People v. Nugara
| Decision Date | 28 March 1968 |
| Docket Number | 41039,Nos. 41038,s. 41038 |
| Citation | 236 N.E.2d 693,39 Ill.2d 482 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Sam Lawrence NUGARA, Appellant. The PEOPLE of the State of Illinois, Appellee, v. Harold SHUBMEHL, Appellant. |
| Court | Illinois Supreme Court |
Anna R. Lavin, Chicago (Samuel V.P. Banks, Chicago, of counsel), appointed by the Court, for appellant Sam Lawrence Nugara.
LeFevour & Bailey, Oak Park, appointed by the Court, for appellant Harold Shubmehl.
John J. Stamos, State's Atty., Chicago (Elmer C. Kissane and Oliver D. Ferguson, Asst. State's Attys., of counsel), for appellee.
Defendants, Harold Shubmehl and Sam Lawrence Nugara, were indicted and jointly tried before a jury in the circuit court of Cook County for the crimes of attempted burglary and possession of burglary tools. Shubmehl was convicted on both charges and sentenced to the penitentiary from one to five years for the former charge and from one to two years for the latter, the sentences to run concurrently. Nugara was found guilty only on the attempted burglary charge and sentenced to the penitentiary from one to five years. Both appealed and said appeals have been consolidated for consideration. Shubmehl contends that the trial court erred in admitting evidence of burglary tools seized pursuant to an unlawful search and in excluding testimony of an expert witness. He also incorporates and adopts, where applicable, all other erros raised on appeal by Nugara, to-wit: that the evidence does not sustain his conviction, that testimony and products of an illegal search of his codefendant's automobile were used against him to his prejudice, and 'that there was an unlawful restriction of cross-examination, interference with the defense and frustration of the defense by the trial judge.'
The facts were that at approximately 3:00 A.M., on November 7, 1964, Chicago police officers Wodnicki, Brooks and McCarthy, while patrolling in their unmarked car, observed the defendants standing, one in front and the other in the recessed entranceway of the Neumode Hosiery Shop at 54 West Madison Street in Chicago. Wodnicki testified that he jumped from the car as it slowed and ran to the entranceway where he saw Shubmehl facing the door of the hosiery shop with a screwdriver in his left hand, the tip of which was inserted into the part of the door where the lock cylinder had been removed. He promptly arrested Shubmehl, noticing, upon closer inspection, that there were striation marks and indentations on the casing of the cylinder lock and that although the cylinder was missing the door could not be opened until the bolt of the lock was removed. He conducted a brief search of the area around the door for the missing cylinder but failed to find it. In the meantime his fellow officers had arrested Nugara who had fled from in front of the entranceway to and down an adjacent stairway.
Both defendants were taken to Area One Burglary Unit Headquarters located at 56th and Cottage Grove. Enroute and upon arrival at the police station Wodnicki asked Shubmehl whether he had a car parked at the scene and each time Shubmehl denied having one. Wodnicki further testified, however, that he later said to Shubmehl, , and that Shubmehl then admitted having a '64 Ford with Michigan license plates parked south of Madison on Dearborn and gave him the keys. He stated that he then asked, 'Do you have anything in the car?' to which Shubmehl replied, 'No', and that he inquired further, saying, 'You don't mind if we look around the car" and Shubmehl answered: 'No, go ahead, look through the car.' Thereafter, he returned to the Dearborn-Madison area, found the car, opened the trunk, and discovered a claw hammer, two screwdrivers and a pair of pliers.
These items were admitted into evidence at trial following denial of Shubmehl's motion to suppress wherein he denied giving any authorization to police officers to search his car. The remainder of the State's case consisted of the testimony of the arresting officers as well as testimony concerning the condition of the door of the hosiery shop at closing time on the evening before the arrest and the condition thereafter, and the screwdriver and bent nail files taken from Shubmehl's person upon arrest. In rebuttal, Shubmehl testified on his own behalf and, in substance, sought to offer an innocent explanation for his presence at the time and place of arrest, namely, that he had been drinking and stopped to relieve himself. He also attempted to introduce the testimony of an expert witness, a locksmith, concerning the possibility of removing the cylinder lock from the door with the aforementioned screwdriver and nail files but the court sustained the State's objection thereto.
In support of his contention that burglary tools found in the trunk of his car should have been suppressed, Shubmehl argues that the search which uncovered these items was unlawful because it was not incident to his arrest, citing Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, nor knowingly consented to by him. We need not go beyond the first of these arguments to determine that the ultimate contention of error is unfounded and that the search was reasonable and not in violation of Shubmehl's rights. In the recent cases of People v. Brown, 38 Ill.2d 353, 231 N.E.2d 577, and People v. Jones, 38 Ill.2d 427, 231 N.E.2d 580, we considered the scope of Preston and similar cases in the light of Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730, wherein a search of the glove compartment of an automobile which had been impounded by the police was upheld despite the fact that the search occurred one week after the defendant had been arrested for a narcotics violation. On the strength of Cooper we felt free to consider the lawfulness of a search of an automobile even though it occurred after the owner was arrested and taken into custody, factors which a majority of this court, under the compulsion of Preston, had considered as invalidating the search Per se. (See People v. Lewis, 34 Ill.2d 211, 215, 215 N.E.2d 283.) Accordingly, in Brown...
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