APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
S. WHITE, Judge, presiding.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT:
The defendant, Johnny Quinn, was charged with unlawful possession of a narcotic drug (heroin) in violation of Ill. Rev. Stat. 1963, ch. 38, par. 22-3. Following a bench trial, defendant was found guilty and was sentenced to serve not less than two nor more than six years in the Illinois State Penitentiary.
On appeal, defendant raises six issues:
1) Whether the trial court erred in disallowing the disclosure of a police informer's identity;
2) Whether defendant was deprived of his right to confront prosecution witnesses;
3) Whether the trial court erred by considering inadmissible evidence of defendant's guilt;
4) Whether the trial court erred in denying defendant's pre-trial motion to suppress physical evidence;
5) Whether defendant validly waived his right to a trial by jury;
6) Whether the trial court erred by denying defendant's motion for continuance.
The facts disclose that three Chicago police officers conversed with an undisclosed informer at Madison and Leavitt Streets, Chicago, at approximately 11:15 P.M. on June 29, 1966. The police had been working with this informer since 1964 and information supplied by the informer on prior occasions had led to approximately 35 arrests and 18 or 19 convictions. The informer revealed that he had just purchased narcotics from the defendant at the corner of Monroe and Leavitt Streets and that the defendant was making sales to other persons at that location. The informer also indicated that the defendant was operating out of the basement at 2208 West Monroe Street and was presently in possession of heroin. The police officers, who were themselves acquainted with the defendant, proceeded immediately to the vicinity of Monroe and Leavitt Streets and placed the area under surveillance. A few minutes later the police observed the defendant coming from the basement at 2208 West Monroe Street. The police walked up to the defendant, placed him under arrest for unlawful possession of narcotics and recovered a plastic package containing two tin foil packets of heroin from his mouth. Defendant introduced a pretrial motion to suppress the evidence, i.e., heroin, which had been seized from him at the time of his arrest. The motion was denied after a hearing and defendant was tried by the court without a jury. At trial it was stipulated that the testimony adduced on the motion to suppress would be the same as that heard on trial.
Defendant's initial contention concerns the trial judge's refusal to allow disclosure of the informer's identity during the hearing on the motion to suppress. Though defendant was allowed to question the arresting police officers concerning facts bearing on the informer's reliability and credibility, he was not permitted to force disclosure of the informer's identity. Defendant asserts that the trial judge erred in disallowing disclosure and advances three theories in support of his contention. First, he argues that the informer was a material witness and, therefore, disclosure was required under the rule in Roviaro v. United States (1957), 353 U.S. 53; second, he argues that the reliability of the informer could be adequately determined only through disclosure; third, he argues that disclosure was required because the trial judge doubted the credibility of the police officers' testimony.
• 1, 2 We find no merit in defendant's first contention. Defendant was charged only with the unlawful possession of narcotics, an offense in which the informer in no way participated, and the informer was not present at the time of defendant's arrest or during the search of his person. Hence, it is clear that the identity and testimony of the informer was neither material nor required under the Roviaro case. (McCray v. Illinois (1967), 386 U.S. 300; People v. Williams (1967), 38 Ill.2d 150; People v. Durr (1963), 28 Ill.2d 308; People v. Robinson (1969), 105 Ill. App.2d 57.) Thus, defendant's first theory in support of his initial contention is devoid of merit because it has no application to the instant case. Likewise, his second theory, which merely echoes the dissenting view of Mr. Justice Douglas in the McCray case, has no merit. It is well established that an informer's reliability may be determined without his presence in court or the disclosure of his identity. (See, e.g., United States v. Harris (U.S. June 28, 1971), 39 U.S.L.W. 4835.) Defendant contends, however, that the trial judge expressed doubt concerning the credibility of the police officers' testimony and thus should have required disclosure. While this theory might be valid under more appropriate circumstances, it has no application in the instant case because the record fails to disclose that the trial judge in any way disbelieved the police officers or doubted their credibility. Defendant would have us view certain remarks of the judge out of context, but we are not so inclined. When read in context, as they must be if they are to be correctly understood, the judge's remarks indicate quite clearly that he was entirely convinced, by the evidence submitted in open court and subject to cross-examination, that the police officers did rely in good faith upon credible information supplied by a reliable informant.
The arresting officers in this case testified fully and in precise detail as to what the informer told them and as to why they had reason to believe his information was trustworthy. Each officer was under oath and each was subjected to searching cross-examination. The judge was obviously satisfied that each was telling the truth, and for that reason he exercised the discretion conferred upon him by the established law of Illinois to respect the informer's privilege. We find no reason to disturb the trial court's judgment in this regard.
• 3 For his second contention defendant asserts that he was denied his constitutional right to confront witnesses because the trial judge sustained a number of State objections made during the defense examination of the arresting officers. An examination of the State's objections reveals, however, that they were made upon proper evidentiary grounds, i.e., that the defense questions were not material or that they were aimed at disclosure of the informer's identity. Hence it is clear that defendant's claim of a deprivation of constitutional rights is without merit. See People v. McCray (1965), ...