Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. NATHAN M. COHEN, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
After a bench trial, defendant was found guilty of unlawful possession of a narcotic drug, and he was sentenced to two to five years. On appeal, he contends his motion to suppress evidence was erroneously denied, and that he was not proved guilty beyond a reasonable doubt.
The evidence shows that on March 20, 1964, at 8:00 a.m., four Chicago police officers were conducting a surveillance of the washrooms of the DuSable Hotel in Chicago, looking "for addicts who subject themselves off the hallway there." Police Officer Lartheran Lawson testified that while he was standing on the third floor, he saw the door of room 317 open, and he observed a man, identified by him as the defendant, Ted Hayes, "standing at the dresser with a hypodermic outfit in his hand." The officer entered the room and "grabbed the outfit from his hand." He turned and saw three more persons in the room and "noticed three tinfoil packs on the floor" about a foot away from defendant. Of the other men, the nearest one to the defendant was about four feet.
The officer further testified there were two more "hypodermic outfits" in the room, and he saw several other objects connected with the use of narcotics: a cooker for preparing heroin for injection, and three hypodermic needles and eyedroppers. The cooker and one needle were found on the dresser near which the defendant was standing when arrested. All of the occupants of the room were arrested, and they denied ownership of the tinfoil packets and the other objects. The contents of one of the tinfoil packets was field tested by the officers while at the hotel, and it was found to be "positive."
The objects found in room 317, including the three tinfoil packets, were taken by Officer Lawson to the Crime Laboratory and returned by the laboratory to him on March 21, 1964, in a sealed envelope. He opened the envelope in court and identified the objects contained in it as the items found in room 317 on March 20, 1964. Officer Lawson further stated that the defendant told him he had rented the room because he and his wife had separated, but he was not staying there on March 20th and had lent the room to Nick Stewart.
After the items found in room 317 were identified by Officer Lawson, defendant made a motion to suppress the evidence on the theory that the search was made without a warrant and unreasonable because the alleged "hypodermic outfit" seen by the officer in the hand of the defendant was a medicine dropper (eyedropper) and not a "hypodermic outfit." After a consideration of the evidence and the arguments of counsel, the court denied the motion and later received in evidence all of the exhibits identified as being seized at the time of defendant's arrest in room 317, which included the three tinfoil packets.
The evidence for the prosecution consisted of the testimony of Officer Lawson, a stipulation that the testimony of the other officers would be the same as that of Lawson, the exhibits found in room 317 and covered by the testimony of Officer Lawson, and a stipulation that "three foil packets" were submitted to the Chicago Police Crime Detection Laboratory, and the contents of one was found to be heroin.
Defendant testified that he was arrested in room 317 on March 20, 1964, by Officer Lawson; that he rented the room on March 17th, because he had separated from his wife, and he slept there one night and part of the next day; that he told the clerk he was going back to his wife, and that he was going to let Nick Stewart occupy the room. He said he went up to the room to tell Nick that the clerk would not take the room out of his name until the week was up, and "when I entered the room, there was five `junkies' in there shooting dope. I told them they would have to get out of the room because the room was still in my name even though I gave it to Nick. We had a big argument. So I told Nick that he would have to take his bunch out of the room. As he opened the door to do as I suggested, this officer and the rest barged into the room. That is how the door became open. . . . When they came in, he found the packages on the floor under Jack Trent."
A defense witness, an employee of the DuSable Hotel, testified that on March 20, 1964, she rented room 317 to defendant, and at about nine o'clock on the morning of the 20th, defendant told her he had turned the room over to Nick Stewart, but she did not change the name of the occupant from Hayes to Stewart until March 24th, when "Mr. Hayes's rent was up."
Considered first is defendant's contention that "the unauthorized entry into and search of room 317 were not incident to a lawful arrest since the arrest, based solely on the officer's viewing of defendant's holding of an eyedropper, was not based on probable cause. The Fourth and Fourteenth Amendments, as well as Article II, Section 6 of the Illinois Constitution, therefore, required exclusion of the evidence obtained as a result of the search. Failure to so exclude this evidence requires reversal of defendant's conviction." Authorities cited include Henry v. United States, 361 U.S. 98 (1959); Brinegar v. United States, 338 U.S. 160 (1949); Johnson v. United States, 333 U.S. 10 (1948).
In Henry v. United States, it was held that the act of loading cartons into an automobile did not constitute probable cause for the arresting officers to believe that defendants had committed a theft, even though it was later proved that the cartons had been stolen. On p 104, the court said:
"The fact that packages have been stolen does not make every man who carries a package subject to arrest nor the package subject to seizure. The police must have reasonable grounds to believe that the particular package carried by the citizen is contraband."
From this defendant argues: "[W]e submit that the fact that an eyedropper may be used to inject narcotics does not make every man who holds an eyedropper subject to arrest nor the eyedropper subject to seizure. The police must have reasonable grounds to believe that the particular eyedropper held by a citizen is being used for injecting narcotics. . . . [Officer Lawson] might have had a suspicion, but he could not have had a reasonable belief. Probable cause was wholly lacking."
The State accepts defendant's authorities but disputes defendant's analysis of the facts and his application of the law to those facts. The State argues there was no search in the present case. All of the contraband seized was in open view of the police officers once they entered room 317, ...