Appeal from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding. Judgment affirmed.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 11, 1967.
Robert Wilson and his wife Barbara were jointly indicted for knowingly obtaining by deception, control over certain property of Spiegel, Inc., in violation of chapter 38, section 16-1(b). They were both found guilty by a jury. Robert Wilson was sentenced to a term of not less than four, nor more than seven years. This appeal concerns only Robert Wilson.
Defendant and his wife own a building located at 14846 So. Lincoln Avenue in Harvey, Illinois. They reside in another building around the corner. On March 28, 1964, a phone order was received from a man who identified himself as Willie Wilson. He ordered several items and directed that they be delivered to a Mrs. Mary Ford at 14846 So. Lincoln Avenue, Harvey, Illinois. An investigator from Spiegel's went to the address and inquired from neighbors in adjacent buildings if a Mary Ford lived at the stated address. The information he received was that no such person lived there.
The following day the investigator returned and saw a car parked near the building. He went to the Harvey Police, where it was determined from the license plate number that the car belonged to Robert Wilson. The Spiegel Warehouse was contacted. Four packages, containing all but one of the items listed in the telephone order, were brought to the Harvey Police Station and marked for identification by a police officer. A Spiegel truck driver was also dispatched to the Police Station.
The driver was given the four packages and a Spiegel order blank which was to be signed upon delivery of the merchandise. Two Harvey Police Officers in an unmarked car, two investigators from Spiegel in their own car and the delivery truck then proceeded to the building at 14846 Lincoln Avenue. If the driver succeeded in delivering the packages, he was to drive away leaving the tail gate on the truck down.
It is undisputed that the driver went to the stated address, talked to defendant Robert Wilson, and left without leaving the packages. Wilson drove to his residence around the corner and returned with his wife. The truck driver also returned to the premises, left the packages and drove away. The police closed in immediately and placed the Wilsons under arrest.
Testimony of the content of the conversations between the truck driver and Robert and Barbara Wilson is in conflict. Testimony of the actions of the defendants at the time of their arrest is also conflicting. The truck driver testified that on his first arrival at the premises, he saw Robert Wilson and asked if Mary Ford lived on the premises. Defendant pointed to the second floor. The driver went back to the truck, pulled up alongside the house, went to the second floor and knocked on the door. Wilson opened the door. The driver asked: "Mary Ford live here?" Defendant answered, "Yes." The driver asked Wilson to get her to sign for the package. Wilson called "Mary" three times and when there was no answer said: "She must be awfully tired. She just had a baby, she might be hemorrhaging." Wilson asked if he could sign as he was Mary Ford's husband. The driver said he had to call his dispatcher to see if this was all right, and would return. The driver then left.
Defendant's version of his encounter is entirely different. He testified that the driver asked him where he could find Mary Ford. Defendant answered, "I am sorry sir. I don't know." The driver showed him the delivery slip and Wilson said the address was correct, but no one lives here by that name. Wilson then remembered his wife had rented the upstairs apartment but did not know their name. The two men went upstairs but received no response when they knocked on the door and hollered: "Anyone home?" The driver then said: "(I)f you want to accept these packages I have for her I will leave them with you." Wilson responded that he would go and ask his wife the name of the new tenants and the driver said he would check with the dispatcher if it was all right to leave the packages. They then left the building together.
Defendant was observed by the police officers going to his residence two blocks away and returning to the Lincoln Avenue building. The driver drove to where the Spiegel investigators were and they told him it was okay to have defendant sign for the packages. He then returned to the building. The driver testified he went up to the second floor apartment, Barbara Wilson was standing at the door and, upon being asked if she was Mary Ford, answered "yes." She signed the order blank "Mary Ford." The driver brought the four packages upstairs and left, leaving his tail gate down.
Barbara Wilson's testimony is quite different. Upon being informed by her husband that a truck driver had some packages for a Mary Ford, she informed her husband that the new tenants were named Scott. She returned with Robert to the building. The driver approached her in the hall and said: "(T)ell that fellow my boss says okay to leave the packages. Where do you want them?" Barbara Wilson told him to leave the packages in the hall. The driver wanted her husband to sign but he had gone to the washroom. The driver, indicating the signature line, told her to sign "Mary Ford" and left the building.
The officers saw the driver pull away. They also saw Robert and Barbara Wilson running from the house. Barbara was arrested in the backyard. Robert went into the garage and was found there under a car wearing a white shirt. The Wilsons said they walked out of the house. Robert went to the garage to check a tire on his father's car. The officers then went into the enclosed back porch of the building and recovered the four packages that had previously been marked for identification.
The first point raised by defendant is that his arrest is unlawful, and the four packages seized at that time should have been suppressed. It is admitted that there was no warrant for Robert Wilson's arrest. However, the facts clearly indicate that the officers had probable cause to believe an offense had been committed by this defendant and his arrest was proper. People v. Brinn, 32 Ill.2d 232, 204 N.E.2d 724 (1966).
At the hearing on the motion to suppress the evidence, the officers testified that the four packages involved were taken from a common hallway in the building. Thus no unlawful search was involved. United States v. Polk, 201 F. Supp. 555 (ND Cal SD 1961), affirmed 314 F.2d 837 (9th Cir 1963). Even accepting defendant's argument that there was a search of defendant's private property, ...