of the State to petition for leave to appeal from an adverse decision of the appellate court. Also, Rule 315(a) and Rule 607(a) have been amended effective November 30, 1972, specifically authorizing the State to petition for leave to appeal in such cases. 52 Ill.2d R. 315(a), R. 604(a).

On the morning of April 28, 1967, a freshly dug grave containing the mutilated remains of two men, subsequently, identified as Merle Hornstein and Bill Worthington, was discovered southwest of Springfield. Interviews with persons acquainted with the deceased men, as well as a gravesite investigation, led police to believe that probable cause existed to arrest the defendant for the murders. On the afternoon of the 28th, at approximately 1:30, police proceeded to the defendant's residence, a former railroad blockhouse, where defendant was arrested. No evidence was seized at the time of arrest, but about one and one-half hours later at approximately 3 P.M., after the defendant had been taken from his home, evidence was taken from the defendant's residence without a search warrant by the officer in charge of preserving and cataloguing the evidence. Following the defendant's arrest another officer had been stationed at the premises until the investigating officer arrived.

The appellate court held that the taking of the evidence from the defendant's residence after he had been arrested and removed to the police station violated his rights under the Fourth Amendment to the Federal constitution. It held that the admission into evidence of the items taken, however, was harmless error. The evidence of the defendant's guilt aside from the evidence taken without a search warrant is indeed overwhelming.

On of the victims, Merle Hornstein, and another party owned the railroad blockhouse where the defendant lived. On April 27, 1967, at about 1 P.M., Hornstein and Bill Worthington left Hornstein's home in Springfield. They were driving Hornstein's red El Camino Chevrolet pickup truck. Hornstein was known to have had several hundred dollars in currency with him. At about 1:10 P.M. he stopped at a business establishment and asked a friend to accompany them to the blockhouse. The friend declined and Hornstein and Worthington drove off in the direction of the defendant's home The rel El Camino truck was seen parked at the blockhouse by several neighbors between 2 P.M. and 6 P.M. At that time the truck was empty. Two neighbots testified that during the afternoon two shots were heard. The sounds came from the direction of the blockhouse. About 6 P.M. the truck was seen leaving. At that time it contained boxes and bags.

About 7 P.M. the defendant purchased a flashlight, batteries, some rope and a longhandled tool at a local hardware store. The check-out lady was acquainted with the defendant and noticed that he was carrying a large sum of money in his money pouch. That evening he was seen driving truck turning off the road which led to the vicinity of the gravesite onto a State highways. At 3:40 A.M. on April 28 the truck was found burning along the highway and a rifle which belonged to the defendant was found in the cab of the truck. Later that morning the defendant was seen walking along the railroad tracks toward Springfield.

A card addressed to the defendant was found near the gravesite and ballistic evidence indicated that metal fragments found in the dismembered bodies had been fired from the defendant's gun. Tire prints found near the gravesite were identified as having been made by the truck. When the police and the sheriff went to the blockhouse to arrest the defendant, they saw blood on the floor at the entrance to the building. The officers broke open the door and arrested the defendant on the roof of the building. At that time he was armed with a loaded .45-caliber automatic and a 12-gauge shotgun.

Items which were taken from the defendant's home and introduced into evidence were an ax, a broom, a five-gallon bucket, a sales slip, some sand, some soil and two small boards. Tests revealed the presence of human blood on each of these items. Also taken from the defendant's home and introduced into evidence were a small amount of substance believed to be human flesh and a piece of paper similar to paper found at the gravesite.

In light of the overwhelming evidence of guilt the appellate Court properly held that any error committed in the introduction of these items into evidence was harmless error beyond a reasonable doubt. (Fahy v. Connecticut, 375 U.. s. 85, 84 S.Ct. 229, 11 L.Ed.2d 171; Chapman v. Califormia, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340. However, for the reasons stated later, this case must be remanded to the appellate court for consideration of other issues. We must therefore review the propriety of the appellate court's holding that the warrantless search and seizure violated the defendant's fourth-amendment rights as a guide to the trial court in the event a retrial is necessary.

The search and seizure in this case occurred before the decision of the United States Supreme Court in Chimel v. California (June 23, 1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. The decision in Chimel does not apply to searches conducted prior to that decision. (Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388.) Therefore, the validity of the search and seizure incident to the arrest in this case must be judged by pre-Chimel standards.

The defendant contends that after he was arrested and taken to the jail, the officers could have procured a search warrant before conducting a search of his residence. The test relating to a warrantless search prior to Chimel was not whether a warrant could have been secured but whether the search without a warrant was reasonable. (United States v. Rabinowitz 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; People v. Hanna, 42 Ill.2d 323, 247 N.E.2d 610; see also People v. Pickett, 39 Ill.2d 88, 233 N.E.2d 560; People v. Brown, 38 Ill.2d 353, 231 N.E.2d 577; People v. Harris, 34 Ill.2d 282, 215 N.E.2d 214; Prople v. Jones, 31 Ill.2d 240, 201 N.E.2d 402; People v. DiGerlando, 30 Ill.2d 544, 198 N.E.2d 503; People v. Watkins, 19 Ill.2d 11, 166 N.E.2d 433.) 'That criterion in turn depends upon the facts and circumstances--the total atmosphere of the case.' (339 U.S. at 66, 70 S.Ct. at 435, 94 L.Ed. at 660.) We therefore find no merit in the defendant's contention that the search was invalid because it would have been practical for the officers to obtain a search warrant.

In determining the reasonableness of the search 'The critical issue in each case must be whether the situation that confronted the officer(s) justified the search. * * * Other courts are in accord. They * * * have examined the nature of the offense and the surrounding circumstances to determine whether the search was warranted. (Citations.)' (People v. Watkins, 19 Ill.2d at 18, 166 N.E.2d at 436.) In the present case in determining the validity of the search and seizure 'it is the reasonableness of the search * * * which is of primary importance and not whether the search occurred before or after the defendant was arrested and taken into custody.' People v. Pickett, 39 Ill.2d at 93, 233 N.E.2d at 564.

No question is raised about the legality of the arrest without a warrant. The officers went to the defendant's resident (the old railroad blockhouse) for the purpose of arresting the defendant for the commission of a heinous crime. The door was locked and blood stains were plainly visible on the steps. The defendant was seen on the roof and the officers forced the door open and entered. The sheriff, two deputies and one or two State police officers entered the building at that time. The interior of the building consisted of one room; part of the floor was composed of sand and dirt. There was a large skylight in the ceiling and a ladder had been placed through the skylight to the roof. One of the officers went up the ladder, disarmed the defendant and brought him back down into the room where he was handcuffed. During this interval, other officers arrived. A short time before the defendant was taken from the premises, Deputy Revell arrived and took charge of the premises. About four or five minutes after the defendant had been taken to the jail, Revell entered the building. He testified that he did not at that time seize any of the items of evidence from the exterior or the interior of the building because he was waiting for Lt. Pickett, the chief investigating officer, to arrive from the gravesite so that the evidence could be properly...