APPEAL from the Circuit Court of Cook County; Criminal
Division; the Hon. IRWIN COHEN, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 27, 1965.
This appeal presents the question of the validity of an arrest by a police officer without a warrant based upon information supplied by an unidentified informant. Defendant, George McCray, was tried before a judge of the circuit court of Cook County on a charge of unlawful possession of narcotics, found guilty, and sentenced to a term of from two years to two years and one day.
On this appeal defendant seeks reversal on the sole ground that his constitutional rights were violated by the introduction into evidence of narcotics found on his person at the time of his arrest.
Prior to trial defendant filed a motion to suppress the evidence of the narcotics. In support of the motion defendant testified that on January 16, 1964, he had just left a friend's house at 5:30 A.M. and was walking on 49th Street and Calumet Avenue in Chicago when he was arrested by police officers without a warrant. He was searched and police seized narcotics from him.
Charles Jackson, one of the arresting officers, testified that he and officers Arnold and Nance met with an informant at 47th and Calumet on the morning of the arrest. He stated that he had known the informant for approximately one year and had talked to him many times securing information regarding narcotics and that the information received resulted in numerous arrests and at least 6 or 7 convictions. He stated that the informant told him that he saw one "Boobie George" selling narcotics in the vicinity and that he had narcotics with him. Officer Jackson knew that "Boobie George" was the name used by defendant, George McCray, because he had had occasion to arrest the defendant previously. The informant then directed the police to the area where the defendant had been seen walking.
The other arresting officer, James Arnold, stated he had known the informant for five years and had talked to him about narcotics about fifty times. Arnold testified that from this information numerous arrests and convictions had been secured. Arnold also testified as to the information given by the informant and stated that he knew Boobie George was the defendant, George McCray, because he had been acquainted with him and had seen him at least fifty times prior to the arrest.
The two officers then found the defendant walking around 48th and Calumet and arrested and searched him and found narcotics on his person. The defendant denied that he had sold narcotics and stated that he had been at a friend's house all night.
Defendant's counsel asked both officers the name of the informant and his present address, and the trial court sustained objections to all such questions. The trial court denied defendant's motion to suppress the evidence of the narcotics and the defendant was convicted of the charge of possession of narcotics.
The State contends that the search and seizure and the resulting conviction in this case are proper under our ruling in People v. Durr, 28 Ill.2d 308. The defendant, however, argues that the facts in the case at bar are distinguishable from Durr, or, in the alternative that the Durr case should be overruled.
The crux of the case is the question of the legality of the defendant's arrest, since it is clear that 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; United States v. Rabinowitz, 339 U.S. 56, 94 L.ed. 653.
An arrest by a police officer without a warrant is lawful if the officer "has reasonable ground for believing that the person to be arrested has committed" a criminal offense. (People v. Durr, 28 Ill.2d 308.) In Durr we held that such reasonable ground may be supplied by information from an informant of established reliability, even though the State refuses to reveal the identity of the informant, provided that the informant neither participated in the crime or was present at the time of the arrest.
Defendant attempts to distinguish the Durr case on the ground that Durr did not contradict the truth of the statements made by the informant, but this defendant testified that he had just left a friend's house, thereby contradicting the informant's statement that he had seen him selling narcotics in the vicinity.
We do not think this difference in facts makes the rationale of Durr inapplicable to the case at bar. The criterion established in the Durr case was whether or not the reliability of the informant was so established as to justify a reasonable basis for the police officers' belief that the person to be arrested had committed a crime. The subsequent denial of a sale by the defendant cannot affect the issue of whether or not the officers had a ...