APPEAL from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 18, 1968.
This case involves appeals from two separate convictions of John V. Carter, the defendant. He was found guilty by a jury in the circuit court of Cook County of a 1951 murder and in a separate bench trial was convicted of a 1964 burglary. The court sentenced defendant to the penitentiary for a term of not less than 40 years nor more than 60 years on the murder conviction and not less than 2 nor more than 5 years on the burglary conviction, the sentences to run concurrently. Both convictions are appealed directly to this court, defendant alleging violations of his constitutional rights.
A gun and women's shoes found in defendant's car were admitted into evidence at the murder trial. Ballistics evidence showed that the gun had been used to kill Lorraine Brownstein and there was other evidence which tended to show that defendant and the perpetrator of the crime had a sexual fetish for women's shoes. During the trial for burglary, a pair of women's shoes and a black key case taken from an apartment building and found in defendant's car were admitted into evidence. In addition to the murder and the burglary indictments, Ann J. Lavery, whose credit card was found in defendant's car, accused defendant of assaulting and robbing her in 1958. In each case defendant made a timely motion to suppress as evidence the items seized from his car without a warrant. The motions were denied and the evidence was admitted.
Defendant was arrested for a traffic violation which arrest he contends was unlawful and was made without probable cause and that the subsequent search was unreasonable. Therefore, he argues, he was deprived of due process of law by the admission into evidence of the product of an illegal search and seizure.
On February 23, 1964, at about 3:30 A.M., Lee Reiter, a Skokie police officer, stopped defendant, who was driving a red and white 1955 DeSoto, for failure to have the rear license plate illuminated. Reiter and another police officer, Zerfass, who arrived shortly after defendant was stopped, gave substantially similar accounts of the events surrounding the arrest.
Reiter testified that as he met the car driven by defendant he noticed that it resembled a car used in a robbery attempt reported in a police bulletin several days earlier. He turned and followed the car and then observed the absence of a rear license-plate light, so he stopped defendant, obtained his driver's license, and told him he was under arrest for the traffic violation. In response to a question from Reiter, defendant said he was on his way home but when Reiter observed that he was going in the wrong direction, defendant said he was going to Baxter Laboratory to look for work. Reiter testified that he knew the laboratory was not open at that time. Meanwhile, Officer Zerfass had arrived and while defendant and Reiter were standing at the rear of the DeSoto, Zerfass opened the right front door of the automobile and found a loaded automatic gun in the glove compartment. At this point defendant became very nervous and said, "Now, I am really in trouble." Defendant was then handcuffed and according to Reiter, gave permission to search the trunk of the automobile where an open suitcase containing five women's shoes and newspaper clippings of newlyweds and debutantes was found. Similar clippings were found in the interior of the automobile. Defendant and his automobile were taken to the police garage where both officers testified they received defendant's consent to conduct a more thorough search of the car in his presence. This search disclosed a Marshall Field credit card issued to Ann J. Lavery and a black key case in the glove compartment. The shoes, newspaper clippings, gun, credit card, and key case were seized and defendant was charged with the traffic violation and unlawful use of weapons. Defendant denied that his rear license plate was not lighted, that he gave the answers attributed to him concerning his destination, or that he ever consented to a search of his automobile.
In support of the contention that the arrest for the traffic violation was unlawful, defendant says that the arresting officer Reiter did not know at the time at what distance the rear license plate must have been legible under section 104 of the Uniform Act Regulating Traffic on Highways (Ill. Rev. Stat. 1963, chap. 95 1/2, par. 201), and therefore he could not have had reasonable grounds or probable cause to believe an offense had been committed. However, Reiter stated that defendant's automobile had no light on the rear license plate and that at the time he believed the applicable statute required the rear license plate to be illuminated even though he did not know the distance at which the statute required the license to be legible. Furthermore, he testified that he could not read the rear license plate at a distance of 30 feet. We think this establishes reasonable grounds to believe a traffic offense had been committed.
The real issue presented by defendant's first contention is whether the search of his automobile without a warrant was reasonable in light of the facts and circumstances existing at the time.
Defendant relies heavily on People v. Lewis, 34 Ill.2d 211. Lewis was carefully re-examined in People v. Jones, ante, p. 427, and People v. Brown, ante, p. 453, both decided this term. On the basis of the Supreme Court decision in Cooper v. California, 386 U.S. 58, 17 L.Ed.2d 730, 87 S.Ct. 788, we concluded that "the mere fact that the defendant is in custody and his automobile impounded does not in itself invalidate the search, and insofar as Lewis and other similar cases state a contrary conclusion, they are overruled." People v. Jones, ante, p. 433.
Here, the circumstances were such as to justify a belief by the police officers that they were dealing with more than an ordinary traffic violator. (See e.g., People v. Davis, 33 Ill.2d 134; People v. Thomas, 31 Ill.2d 212.) Although the police bulletin listing the DeSoto wanted in connection with the robbery attempt in fact described it as a red 1956 DeSoto, Reiter testified that when his superior officer briefed them as to the wanted car, he understood it to be a 1955 or 1956 red and white DeSoto without a rear license plate light and only one tail light. Officer Zerfass testified that he could not recall if the car had been described to them as red or red and white. Defendant testified that the rear license plate light and both tail lights on his car were working, and that there is a substantial difference in body style between the 1955 and 1956 DeSoto. After defendant was stopped, he gave highly improbable answers to questions concerning his destination and even changed his first response after it was ascertained to be completely illogical. Upon the basis of these facts, a report of a recent attempted armed robbery in which a similar car had been used, evasive or highly improbable answers by defendant, and the time of the morning, we believe the officers were justified in conducting an immediate search. Furthermore, in view of our decisions in Jones and Brown, the subsequent searches, after defendant was handcuffed and at the police garage, were not unreasonable, since they were related to the initial search and to the crime of which defendant was suspected. Accordingly defendant's motion to suppress the evidence obtained as a result of these searches was properly denied.
Defendant next contends that the failure of the court to grant his motion to suppress evidence purportedly elicited from him while in custody effectively deprived him of his right to counsel and to not give evidence against himself. He testified that he was not informed of his right to counsel or to remain silent; that he was not permitted to call a lawyer or his family when he was taken to the police station; that he requested a lawyer about 7 to 10 times within the first two hours after he was arrested; and that he continued to ask for a lawyer until about 6:00 or 7:00 P.M. when he was permitted to call a lawyer after being told he was charged with murder.
Officer Reiter testified that as defendant was brought into the police station he told him of his right to a lawyer and that he could remain silent; that he called defendant's attention to a card on the wall which listed defendant's rights and which he could read or which would be read to him but that defendant did not bother to read it; that defendant did not repeatedly ask for a lawyer; and that when defendant did request permission to make a telephone call, Reiter told him he could as soon as he was booked. Other officers testified that defendant asked that his family not be notified; that he did not request to make a phone call in their presence and that he never asked for a lawyer.
Statements attributed to defendant were that he admitted ownership and continuous possession, from 1946 to the time of the arrest, of the gun found in his car, that he admitted a sexual fetish for women's shoes, and he offered to plead guilty to manslaughter. There is no allegation that the alleged ...