APPEAL from the Circuit Court of Rock Island County; the Hon.
JOHN L. POOLE, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
The defendants were tried by jury for burglary and theft resulting in the conviction of defendant Campbell for the crime of theft and defendant Roberts for both burglary and theft.
On October 25, 1969, both defendants, accompanied by defendant Roberts brother, were in an automobile on the country road when they were stopped by a deputy sheriff of Rock Island County, one Calvin Wainwright. A search of the automobile resulted in finding certain tools purportedly stolen from the Paul J. Gruneau Company.
The defendants contend that the trial court erred in refusing to suppress evidence seized from the defendants on the night in question. In advance of trial defendants filed their motion to suppress and hearing was had thereon resulting in the court's denial of said motion. A review of the testimony both at the preliminary hearing and at the trial is required for proper understanding of this decision.
On the night of the arrest Wainwright, while on routine patrol, stopped at the 3M Company near the scene where the arrest was made and talked to one Stephens, a guard at the plant. This was around 11:00 P.M. Stephens advised Wainwright that there were a couple of cars and a lot of activity out on Old Trail Road. This road is a public road, although lightly traveled, apparently leading behind the 3M plant and near a spot where certain construction was being performed for Commonwealth Edison Company by the Paul J. Gruneau Company. The road had been patrolled by the Sheriff's police for some time, their purpose being to look for teenagers who might be drinking. Wainwright testified that as he proceded down the Old Trail Road he observed the lights come on an automobile approximately 200 yards ahead of him; that the car had been parked and as he approached the lights turned on and the automobile proceeded toward him. He then turned on his flasher light and stopped the car. At that time he had not been advised that a crime had been committed and to his knowledge a crime had not been reported in the vicinity. When he observed the other car proceeding toward him he turned on his flasher light and the other automobile came to a stop with the front bumpers of each car almost touching. He further testified that had the other automobile attempted to elude him he would have made every effort to stop it. He further testified that Roberts then stepped out of his automobile, removed a pair of gloves, threw them in the back seat of the car, and he and Roberts talked while standing between the two cars. Roberts produced his drivers license for examination and when asked by Wainwright what he was doing in the area he advised Wainwright that he was just looking around. Wainwright then proceeded to defendants' car, where he observed the defendant Campbell and defendant Roberts' brother. He testified that he used his spotlight on the car, a station wagon, and noticed certain boxes in the rear of the wagon. Roberts advised him there were tools in the boxes that he used at his place of employment. Up to that point Wainwright stated he did not know what the boxes contained. He then testified that he was able to observe a large box and smaller boxes and was also able to observe a drill and an acetylene torch. He testified he did not know who the defendants were and from all that appears of record he was not aware of any criminal record or criminal connection of the defendants. He testified that his only purpose in stopping the defendants was because of the fact that the car was parked on the road without lights. He further testified that had the occupants in the car been a man and a woman he would have merely told them to proceed on and not park in the area.
After observing the torch, drill and the boxes he ordered the defendant to turn around and drive back in the direction from which they came. After traveling in that direction for approximately 100 yards they came upon a wheelbarrow and boxes with tools lying on the ground along the edge of the road. They drove back up to the road to the Commonwealth Edison site where the construction was taking place and in front of several guards advised the defendants of their "constitutional rights". He testified that he did this because he wanted to investigate a possible burglary or theft.
Defendant Roberts' testimony insofar as it is pertinent to these proceedings, is that the lights of his automobile were at all times on and that he was not parked at the time when Wainwright's automobile approached him. He testified that because of the curves and bends in the road and other obstructions Wainwright could not possibly have seen his lights as the two automobiles came toward each other.
Defendant in his motion contends that there were no reasonable grounds for the arresting officer to believe that the defendants had committed or were about to commit a crime at the time the vehicle was stopped and that his search of the vehicle, not being an incident to a lawful arrest and committed without the consent of the defendants, was illegal and that any evidence obtained as a result of that search should be suppressed.
• 1 It must first be noted that the legality of a search is not to be determined by its results. (People v. Parren, 24 Ill.2d 572, 182 N.E.2d 662.) The Supreme Court there also stated:
"The case thus presents in sharp focus one aspect of the recurrent conflict between the interest of the public in the suppression of crime on the one hand, and on the other the constitutionally guaranteed searches and seizures."
The court further points out that under neither the federal nor the state constitution may a conviction stand that is based upon evidence that is the product of an unreasonable search and seizure.
• 2, 3 The "search" in this case was not strictly speaking a search because the torch, drill and boxes were in plain view to Wainwright. Search implies an invasion and quest with some sort of force, either actual or constructive. (People v. McCracken, 30 Ill.2d 425, 197 N.E.2d 35; People v. Wood, 26 Ill.2d 557, 188 N.E.2d 1.) The contraband in the case at bar was in plain view of the deputy, who was able to observe it in the light of the spot light on the police car.
• 4 Defendants contend, however, that the stopping of the automobile under the circumstances in this case was without cause and that the subsequent ...