Appeal from the Circuit Court of Cook County; the Hon. HERBERT
C. PASCHEN, Judge, presiding. Reversed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT. Rehearing denied January 6, 1969.
This is an appeal from a judgment in a bench trial in which defendant was found guilty of unlawful possession of a narcotic drug, Ill Rev Stats 1965, c 38, § 22-3. Defendant was sentenced to a term of not less than four nor more than eight years in the Illinois State Penitentiary.
1. Defendant was not proven guilty beyond a reasonable doubt.
2. The indictment was insufficient to convict the defendant of the crime stated because a material element was not stated.
3. The waiver of a jury trial should not have been accepted by the court because it was obtained by coercion.
4. Evidence should have been suppressed because it was obtained by a police employee whose compensation was conditional upon an arrest being made upon probable cause from the information given by the employee.
On defendant's motion to suppress the evidence only the two arresting police officers were called as witnesses. They testified that at about 1:30 on the morning of April 16, 1966, they had a conversation with special employee James Carter at the police station. Carter informed the officers that he could make a purchase of heroin from a man known to him as "Preacher." At that time Carter had no money and no narcotics on his person.
The police officers drove Carter to the vicinity of 64th Street and 1300 east, and parked in an alley. At this time they gave Carter ten $1 bills the numbers of which had been recorded. Carter then proceeded to and entered the building at 1356 East 64th Street. After about five minutes Carter returned and handed one of the officers one tinfoil containing a white powder which Carter stated that he had received from "Preacher" after giving the recorded money to Terry Saffold. The officers field tested the contents and found the substance to be a narcotic.
Both officers then proceeded to the apartment where Carter said he had purchased the narcotics, knocked at the door and were admitted by Terry Saffold who hollered, "Police." The police officers immediately proceeded to the bathroom where Carter had said that Preacher was bagging heroin. As the officers approached the bathroom Officer Burt was able to see a checkerboard on top of the commode, and on top of the checkerboard he saw two tinfoil packets and some loose white powder. The defendant and a man named Carruthers were in the bathroom at this time. One of them hit the checkerboard and the powder fell into the bathtub which was full of water; the two tinfoil packets fell to the floor between the commode and the bathtub.
The officers entered the bathroom, effected the arrest and took possession of the packets. The officers did not find any money or narcotics on the defendant's person. The officers did not at any time see defendant touch the narcotics. Carter did not at any time identify the two packets recovered from the bathroom floor as belonging to the defendant. The officers testified that neither by personal knowledge nor by identification did they know that the packets belonged to defendant. The officers testified that as far as they knew the narcotics could belong to Carruthers, or to Terry Saffold, or to an unidentified girl who was in the apartment when the officers entered. Officer Lawrence also testified that Carter identified defendant at the police station as the man known to him as "Preacher." After the motion to suppress was denied, it was stipulated that the substance in the tinfoil packets found in the bathroom was heroin and that the evidence heard on the motion to suppress would stand as the evidence on the trial. However, the State was permitted to recall Officer Burt, one of the arresting officers, who testified that defendant was not wearing a shirt or shoes when the officers arrested him, and that he put both on before he was taken to the station. Neither the informer nor the defendant testified.
It is incumbent upon the State to prove beyond a reasonable doubt that the defendant had either actual or constructive possession of the narcotics. People v. Bedford, 78 Ill. App.2d 308, 311, 223 N.E.2d 290; People v. Mack, 12 Ill.2d 151, 145 N.E.2d 609. The State clearly has not shown actual possession; and mere knowledge of the location of narcotics is not the equivalent of possession but merely a necessary element of criminal possession. ...