WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
GROVER C. NIEMEYER, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
The defendant, James Watkins, was tried in the criminal court of Cook County upon a charge of possession of "policy" slips. Count 1 of the indictment charged him with possession; count 2 repeated that charge and also charged a former conviction for the same offense. (Ill. Rev. Stat. 1959, chap. 38, par. 413.) He was first found guilty on count 2 of the indictment, and then, after he had applied for probation, the prosecution's motion to nolle prosse count 2 was allowed and he was sentenced to six months in the county jail on count 1.
Upon the merits the defendant contends that the judgment must be reversed on two grounds: first, because his motion to suppress evidence taken from him in violation of his constitutional rights was denied, and second, because the original finding of guilty on count 2 amounted to a finding of not guilty on count 1, the count upon which he was ultimately sentenced. Before we reach these contentions, however, it is necessary to determine whether this court, or the Appellate Court, has jurisdiction to review this misdemeanor conviction upon a writ of error directly to the trial court. The People have suggested that the case belongs in the Appellate Court, and in support of that suggestion they have first directed our attention to the statutes that deal with the distribution of appellate jurisdiction. Although the jurisdictional problem is a familiar one, we do not find that it has heretofore been discussed in terms of the historical setting of the relevant statutes, and their precise language.
Section 11 of article VI of the constitution of 1870 authorized the establishment of appellate courts "to which such appeals and writs of error as the general assembly may provide may be prosecuted from circuit and other courts, and from which appeals and writs of error shall lie to the supreme court, in all criminal cases, and in cases in which a franchise or freehold or the validity of a statute is involved, and in such other cases as may be provided by law."
The Appellate Court Act of 1877 created the Appellate courts. Section 8 of that act provides that they shall have jurisdiction of "all matters of appeal, or writs of error * * * in any suit or proceeding at law, or in chancery other than criminal cases, not misdemeanors, and cases involving a franchise or freehold, or the validity of a statute. Appeals and writs of error shall lie * * * directly to the Supreme Court, in all criminal cases and in cases involving a franchise or freehold or the validity of a statute." (Laws of 1877, p. 70, 71.) The italicized words were added by amendment in 1887. (Laws of 1887, p. 156.) With that exception, the relevant provisions of the original section remain unchanged. Ill. Rev. Stat. 1959, chap. 37, par. 32.
By another act adopted in 1877, section 88 was added to the Practice Act of 1872. That section provided that appeals and writs of error "in all criminal cases and cases in which a franchise or freehold or the validity of a statute is involved shall be taken directly to the supreme court in case the party appealing or prosecuting such writ of error shall so elect." In 1879, section 88 was amended, and the following sentence concerning the distribution of jurisdiction between the Supreme and Appellate courts was enacted: "Appeals from and writs of error to circuit courts * * * in all criminal cases, below the grade of felony, shall be taken directly to the appellate court, and in all criminal cases above the grade of misdemeanors, and cases in which a franchise or freehold or the validity of a statute or construction of the constitution is involved; and in all cases relating to revenue, or in which the State is interested as a party or otherwise, shall be taken directly to the supreme court." (Laws of 1879, p. 222.) That sentence (with an additional clause concerning cases involving the validity of municipal ordinances) was carried forward into section 118 of the Practice Act of 1907. Laws of 1907, p. 467.
When the Civil Practice Act became effective in 1934, the single sentence of the 1907 act was split into two parts. The provisions dealing with criminal cases were transferred verbatim to division XV of the Criminal Code and became section 14 of that division. (Ill. Rev. Stat. 1959, chap. 38, par. 780 1/2.) The balance of the jurisdictional provisions were incorporated without change in section 75 of the Civil Practice Act. Ill. Rev. Stat. 1933, chap. 110, par. 75.
These multiple provisions are not completely consistent. Section 8 of the Appellate Court Act seems to provide that the Supreme Court has jurisdiction, on direct review, "in all criminal cases," and that the Appellate Court has concurrent jurisdiction in misdemeanor cases. On the other hand, section 14 of division XV of the Criminal Code seems to provide for direct review of all misdemeanors in the Appellate Court. Neither of these results has followed. The General Assembly has not regarded the Appellate Court Act as a significant jurisdictional control, for when it has redistributed jurisdiction from time to time, it was done so by amending the Practice Act. It has made no attempt to include the changes so made in the Appellate Court Act. Compare Ill. Rev. Stat. 1959, chap. 37, par. 32, with chap. 110, par. 75.
Over the years this court, too, has looked to the provisions of the practice acts for its jurisdictional standards. (People v. Clardy, 334 Ill. 160, 163 (1929).) So it has taken jurisdiction to review misdemeanor convictions when the validity of a statute or a construction of the constitution was involved, (People v. McGurn, 341 Ill. 632 (1930); People v. Humphreys, 353 Ill. 340 (1933); People v. McGowan, 415 Ill. 375 (1953); People v. Shambley, 4 Ill.2d 38 (1954); People v. Clark, 9 Ill.2d 400 (1956); People v. West, 15 Ill.2d 171 (1958),) and has refused to exercise jurisdiction in the absence of those issues. People v. Basuris, 360 Ill. 192 (1935); People v. Harrison, 397 Ill. 618 (1947); People v. Estep, 409 Ill. 125 (1951); People v. Williams, 3 Ill.2d 79 (1954).
The transposition of a part of the jurisdictional provision from the Practice Act to the Criminal Code has not been regarded as effecting any change in the distribution of jurisdiction between the Supreme Court and the Appellate courts. There is no suggestion in the contemporaneous literature that any change was intended. It is unlikely that the General Assembly thought that a redistribution was being made when no change was made in the words used and the only modification was the transposition of a part of one sentence from one act to another. In any case, the General Assembly appears to have acquiesced in the court's view of the situation, for since 1934 it has made no change in the jurisdictional scheme that is relevant to the present problem. Under these circumstances we adhere to the prior determinations of this court that this court has jurisdiction to review directly misdemeanor cases which involve the validity of a statute or a construction of the constitution.
The People also suggest that this court lacks jurisdiction because a construction of the constitution is not involved in the case. The defendant maintains that our jurisdiction is established by his contention that policy slips introduced into evidence at the trial were obtained from him by unreasonable search and seizure. In support of their position, the People state that the policy slips were seized only after the defendant had been arrested for a parking violation, that the legality of search and seizure incident to a valid arrest, even for minor misdemeanors, has been settled by prior decisions of this court, and, therefore, that the defendant's contention presents no debatable question requiring a construction of the constitution.
This position was expressed by the court in a few older decisions transferring illegal search cases to the Appellate Court. (See People v. Hord, 329 Ill. 117; People v. Blenz, 317 Ill. 639.) It is based, however, on the assumption that the boundaries of the protection provided by the unreasonable search and seizure provisions of our constitution may be determined by the declaration of one simple rule. It may be that the meaning of some constitutional provisions can be authoritatively settled in that way. But that is emphatically not true of the great generalizations of the constitutions, State and Federal. Their meaning can be determined only by specific applications. This is particularly true of the constitutional provision involved in the present case. "What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are `unreasonable' searches, and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357." United States v. Rabinowitz, 339 U.S. 56, 63, 94 L. ed 653; cf. People v. Tillman, 1 Ill.2d 525, 530.
This approach to the jurisdictional problem is implicit in the host of cases involving searches incident to arrest where this court has taken jurisdiction on direct appeal. (See, e.g., People v. West, 15 Ill.2d 171; People v. Clark, 9 Ill.2d 400.) Despite the purported rule that such searches are proper, we acted on the assumption that each individual case raised debatable constitutional questions. It may be that some future cases will be so similar to others already decided that the issues they present must be regarded as settled. That is not, however, true of the case now before us, and we hold, therefore, that we have jurisdiction on direct appeal based on debatable questions requiring construction of the constitution.
To establish the validity of the search in this case, the People rely on People v. Clark, 9 Ill.2d 400, a unanimous decision of this court in which one of the grounds for sustaining a search of the person was that it had been made in connection with an arrest for a traffic violation. The cumulative impact of subsequent cases, coupled with the nature of the traffic violation here involved, has caused the court to reconsider. The Clark opinion rests on reasoning that runs like this: (1) a traffic violation is a misdemeanor; (2) a police officer has a right to arrest when a misdemeanor is committed in his presence; (3) an arresting officer has the right to search the person of one whom he arrests. Each of these propositions, taken by itself and with the ...