WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
JOHN A. SBARBARO, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 18, 1954.
After a trial without a jury, in the criminal court of Cook County, defendant, Edward Tillman, was found guilty of the crime of unlawfully possessing narcotic drugs. He was convicted and sentenced under the second count of the indictment, which charged him, in addition, with having been previously convicted of a similar offense and having been sentenced therefor by the municipal court of Chicago to confinement in the Chicago House of Correction for a period of six months. For the present offense defendant was sentenced to the penitentiary for a term of not less than fifty years nor more than life. He brings the record to this court for review by writ of error.
Defendant contends, first, that the court erred in denying his motion to quash count II of the indictment, on the ground that the statute requires the previous conviction to be for a felony, before the penalty for a subsequent offense can be imposed. Section 23 of the Uniform Narcotic Drug Act, under which defendant was convicted, relates to penalties for violations and subsequent offenses. It provides, in so far as it is relevant, that "Whoever violates this Act by possession, having under his control, manufacturing or compounding any narcotic drug shall be fined for the first offense not more than $5000, or be imprisoned for a period of not less than one year nor more than five years, or both. For any subsequent offense the violator shall be imprisoned in the penitentiary for any term from two years to life. * * * Any offense under this Act shall be deemed a subsequent offense if the violator shall have been previously convicted of a felony under any law of the United States of America, or of any State or Territory or of the District of Columbia relating to narcotic drugs." Ill. Rev. Stat. 1951, chap. 38, par. 192.23.
The prior conviction of the defendant, as alleged in the second count of the indictment, was for unlawful possession of a narcotic drug "in violation of paragraph 192-2, Chap. 38, Ill. Rev. Stats. of 1945," for which the maximum penalty was a fine not exceeding one thousand dollars, or imprisonment in the county jail for a term not exceeding one year, or both such fine and imprisonment.
The People argue that the term "felony" as used in this statute refers only to prior convictions under the laws of the United States or of States other than Illinois, and that it has no application to prior convictions under the Illinois act. It is agreed that the prior conviction involved was a misdemeanor and not a felony. This court had occasion to pass upon this identical issue in the case of People v. Shamery, 415 Ill. 177. There we held adversely to all contentions made by plaintiff in error herein and we adhere to that view. The court acted properly in overruling the motion to quash count II.
Defendant next contends the court erred in denying his motion to suppress evidence discovered by a search of the room in which he resided. The record discloses that on Wednesday, April 9, 1952, at or about 10 o'clock A.M., a Chicago police officer received a telephone call from an unidentified person, who informed him that there was a man called Trench Coat a tall, slim, brown-skinned, colored man about twenty-five or thirty years of age with a gold tooth in the front of his mouth living in Room 212 of the Strand Hotel with a heavy-set woman, and that this man peddled narcotics and had sold narcotics on the previous evening to an addict. About an hour later this police officer and a partner arrived at the hotel, proceeded to the second floor, and observed a heavy-set woman wearing a robe, standing in the hall in front of Room 212. The door to the room was partly open, and the police officer observed defendant lying in a bed inside the room. The latter resembled in appearance the description given by the unidentified informant on the telephone. The officer arrested the woman, brought her into the room, and searched her, finding five capsules of heroin in the pocket of her robe. He then awakened the defendant, who had been asleep on the bed, and arrested him. In the course of a conversation with the police officer defendant stated that some people called him Trench Coat. The officer raised the mattress from the bed and found a box containing ninety-five capsules of what was later ascertained to be heroin. Defendant admitted the box of capsules belonged to him.
From the petition in support of defendant's motion to suppress evidence, and the hearing thereon, it appears that the hotel room in question was occupied by defendant as his home, and that no warrant was obtained for defendant's arrest or for a search of the premises. Defendant insists that his arrest was unlawful, that the search of his room was unreasonable and unlawful, and that such unlawful arrest and search were in violation of his constitutional rights and that his motion to suppress evidence should have been sustained.
Section 6 of article II of the Illinois constitution is as follows: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated: and no warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized."
The provision of the constitution of the United States, relied upon by plaintiff in error, while in somewhat different language, is in effect the same, and the provisions of the two constitutions are construed alike and should be liberally construed in favor of the accused. People v. Grod, 385 Ill. 584.
A long line of decisions which interpret both the Federal and State constitutions have established the proposition beyond contradiction that the search without warrant of the person and of the vehicle or place where the arrest is made and which is under the control of the accused, subsequent and incident to a lawful arrest, in order to find and seize things connected with the crime or its fruits, or as the means by which it was committed, is lawful and not a violation of the accused's constitutional rights. (United States v. Rabinowitz, 339 U.S. 56, 94 L.ed. 653; People v. McGowan, 415 Ill. 375; People v. Tabet, 402 Ill. 93; People v. Exum, 382 Ill. 204; People v. Marvin, 358 Ill. 426; People v. Brown, 354 Ill. 480; People v. Davies, 354 Ill. 168; People v. Hord, 329 Ill. 117.) In each of the foregoing cases a search, either of premises or vehicle, within the control of the arrested party or of the person of the arrested party, was held reasonable and lawful as an incident to a lawful arrest.
The search of the premises here involved being without benefit of a search warrant, the basic issue to be resolved, in order to determine the validity of the position of plaintiff in error, is whether or not his arrest was lawful.
Section 4 of division VI of the Illinois Criminal Code (Ill. Rev. Stat. 1951, chap. 38, par. 657,) provides as follows: "An arrest may be made by an officer or by a private person without warrant, for a criminal offense committed or attempted in his presence, and by an officer, when a criminal offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it."
In construing this provision of the Illinois Criminal Code, we have consistently held that an officer has the right to arrest without a warrant provided it is shown that a criminal offense has in fact been committed and the arresting officer has reasonable grounds for believing that the person to be arrested is implicated in the offense. People v. Martin, 382 Ill. 192; People v. Humphreys, 353 Ill. 340; People v. McGurn, 341 Ill. ...