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The People v. Canaday

OPINION FILED SEPTEMBER 30, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

JACK CANADAY ET AL., APPELLANTS.



APPEAL from the Circuit Court of Brown County; the Hon. WINTHROP B. ANDERSON, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

A jury in the circuit court of Brown County found the defendants, Jack Canaday, Marjorie Christeson, and Robert L. Stanton, guilty of theft and burglary in violation of the Criminal Code. (Ill. Rev. Stat. 1967, ch. 38, pars. 16-1, 19-1.) Stanton was sentenced to concurrent terms in the penitentiary of three to eight years on the theft conviction and three to ten years on the burglary conviction. Concurrent sentences of one to five years in the penitentiary were imposed on Canaday. Marjorie Christeson was placed on probation for a period of five years. The constitutional questions raised gave this court jurisdiction on direct appeal under our then governing rule. Ill. Rev. Stat. 1969, ch. 110A, par. 603.

On November 27, 1966, at approximately 2:30 A.M., Mrs. Garnet Bradbury, of Versailles, was awakened by noises coming across the highway that passed in front of her home. From her bedroom window the witness observed two men dressed in dark clothing break into a hardware store and begin to remove a number of television sets. The sets were placed in the back seat and in the trunk of an automobile, which the witness described as a yellow Ford product with a black top. Although only two men could be seen at this time, the presence of a third burglar was shown when the witness noticed that the tail lights of the auto went on while the two men were outside of the car. The two men entered the vehicle from the right side in departing. A short time later the same car returned to the scene and the two men re-entered the hardware store and removed more television sets. The automobile departed, heading south.

After the first observation by Mrs. Bradbury her husband reported the burglary to the sheriff of Brown County, who arrived at the scene after the second visit by the thieves. He at once sent a radio report of the burglary to the various law enforcement agencies in the surrounding counties. The report was that there had been a burglary and theft of television sets and the auto used in the burglary was described. At about 3:40 A.M., two Jacksonville police officers, who had received the radio report, observed the defendants in Jacksonville, which is south of Versailles, in an auto which matched the description of the car used in the burglary. After the driver of the car had pulled to the side of the road and stopped at the officers' order, the driver, who was the defendant Canaday, alighted from the car and approached the police car. After a brief conversation with Canaday the officers walked to the defendants' vehicle and there observed television sets in the back seat of the automobile, partially covered by a blanket.

The three defendants were placed under arrest and searched. An automatic revolver was taken from Canaday. Another revolver was found under the front seat of the car after the officers observed Stanton, who was in the front passenger position, place something under the seat. The officers then radioed the Morgan County sheriff's office for assistance and, after other officers had arrived, the defendants were taken to the sheriff's office. The car occupied by the defendants, which had been locked and left on the side of the highway by the officers, was driven to the sheriff's office a short time later by one of the officers after he had received permission to do so from the defendant Stanton, the owner of the car.

The sheriff of Brown County and the owner of the hardware store arrived at the Morgan County sheriff's office about one hour after the arrest and the television sets were removed from the back seat of the car. At this time the trunk of the car was also searched and more television sets, as well as two crowbars, a flashlight and some gloves were found.

The first of numerous contentions of error asserted by the defendants is that the trial court erred in denying their motion to suppress the articles seized in the search of their automobile at the Morgan County sheriff's office about an hour after their arrest. The fourth amendment was thereby violated, they argue, because the search was not substantially contemporaneous with the arrest and was not in the immediate vicinity of the arrest. The defendants concede that under the circumstances the two officers had probable cause to place them under arrest. Their position is that once their auto had been moved from the highway a search warrant was necessary for its search. We cannot agree.

The holding of the Supreme Court in Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975, is applicable here. There the court observed that its decisions had long distinguished between a warrantless search of a motor vehicle and a warrantless search of a house or an office. Citing Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280, and later decisions, the court noted that under circumstances which would not authorize a warrantless search of a house or office, an automobile, because of its mobility, may be searched without a warrant while it is on the highway if there is probable cause to believe that it contains materials that the officers are entitled to seize.

In Chambers, a station wagon and four men in it were stopped by police. Earlier there had been a robbery of a service station by two men, one of whom wore a green sweater and the other a trench coat. Passers-by had seen a station wagon containing four men speed away from a parking lot near the service station. One of the men was wearing a green sweater. The description of the vehicle and the two robbers was broadcast over the police radio and the police stopped a station wagon answering the radioed description and containing four men. One of the men was wearing a green sweater and there was a trench coat in the car. The occupants were arrested and the car was driven to the police station. There it was searched and police found revolvers and the card of a service station attendant who had been robbed a week earlier. The court held that the warrantless search of the car after it had been taken to the police station was not in violation of the fourth amendment. There was probable cause to arrest the occupants of the station wagon and just as obviously probable cause to search the car for guns and stolen money. Here, too, we consider there was probable cause to arrest the occupants of the vehicle and to search the car. The Supreme Court rejected the contention that the search without a warrant at the police station was improper. It was observed that the auto which could have been properly searched on the highway could as well be searched without a warrant at the police station, because the probable cause to search it continued. The movement of the vehicle to the station did not create any duty to secure a search warrant. The court said: "For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment." (399 U.S. at 52, 26 L.Ed.2d at 428.) We judge Chambers forecloses any question here regarding the search. We would observe that this court in People v. Hanna, 42 Ill.2d 323, a case closely resembling the one here, on the same rationale rejected the argument the defendants here have advanced.

The Supreme Court recently, in Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022, found warrantless searches of an auto to have been objectionable but under completely distinguishable circumstances. The court drew a distinction between Chambers which corresponds to the case here, and the question in Coolidge. It said: "The rationale of Chambers is that given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station. Here, we deal with the prior question of whether the initial intrusion is justified. For this purpose, it seems abundantly clear that there is a significant constitutional difference between stopping, seizing, and searching a car on the open highway, and entering private property to seize and search an unoccupied, parked vehicle not then being used for any illegal purpose." Coolidge v. New Hampshire, 403 U.S. 443, n. 20.

Related to the preceding argument is the claim that the defendants were deprived of due process of law because, they allege, they were not furnished with an inventory of the articles seized as required by statute. (Ill. Rev. Stat. 1969, ch. 38, par. 108-2.) No actual prejudice because of this is claimed. We have held that where there was no return of a search warrant, such failure to comply with the statute's requirement did not invalidate the search warrant. (People v. York, 29 Ill.2d 68, 71.) Analogizing, a failure to comply after a warrantless search with a statutory direction to furnish an inventory of the seized materials will not in the absence of prejudice invalidate an otherwise proper search and seizure. The Criminal Code pertinently provides that "No warrant shall be quashed nor evidence suppressed because of technical irregularities not affecting the substantial rights of the accused." Ill. Rev. Stat. 1969, ch. 38, par. 108-14.

Too, it is contended that the defendants' right to due process was violated because the trial judge, prior to trial, ordered the return to the owner of some of the television sets which had been seized from the defendants. This was contrary, it is said, to section 108-11 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 108-11), but no authority is presented to support the claim that a release of seized property to its owner violates due process. Section 108-11 authorizes the judge before whom seized articles are returned to "enter an order providing for their custody pending further proceedings." We do not interpret this section as prohibiting the court from releasing seized property. Were the court forbidden to enter such an order, owners of perishable property which had been stolen and recovered through a seizure would suffer total loss. In the case of other property, owners would be deprived of the use and right to dispose of it during the pendency of what are often protracted court proceedings. Cf. United States v. Alexander (7th cir.), 415 F.2d 1352, 1357.

Another argument of the defendants, which they did not raise in the trial court, is that they were deprived of their constitutional right to confront the witnesses against them and that their rights to a fair trial and due process of law were infringed because the prosecution failed to introduce into evidence all of the television sets that had been taken from the automobile. No specific prejudice is claimed because the People did not offer all of the sets into evidence. In all, 13 sets were seized from the defendants. Two of the sets were offered and received into evidence. In addition, photographs of all of the stolen sets were admitted into evidence. The defendants objected to the admission of the photographs on the sole ground that they were not the "best evidence" of the sets, a ground of objection which it appears has been prudently abandoned here, for the best evidence rule has no applicability under these circumstances. (IV Wigmore, Law of Evidence, 3d ed. 1940, sec. 1181.) An objection to evidence based upon a specified ground waives all grounds not specified (People v. Brengettsy, 25 Ill.2d 228, 232) and a ground of objection not presented in the trial court, as ...


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