WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
RICHARD B. AUSTIN, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 26, 1963.
After a trial before a judge of the criminal court of Cook County, the defendant, Raphael Durr, was convicted of unlawfully possessing narcotic drugs, and sentenced to imprisonment for a term of from two to seven years. On this writ of error he seeks reversal of his conviction on the ground that evidence which was the product of an unlawful search was erroneously admitted in evidence against him.
The police officer's search of the defendant's person at the time of his arrest revealed 45 pink capsules. It was stipulated that they contained heroin. Upon the hearing of the defendant's motion to suppress this evidence, it appeared that the defendant and a companion drove into a parking lot in the 200 block of Marquette Road in the city of Chicago shortly before noon on February 22, 1961. As the defendant left the car, he was hailed by a police officer, James Webster, whom he knew, who arrested him and made the search that produced the heroin. A search of the automobile and of the defendant's companion revealed nothing further, and the companion was released.
Officer Webster testified that a short time before the arrest he had a conversation with a person he knew as an informer, who told him that a man named Ray was peddling narcotics, was traveling in an old, blue automobile, and would be making a delivery of narcotics to the 200 block in Marquette Road. The informer described the man as a Negro, about 50 years of age, about five feet nine in height, and as weighing 155 or 160 pounds. Acting on this information, officer Webster and two fellow officers went to the area described. After a short wait they saw the defendant drive into the parking lot in a car that fitted the description they had been given. The police car followed the defendant into the lot and officer Webster made the arrest. No warrant for the arrest or for the search was obtained.
Officer Webster testified that he had been acquainted with the defendant for some time and had known him as Ray, although he did not relate the description supplied by the informer to the defendant until he saw the defendant in the car. He stated that during the 25 years or more of their acquaintance, he had never known the defendant to use or peddle narcotics. Upon this evidence, the trial judge denied the defendant's motion to suppress, and found the defendant guilty.
A search of the person without a warrant is proper, and the evidence found is admissible, if the search is incident to a lawful arrest. (People v. Pitts, 26 Ill.2d 395; People v. Hightower, 20 Ill.2d 361; United States v. Rabinowitz, 339 U.S. 56, 94 L.ed. 653.) The lawfulness of an arrest without a warrant depends upon whether the officer "has reasonable ground for believing that the per son to be arrested has committed" the criminal offense. Ill. Rev. Stat. 1959, chap. 38, par. 657.
Reasonable grounds for believing that a person has committed a criminal offense may be found in information furnished by an informer if the reliability of the informer has been previously established or independently corroborated. (People v. Tillman, 1 Ill.2d 525; People v. LaBostrie, 14 Ill.2d 617; Draper v. United States, 358 U.S. 307, 3 L.ed.2d 327.) The reliability of the informer was here established by the testimony of officer Webster, who stated that he had received information previously from the same informer and that such information had proved to be accurate. On cross-examination, the officer was twice asked to identify the informer and each time an objection to the question was made and sustained by the court. While no ground for the objections was specified by counsel, and no comment made by the court in sustaining them, it is argued before us that the ruling was justified by the "informer's privilege". This privilege of the government to withhold the names of those furnishing information concerning crimes to law enforcement officers is designed to encourage citizens in their obligation to aid in enforcement of the law by preserving their anonymity. It has been uniformly recognized. (8 Wigmore on Evidence, secs. 2374 et seq.; Roviaro v. United States, 353 U.S. 53, 1 L.ed.2d 639, 77 S.Ct. 623; People v. Mack, 12 Ill.2d 151.) Also indicative of the desirability of protecting the identity of informers is the United States Supreme Court's statement in Bowman Dairy Co. v. United States, 341 U.S. 214, 221, 95 L.ed. 879, 885, 71 S.Ct. 675, 679, where, in discussing the right of the defendant to reach certain material by subpoena duces tecum, the court said: "Where the court concludes that such materials ought to be produced, it should, of course, be solicitous to protect against disclosures of the identity of informants, and the method, manner and circumstances of the Government's acquisition of the materials." (Emphasis supplied.)
The defendant here argues that refusing disclosure of the identity of the informer renders impossible an adequate cross-examination for the purpose of determining his reliability, and, in effect, makes the opinion of the police officer the sole determining factor; thus, defendant argues, the officer in effect settles the question of the validity of the arrest which he has made. The People maintain that to compel disclosure of the source of the information will seriously hamper effective law enforcement. It is argued by the People that defendant could have questioned the officer in greater detail regarding the informer's reliability. The record indicates the only cross-examination of the officer about the informer consisted of two requests for his name, objections to which were sustained. The People contend defendant could not assume that the court would sustain objections to such additional inquiries designed to determine reliability, such as asking whether arrests had been made and convictions obtained as a result of prior information given by the informer, or as to who was arrested, and when and how often information was secured from the informer. The contention is made that, having failed to exhaust the cross-examination possibilities, defendant cannot now complain. We prefer, however, to meet the fundamental issue squarely.
The basic question here is as to whether the right of the individual to protection against the harassment of unreasonable searches and false arrests is superior to the necessity of protecting the public against the evils of organized crime. The Supreme Court in Roviaro v. United States, 353 U.S. 53, 1 L.ed.2d 639, 77 S.Ct. 623, states the matter thusly: "The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors."
In Roviaro the informer drove his automobile, with an officer concealed in the trunk, to a rendezvous with defendant, and defendant then rode with the informer to the place where defendant picked up the narcotics and delivered them to the informer. The majority opinion there recognized the existence and value of the informer's privilege, but held that the privilege "must yield to the fundamental requirements of a fair trial." In discussing the question, a majority of the court specifically stated, (p. 62) "We believe that no fixed rule with respect to disclosure is justifiable," and then proceeded to hold disclosure there necessary on the ground that it would be "particularly unfair" to permit the government to use defendant's conversation with the informer, as testified to by the concealed police officer, against defendant without requiring disclosure of the identity of the informer who was there the sole participant, other than the accused, in the transaction charged.
We believe the facts in the case at bar are clearly distinguishable from Roviaro, and that our language in People v. Mack, 12 Ill.2d 151, 165, is particularly appropriate: "the record is barren of any showing or inference that he [the informer] either participated in the crime of the defendant or helped set up its commission," and, at page 166: "In short, it is our opinion that, regardless of what the informer's testimony might have been, it would have little relevancy in face of the independent evidence by which the crime of March 22 was proved. Under such a circumstance, together with the facts which show that the informer neither participated in the crime nor was present at the time of the raid or arrest, amplification or contradiction of the information which caused the defendant to be placed under surveillance and caught in the commission of his crime would be of no assistance to his defense. We therefore see no unfairness to defendant, or any basis for upsetting the public purpose upon which the informer's privilege is said to rest."
We recognize that judicial opinion in this area of law is not unanimous. Among the decisions in agreement with the result here reached are: Bruner v. United States (5th cir.) 293 F.2d 621; Pegram v. United States, (6th cir. 1959) 267 F.2d 781; Miller v. United States (5th cir. 1959) 273 F.2d 279; Jones v. United States (D.C. cir. 1959) 271 F.2d 494; Hodges v. State, 98 Ga. App. 97, 104 S.E.2d 704; State v. Hardy, (Fla.) 114 So.2d 344, and Dixon v. State, 39 Ala. App. 575, 105 S.E.2d 354 (unless informer is a participating decoy.) Typifying the decisions reaching an opposite conclusion are: Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39 (a 4-3 decision); United States v. Blich (D. Wyo. 1930) 45 F.2d 627; United States v. Keown (W.D. Ky. 1937) 19 F. Supp. 639, and Jones v. United States (D.C. cir. 1959) 266 F.2d 924 (a 2-1 decision allowing a petition for leave to appeal in a case where the appeal was later dismissed as frivolous by a 2-1 decision reported in Jones v. United States, (D.C. cir. 1959) 271 F.2d 494.
In our consideration of this question we have been unable to perceive any necessity to hold inherent in the constitutional safeguards protecting those charged with crime the right to information completely irrelevant to the question of innocence, disclosure of which would seriously hamper effective law enforcement, and we are convinced that the better result is the one here adopted. Considering also the deterrent aspects of the civil and criminal remedies for false arrests, it is our opinion that determination of probable cause by reliance upon the officer's testimony as to the reliability of an otherwise anonymous informer is likely to produce evils of far ...