Writ of error to the Criminal Court of Cook County; the Hon.
LESLIE E. SALTER, Judge, presiding. Reversed and remanded with
MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 27, 1964.
This is an appeal by the People from an order sustaining defendant's motion to suppress evidence. The question presented is the reasonableness of a search and seizure made in defendant's home, incident to a valid arrest, but without a search warrant.
The controlling facts are not disputed. Defendant and two associates were indicted for the robbery of Richard Tebodo on February 15, 1963. The second count charged the defendants with theft, in that they knowingly obtained unauthorized control of stolen property, to-wit: $50 in United States currency, 25 watches and 60 rings, all the property of Richard Tebodo.
Prior to trial, a written motion to suppress was filed by the instant defendant. The only witness heard was a police officer, who testified that on February 27, 1963, at 2:30 p.m., an arrest warrant was served upon defendant. The arrest warrant, issued two or three days earlier, charged that defendant unlawfully received three vacuum cleaners and a typewriter or appliances stolen on December 24, 1962, more than two months before the arrest. Defendant was arrested in the kitchen of his five-room one-story residence. The police officers then searched the kitchen, found nothing, and after walking through two rooms, the dining room and living room, searched a front hall closet, where they found diamond rings taken in a recent robbery, the subject of the instant motion to suppress.
Defendant contends that "although the defendant was lawfully arrested, the search of his home that followed far exceeded the limitations on the right of search prescribed by the constitutions of the United States of America and the State of Illinois. The right of the police to make a search incident to a lawful arrest does exist, but in this case the search went beyond the requirements of reasonableness and the reasons for the existence of the right." Defendant makes no claim that the property found in his home cannot be admitted because it was not the property sought. "That is not our point. The police had no right to delve into [defendant's] closet. An unlawful search cannot be justified by what is found. A search that is lawful [sic] when it begins is not made lawful by the discovery. People v. Scaramuzzo, 352 Ill. 248, 185 N.E. 578 (1934); United States v. DiRe, 332 U.S. 581 (1948). After all, `It was against such prying, on the chance of discovery, that the constitutional amendment was intended to protect the people.' United States v. Slusser, 270 F 818, 819 (1921)."
The question here presented, "the reasonableness of a search without a search warrant, incident to a valid arrest," has been so thoroughly discussed in the foregoing authorities and others, we do not believe it necessary to dwell upon the two competing philosophies, each of the highest and most obvious importance "those involving the constitutional protections against unreasonable searches and seizures . . .," and "on the other hand, the interest of the community in effective enforcement of the criminal law. . . ." Allen, the Wolf Case: Search and Seizure, Federalism and the Civil Liberties, 45 Ill Law Review 1, 3 (1950).
In the light of the competing values, the cases have not necessarily been consistent, and each case must be decided upon its own facts and circumstances. GoBart Importing Co. v. United States, 282 U.S. 344, 357 (1931); and as stated in People v. Harvey, 27 Ill.2d 282, at page 285, 189 N.E.2d 320:
"The critical issue in each case must be whether the situation that confronted the officer justified the search. That question can not be determined by an indiscriminate application of legal concepts that were evolved to meet quite different problems."
The instant record indicates the trial court relied on People v. Alexander, 21 Ill.2d 347, 172 N.E.2d 785 (1961), in which defendant was arrested by narcotics agents without a search warrant, and the two agents proceeded to completely search the defendant's apartment. Every portion of every room was searched. Linoleum and boards in the floor were ripped up, and narcotics were found. The search was held to be unreasonable because it "was far more extensive than the limited search which is permissible as an incident to a lawful arrest." However, in People v. Harvey, for reasons significant in the present case also, the Alexander case was distinguished (p 286):
"In the Alexander case the arrest was made for an offense committed two months previously, and the search was not for the fruits of the crime, but for incriminating evidence. In the present case the arrest and search were made on the premises where the crime had been committed and which were under the immediate control of the person arrested, minutes after the crime had been committed, and for the sole purpose of discovering the fruits of the crime."
"Decisions, both in this court and in the Supreme Court of the United States, have firmly established the proposition that a search of the premises where the arrest is made and which is under the control of the accused, immediately subsequent to and incidental to a lawful arrest, in order to find and seize the fruits of the crime, is not a violation of constitutional rights. People v. Van Scoyk, 20 Ill.2d 232; People v. McGowan, 415 Ill. 375; People v. ...