APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. RYAN, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT AS MODIFIED UPON THE DENIAL OF PETITION FOR REHEARING:
Rehearing denied October 21, 1971.
The defendant, Fred Dean Smith, was indicted for theft (Ill. Rev. Stat. 1967, ch. 38, par. 16-1, (d-1)). Prior to trial the defendant made a motion to suppress, as evidence, various articles recovered by federal agents from a garage and a vehicle, both of which were located on private property owned by the defendant. The trial judge sustained the motion, and the State prosecuted an appeal pursuant to Supreme Court Rule 604(a). We affirm.
The testimony of the defendant at the hearing on the motion to suppress was as follows: On or about noon on May 7, 1968, he was coming out of his garage which is connected to his house located in Oak Lawn, Illinois. There was a U-Haul truck parked in front of the garage. He testified that he had just closed his garage door and was walking from his driveway to his house when a car pulled up onto his driveway and the driver, whom he later identified as one of the F.B.I. agents involved in the case, jumped out and started running towards him "brandishing a gun" and shouting "get your garage door up." Smith stated that this agent did not identify himself. A minute later two other F.B.I. agents arrived in another car and identified themselves. Smith opened his garage door, and the agents searched his garage and the U-Haul truck. Smith testified that he inquired as to whether the agents had either an arrest or a search warrant, and he was informed by the agents that they possessed neither. Smith testified that he was not told he was under arrest until later when all parties present had gone into Smith's house.
Three of the four F.B.I. agents involved testified at the hearing on the motion to suppress. The first one to testify related the following: On May 6, 1968, he received information from the terminal manager at the Trans-Illinois Express Company in Chicago that the terminal had been broken into the previous night, and certain merchandise was taken from some of the trucks including twelve large air conditioners, six Seiberling tires and numerous cartons of clothing. Later in the day he was told by a fellow agent that the latter had received a tip from an informer. The informer had said that he had, on May 5, 1968, observed twelve cartons of air conditioners, six large truck tires and six cartons of clothing in the garage of the defendant's home. On May 7, 1968, the testifying agent together with three other F.B.I. agents and one Oak Lawn police officer conducted a surveillance of the defendant's premises beginning about 9:30 A.M. He testified that he and another agent were together in one car and moving from location to location until about 10:30 A.M. At that time he spoke with two members of the Oak Lawn Police Department and told them that he had reason to believe the defendant's garage contained stolen property, but he was unsure whether it was stolen from an intrastate or an interstate shipment. As a result of this conversation, one of the F.B.I. agents and an Oak Lawn police officer went to obtain a search warrant for the defendant's premises. The testifying agent then returned to the surveillance at approximately 11:45 A.M.
At approximately 12:40 P.M. he and his fellow agent were parked one-half block south of defendant's house. A U-Haul truck arrived and was backed onto the defendant's driveway and up to the garage. The driver opened the garage door and began to load some boxes into the truck. At that point he gave an order by radio to converge on the house. His car pulled up in front of defendant's driveway; a minute later the other agent's car arrived fom the opposite direction. Upon arrival the testifying agent saw a box maked "Norge" in the open garage and observed a Norge air conditioner and six large tires in the back of the U-Haul truck which was also open. He identified himself to the defendant and gave him constitutional warnings. He told the defendant there was a search warrant en route to his house. At that time the defendant told his wife to call an attorney.
On cross-examination the agent testified that he personally did not observe the alleged loading activity prior to the order to converge. Rather he was told by the third agent located in another car that this was occurring. Further, he testified that he was the first agent to go onto the defendant's premises, and he expressly stated that neither he nor any of the other agents arrested the defendant. That testimony was as follows:
"QUESTION: And you (addressing agent) arrested him (Smith), is that correct?
ANSWER: I did not arrest him.
QUESTION: Did (naming fellow agent) arrest him?
ANSWER: (Naming fellow agent) did not arrest him.
QUESTION: Nobody arrested the defendant, is that correct?
ANSWER: That is correct."
The F.B.I. agent who had received the informer's tip testified as follows: On May 6, 1968, he received a tip from an informer to the effect that the informer had observed twelve cartons of Norge air conditioners, six large truck tires and numerous cartons of clothing in the defendant's garage on the evening of May 5, 1968. The agent stated that this informer had given information on previous occasions which had resulted in several arrests and two convictions. The agent said he had talked with the informer on 25 or 30 occasions in the past. The agent also testified that he received other information that an "Egyptian Truck Lines" truck was parked in defendant's driveway on the afternoon of May 5, 1968, and it was observed that merchandise was loaded from the truck into the garage. It is not clear from the record whether this latter information was ...