Appeal from the Circuit Court of Cook County; the Hon. KENNETH
R. WENDT, Judge, presiding. Reversed and remanded.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT. Two complaints charged defendant with unlawful possession of a depressant drug, and unlawful possession of hypodermic needles. Ill Rev Stats 1967, c 111 1/2, § 802(c) and c 38, § 22-50. The State has appealed from the trial court's allowance of defendant's motion to suppress as evidence certain barbiturates (discovered in a small tin container which a police officer testified he had seen defendant drop to the ground) and hypodermic needles (found on defendant's person during a subsequent search). No brief has been filed by defendant.
The arresting officer, Thure Mills, testified, on direct examination, that he was patrolling the Fuller School area with his partner in response to a police department call concerning gang activities. He observed defendant and another man walking past the unmarked squad car. Defendant saw the out-of-uniform officers and threw a small tin container to the ground. Mills picked up the box, examined its contents, and placed defendant under arrest. Then they searched defendant and found the hypodermic needles.
On cross-examination, the officer testified that, after seeing the container dropped, he yelled to defendant to stop, picked up the container, and then examined its contents.
The Assistant State's Attorney requested a finding of fact to clarify the order of events. The judge responded that "the officer said he stopped him before he picked up the box." The prosecutor replied, "Yes, your honor." The judge subsequently stated his finding of fact "that the officer detained the man by saying stop which is technically under arrest for no cause. He then picks up something, looks at it and then he thought it may be a dangerous drug after he arrested him." The court also stated, as a finding of fact, that the container was dropped after the officer said stop. Officer Mills was the only witness who testified on the motion to suppress.
Initially, the State contests the court's finding of fact that the officer said "stop" before the accused dropped the container. A thorough examination of the record reveals that the only reference to a communication from the witness to defendant came on cross-examination when he testified he saw the tin drop, defendant continued walking, and he then told defendant to stop. The finding of fact to the contrary by the trial court is unsubstantiated in the record.
The basic substantive issue in this action is whether the suppressed evidence was obtained by the police as a result of an illegal and unreasonable search and seizure, in violation of Article II, section 6, of this State's constitution and the fourth amendment of the United States constitution. Our concern, therefore, is directed toward the reasonableness of the police action for "what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures." Elkins v. United States, 364 U.S. 206, 222; Terry v. Ohio, 392 U.S. 1, 9; People v. McCracken, 30 Ill.2d 425, 429, 197 N.E.2d 35; People v. Georgev, 38 Ill.2d 165, 171, 230 N.E.2d 851. See also People v. Machroli, 44 Ill.2d 222, 225, 254 N.E.2d 450 (dissenting opinion). We note that our Supreme Court has consistently upheld the actions of a police officer as reasonable when he makes a warrantless search of the person incidental to a valid arrest. People v. McCrimmon, 37 Ill.2d 40, 224 N.E.2d 822; People v. Hanna, 42 Ill.2d 323, 247 N.E.2d 610.
Before meeting the constitutional issue, it becomes necessary to determine the precise point in time when the arrest was made. The trial judge ruled that the arrest was technically made when the officer said "stop" to defendant. If, arguendo, the arrest did take place at this point, there would be a serious doubt as to the existence of probable cause to make such arrest, and this would greatly affect the reasonableness of the resultant search. Also, as we have already noted, when the trial judge made his ruling, he misinterpreted the facts relating to the dropping of the box. Our inquiry into the time of the arrest is further dictated because the order appealed from involves the suppression of two evidentiary items seized at different times by different means, and each is the foundation for a separate complaint against defendant. The police obtained the barbiturates by picking them up after they had been dropped on the ground. The hypodermic needles were discovered in a later search of defendant's person.
The first question for our consideration is whether an arrest was effectuated when the out-of-uniform police officer yelled "stop" and defendant obeyed. A somewhat similar factual situation was present in People v. Mirbelle, 276 Ill. App. 533, but with the significant difference that the police officers, who had observed defendant near the scene of a recent robbery, drew their guns and shouted, "Stick them up, we are police officers, stick them up." This was held to constitute an arrest. The court declared that in the legal sense of the term, an arrest involves three elements: authority, intention, and a restraint of the person. Mirbelle, supra, at 541. This definition was amplified in People v. Jackson, 98 Ill. App.2d 238, 240 N.E.2d 421, where the court stated at page 244:
An arrest, in the sense we are concerned with here, requires a purpose or intention to effect an arrest under a real or pretended authority, an actual or constructive seizure or detention of the person to be arrested by one having the present power to control him, a communication by the arresting officer of his intention to arrest, and an understanding by the person to be arrested that such is the intention of the arresting officer. See 4 Words and Phrases, Arrest, p 234 et seq., 5 Am Jur2d, Arrest, § 1.
This principle has, to a limited extent, been codified in the Code of Criminal Procedure as follows:
"Arrest" means the taking of a person into custody. (Ill Rev Stats 1967, c 38, § 102-5.)
An arrest is made by an actual restraint of the person or by his submission to custody. (Ill Rev Stats 1967, c 38, § 107-5(a).)
The pivotal element of the Mirbelle definition, when applied to the facts of the instant case, is the "intention" of both the police officer and defendant. The word "stop" is not necessarily to be construed in every instance as a communication of an intention to arrest, and in order for it to warrant that connotation, it must be coupled with sufficient other circumstances to indicate the intent. We do not find any such circumstances present in the case at bar. The officers did not display a gun, nor was either in uniform. We do not believe that the evidence established an immediate intention on the part of the officers to effectuate an arrest when defendant acquiesced in their command to stop.
Perhaps more important in this case, however, is the "understanding by the person to be arrested that such is the intention of the arresting officer." People v. Jackson, supra. As stated in Mirbelle, "there must be an intention, understood by the one arrested, to accomplish the arrest." In Hicks v. United States, 382 F.2d 158 (DC), the court felt ...