Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. JAMES A. GEROULIS, Judge, presiding. Reversed
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
The State appeals from an order of the Circuit Court suppressing certain evidence. Defendant was charged with unlawful possession of narcotics. She moved to suppress the narcotics taken from her possession in a search incident to an arrest asserting that the arrest was made without probable cause and that the evidence was therefore the product of an illegal search. Appellant's sole contention is that probable cause for the arrest existed and the court therefore erred in suppressing the evidence.
Defendant was arrested by two police officers while in a tavern on East 47th Street at approximately 10:00 p.m. on September 28, 1966. She had been sitting at the bar alone for about one-half hour and was still alone when two police officers approached her, took her by the arm and told her she was under arrest. The officers searched her, taking a package of heroin from her right coat pocket, and they had neither a warrant for her arrest nor a search warrant.
Testimony of Officer Willis Earl Nance
On the day in question he was working on the Chicago Police Force Narcotics Unit. At about 9:20 p.m., while he and Officer James Arnold were sitting in a parked car, a police informer approached them. The informer told them he was in the company of defendant and one Joe Gayles, both of whom were known to the officers, as well as several others; that Gayles had sold narcotics to several of the group and would shortly make a sale to defendant who was waiting on the corner of 47th and Vincennes. Nance and Arnold proceeded to the corner of 47th and Vincennes where Arnold got out of the car and proceeded on foot. Nance parked outside a tavern located at 500 East 47th Street and when he saw Gayles pass him followed him into the tavern. Upon observing Gayles approach defendant and put something in her hand, he "grabbed" defendant and Gayles and took them outside the tavern where Officer Arnold rejoined him. He found a package of heroin in defendant's pocket and arrested her. Nance had known the informer for two years and believed him to be an addict. He had made between ten and twelve arrests on the informer's advice and thought all of them resulted in indictments.
After hearing this testimony the trial judge indicated that unless the prosecution produced the informer or Joe Gayles he would grant the motion to suppress. Upon the prosecution's refusal, the motion was granted.
A search of the person without a warrant is legal, and the evidence found is admissible if the search is incident to lawful arrest. An arrest without a warrant is lawful if the arresting officer has probable cause to believe the person arrested has committed a criminal offense. People v. Pitts, 26 Ill.2d 395, 186 N.E.2d 357.
The specific question before us is whether the trial judge could properly suppress the evidence under the circumstances of this case. In People v. Durr, 28 Ill.2d 308, 192 N.E.2d 379, the court stated at page 311:
Reasonable grounds for believing that a person has committed a criminal offense may be found in information furnished by an informer if the reliability of the informer has been previously established or independently corroborated. (People v. Tillman, 1 Ill.2d 525; People v. LaBostrie, 14 Ill.2d 617; Draper v. United States, 358 U.S. 307, 3 L Ed2d 327.)
In the recent case of McCray v. Illinois, 386 U.S. 300, the United States Supreme Court, in upholding the decision of the Supreme Court of this state affirming the denial of a motion to suppress evidence, quoted at page 306 from State v. Burnett, 42 NJ 377, 201 A.2d 39:
The Fourth Amendment is served if a judicial mind passes upon the existence of probable cause. Where the issue is submitted upon an application for a warrant, the magistrate is trusted to evaluate the credibility of the affiant in an ex parte proceeding. As we have said, the magistrate is concerned, not with whether the informant lied, but with whether the affiant is truthful in his recitation of what he was told. If the magistrate doubts the credibility of the affiant, he may require that the informant be identified or even produced. It seems to us that the same approach is equally sufficient where the search was without a warrant, that is to say, that it should rest entirely with the judge who hears the motion to suppress to decide whether he needs such disclosure as to the informant in order to decide whether the officer is a believable witness.
Defendant argues that the trial judge properly passed on the credibility of the officer's testimony, found it wanting and exercised his discretion to suppress. However, the trial judge never suggested that he doubted the testimony of the police officer. The record shows that after defendant's demand for the production of the informer or in ...