People v. Hightower

• Decision Date: 31 October 1960
• Docket Number: No. 35823,35823
• Citation: 169 N.E.2d 787,20 Ill.2d 361
• Parties: PEOPLE of the State of Illinois, Defendant in Error, v. Mose HIGHTOWER, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 787

169 N.E.2d 787

20 Ill.2d 361

PEOPLE of the State of Illinois, Defendant in Error, v. Mose HIGHTOWER, Plaintiff in Error.

No. 35823.

Supreme Court of Illinois.

Oct. 31, 1960.

Howard T. Savage, Chicago, for plaintiff in error.

William L. Guild, Atty. Gen., and Benjamin S. Adamowski, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Francis X. Riley and Edward J. Hladis, Asst. State's Attys., Chicago, of counsel), for defendant in error.

DAILY, Justice.

After a bench trial in the criminal court of Cook County, the defendant, Mose Hightower, was convicted of unlawfully possessing and selling narcotic drugs and was sentenced to the penitentiary for a term of not less than twenty nor more than thirty years. He prosecutes this writ of error for review contending that certain money used as evidence was seized in violation of his constitutional rights, and that he was not proved guilty beyond reasonable doubt.

Facts pertinent to defendant's contentions, as developed both at a hearing to suppress the money as evidence and at the subsequent trial, show that on May 19, 1959, Federal narcotics agents Edmund Irvin and Theodore Heisig proposed to Herbert Fohrman, described as a special employee, that he attempt a purchase of narcotics from the occupants of a building at 736 E. 37th Street in Chicago. Fohrman went to the building the same day and was told by Frank Duncan, whom he found there, that he should return the next day at which time Duncan expected to obtain a new supply of heroin from 'Cotton,' an admitted nickname of defendant. The following morning, about 11:00 A.M., Fohrman was first searched by the agents, then furnished with $55 in currency, the serial numbers of which were recorded. He then returned to the building, arriving about 11:45 A.M., and as he did so his movements were kept under surveillance by agents operating from two cars.

Fohrman was admitted to the building by a woman named Lolita Mallory, and Duncan was seen to enter the building a few minutes later. Within a short time, Fohrman left the building and went to the car of one of the agents where he asked for and was given an additional $15 in currency. He was again searched on this occasion and the serial numbers on these bills were also recorded. Upon his return to the building he gave all of the currency to Duncan and the latter gave it to Lolita Mallory, who left and returned after three hours with a packet of powder that was given to Fohrman. The packet was delivered immediately by Fohrman to the waiting agents and after a field test of its contents showed it to be heroin, Duncan and Mallory were arrested forthwith. They were taken to the Federal narcotics bureau and interrogated. As the result of the information obtained, the agents went to defendant's apartment at 7919 S. Champlain Street, sometime between 1:00 A.M. and 3:00 A.M. on May 21st, and arrested defendant after informing him that the charge was selling narcotics. Defendant admitted the agents to his apartment and in an ensuing search of the premises they found on a bedroom dresser a sum of money which included five one-dollar bills and one five-dollar bill bearing serial numbers corresponding with currency that had been furnished to Fohrman. Defendant's motion to suppress this money as evidence was denied, and it is his initial contention that its seizure without authority of a warrant was in violation of his constitutional rights.

At the hearing on the motion to suppress, it was admitted that the agents had neither a warrant for defendant's arrest, nor a warrant to search his premises. It was the testimony of Heisig, however, that prior to the time of defendant's arrest, Duncan had given the officers information that defendant was his source of supply, and that he had instructed Lolita Mallory to obtain the heroin here involved from defendant. In addition, Duncan furnished the agent with the telephone number of his supplier, viz., Triangle 4-3289, a number found to be listed in the name of James Kell, 7917 S. Champlain Street, Chicago, and a check of the bureau's records divulged information that defendant was known to be living at such address under the name of James Kell.

Frank Duncan testified he had agreed, on May 19, 1959, to obtain some narcotics for Fohrman, and that he told the latter on such occasion he 'was getting the stuff from Mose Hightower.' He related how Fohrman had given him $55, then an additional $15 after leaving for a short period, and testified that he had given all the money to Lolita Mallory with instructions to make a purchase of narcotics. Concluding, the witness said that Mallory returned in about three hours, that she turned over a package of narcotics to Fohrman, and that Fohrman returned in about twenty minutes with two officers who placed the witness under arrest.

According to Lolita Mallory, who corroborated the conversation and transaction of May 20 between Duncan and Fohrman, Duncan gave her the $70 brought by Fohrman and instructed her 'to call Triangle 4-3289 and tell Mr. Hightower that he wanted a half ounce of heroin.' When she could contact no one at that number, she went to Oakwood Boulevard where she saw defendant's car and followed it in a taxi to the corner of 38th and Ellis Streets. There she told defendant's chauffeur, a man whom she knew as Eddie, that she wanted to buy a half ounce of heroin and was told to wait at the corner until contacted by May Masters. While waiting, the witness went into the nearby apartment of Schuyler Coward, whom she knew to be a friend of defendant, and was present when Coward received a telephone call from defendant. She said she requested and was permitted to speak to the latter, at which time she told him of her wish to buy some heroin and was instructed by defendant to meet May Masters in the original place. When asked if she had ever talked to defendant on the telephone before, Miss Mallory replied: 'Yes, I have. I talked to him every day for the last five or six months.' In rebuttal, defendant denied that he had talked to Mallory on May 20, or that he had ever talked with her over the telephone concerning narcotics.

Continuing with the testimony of Lolita Mallory, she related she met May Masters at 38th and Ellis Streets about twenty minutes after defendant's phone call, that she gave her the money and received a package of narcotics which she took back to Fohrman. When cross-examined, she stated she had given a statement to the Federal agents telling them substantially the same things to which she had testified. The record is not clear, however, either from the testimony of the witness or that of agent Heisig, whether the statement to which she referred was made before defendant was arrested.

Since the decision in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, it has become an established principle that the premises where an arrest is validly made, under the control of the person arrested, are subject to search without a search warrant, and that such search is not unreasonable within the prohibition of the United States constitution. The same interpretation has been placed on the search and seizure provision of our own constitution. People v. Boozer, 12 Ill.2d 184, 145 N.E.2d 619; People v. McGowan, 415 Ill. 375, 114 N.E.2d 407; People v. Tabet, 402 Ill. 93, 83 N.E.2d 329; People v. Exum, 382 Ill. 204, 47 N.E.2d 56. An arrest without a warrant, such as occurred in this case, is lawful if a criminal offense has in fact been committed and the arresting officer has reasonable grounds for believing that the person to be arrested has committed it. Ill.Rev.Stat.1957, chap. 38, par. 657; People v. Fiorito, 19 Ill.2d 246, 166 N.E.2d 606; People v. La Bostrie, 14 Ill.2d 617, 153 N.E.2d 570; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. The test is not whether there is sufficient evidence to convict the arrested man, but probable cause exists for arrest where a reasonable and prudent man, having the knowledge possessed by the officer at the time of the arrest, would believe the...