People v. Gant

• Decision Date: 13 August 1973
• Docket Number: No. 57517,57517
• Citation: 14 Ill.App.3d 282,302 N.E.2d 376
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph E. GANT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 376

302 N.E.2d 376

14 Ill.App.3d 282

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph E. GANT, Defendant-Appellant.

No. 57517.

Appellate Court of Illinois, First District, First Division.

Aug. 13, 1973.

James J. Doherty, Public Defender of Cook County, Chicago (Robert M. Gray, Asst. Public Defender, of counsel), for defendant-appellant.

Bernard Carey, State's Atty., County of Cook, Chicago (Kenneth L. Gillis, James M. Schreier, Asst. State's Attys., of counsel), for plaintiff-appellee.

HALLETT, Justice.

The defendant, on a bench trial, was found guilty of the possession of a controlled substance (barbiturate capsules) and was sentenced to one year on probation. On appeal, he contends (1) that probable cause for the arrest has not here been established because the State did not prove the credibility of the informer or corroborate his information by other facts and circumstances; (2) that the arrest should not have been made without first obtaining a warrant; and (3) that the barbiturate capsules, which the defendant dropped as he got out of his car at the officer's order, were 'fruit' of said illegal arrest and should have been suppressed.

We conclude that there was probable cause for the arrest and that a warrant was not required. We therefore affirm, without reaching the third issue.

No question is raised as to the sufficiency of the complaint and the facts are not in dispute. At approximately 12:30 A.M. on November 18, 1972, Officer Mitchell was seated in a squad car at 48th Street and Calumet Avenue in Chicago with his partner and an informant, who had previously given information to said partner. The informant told Officer Mitchell that the defendant, Joseph Gant, was sitting nearby in his red convertible with some barbiturate capsules in his possession. The informant added that he knew this because he had just consumed two of them. Relying on this information, plus his own conclusion that the informant was under the influence of narcotics and seeing the defendant in just such a red convertible as the informant had described, Officer Mitchell approached the defendant and ordered him to get out of his car. As the defendant did so, he dropped some red capsules from his hand and the officer retrieved them and detained the defendant. The crime laboratory analysis was that the capsules contained derivatives of barbituric acid. Neither at the hearing on the motion to suppress the evidence, nor at the trial, did Officer Mitchell's partner testify, nor was any evidence brought out to establish the reliability of information previously furnished by this informant. The defendant did not testify.

Passing now to the defendant's first contention--it is quite true as his counsel points out, citing Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, that (quoting from plaintiff's brief):

'Reasonable grounds for believing that a person has committed a criminal offense may be found in two particular situations: in factual information furnished by an informant if his reliability has been firmly established, or where this same information has been independently corroborated.'

and, citing United States v. Harris (1971), 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723, that (again quoting from plaintiff's brief):

'The Court must be informed that they are relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.'

The foregoing is reflected also in the Illinois decisions. In People v. Denham, 41 Ill.2d 1, at page 5, 241 N.E.2d 415, at page 418, our Supreme Court points out that:

'While an uncorroborated 'tip' by an unknown informer alone does not constitute probable cause for arrest (People v. Parren, 24 Ill.2d 572, 182 N.E.2d 662), such a 'tip' when corroborated by other facts and circumstances may constitute such probable cause. (People v. McFadden, 32 Ill.2d 101, 203 N.E.2d 888.) As we stated in People v. Macias, 39 Ill.2d 208, 213, 234 N.E.2d 783, 786: 'We have held that the test of probable cause is whether a reasonable and prudent man in possession of the knowledge which has come to the arresting officer would believe the person to be arrested is guilty of the crime; that it is something less than evidence that would result in conviction and may be founded on hearsay evidence; that it is based upon the factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act."

In People v. Ramos, 112 Ill.App.2d 330, at page 335, 250 N.E.2d 822, at page 824, this court said:

'Whether probable cause existed must be governed by the totality of the facts and circumstances in each case. The People v. Hanna, 42 Ill.2d 323, 328, 247 N.E.2d 610 (1969). An uncorroborated 'tip' from an unknown informer alone does not constitute probable cause for arrest without a warrant; however, when such 'tip' is corroborated by other facts and circumstances it may constitute probable cause. The People v. Denham, 41 Ill.2d 1, 5, 241 N.E.2d 415 (1968).'

And in People v. Holloman, 46 Ill.2d 311, at page 317, 263 N.E.2d 7, at page 10, our Supreme Court, in affirming a drug conviction, said:

'* * * After examining the totality of circumstances surrounding the search we find that they would "warrant a man of reasonable caution in the belief' that the action taken was appropriate (citations).' Terry v. Ohio (1968), 392 U.S. 1, 21--22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906; see also People v. Thomas, 31 Ill.2d 212, 201 N.E.2d 413.'

Let us now examine a few cases to ascertain what corroborating facts and circumstances have been adjudicated adequate to establish probable cause.

In People v. Tillman, 1 Ill.2d 525, 116 N.E.2d 344, the officer received a telephone call from an unidentified person who said that a man named Trench Coat--a tall, slim colored man about 25 years old, living in a certain room in the Strand Hotel with a heavyset woman--had sold narcotics to an addict the night before. The officer and his partner went to that room in that hotel, saw such a woman, arrested her and found heroin on her. They then arrested the defendant, who was called Trench Coat. Capsules of heroin were found under the mattress. In affirming, our Supreme Court, at page 531, 116 N.E.2d at page 348, said:

'Did the officers act unreasonably in their arrest of the defendant? We think not. Whoever informed the officer about Trench Coat had been correct in every detail. * * *.'

In People v. McFadden, 32 Ill.2d 101, 203 N.E.2d 888, Ware, a State narcotic's inspector, who had gotten a tip from an informer, telephoned Officer O'Brien and said that the defendant, whose clothing and physical appearance he described in detail, would be getting off a northbound bus at 61st and Halsted, Chicago, at about 2:00 P.M. and that he would have narcotics in his possession. The police officer saw such a man get off a northbound bus at that corner at 2:05 P.M. and arrested and searched him, the defendant, finding narcotics. In affirming the conviction, our Supreme Court, at page 103, 203 N.E.2d at page 889, said:

'* * * Here all of the information furnished by Ware, except possession of narcotics by defendant, was personally verified by the officers before the arrest. * * *.'

In People v. Robinson, 105 Ill.App.2d 57, 245 N.E.2d 137, a police informer told police officers that he had just purchased a bag of marijuana and pointed out the defendant as the seller. He was arrested and a search disclosed marijuana. In affirming the conviction, this court, at page 64, 245 N.E.2d at page 141, said:

'As to defendant's arrest, we agree with the trial court that the information received from the informer, as such, was sufficient to give the officers probable cause to believe that the defendant was committing or had committed an offense. (Ill.Rev.Stat., Ch. 38, § 107--2(a) and (c).) They were informed by a purchaser as to a narcotics sale just made, and it was also reasonable to believe that a narcotics dealer might have on his person possession of other narcotics for sale.'

In People v. Ramos, 112 Ill.App.2d 330, 250 N.E.2d 822, the police had the informant substantiate his 'tip' by making another purchase. After he returned with a packet of heroin the officers made their arrest and search. In affirming the conviction, the Appellate Court for the Second District, at page 335, 250 N.E.2d at page 824, said:

'In the instant case, the 'tip' by the informant Yanez, was not the sole basis for the authorities entering the defendant's premises. On the contrary, rather than immediately force their way into the apartment, they first had the informant substantiate his 'tip' by making another purchase and awaited the outcome before entering to make the arrest. The probable cause, therefore, was not based on just the reliability of the 'tip' alone, but upon verification of the same. The Peopole v. McFadden, 32 Ill.2d 101, 103, 203 N.E.2d 888 (1965), cert. den. 382 U.S. 871, 86 S.Ct. 94, 15 L.Ed.2d 110. * * *.'

In People v. Maddox, 46 Cal.2d 301, 294 P.2d 6, at page 8, an informer told the police officers that he had just bought a $10 paper of heroin in the defendant's home and had used the defendant's equipment to take the shot. On this information, plus surveillance, the officers arrested the defendant and searched his home. In affirming the conviction, the Supreme Court of California said:

'* * * Moreover, in the present case Officer Taylor had defendant's home under surveillance for about a month and had observed known narcotics users frequenting it, and the information Davis gave him before the arrest was reasonable cause for the arrest. See, People v. Boyles, 45 Cal.2d 652, 290 P.2d 535; Penal Code, § 836(3).'

Applying the criteria above developed, let us look at the facts and circumstances known to the officer as he approached the defendant. He had been informed by an informer, known to his partner...