Appeal from the Circuit Court of Cook County, County
Department, Criminal Division; the Hon. HERBERT C. PASCHEN,
Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT. This is an appeal from a conviction of unlawful possession of narcotic drugs. Defendant was tried and convicted by a jury, and was thereafter sentenced to not less than four nor more than eight years in the penitentiary.
Defendant contends on appeal that: (1) his constitutional rights were violated when the court denied his motion to suppress evidence; (2) it was prejudicial error for the court to allow the police officer to relate his conversation with an undisclosed informer; (3) defendant was unlawfully and prejudicially denied a hearing on his motion for substitution of judge, and (4) the State did not prove beyond a reasonable doubt the identification of the defendant with or the continuity of possession of the narcotic drug.
According to the testimony at the hearing on the motion to suppress, defendant spent the evening of July 8, 1964, and the early morning of July 9, 1964, visiting a friend at the DuSable Hotel in Chicago. About 1:30 a.m. he left the apartment to purchase liquor. Defendant testified that about 2:00 a.m. he was on his way back to the hotel with the liquor he had bought. While crossing a parking lot he was stopped, arrested and searched by two policemen. Heroin was found on defendant's person.
One of the arresting officers testified that about 2:00 a.m. on July 9, 1964, he had a conversation with a special police employee who told him Belton Bills was going after some stuff (meaning narcotics) and would be back in the area within an hour. The "area" was specified to mean 39th and Cottage Grove Avenue, a known narcotic hangout. According to the officer's testimony, the special employee described how defendant was dressed. However, he waited with the policeman until Bills appeared, so as to point him out. Bills was arrested about 3:00 a.m. The officer stated that he had used the informer four times prior to the instant arrest and three times thereafter. When asked if the former information received was reliable he said it was. Asked if the cases had gone to completion, he responded, "Yes."
Before the trial defendant submitted a motion to suppress the evidence obtained in the search after the arrest, on the ground that the arrest was not based upon reasonable grounds and was therefore a violation of his constitutional rights. The informer's name was not disclosed. The court ruled the informer's tip was reliable saying, "I believe he has established the reliability of the informer. He has used him seven times. He has had convictions."
[1-4] Defendant first contends that his constitutional rights were violated when the court erred by denying his motion to suppress evidence. He argues that the motion to suppress should have been allowed because the State failed to prove that the arresting officer acted on reasonable grounds, and therefore the evidence was obtained pursuant to an illegal arrest and search. The question is an evidentiary one rather than one of a constitutional nature. The Supreme Court of the United States, in McCray v. Illinois, No. 159, October Term, 1966, 386 U.S. 300, 35 Law Week 4261, discussed the informer privilege and reasoned that a judge ruling on a motion to suppress is in a position similar to that of a magistrate determining if reasonable grounds have been shown for the issuance of a warrant for arrest. Whether the testimony will sustain a finding of probable cause is an evidentiary question and the standards thereof fall within the province of the given State. In deciding that the Constitution did not require the State to abandon the informer's privilege, the court quoted Spencer v. Texas, 385 U.S. 554, and said at page 4265:
"To take such a step would be quite beyond the pale of this Court's proper function in our federal system. It would be a wholly unjustifiable encroachment by this Court on the constitutional power of States to promulgate their own rules of evidence . . . in their own state courts. . . ."
The question in the instant case, therefore, becomes one of the sufficiency of the evidence of probable cause as required in Illinois. At the hearing on the motion to suppress one of the arresting officers testified that the informer gave him a full description of defendant and specified where defendant would be within the hour. As noted above the officer was questioned about his previous dealings with the informer. A portion of that examination follows:
"Q. After you went on duty that night, did you have occasion to have a conversation with a special police employee?
"Q. And had you used this special police employee before?
"Q. And how many times have you used that special police employee ...