APPEAL from the Circuit Court of Clay County; the Hon. DANIEL
H. DAILEY, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Defendant appeals his conviction in a jury trial of the offense of indecent liberties with a child in violation of Chapter 38, Section 11-4(3), Illinois Revised Statutes. Defendant asserts that the trial court committed error in denying defendant's motion to suppress evidence obtained as a result of an illegal search and seizure and in refusing to permit defendant to reopen his case to present evidence which corroborated the testimony of an alibi witness, and that the State failed to prove defendant's guilt beyond a reasonable doubt.
As part of its case the State introduced as exhibits a green tee shirt and a pair of paint covered black boots with a hole in them. These items had been taken from a trailer located on Austin Avenue in Flora, Illinois rented by defendant's brother with whom defendant was residing. The exhibits were the subject of defendant's motion to suppress upon which the court held a hearing prior to trial. After hearing evidence on the motion the court denied the motion to suppress and at the trial admitted the tee shirt and boots into evidence, over objection.
At the hearing on the motion to suppress, a deputy sheriff and an agent of the Illinois Pardon and Parole Board, testified in that order.
The deputy sheriff testified that the first time he went to the trailer was "around noon" with the agent at the request of the agent; that the agent knocked and they were invited in by defendant. The deputy saw the tee shirt and boots; the shirt hanging on a chair, the boots on the floor against the west wall; he saw them only after he went inside; and they "were in plain view once you were inside the trailer". The deputy knew that defendant's brother had rented the trailer. The agent arrested the defendant, the deputy did not. He testified that "so far as defendant knew he was being picked up for parole violation". They then took the defendant to the police station. The deputy and agent, after a conversation between them, went back to the trailer; 10 or 15 minutes "after we had brought the defendant to jail". Upon reaching the trailer they found no one there. The agent knocked, opened the door, and walked in while the deputy remained outside. The agent brought the tee shirt and boots out. In answer to an inquiry as to whether he could see the shirt and boots from outside the door or from the inside, he testified, "I couldn't see them. I think they could have been seen really". Neither the agent nor deputy had a search warrant and the defendant had not been before a judge, was not represented by counsel and had not been charged with the instant crime. He testified that on that day he did not know to whom the shirt and boots belonged, and that after defendant was charged with this crime, and before defendant had counsel, he asked defendant if the shirt and boots belonged to him, and defendant said they did.
The agent testified that on August 20, 1969 and prior thereto, the defendant was a parolee from the Illinois State Penitentiary where he had been incarcerated as a result of a felony conviction in Macon County. One of the conditions of his parole was that he was not to leave his assigned area in Decatur. In response to instructions the agent had received from his Springfield office, he went to the defendant's brother's trailer seeking the defendant. Defendant invited him in. He asked the defendant his reason for departing his assigned area in Decatur and defendant replied that he wanted to go back there. While in the trailer he saw the tee shirt and boots. The agent then left the trailer and called Springfield for instructions and was directed to pick up defendant and hold him pending an investigation. The agent then requested the assistance of the deputy sheriff in arresting defendant. Upon arriving at the trailer with the deputy, the agent knocked on the door and was invited by the defendant to "come in". Both defendant and his brother were present at the time. The agent and deputy, who was in uniform, then entered the trailer and the agent told defendant that the Springfield office "had advised me to take him into custody and hold him pending an investigation with reference to employment and residence in Decatur". While in the trailer on this second occasion the agent again saw the tee shirt and boots. The agent arrested defendant and he and the deputy took the defendant to jail. At the jail the deputy asked about seeing the boots and tee shirt and asked if it would be possible for the agent to get them. The agent went back and got the boots and tee shirt, which were in the same place as when defendant left the trailer. At the time the agent arrested defendant, the deputy did not arrest defendant. The agent admitted that he had no paper issued by any court authorizing him to go upon the premises and take anything from the trailer. He testified there was no one there when he went back the third time. He had been told that defendant was living with George Eastin, and testified that the tee shirt and boots had nothing to do with his coming to Flora to see defendant. "It was a routine assignment."
The State presented no evidence other than by way of cross examination of these two witnesses, on the motion to suppress. There was no evidence that the boots or tee shirt were seen from outside the trailer when they went back and found no one there to consent to their entry, and the door was closed. Neither was there any evidence that defendant was on that date a suspect on the indecent liberties charge, nor was there testimony that the person who allegedly committed that crime had any connection with the articles seized, or that those articles were any factor of identification of the person who committed the alleged crime. In fact, that any crime in which a tee shirt or boots might be circumstantial evidence had been committed is not revealed by the record of the hearing on the motion to suppress, nor is there any evidence that a crime had been committed, or that the authorities had reasonable grounds to believe defendant had committed any illegal act, other than violating his parole by leaving Decatur. Although the property was seized at midday on August 20, 1969 (Wednesday) there is nothing in the record to indicate any reason for failure to get a warrant, other than the agent's erroneous impression as expressed at the hearing, "By virtue of my office I had a search warrant" and that he had a right to enter the trailer on the third occasion, "by virtue of my position as Adult Parole Agent". Neither is there anything in the record to indicate that the articles seized were contraband or that the trailer from which they were taken was in the custody of the authorities.
On this evidence, produced by the two witnesses called by the movant, and cross examined by the State and argument of counsel, the court summarily denied the motion to suppress, without "stating the findings of facts and conclusions of law upon which the order or judgment" was based.
Our statute on Motions to Suppress, ch. 38, sec. 114-12(e), Ill. Rev'd. Stat. 1969, provides:
"The order or judgment granting or denying the motion shall state the findings of facts and conclusions of law upon which the order or judgment is based."
Our Supreme Court has recently had opportunity to review cases in which there was a failure by the trial court to comply with the statute; People v. Haskell (1968), 41 Ill.2d 45, 241 N.E.2d 430; People v. Donel (1970), 44 Ill.2d 280, 255 N.E.2d 454; People v. Holloman (1970), 46 Ill.2d 311, 263 N.E.2d 7. See also, People v. Drury, 130 Ill. App.2d 798, 268 N.E.2d 460 (4th District 1971), in which the defendant again expressly raised as error the failure of the trial court to make the findings of fact required by 114-12(e) when it denied his motion to suppress bloodstained clothing. The Court upheld the denial of the motion to suppress stating:
"While it is preferable that there be findings of facts and conclusions of law, the absence of such does not require a reversal if, as here, it can fairly be said that the record and evidence would sustain the ruling of the trial court notwithstanding the absence of such findings. Here the trial-court ruling is sustainable by consent or permissible area of search."
• 1 A review of these cases indicates that if the evidence produced, at either the pretrial hearing on a motion to suppress or a hearing on the question at the trial, sustains the order of the trial court, compliance with section 114-12(e) is not mandatory. We find no authorities which excuse the trial court from compliance with the Statute when no evidence is produced which will sustain the order of the trial court. Furthermore, in People v. Braden, 34 Ill.2d 516, 216 N.E.2d 808, it was held that the trial court's ruling on a motion to suppress is not final and may be changed or reversed at any time prior to judgment, and that additional testimony at the trial may cure the error in denying the preliminary motion to suppress, the latter being only a procedure of convenience to eliminate time consuming collateral inquiries during the trial of the principal issue. In that case, the search was incidental to a lawful arrest, and the question was whether it was unreasonably extended by the search of a closet inside the apartment and a refrigerator outside the door of the apartment; the Court held it was not in view of the evidence presented at the trial.
We are therefore compelled to review the evidence to determine whether the error in denying the pretrial motion to suppress was cured; and the trial court thus relieved by the testimony at the trial of its duty to state the findings of fact and conclusions of law on which its original order denying was based, as well as its denial of the objections of defendant and renewal of the motion to suppress made during trial.
The articles were marked as exhibits at the time the parole officer was called as a witness. He testified that he first saw the exhibits at the house trailer, that he had had them in his possession and gave them to the deputy sheriff. The deputy sheriff testified that he was in charge of the investigation of this case, that the exhibits were received from the parole officer on the day they were seized, and since that time had continuously been in his possession. He further testified that he had a conversation with defendant on the day following the seizure of the exhibits. Upon being asked what was said with reference to the exhibits, objection was made and an outside-the-presence-of-the-jury conference was held in which defendant's counsel objected to the testimony of the conversation on the basis that at that time defendant had no counsel. The prosecutor answered that it was not interrogation because at the time of the conversation defendant had not been arrested and charged with the crime, and that he was ready to prove that defendant "was advised of all his constitutional rights". No evidence of any warning in compliance with Miranda v. Arizona (1966), 384 U.S. 436, was presented and no offer of proof was made. The motion to suppress was renewed, the motion denied, and the objection overruled. The witness then testified, "I asked him if the boots and tee shirt belonged to him and he answered yes". On cross examination, the deputy testified that he first learned of this incident on August 9th.
The exhibits were then offered into evidence and admitted over objection. The prosecuting witness subsequently testified and then identified the exhibits as having been worn by the defendant at the time of the alleged offense.
Here neither the evidence on the motion to suppress or that produced at the trial, sustains the order of the trial court in its denial of the motion to suppress or in its admitting the articles into evidence over objection. As in Holloman, supra, we are not confronted with the question of credibility of the officers, but unlike it find that the testimony does not even purport to meet the required standards of proof by the State to overcome the presumption of unreasonableness of a warrantless search and seizure.
• 2, 3 The basic premise enumerated throughout the development of the doctrine of search and seizure by the United States Supreme Court has been that all searches and seizures without warrants are per se unreasonable and in conflict with the Fourth and Fourteenth Amendments with certain exceptions. (Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022; Katz v. United States, 398 U.S. 347; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407.) The rule further provides, "When the right of privacy must yield to right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agency". Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367 as cited as controlling in Coolidge, supra.
• 4, 5 The standards for search and seizure by the various States are those of the Fourth Amendment to the United States Constitution as applied through the due process of law clause of the Fourteenth Amendment. The requirements of the Fourth Amendment have been held to be basic to a concept of ordered liberty. Coolidge, supra; Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623.
• 6 United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, and later cases, clearly provide that by adherence to judicial process, the burden is on the prosecution to show exceptional circumstances which will make the search or seizure reasonable, such as the exigencies of the situation, which will create an exemption from the prohibition against unreasonable searches and seizures; in those situations in which it is contended an exemption lies, the burden is on those seeking the exemption to show the need for it. In other words, the prosecution has the burden of proving a warrantless search or seizure is reasonable. This requirement has most recently been reiterated in Coolidge, supra.
• 7 We have examined both People ex rel. Jeffers v. Brantley, 44 Ill.2d 31, 253 N.E.2d 378, and Ch. 108, sec. 204(e) Ill. Rev'd. Stat. 1969, both of which deal with the status of a parolee, and find nothing in those authorities that suggests that this defendant was not entitled to constitutional protection from illegal seizure. In Brown v. Kearney, Warden, 355 Fed.2d 199, the Court declared that "a parolee is entitled to constitutional protection from illegal search and seizure". In U.S. v. Hallman, 365 Fed.2d 289 at 291, the Court said, "Hallman was not without basic rights because he was a parolee". (Citing cases.) And at 292 said, "The veil afforded by Provenzano's position as Hallman's parole officer cannot here serve as a shield against what was plainly the action of the arresting officers to effect an illegal search."
• 8-13 The State's brief contends that in the present case there was no search and that seizure of articles in plain view cannot be considered unreasonable. Both freedom from unlawful search and seizure are protected by the Constitution and whether a search or a seizure is here involved is of no consequence there is no question that the articles were seized without a warrant, by officers without the consent of defendant or his brother who was in possession, from the home of the brother who was not arrested or suspected of any crime and was not arrested, and that the officer who made the seizure was not legally on the premises at the time of the seizure. As was said in Preston v. United States, 376 U.S. 264, 84 S.Ct. 881, "Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest". Plain view, itself is never, standing alone, enough to justify a warrantless seizure. The articles were not contraband nor instrumentalities of crime. The plain view doctrine only applies when the evidence seized is incident to the arrest, or is contraband and a seizure incident to arrest must be justified by the circumstances, such as dangers of destruction, or harm to the officers or the items being known contraband, and the officers are lawfully on the premises. See Coolidge and cases cited therein. Furthermore, the discovery of the evidence in plain view, must be inadvertent (here it had been in plain view on previous occasions when it was inadvertently discovered, but was not at the time of seizure) and the officers had made a special trip knowing the description and location well in advance with ample opportunity to obtain a valid warrant. In Coolidge, supra, the Court pointed out at 91 S.Ct., 2040-1, 405 U.S. 269:
"If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of `Warrants * * * particularly describing * * * the things to be seized'. The initial intrusion may, of course, be legitimized not by a warrant but by one of the exceptions to the warrant requirement, such as hot pursuit or search incident to lawful arrest. But to extend the scope of such an intrusion to the seizure of objects not contraband or stolen nor dangerous in themselves which the police know in ...