Appeal from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a bench trial, defendant was found guilty of unlawful possession of a narcotic drug in violation of chapter 38, § 22-3 (Ill. Rev Stats 1963). He was sentenced to two to three years in the penitentiary. On appeal defendant contends that his motion to suppress evidence was improperly denied; that prejudicial trial errors were committed; and that he was not proved guilty beyond a reasonable doubt.
On October 20, 1966, and in Chicago, a known police informer told two Chicago police officers he had just purchased a bag of marijuana, and he pointed out defendant as the seller. The police officers then arrested the defendant, searched him, and found a bag of marijuana. Defendant's pretrial motion to suppress was denied. At the trial defendant waived his right to a jury trial, and it was stipulated that the facts heard on the motion to suppress would be the same as that heard on the trial.
At the hearing of the motion to suppress on February 3, 1967, defendant testified he was waiting for a bus when a police officer told him that he wanted to search him. He was searched in a hallway by Officer Jerrett, who found a package of marijuana on defendant's person. Defendant was not shown a warrant for his arrest nor a search warrant, and he did not try to escape nor did he threaten the officer's life. After the arrest was made, another police officer arrived (Officer Willis M. Cola).
On behalf of the State, Officer Cola testified that on October 20, he was working with Officer Jerrett. At about 8:00 p.m. they were in the vicinity of 43rd and Calumet and had a conversation with a police informer whom Officer Cola had known for about a year. The informer stated to them that he had just purchased a bag of marijuana from a man known to him as "Edward," who was still in the vicinity of 43rd and Calumet. Shortly thereafter, and while in an automobile which was being driven by Officer Jerrett, the informer pointed out the defendant as the man who sold him the marijuana, and the informer then left the car. Defendant was then placed under arrest, and while on the street, near an alley, Officer Jerrett searched defendant and found a white envelope that contained a quantity of crushed green plant.
Officer Cola also testified that prior to October 20, 1966, he had received information concerning narcotics from the informer about three or four times, on which arrests were made and in one case there was a conviction. Without consulting his files the officer could not recall the names of any of the persons who were arrested as a result of the information given by the informer. Although the trials were in the Criminal Courts Building, he could not recall the courtrooms where the trials took place.
On cross-examination, Officer Cola was extensively questioned about the informer and the officer's inability to remember the names of any of the persons arrested on the informer's information. He did know there was one conviction because he was at the trial. He further said that defendant was searched on the street and not in a hallway, and no one else was searched at that time.
In rebuttal, defendant testified that before and after the time he was arrested, he saw Officer Cola search a number of people, and "they had a hallway and they had four or five fellows in there." He did not know their names, but he had seen them before.
In considering the motion to suppress, the trial judge reviewed at length the evidence and the issue of the reliability of the informer. As to Officer Cola's failure to remember the names of those persons arrested on the information received from the informer, the judge remarked that because of the numerous arrests made by an officer on the Vice Detail, "probably five or six hundred arrests during a couple of years or three-year period, it is quite evident that he would be unable to remember and recall all of the convictions that resulted from the information received from any one informer." The trial judge also ruled that it was unnecessary for the second arresting officer (Jerrett) to testify and denied a request to compel the appearance of the informer because he was not present at the time of the arrest, and found that the testimony of Officer Cola was sufficient to show the reliability of the informer. In concluding that the police officers had probable cause and the arrest was lawful, the court said, "The police officers had probable cause to believe the defendant was in the process of committing a crime or had immediately prior thereto committed a crime. Therefore, the arrest and the search was lawful," and denied the motion to suppress.
On May 25, 1967, the matter came on for trial before the same judge who denied defendant's motion to suppress. At that time defendant waived his right to a jury trial, and it was stipulated in detail that the testimony heard on the motion to suppress would be the same as if heard on the trial. It was further stipulated that the contents of the envelope found on the defendant after his arrest contained marijuana.
After stating the terms of the stipulation, the assistant State's Attorney then related defendant's previous criminal record. Counsel for defendant objected, and the court found that it was premature. The State agreed and said it was a mistake based upon the Assumption that the court had already entered judgment.
In finding defendant guilty, the trial judge stated, "Let the record show the Court is in no manner taking into consideration the defendant's background as read into the record by the State's Attorney. However, the Court had been fully advised of the defendant's record prior to the time of the reading of the record submitting the matter to this Court and that in arriving at the determination here, the Court is in no manner taking into consideration any of the facts heretofore read into the record by the State."
On appeal defendant contends his arrest and search and seizure were unlawful because the officers had no warrant and the information given to the police officers was by an informer who was not shown to be reliable; therefore the officers lacked probable or reasonable cause for defendant's arrest and search. Defendant argues that there was no emergency about his arrest. "He wasn't fleeing any place or threatening to. He was apparently always in the vicinity of 43rd and Calumet. There was ample time to obtain a search warrant based on the information Cola thought to be reliable. If ...