Appeal from the Municipal Court of Chicago, First Municipal
District of the Circuit Court of Cook County; the Hon. WALTER J.
KOWALSKI, Judge presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 9, 1965.
In a bench trial, defendant was found guilty of petty larceny and was sentenced to serve one year at Vandalia. Defendant's sole contention is that the court erred in denying his motion to suppress evidence obtained by police officers in the search of the defendant's automobile, and in admitting the evidence at his trial.
At the hearing on the motion to suppress, Police Officer Rinaldi testified that a woman, Lupe Gonzales, made a controlled sale of narcotics to a police informant and received marked money. After the sale, she walked directly to an automobile, entered, and was driven away. The automobile, being driven by the defendant, was stopped by the police. Lupe Gonzales and another woman were in the car. Lupe Gonzales was searched, and the marked money was recovered from her person. Defendant was ordered out of the automobile and searched. The automobile was also searched, and thirteen checks were found in the car, some from under the floor mat on the driver's side. At the trial, the checks were identified as fruits of a burglary.
On cross-examination by defendant, Rinaldi testified that defendant was out of the automobile at the time it was searched. In response to the question, "Where was he? Was he at the scene or was he in the station?", Rinaldi answered, "He was in the process of being transported to the station." No further questions were asked by either side on this point.
Defendant contends that the search was unreasonable, without probable cause, and too remote in time and place to be incidental to his arrest. To show that the search and seizure were illegal, defendant relies primarily on Preston v. United States, 376 U.S. 364 (1964), and People v. Erickson, 31 Ill.2d 230, 201 N.E.2d 422 (1964).
The State contends that probable cause was present to arrest the defendant; that the search and seizure were substantially contemporaneous with the arrest; and that defendant failed to sustain his burden of proof to show "that the search and seizure were unlawful."
In the Erickson case, the defendant was arrested for allowing an unauthorized driver to operate his automobile. The officers noted a brown rubberized cord extending out of the car trunk. The defendant denied the police permission to search the trunk. After calling the station, the car was searched and in it was found a box of silverware, which was admitted into evidence following denial of defendant's motion to suppress the exhibit. After the search and removal of the silverware, the police received a report that the silverware had been taken from a burglarized home. The Erickson conviction was reversed because the facts and circumstances known to the officers at the time of the search did not constitute probable cause justifying the search of an automobile without a warrant. The court said (pp 233, 235):
". . . a determination of the reasonableness of any given search must be made upon the facts there presented. . . . The absence, in the case of moving vehicles, of an opportunity to secure a search warrant, is frequently cited as a reason for sustaining such searches. But, in all cases, the search must be for specific property, and may not be exploratory and made solely to find evidence of guilt. . . . Although the People stress the fact that there was a rubberized cord hanging from the trunk door, this does not seem to us to be a particularly suspicious circumstance."
The State argues that "the new Criminal Code of Criminal Procedure expands the authority of police officers to search after a lawful arrest. Formerly, there was no authority to search for evidence of an offense as distinguished from the fruits of a crime. . . . The statutory provisions now in effect are as follows (Ill Rev Stats, 1963, c 38, § 108-1) (Search without warrant):
"When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of:
(a) Protecting the officer from attack; or
(b) Preventing the person from escaping; or
(c) Discovering the fruits of the ...