APPEAL from the Circuit Court of Cook County; the Hon. FRANK
WILSON, Judge, presiding.
A jury in the circuit court of Cook County found each of the 11 defendants guilty of violating one or more of the statutes or ordinances under which complaints had been filed. The defendant Arnold Abrams was convicted of selling liquor without a license in violation of the Municipal Code of the City of Chicago and was fined $200. The defendant Florence Levinsohn, convicted on two complaints of aggravated assault and on two complaints of battery, received a sentence of two months on each charge. The sentences were ordered to run concurrently. She was also convicted of disoderly conduct and of interfering with a police officer in the performance of his duties, both violations of the Municipal Code, and fined $200 and $100 respectively on these charges. Convictions of disorderly conduct were entered against the other defendants, Helen Ketterer, Michael Kemper, Maury Lubet, William E. Simpson, Leslie Friedman, Robert Lane, Maxwell Primack, Preston Browning and Russell DuPree. Fines of $200 were imposed against these defendants. Excepting the defendant Helen Ketterer, each of these defendants was also found guilty of interfering with a police officer in the performance of his duties and was fined $100. Constitutional questions raised give this court jurisdiction on direct appeal.
On the evening of April 8, 1967, the Chicago Peace Council and the Student Mobilization Committee to End the War in Vietnam sponsored a "send-off" party which was held at the home of Mr. and Mrs. Arnold Abrams in Chicago. The party's object was to raise funds for the transportation of the groups' representatives to New York City, where a march protesting the war in Vietnam was to be held on April 15. Leaflets announcing the date, place, time, charge for admission, and purpose of the proposed party had been placed at several public locations in the neighborhood. The leaflets bore the request "R.S.V.P." and two telephone numbers were given.
Sergeant Lewis Smith of the Chicago Police Department obtained one of the announcements on April 8 and brought it to the attention of Lieutenant Cassidy at the 21st District Police Station. Early that evening the lieutenant informed Officers Andrew Alinovich and Donald Duffy of the party, gave them the announcement and instructions to go to the Abramses' house in order, according to testimony given by the police at trial, to make an "investigation and surveillance" and to "discover what was going on there." The two officers, who were not in uniform, arrived at the Abramses' house at about 9:15 P.M. They entered the house and purchased two tickets of admission at a table set up just inside the entranceway to the house. The officers did not identify themselves at this time nor were they asked to do so. Upon entering the officers observed two signs taped to a door in the entry hall which read: "Ice 75¢ drinks free," "Cups 30¢ beer free," and "No drinks served to minors under 21 years of age." They remained in the house for about 10 minutes. They said they observed odors of alcohol on the breaths and from drinking cups of a number of young persons who appeared to be underage.
Upon returning to their car Officers Alinovich and Duffy resumed normal patrol activity for about an hour and then returned to the district station at 10:30 P.M. There they met with Lieutenant Cassidy and Sergeant Smith. After a discussion of "probable violations" of law, the lieutenant instructed Alinovich and Duffy to return to the house. The record is not clear concerning the purpose of this second visit to the Abramses' house. It cannot be determined whether the officers were instructed to make arrests or whether they were only to continue their investigation. The two officers left the station, and about one-half hour later by pre-arrangement met three other officers near the Abramses' house. After a brief discussion, the five officers proceeded directly to the house, arriving at approximately 11:50 P.M. No attempt was made at any time to procure a search or an arrest warrant.
As the officers reached the admission table inside the door, they were stopped by either the defendant Florence Levinsohn or by Mrs. Alice Peurala, and were asked if they were police officers. They identified themselves as officers and were then informed that their presence was not desired. Several persons were congregated at the table, including the defendants Mrs. Abrams and Mrs. Levinsohn. The officers were asked if they had a search warrant and were told they could not enter without a warrant. Officer Alinovich testified that he informed Mrs. Levinsohn that a crime had been committed in his presence and that, therefore, no warrant was necessary. According to Alinovich's testimony, the offense he referred to involved a youth seated at the admission table. At his request the youth handed Alinovich a styrofoam cup, which the officer said contained an alcoholic beverage. The evidence is conflicting as to whether the cup was on the table or in the boy's hand when first noticed by Alinovich. When the cup was handed to the officer a minor scuffle developed. Alinovich testified that Mrs. Levinsohn, claiming the cup belonged to her, reached for the cup and in her efforts to take it struck him several times. According to the testimony of the officers, Alinovich handed the cup to Officer Hines and then Mrs. Levinsohn struck Hines. Mrs. Abrahams and Mrs. Levinsohn testified, however, that when Mrs. Levinsohn reached for the cup, Officer Hines took hold of her. Mrs. Abrams then, they said, pulled Mrs. Levinsohn behind her. Throughout this incident, Mrs. Abrams and others standing near the door were insisting that the officers leave the house until they had obtained a search warrant.
The argument at the front of the house drew many persons in the interior of the house to the entrance. The scene became one of intense confusion with many persons shouting at the officers. Mr. Abrams and several of the other defendants had forced their way through the crowd to a position where they stood confronting the police. The argument continued and, after a short time, the officers retired to the entrance hallway and blocked off the crowd by closing the inner door. Other possible exits from the house were blocked and a call for assistance was made by the officers.
After aid had arrived the officers asked Mrs. Levinsohn to step outside. She was placed under arrest on the front porch. While this arrest was being made the defendant Leslie Friedman, the officers said, was interfering with the arresting officer by constantly interjecting in the officer's conversation with Mrs. Levinsohn. After he failed to comply with several requests by the officers to move aside, Friedman was also arrested. As the police attempted to re-enter the house for the announced purpose of finding the youth concerned in the "styrofoam cup" incident, their passage, they testified, was blocked by the defendants Lane, Primack and DuPree, who continued to insist that a search warrant be obtained. They, too, were placed under arrest. The defendants Ketterer, Lubet, Browning, Simpson and Kemper were taken into custody when they locked arms to prevent the entry by the police. Although it is not clear when Abrams, the owner of the house, was placed under arrest, he was arrested that night on a charge of having sold liquor without a license.
The defendants contend that the entries by the officers without a warrant into the Abramses' house constituted unreasonable searches in violation of the fourth amendment. Accordingly, they argue, the physical evidence seized, as well as the testimony of the officers as to matters observed during the unlawful searches should have been excluded from evidence.
The fourth amendment is intended to guard the privacy of a person in his home, as well as that of invited guests, from wrongful intrusions. (See Jones v. United States, 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725.) The interest of society in this protection was described by the Supreme Court in Johnson v. United States, 333 U.S. 10, 14, 92 L.Ed. 436, 440, when it said: "The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of a search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent." Only last term the Supreme Court cautioned that, except for a "few specifically established and well-delineated" situations, the constitution prohibits a warrantless search of a dwelling. (Vale v. Louisiana, 399 U.S. 30, 26 L.Ed.2d 409, 90 S.Ct. 1969.) A consented-to search is one of the established exceptions (Vale v. Louisiana, and cases cited), but there is no contention here by the prosecution that there was such a search.
It is argued by the prosecution that the physical evidence seized and the oral testimony of the police officers were not subject to suppression. Relying principally on Harris v. United States, 390 U.S. 234, 19 L.Ed.2d 1067, 88 S.Ct. 992 and People v. Wright, 41 Ill.2d 170, it is said that it is not a search to observe through the use of the senses that which is open and patent, and that "objects falling within the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." 390 U.S. 234, 236, 19 L.Ed.2d 1067, 1069.) The pivotal question here is, of course, whether the officers had "a right to be in the position to have that view." That is, were they lawfully within the Abramses' residence when the observations the prosecution refers to were made?
The basic argument of the appellees is that the nature of the party, together with the means used to publicize it, served to change, with the consent of the Abramses, the character of the house for the time from that of a private dwelling to that of a public place. It is said that the object of the party was one of general public interest and that the leaflets of invitation were directed to the public at large. Too, the placing of these announcements at public locations is said to show further the public character of the assembly. The precise question appears to be novel and not without difficulty. The case is illustrative of vexing search and seizure situations which confront law enforcement officers and fourth-amendment questions upon which the courts must pass. It is our conclusion that the officers' first entry into the residence was lawful and that their observations were not improper. Nothing appeared in the invitation itself to limit the welcome extended. The leaflets of invitation had been placed in public locations where they were accessible to all persons, without regard to their views on our involvement in Vietnam. The officers were admitted simply by paying the charge for admission. Neither they nor other persons were requested to identify themselves, nor were they required to do so voluntarily. (See People v. Walker, 30 Ill.2d 213, 215.) Admittance was general and unrestricted. Considering these circumstances, any testimony from observations made by the officers on the occasion of their first entry was not subject to suppression. However, the officers' second entry to the Abrams's home was a different matter. Officer Alinovich testified that he and Officer Duffy had departed from the premises at their first visit to avoid the possibility of a disturbance when they had overheard Dr. Abrams informing the guests that policemen were among the guests. It is reasonable to say Officers Alinovich and Duffy knew that they would be unwelcome should they attempt to return. The confrontation which occurred upon their second visit demonstrated an intention at that time to exclude police from the party. The open invitation which made their first admittance objectionable cannot be used to support the second entry. Nor can it be said that their second entrance was proper on the ground that probable cause for arrest existed from observations made on their first visit. The police, when attempting a second entry, claimed only that it was justified because a liquor offense involving the young boy at the admission table was being committed in their presence. It is clear that the second and illegal entrance preceded their observation of the incident involving the boy. One, of course, cannot justify a search by showing that it brought to light grounds for arrest. Johnson v. United States, 333 U.S. 10, 16, 92 L.Ed. 436, 442.
The fourth amendment is typically invoked to bar from trial tangible, physical materials acquired either during or as a direct result of an illegal search. (Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407.) But, consistent with the reasoning which supports the right to suppress physical materials, the right to bar or suppress has been extended to oral statements made during the course of an illegal search. (Silverman v. United States, 365 U.S. 505, 5 L.Ed.2d 734, 81 S.Ct. 679.) Too, proposed testimony as to matters observed during an unlawful search has been held subject to suppression. (Wong Sun v. United States, 371 U.S. 471, 484-485, 9 L.Ed.2d 441, 453-454.) The rationale of this was described by the Supreme Court in Alderman v. United States, 394 U.S. 165, 177, 22 L.Ed.2d 176, 189, 89 S.Ct. 961, "Nothing seen or found on the premises may legally form the basis for an arrest or search warrant or for testimony at the homeowner's trial, since the prosecution would be using the fruits of a Fourth Amendment violation." See also Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L.Ed. 319, 40 S.Ct. 182.
In determining what character of evidence, when challenged, is to be excluded the Supreme Court has said: "We need not hold that all evidence is `fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is `whether, granting the establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959)." (Wong Sun v. United States, 371 U.S. 471, 487-488, 9 L.Ed.2d 441, 455.) Applying this to the unlawful, i.e., the second entry, evidence in the form of the testimony of the officers regarding the youth who was seated at the admission table and the evidence seized, i.e., the cup and its contents, should have been suppressed. Any other evidence offered which was procured by this entry should have been suppressed, except the testimony concerning those whose conduct in response to the illegal entry caused them to be charged with disorderly conduct, ...