People v. Wright

• Decision Date: 22 November 1968
• Docket Number: No. 40639,40639
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Charles WRIGHT et al., Appellants.
• Court: Illinois Supreme Court

Page 180

242 N.E.2d 180

41 Ill.2d 170

The PEOPLE of the State of Illinois, Appellee, v. Charles WRIGHT et al., Appellants.

No. 40639.

Supreme Court of Illinois.

Nov. 22, 1968.

Geter & Geter, Chicago (Howard D. Geter,Sr., and Howard D. Geter, Jr., Chicago, of counsel), for appellants.

William G. Clark, Atty. Gen., Springfield, and John J. Stamos, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., Elmer C. Kissane and Sheldon M. Schapiro, Asst. State's Attys., of counsel), for appellee.

UNDERWOOD, Justice.

On May 12, 1966, the defendants were found guilty of gambling after a bench trial in the Cook County circuit court. The sentences imposed ranged from 3 months imprisonment and a $300 fine to one year's probation and a $100 fine. Defendants contend the evidence introduced against them in the trial court was illegally seized by police officers who, without consent or a valid search warrant, entered a private dwelling for the purpose of making an arrest.

The sole witness at defendants' trial was arresting officer Herman Waller, a Chicago policeman with 4 years experience, who testified he had made approximately 300 previous 'policy' (a numbers game) arrests. On November 24, 1965, Waller secured a search warrant for the second floor apartment of a two-story frame building at 1702 North Bissell in Chicago. He and four other officers arrived outside the premises at about 9:30 P.M. and established a surveillance of the building because they were informed that the individuals involved in a policy operation there would not be in the second floor apartment until 10:00 or 10:30 P.M. During the surveillance Office Waller observed persons who were allegedly engaged in the policy operation entering the first floor apartment rather than the second floor apartment. The officer testified that he recognized some of these people as 'known policy runners' whom he had arrested many times before, and after some 35 minutes spent in watching the front of the apartment building he proceeded to the rear of the premises to look into a window of the first floor apartment which was partially covered by curtains. Since the building did not have a back yard the officer was able to stand 1 to 3 feet from the rear window under the elevated tracks on the Chicago Transit Authority right-of-way. Through a crack in the window curtain Officer Waller testified that he could see the heads of the people inside, and through the closed window he could hear an adding machine being operated and a female voice inquiring: 'Are all your books in? Who has any short books? Where is all the money?' From his extensive experience with policy gambling operations the officer knew that adding machines were commonly used to add up the sums of money collected, and he also knew that a 'short book' referred to a situation where a runner does not have enough money to 'clear' his bets on a particular book. After about ten minutes of watching and listening through this window, Officer Waller went to the front door of the apartment, knocked, announced his office, and forced his way in after the person coming to the door told him to 'get lost.' The officer then went directly to the kitchen in the rear of the apartment where he observed defendants Estele Johnson, Francis Spires and a third defendant who is not a party to this appeal sitting at a table with an adding machine, policy writings and policy result slips thereon. Another defendant, Charles Wright, yelled 'Police' and threw a bag containing $179.35 behind a washing machine. Defendants Rufus Hooks and Jimmy Carter were also in the kitchen and a search of them revealed they were carrying policy writings and money in their pockets. At this time Officer Waller testified defendants Wright, Carter and Hooks made various incriminating remarks to him. Defendant Wright asked him, 'Well, why don't you go out and leave this policy alone.' Defendant Clark stated, 'Okay, you got me, let's go', and defendant Hooks remarked, 'Well, you have finally got me.'

The single question presented by the facts of this case is whether the trial court was correct in refusing to suppress the evidence thus secured, and resolution of this question depends upon whether the defendant's fourth amendment rights against unreasonable searches and seizures were violated. It is of no consequence that the search warrant obtained by police was quashed because it authorized a search only of the second floor apartment of the two-story building, since defects in a search warrant are immaterial if the search can be otherwise justified. (People v. Washington, Ill., 241 N.E.2d 425; People v. Williams, 36 Ill.2d 505, 509, 224 N.E.2d 225; People v. Brinn, 32 Ill.2d 232, 241, 204 N.E.2d 724.) The test of the constitutionality of a search 'is not whether it was reasonable or practicable for the officers to obtain a search warrant, but whether the search was unreasonable. It is well established that a search without a warrant is reasonable and valid if it is incident to a lawful arrest and there is no requirement that the arrest be under the authority of an arrest warrant. (Ker v. California, 374 U.S. 23, 41, 83 S.Ct. 1623, 10 L.Ed.2d 726.) In turn, the validity of an arrest without a warrant depends upon whether the officers had reasonable cause to believe that an offense had been committed and that the defendant had committed it. (People v. Jones, 16 Ill.2d 569, 573, 158 N.E.2d 773.) The test is not whether there is sufficient evidence to convict the arrested person, 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 defendant committed the offense. (People v. Hightower, 20 Ill.2d 361, 366, 169 N.E.2d 787.) In deciding the question in a particular case, courts deal with probabilities and are not disposed to be unduly technical. (People v. Fiorito, 19 Ill.2d 246, 256, 166 N.E.2d 606.)' People v. Jones, 31 Ill.2d 240, 243--244, 201 N.E.2d 402, 404.

In Davis v. United States (9th Cir.), 327 F.2d 301, 305, the rule is stated that "It is well established that it is not a search to observe what is open and patent either in daylight or in artificial light. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202; Boyd v. United States, 4 Cir., 286 F. 930; Smith v. United States, 4 Cir., 2 F.2d 715; Safarik v. United States, 8 Cir., 62 F.2d 892, 895 * * *.' Petteway v. United States, 261 F.2d 53, 54 (4 Cir.1958). As was said by Judge Holtzoff in United States v. McDaniel, 154 F.Supp. 1, 2 (D.C.1957), affirmed (103 U.S.App.D.C. 144) 255 F.2d 896 (1958) and cert. denied, 358 U.S. 853, 79 S.Ct. 82, 3 L.Ed.2d 87 (1958); Williams v. United States, 363 U.S. 849, 80 S.Ct. 1626, 4 L.Ed.2d 1732 (1960), 'if, without a search and without an unlawful entry into the premises, a contraband article * * * is seen in the premises, the police are not required to close their eyes and need not walk out and leave the article where they saw it." (See People v. Tate, 38 Ill.2d 184, 187, 230 N.E.2d 697; State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129, 134--135.)...