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The People v. Mccrimmon





APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PETERSON, Judge, presiding.


The defendant, James McCrimmon, and two co-defendants, were found guilty of robbery by a jury in the circuit court of Kane County. McCrimmon was sentenced to the penitentiary for a term of five to twenty years.

The defendant raises a constitutional question in his appeal in which he asserts that evidence which was the product of an unreasonable search and seizure was admitted at his trial. He also contends that there was error in the method the State used to show a prior conviction of the defendant for the purpose of impeachment.

On December 14, 1964, at approximately 2:30 A.M. Lillie Bingham closed her restaurant in Aurora. As Mrs. Bingham and two employees stepped outside the building they were robbed at gunpoint by three masked men. Mrs. Bingham testified that a "large" man with a gun said to her: "Lil, this is a stickup." He added, she said, that if she made an outcry he would "blow her head off." Shortly thereafter, police officers, Peter Perez and William Hornyan, who knew the defendant, observed him in a parked auto about a block from the restaurant. Moments later Perez and Hornyan were informed of the crime by radio and were directed to proceed to Mrs. Bingham's restaurant. Driving to the scene, Perez and Hornyan again noticed the defendant in the auto. Aurora police officers James Bessette and Thomas Herlihy also proceeded to the restaurant in response to the report of the robbery.

Mrs. Bingham told the policemen that there had been three robbers and that they had taken her brocaded purse. She also gave the policemen descriptions of two of the three men. She described one of the robbers as a tall, stocky, broad-shouldered man with light trousers and a dark jacket. Officer Perez testified at the hearing that Mrs. Bingham described the same robber as "a fairly large person, heavy set, posture not regular but bowed a little bit forward."

Officers Herlihy and Perez testified at the hearing that the descriptions given caused them to call to mind the defendant, who was known to them. Bessette, who also knew the defendant, testified at the hearing that when he heard Mrs. Bingham describe two of the robbers he formed an opinion that McCrimmon definitely answered one of the descriptions.

The record of the hearing shows that after the officers had interviewed the victim, Hornyan and Perez phoned the police station to advise that the defendant was wanted in connection with the robbery. A radio order was then dispatched to pick up the defendant. Officers Bessette and Herlihy received this order in their squad car and shortly thereafter, at approximately 3:20 A.M., they observed the defendant and two other men in the defendant's auto. They pursued the auto, and Officer Bessette testified that as they were overtaking the defendant's auto there appeared to be a "commotion" in the front seat. They stopped the car and ordered the defendant and the other men out at gunpoint. Then Officer Bessette directed his flashlight through the open door of the auto and observed a brocaded purse protruding from the space under the front seat. He picked up the purse and a revolver fell from it.

Prior to trial the defendant moved to suppress the purse and revolver as evidence and urged that the officers did not have probable cause to make a lawful arrest and as a consequence the search and seizure were unreasonable. The trial court accepted the State's argument that the arrest was lawful and the search and seizure were incident to it and denied the motion.

We said in People v. Peak, 29 Ill.2d 343 at 348, that "Probable cause for arrest exists when the facts and circumstances within the arresting officer's knowledge, and of which he had reasonable and trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in believing that an offense has been committed, and that the person arrested is guilty. People v. Fiorito, 19 Ill.2d 246; People v. Jones, 16 Ill.2d 569; People v. LaBostrie, 14 Ill.2d 617." In considering further the boundaries of probable cause, this court in People v. Jones, 31 Ill.2d 42 at 47, said that "mere suspicion, common rumor or report do not afford probable cause for arrest, (People v. Pitts, 26 Ill.2d 395; United States v. DiRe, 332 U.S. 581, 92 L.Ed. 210,) yet, at the same time, reasonable cause means something less than evidence which would result in a conviction, and it is also established that reasonable cause may be founded upon evidence that would not be admissible at the trial. (People v. LaBostrie, 14 Ill.2d 617; Brinegar v. United States, 338 U.S. 160, 93 L.Ed. 1879; Husty v. United States, 282 U.S. 694, 75 L.Ed. 629.)"

Whether probable cause existed depends upon the totality of the facts and circumstances in a given case. People v. Erickson, 31 Ill.2d 230; People v. Davis, 34 Ill.2d 38; People v. Jones, 31 Ill.2d 240.

Here, the arresting officers knew a crime had been committed. The police officers knew the defendant had been in the immediate area of the robbery shortly after its commission, which was in the early hours of morning. The defendant answered the description of one of the robbers which had been given to the police by the victim, and the description was sufficiently particularized to cause the investigating officers to recognize the defendant.

Viewing the totality of the facts and circumstances known to the officers at the time of the arrest there was probable cause for them to believe that the defendant had committed the offense. Therefore, the search of the defendant's auto following the arrest was incident to a lawful arrest.

An examination of the cases cited in support of the defendant's argument that there was not probable cause for arrest discloses that they are factually inapposite to the case here.

In Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441, the officers acted on information supplied by one under arrest and who was not an informer of known reliability. The court said that the information supplied merely invited the officers to comb an area of some 30 blocks in search of a "Blackie" Toy. By chance or otherwise the officers entered the laundry of a James Wah Toy, which bore the uninformative sign "Oye's." There was nothing in the record to indicate that the officers had information to cause them to associate "Blackie" Toy with ...

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