People v. Harshbarger

• Decision Date: 07 November 1974
• Docket Number: No. 73--332,73--332
• Citation: 321 N.E.2d 138,24 Ill.App.3d 335
• Parties: PEOPLE of the State of Illinois, Appellee, v. Richard E. HARSHBARGER, Appellant.
• Court: United States Appellate Court of Illinois

Page 138

321 N.E.2d 138

24 Ill.App.3d 335

PEOPLE of the State of Illinois, Appellee, v. Richard E. HARSHBARGER, Appellant.

No. 73--332.

Appellate Court of Illinois, Fifth District.

Nov. 7, 1974.

Frederick F. Cohn, Chicago, for appellant.

John H. Ward, State's Atty., Christian County, Taylorville, James J. Jerz, Principal Atty., Martin P. Moltz, Staff Atty., Illinois State's Attorneys Ass'n, Elgin, of counsel, for appellee.

CREBS, Justice.

In a jury trial in the Circuit Court of Christian County defendant was convicted on a two-count indictment charging possession of a controlled substance (marijuana), and possession of amphetamines. He was sentenced to concurrent terms of one to three years on each count. In this appeal defendant contends, among other things, that his arrest was unlawful and in violation of his constitutional rights and that a search warrant against his automobile was improperly issued.

Prior to trial defendant's motions to quash the warrant and to suppress all evidence obtained in a search of his person and his car were denied. At the hearing on these motions one police officer testified and it was stipulated that the testimony of another officer would be the same. It appears that in response to information received by the police that Robert Leads had a large quantity of marijuana in his possession, they went to his house about 4:00 o'clock in the afternoon on September 26, 1972. They knew him and when he answered the door they asked and received his consent to search his car. Finding nothing of consequence, they then asked and were permitted to check the house. When they entered they observed three other young men seated in the living room, one of whom was the defendant, Richard Harshbarger. Also, they noticed what they believed to be a strong smell of burning marijuana. In a check of the house no marijuana was found, but nonetheless all four men were informed that they were under arrest for possession and they were immediately taken to the police station in a squad car. In answer to specific inquiries the officer stated that they had no arrest or search warrant, that they had never seen defendant before, that they did not see defendant in possession of any marijuana, that they did not find any on the premises, and that they did not observe that defendant was violating any city ordinance, state statute, or federal law. The officer also testified that he did not consider himself an expert on the subject of burning marijuana, but that he was aware that burning tea bags and burning marijuana have a similar odor which he was not sure he would be able to distinguish.

On reaching the station the officer stated that each of the individuals was searched prior to being placed in a detention cell. In the search of defendant an old fashioned pocket watch was found in his undershorts, and when the lid was pried open, it was found to contain 25 1/2 small, grey compressed tablets of unknown content (later determined to be amphetamines). Defendant was asked for permission to search his car, which in the meantime had been towed to a garage, but he refused. A guard was placed on the car until the next day when a search warrant was obtained. In the search of the car two brief cases containing a number of cellophane packages of marijuana were found in the trunk. The affidavit in support of the complaint read as follows:

'Complainant says that he has probable cause to believe, based upon the following facts, that the above listed things to be seized are now located upon the (person and) premises set forth above; The Taylorville City Police Officers arrested Richard Harshbarger and found him to have in his possession controlled substances and it is believed that there may be more controlled substances in his automobile; said subject was arrested on September 26, 1972 and the controlled substance was found at that time. Subject had just left his automobile immediately prior to his arrest.'

We shall first consider defendant's contentions relative to his arrest and the search of his person incident thereto. The rules pertinent to this issue are well established. An officer making an arrest without a warrant must have probable cause to believe that a criminal offense has been committed and that the person to be arrested has committed it, that is, he must have some reasonable grounds or have knowledge of some facts upon which to base his belief that such person is guilty of or implicated in a crime, and a mere suspicion in the officer's mind unsupported by such facts is insufficient to support an arrest or a search incident thereto. (People v. Henneman, 373 Ill. 603, 27 N.E.2d 448.) Further, as stated in this latter case, while it is necessary in the interest of crime prevention to give substantial latitude to police officers in making a warrentless arrest, yet, in doing so, the constitutional guaranty to all citizens to be secure in their persons, houses, property and effects against unreasonable searches and seizures, must be observed. It is also clear that the lawfulness of an arrest depends upon the existence of reasonable grounds for the arrest at the time it is made, and after discovered evidence upon a search does not relate back to operate as a justification. (People v. Roebuck, 25 Ill.2d 108, 183 N.E.2d 166.) Finally, neither can a search or a seizure made without a warrant be justified as incident to an arrest unless the arrest was constitutionally valid. Johnson v. United States 333 U.S....