Appeal from the Circuit Court of Cook County; the Hon. LOUIS
A. WEXLER, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
The defendant, Andrew Gee, and Lucius C. Hawkins, were jointly charged in a two-count indictment with having committed the offense of unlawful use of weapons in that they knowingly possessed a bottle containing an explosive substance gasoline and in Count II, knowingly possessed a bottle containing an explosive substance Molotov cocktails in violation of chapter 38, section 24-1 (a-7) of the 1967 Ill Rev Stats.
At the trial on June 6, 1968, a motion to suppress physical evidence was filed by the defendant, Andrew Gee, and after a hearing it was denied. The defendant then pleaded not guilty and waived a jury trial. He was found guilty of the unlawful use of weapons and sentenced to one to three years in the Illinois State Penitentiary.
The defendant, Andrew Gee, contends on appeal that he was not found guilty beyond a reasonable doubt because his conviction was based on evidence which was the result of an unlawful search and seizure. He alleges that there was no probable cause for his arrest without a warrant and the search of the car, which accompanied his arrest, thus violated his rights as guaranteed by the Constitutions of the United States and the State of Illinois.
At the hearing on the motion to suppress, defendant, Andrew Gee, testified that he left a barbeque place and was being driven home by another person when they were arrested at 61st and Halsted on April 6, 1968, about 4:00 a.m. They were southbound on Halsted Street when stopped by the police. The defendant testified that "he was not shown any piece of paper by the police when they arrested him." On cross-examination the defendant stated that there had been rioting in that neighborhood the preceding day.
Officer Jacob Pylman testified that he was working on a twelve-hour shift from 6:00 p.m. Friday, April 5, 1968, to 6:00 a.m. Saturday, April 6, 1968. He was in a marked squad car with three other police officers patrolling the general area when a man driving a brown Pontiac stopped them. He told the officers that while in a gas station he heard that two male negroes in a blue Plymouth with Illinois license plates LW9296 had purchased a bottle of gasoline and stated that they were about to start a fire at 63rd and Halsted. The man suggested that the car would shortly come southward down Halsted. On that particular day, following the murder of Dr. Martin Luther King, Jr., there were, according to Officer Pylman, riots, fires, damage of stores and shootings of policemen in that area. When Officer Pylman asked the informer his name, the man replied, "I am a citizen." As the police officers proceeded across Halsted, Officer Pylman observed a blue Plymouth with Illinois license plates LW9296 and two men in the front seat going south on Halsted. When they stopped the car and turned the spotlight on it, the officer saw both persons in the car reach toward the floorboard. Officer Pylman said that because of the rioting he was in fear of his life when he ordered the men out of the car and observed the bottle of gasoline in the middle of the floor.
After the testimony of these witnesses, the motion to suppress was denied and the case proceeded to trial. The parties stipulated that the same questions put to Officer Pylman and his answers at the hearing on the motion to suppress would be substantially the same if asked during the trial. The officer testified further that the bottle was a ten- or twelve-ounce "Old Dutch" pop bottle with a paper towel stuck in its neck. It contained a brown amber liquid which smelled like gasoline. It was in open sight in the middle of the car floor next to where he saw the defendant, who was in the front passenger seat. The bottle was inventoried and taken to the police department crime lab for analysis. Officer Pylman identified the bottle and the towel.
It was also stipulated that if Robert Boese, a chemist employed by the Chicago Police Department, were called as a witness, he would testify that he received the bottle and based upon his examination he found the liquid contained therein to be gasoline. No evidence of fingerprints was found on the bottle.
Andrew Gee, the defendant, took the stand in his own defense. He denied ever seeing the bottle until Officer Pylman brought it back to the police car where he was being detained. He denied reaching toward the floorboard and said he didn't see Hawkins do so when the police stopped them. The defendant testified that when he left the barbeque, Hawkins, whom he had not met before, offered to take him home and he gave Hawkins a dollar to do so. Before they left the barbeque at 59th and Halsted, Hawkins had gone outside for about fifteen minutes alone. They left the barbeque at 4:00 a.m. and were arrested a few minutes later. Officer Pylman testified in rebuttal that he arrested the defendant at 5:00 a.m.
The defendant argues that his arrest was based on mere gossip from an anonymous informer whose reliability was not established. It is urged that there was, therefore, no probable cause for the unwarranted and illegal arrest and search of the defendant. Since the only evidence of the defendant having possession of the bottle of gasoline resulted from that arrest and search, the defendant asks that his conviction be overturned.
As stated in People v. McGurn, 341 Ill. 632, 635, 173 NE 754, 756:
The guaranty of the constitution is not against all search and seizure but against unreasonable search and seizure and does not extend to an immunity from search and seizure on lawful arrest. Where a crime has, in fact, been committed and an arrest is made by an officer who has reasonable ground for believing the person arrested is implicated in the crime, such officer has the right to search the person arrested without a search warrant, and in such case the right of search and seizure is incidental to the right of arrest.
In the McGurn case, the defendant was arrested by a police officer who admitted he had no ground to believe or suspect that the defendant had committed a crime. He arrested the defendant only because he had a standing order from a superior to arrest the defendant on sight. Since the only evidence of the defendant's carrying a concealed weapon came from this illegal arrest and the accompanying search, his conviction was reversed.
The Supreme Court in Beck v. Ohio, 379 U.S. 89, 85 S Ct 223, laid down the rule that whether the arrest was constitutionally valid depends on whether, at the moment the arrest was made, the officers had probable cause to make it whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to ...