People v. Shaw

• Decision Date: 05 December 1967
• Docket Number: Gen. No. 50784
• Citation: 89 Ill.App.2d 285,233 N.E.2d 73
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John SHAW, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 73

233 N.E.2d 73

89 Ill.App.2d 285

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John SHAW, Defendant-Appellant.

Gen. No. 50784.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 5, 1967.

Gerald W. Getty, Public Defender, Marshall J. Hartman, James J. Doherty, Asst. Public Defenders, Chicago, of counsel, for appellant.

John J. Stamos, State's Atty., Elmer C. Kissane, Richard A. Rinella, Asst. State's Attys., Chicago, for appellee.

ENGLISH, Presiding Justice.

OFFENSE CHARGED

Unlawful sale of a narcotic drug. ¹

DEFENSES RAISED AT TRIAL

Denial of the conduct charged, and entrapment. ²

JUDGMENT

After a jury trial, the defendant was found guilty and a life sentence was imposed. (Pursuant to Section 38 of the Criminal Code (Ill.Rev.Stat. (1965), ch. 38, § 22-40), the life sentence was mandatory when, at the hearing in aggravation, the court was advised of defendant's prior conviction in the United States District Court at Chicago for the unlawful sale of narcotics.)

POINTS RAISED ON APPEAL

(1) Defendant's motion to suppress evidence was arbitrarily denied.

(2) Cross-examination of the informer was unduly restricted.

(3) The court erroneously refused an instruction on entrapment.

(4) Defendant did not receive a fair trial.

(5) Defendant was not proved guilty beyond all reasonable doubt.

EVIDENCE

On the evening of July 18, 1964 defendant was arrested without a warrant at his home in Chicago and charged with the unlawful sale of narcotics. At the time of arrest some money was seized from defendant's person, the house was searched, and a quantity of heroin was seized from the inside coat pocket of defendant's suit hanging in an upstairs bedroom closet. The seized items were admitted into evidence at the trial.

Prior to trial defendant moved to suppress the evidence thus seized, ³ which motion, after hearing, was denied. At the hearing defendant, his sister with whom he resided, and his cousin testified in support of the motion. The sister testified that on July 18, 1964, between 6:00 P.M. and 7:00 P.M., a girl whom she identified as Veronica Dettmer was at her home for about five minutes, during which time she spoke to defendant and defendant gave her a radio. Defendant testified that the radio had been security for a loan to Dettmer. Defendant and his sister both testified to brutality, threats, racial discrimination, and the use of profanity by the police. However, their testimony as to the actual instances was internally inconsistent and inconsistent with each other's testimony. The cousin testified that when she arrived at the sister's home, the police had left, the house was in turmoil, and defendant's sister was quite upset. In response, the State called but one witness, Police Officer Nadile.

Nadile testified that on the evening of July 18th, 1964 he received a phone call from one Veronica Dettmer, who told him she could make a controlled purchase of narcotics from defendant at his home. Dettmer came to the police station where her outer garments and purse were searched by Police Officer Craig in the presence of Nadile. Finding neither money nor narcotics, they gave her fifty dollars, the serial numbers of which were recorded. The officers and Dettmer then proceeded to the neighborhood of defendant's residence where a taxi was hailed. After the back seat of the cab was searched by the police, Dettmer was sent to defendant's home in the cab, the officers following in a police car. As Dettmer entered the home, Craig moved to where he could watch, while Nadile stationed himself at the side of the building. After several minutes Craig went to Nadile, saying 'she just turned them.' Approximately one minute later, Dettmer emerged from the building with a tin-foil package which she handed to Craig. Craig field-tested the white powder inside the package and found it contained heroin. Dettmer said she had just purchased the package from defendant for fifty dollars. At this time the officers entered the house, arrested defendant, and seized the fifty dollars of pre-recorded bills which he was holding in his hand. Subsequently, Craig, accompanied by defendant, went upstairs where he found and seized seventeen grams of heroin.

At this point the court interrupted, saying, 'I think I have heard enough.' After pointing to specific conflicts in the testimony for the defense, the judge stated that he believed generally Nadile's testimony, and denied the motion to suppress any of the seized evidence. Neither Dettmer nor Craig testified at this hearing.

At the trial Craig testified that he had seen the transfer through defendant's living room window; that a third man was present at the scene, an addict who was brought along to mislead defendant into believing that he, and not Dettmer, had informed; and that this man had not gone upstairs. Nadile also testified at the trial to the same effect as his testimony at the preliminary. Nadile and Craig were in substantial agreement.

Dettmer testified that she had purchased the narcotics; that she had known defendant; that she previously had regularly purchased narcotics from him; that she was employed as a cocktail waitress, and that she had been addicted to narcotics for seven years.

Defendant testified that the third man who came in with the police had gone upstairs and, he believed, put the narcotics in his suit; that he (defendant) had refused to sell Dettmer narcotics on that evening; that he had known Dettmer, and that she had been at his home earlier that evening to pick up her radio which he had held as security for a loan.

At the close of evidence, defendant tendered an entrapment instruction which the court refused. Thereafter, in his written motion for a new trial, defendant assigned as errors, among others, the denial of this tendered instruction, the refusal to allow Dettmer to state her address on cross-examination, and the denial of defendant's pre-trial motion to suppress. The motion for new trial made no claim of prejudice arising from comment on the large quantity of heroin which was seized. The motion was denied.

OPINION

(1) Defendant contends that the trial court's denial of his motion to suppress was arbitrary. However, before ruling, the court heard testimony that one officer had seen the transaction; that Dettmer had completed the sale; and that the package Dettmer brought out of the house was tested and found to contain heroin.

Do these facts furnish an adequate basis for a reasonable belief that an offense had been committed? If so, this constitutes statutory grounds for arrest by a peace officer. Ill.Rev.Stat. (1965), ch. 38, § 107-2(c). Considered in the light of People v. Boozer, 12 Ill.2d 184, 188, 145 N.E.2d 619, the foundation is more than adequate. The Boozer case also involved a controlled sale of narcotics. Upon leaving the house after making the purchase, the purchaser nodded his head as a prearranged signal to the hidden policemen. The court considered this sufficient, and found that the officers had reasonable grounds to believe that the offense had been committed by the defendant. The instant case is even stronger, since one of the officers actually saw the purchase and made a narcotics field test prior to defendant's arrest.

There is no question that, incident to a lawful arrest, a search of the person arrested and the area under his immediate control is reasonable. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. In People v. Braden, 34 Ill.2d 516, 519, 216 N.E.2d 808, 810, the court considered the scope of the area which might properly be searched, incident to a lawful arrest. The defendant there was arrested at his apartment for the unlawful sale of narcotics. Other rooms, closets, and a refrigerator in the hall outside of the apartment were searched. The search was found to have been reasonable, since the area under defendant's immediate control includes 'the premises in which the person has been arrested.' In the case before us, the search of a single living unit, upstairs and down, seems to be no more extensive. This search is distinguishable from that in Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, which involved a house several blocks from the site of the arrest, and the searches in People v. Watkins, 19 Ill.2d 11, 166 N.E.2d 433, and People v. Reed, 37 Ill.2d 91, 227 N.E.2d 69, which involved arrests for traffic offenses.

Defendant contends that it was reversible error for the court not to have required Dettmer to testify at the hearing on his motion to suppress, and refers to the case of Roviario v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628, 1 L.Ed.2d 639. The Roviaro court described the problem as 'one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense.' Here, neither interest is involved for the State called Dettmer at the trial, defendant knew Dettmer prior to his arrest, and her name was disclosed to him by the State.

In People v. Wolfe, 73 Ill.App.2d 274, 280, 219 N.E.2d 634, 637, the court stated: 'We are compelled to hold that an informer who participates in a crime, as is the situation in the case at bar, must be disclosed at a pre-trial hearing on a motion to suppress, if other evidence does not establish probable cause, and failure to allow such a disclosure is error.' Contrapositively, however, such error does not exist where, as here, defendant knew the informer's identity and probable cause was established independently. Further, the informer's reliability need not be demonstrated if the informer's information is independently verified by the arresting officers. People v. McFadden, 32 Ill.2d 101, 203 N.E.2d 888; People v. McClellan, 34 Ill.2d 572, 574, 218 N.E.2d 97.

Defendant also contends that the court ruled prematurely on his motion. Since the court specifically found that the facts were generally as Officer Nadile...