Appeal from the Circuit Court of Cook County, First Municipal
District; the Hon. WALTER J. KOWALSKI, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 10, 1965.
Defendant, Joseph Accardi, was charged by information with unlawful use of a weapon in violation of our Criminal Code (Ill Rev Stats 1963, c 38, § 24-1 (a)(4)). A preliminary motion to suppress evidence was denied. Defendant waived a jury trial, and the cause was heard by the court. Upon a finding of guilty defendant was sentenced to imprisonment for one year at the Illinois State Farm at Vandalia.
The only issue before us is whether the trial court erred in denying the motion to suppress the evidence. Defendant's position is that he was illegally arrested, thus making the accompanying search and seizure of the weapon involved unreasonable, and therefore in violation of his constitutional rights. The State argues that the search was incident to a lawful arrest, since an offense was committed in the presence of the arresting officer. The narrow question presented for review is whether a lawful arrest was effected before the search, the determination of which requires a review of the evidence offered at the hearing on the motion.
The only witness called was the arresting officer, Walter Spasoff. He testified that on June 25, 1963, at about 9:00 a.m., he and his partner pulled their vehicle up alongside a parked car in which he observed defendant slumped over on the passenger side. Spasoff looked into the car in which defendant was seated, and noticed a bulge in defendant's left rear pocket, and above the bulge a black metallic object which appeared to him to be the butt of a revolver or pistol. The officer then circled to defendant's side of the car, removed him, and recovered the weapon, a loaded .25 caliber pistol.
On cross-examination Spasoff testified that he had no reason to believe defendant had committed a crime; that he did not, in fact, know the object to be a gun, but that at the time he reasonably believed the object he saw was the butt of a pistol or revolver. On inquiry by the court he also stated that he had been a policeman for eight years during which time he had occasion to confiscate weapons.
The constitutional guarantees against search and seizure are not against all searches and seizures but only against those that are unreasonable and do not extend immunity from search upon lawful arrest. People v. Tillman, 1 Ill.2d 525, 116 N.E.2d 344 (1953); People v. West, 15 Ill.2d 171, 154 N.E.2d 286 (1958). Where the arrest is justified the accompanying search is also justified (People v. Tabet, 402 Ill. 93, 83 N.E.2d 329 (1948)) and conversely, it is beyond question that an arrest being unlawful, the ensuing search of the person and the seizure of evidence is likewise unlawful. People v. McGurn, 341 Ill. 632, 173 N.E. 754 (1930).
Section 107-2(c) of our Code of Criminal Procedure (Ill Rev Stats 1963, c 38, § 107-2(c)) provides:
A peace officer may arrest a person when:
(c) He has reasonable grounds to believe that the person is committing or has committed an offense.
While a completely satisfactory and inflexible definition of what constitutes reasonable grounds is not possible to formulate, it is generally agreed that reasonable grounds or probable cause for arrest exists if the facts and circumstances known to the officer would warrant a prudent and cautious man in believing that the person arrested was guilty of an offense. People v. Jones, 31 Ill.2d 42, 198 N.E.2d 821 (1964). Thus, it has been 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 or attempted in his presence and he has reasonable grounds for believing that the person arrested committed it. People v. McIntyre, 15 Ill.2d 350, 155 N.E.2d 45 (1958); People v. Stewart, 23 Ill.2d 161, 177 N.E.2d 237 (1961); People v. McGowan, 415 Ill. 375, 114 N.E.2d 407 (1953); People v. McDonald, 26 Ill.2d 325, 186 N.E.2d 303 (1962); People v. Humphreys, 353 Ill. 340, 187 NE 446 (1933). It is also firmly established that a search and seizure without a search warrant may constitutionally be made as an incident to a lawful arrest for an offense committed in the presence of the arresting officer. People v. Davies, 354 Ill. 168, 188 N.E. 337 (1933); People v. West, 15 Ill.2d 171, 154 N.E.2d 286.
It has been said that "the existence of reasonable cause which will justify an arrest without a warrant depends upon the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act . . . and that police officers `often must act upon a quick appraisal of the data before them, and the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to catch criminals.'" People v. Jones, 31 Ill.2d 42, 47, 198 N.E.2d 821.
Whether the arrest in the instant case was lawful turns on the question whether a prudent and cautious man in the position of the officer would have reasonable grounds for believing that defendant had committed a crime in his presence. The applicable Criminal Code ...