Appeal from the Circuit Court of Cook County; the Hon. THOMAS
R. McMILLEN, Judge, presiding. Judgment affirmed.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
Defendant was found guilty at a bench trial of the crime of possession of narcotics and was sentenced to a term of five years to eight years in the penitentiary. He appeals.
Defendant filed a pretrial motion to suppress certain evidence seized by police officers in a search of premises occupied by him without first having obtained a search warrant. At the hearing on the motion, defendant was called as a witness and testified that on April 18, 1967, he was in his girlfriend's apartment on the south side of Chicago from 12:00 a.m., until 5:30 a.m., in the company of his girlfriend and her two teen-aged children. At approximately 4:30 a.m., two Chicago police officers knocked down the door to the apartment with a sledgehammer, entered the apartment with guns drawn, searched the apartment, and remained there approximately two hours. Defendant testified that the officers neither announced their office beforehand, nor placed him under arrest upon entering the apartment. The officers did not show the defendant a search warrant.
Immediately upon entering the apartment, one of the officers reached into the pocket of a coat hanging near the door belonging to one of the teen-agers and recovered a ten-dollar bill. One of the officers accused the defendant of selling narcotics, which the defendant stated he denied. He further testified that just prior to the officers' entry into the apartment a man, unknown to defendant, knocked on the apartment door and spoke to defendant, but defendant's girlfriend said not to let him in.
Police Officer Kenneth Burt testified at the hearing on the motion to suppress and stated that shortly after 1:00 a.m., on April 18, 1967, he and his partner, Officer Lawrence, had a conversation with a police informer named Ted Hall at police headquarters; the officer testified that he had used the informer on several occasions in the past, which had led to both arrests and convictions of narcotics sellers. Hall told the officers that he had been purchasing narcotics from the defendant almost every day for the preceding week or two, and that on the night in question he was going to the apartment to make another purchase. A strip search was made of the informer, which revealed neither narcotics nor money, and the informer was given a prerecorded ten-dollar bill and five prerecorded one-dollar bills with which to effect the purchase.
The two officers and Hall then proceeded to the vicinity of the apartment building in a police car. The officers remained secreted outside the building while the informant entered the building, where he remained for a short while. As Hall exited the building, he met the defendant in the doorway, and the two walked a short way up the sidewalk. Hall immediately returned to the officers and gave them a tinfoil packet, and the three returned to the police vehicle, where Hall returned the five prerecorded one-dollar bills to the officers. The contents of the packet were "field-tested," the results of which revealed the presence of heroin. Hall informed the officers that he noticed the defendant leaving the scene in a black automobile, but on a subsequent search of the area the officers failed to locate the automobile or the defendant. The officer testified that due to poor lighting and the positioning of defendant and Hall, neither he nor his partner observed the actual transfer of the packet.
The officers and Hall returned to police headquarters where the officers made out a report and prerecorded more funds. The additional prerecorded funds were given to Hall, and the three men returned to the apartment building in an effort to effect a second purchase from the defendant, because the defendant was not apprehended after the first purchase. On this occasion, all three men entered the building and, while the two officers stood in an out-of-the-way place in the hallway down from the apartment, Hall knocked on the apartment door. Officer Burt testified that he heard muffled voices coming from the apartment, and that Hall thereafter returned to the officers, stating that the defendant told him that he had no more narcotics to sell that night, but to see him the next day. The officers approached the apartment door, knocked, and receiving no response, knocked down the door with a sledgehammer. Officer Burt testified that he announced their office and informed the defendant of the charge. He was seated on a bed near a partition where a coat was hanging. The apartment was searched and Officer Lawrence recovered the prerecorded ten-dollar bill from the coat hanging near the door. The officer testified that the search, which took about twenty minutes, revealed nothing other than the ten-dollar bill.
The motion to suppress the ten-dollar bill as evidence was denied, and the case proceeded to trial the following day.
The testimony of Ted Hall at trial was substantially the same as that given by Officer Burt at the hearing on the motion to suppress. In addition, Hall testified that when he entered the apartment building the first time that night, he rang the bell to the apartment where defendant was supposed to have been, but received no answer. Upon exiting the building he saw the defendant at the doorway, and the two men then walked up the street where the defendant gave him a packet of narcotics in return for the prerecorded ten-dollar bill. After making the purchase and returning with the two officers to police headquarters, the two officers and Hall returned to the apartment to attempt another sale. Hall testified that on the second occasion he knocked on the apartment door, that defendant answered the knock, and that in response to a request by Hall for more narcotics, defendant answered that he had none to sell and that Hall should see him on the street the following day. Hall testified that he conversed with the officers and then left the building and went to the police car. The officers later brought defendant out to the car and asked Hall if defendant "was the same guy," to which Hall responded in the affirmative.
After the testimony of Hall was concluded, the People requested that the defendant stipulate, for the purpose of the trial, to the evidence that had been testified to by Officer Burt at the hearing on the motion to suppress the previous day. The defendant objected, and the court overruled the objection and permitted the officer's testimony of the previous day to stand, but allowed the defendant to cross-examine the officer on any matter which was not brought out on the cross-examination of the officer the previous day.
The People also called Officer Lawrence as a witness, whose testimony substantially corroborated that given by Officer Burt and Ted Hall.
The evidence for the defendant consisted of the testimony of the defendant himself, his girlfriend and the two teen-aged children. Defendant denied selling narcotics to Hall, and stated that he saw Hall for the first time that night when Hall knocked on his door immediately prior to the entry by the police. The balance of the evidence related to the positioning of the coat in which the ten-dollar bill was found in relation to the doorway, and the absence of the defendant from Hall's presence for several seconds after Hall had knocked on the apartment door and sought to effect a purchase the second time.
Defendant first contends that the trial court erred in denying his motion to suppress since there had been no warrant issued for the search of defendant or the apartment, and because the police officers lacked probable cause to arrest the defendant; that, in any event, no arrest was, in fact, made before the search was effected; that, the officers did not enter the apartment for the purpose of arresting the defendant; that no exigent circumstances existed which could justify the officers' immediate and unannounced entry into the apartment without a warrant; and that the scope of the search made of the apartment was too broad.
The indictment in this matter charged the defendant with the unlawful sale of narcotics, but the trial court found the defendant guilty of the lesser included charge of possession. The admission of the ten-dollar bill into evidence consequently worked no prejudice against defendant, since the bill related solely to the sale of the narcotics, and not to the possession of the narcotics, which ...