APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Defendant, James Spencer, was charged with burglary, attempt to commit burglary, and possession of burglary tools. At a bench trial, Spencer was found not guilty of burglary and attempt to commit burglary and was found guilty of possession of burglary tools. He was sentenced to the penitentiary for a term of not less than 18 nor more than 24 months. He appeals.
Spencer raises two points for our consideration. First, he contends that the evidence was insufficient to support the trial court's finding that he was guilty of possession of burglary tools. Second, he contends that his arrest and search of his person were without probable cause and violated his constitutional rights, and that the court committed reversible error in admitting physical evidence which was the fruit of this illegal search and seizure.
On January 11, 1971, at about 2:45 P.M. in response to a police radio communication alerting them to a male Negro wearing a long, gray overcoat, Chicago Police Officers Wayne Heimann and John McKenna spotted a person wearing a gray overcoat who was later identified at trial as the defendant. The police officers, who were in civilian dress and an unmarked car, stopped their car approximately 100 to 150 feet behind the man and observed him walking westbound on 78th Street in Chicago until he got to the corner of 78th Street and Winchester Avenue. At this point the defendant started walking southbound on Winchester on the west side of the street. The police officers drove their car to the corner of 78th Street and Winchester so that they could observe the defendant walking down Winchester. The defendant reached the middle of the block when he crossed over to the east side of the street. Both officers saw him enter the building at 7837 South Winchester, and they drove their car up to that location. Officer Heimann saw the defendant go into the inner door of that building. The inner door and outer door of the building were separated by a small vestibule. Stairs led from the inner door up to two apartments, one on the first floor and one on the second floor.
After parking their car and making a broadcast, the two officers went to 7837 South Winchester and saw the defendant between the outer door and the inner door. Officer Heimann testified that at this time Spencer appeared to be hiding something under a rug or floor mat. Officer McKenna testified that Spencer reached down and put something under the doormat. At this point Spencer was detained, Officer Heimann picked up the doormat, and both officers observed a kitchen knife with approximately an 8 inch blade and a serrated edge. Spencer was placed under arrest, and two pocket knives were found on his person as the result of a search. Both knives were of the pull-out type, one with a blade from 4 1/2 to 5 inches long, the other with a blade about 3 inches long. All three knives were identified by each police officer and admitted into evidence as people's exhibits. A further investigation of the premises revealed wet footprints on the stairs going up to the land on the first floor and coming down again. At the time of Spencer's arrest no one was at home in the building. Officer Heimann testified that there was no indication of forcible entry anywhere in the building.
Albert Nowicki, who owned the building and lived on the first floor with his wife and two young children, testified that on January 11, 1971, at 8:00 A.M. he left for work while his wife and children were still at home. As to whether the various doors in the building were locked or unlocked, Nowicki testified that the outer door was always unlocked, that the inner door was always locked and had to be pushed shut, and that the door to his apartment was always locked and had to be pulled shut. Upon leaving the building Nowicki testified that both his apartment door and the inner door were shut and locked. It was stipulated at trial that if Mrs. Shirley Nowicki were to testify, her testimony would show that she left the building at about 10:00 A.M. and locked the door to her apartment. When she returned home Spencer had already been arrested.
Mr. Nowicki testified that when he left home that morning an accordian case which is usually kept on the first floor landing was closed. Mrs. Nowicki's stipulated testimony showed that when she left home that morning she also observed that the case was closed. Officer McKenna testified that upon investigation of the premises after Spencer's arrest, he observed an open suitcase on the first floor landing.
The defendant Spencer testified on his own behalf. On direct examination he stated that he went to 7837 South Winchester to find a friend. As to the knives, he denied owning the butcher knife and stated that he carried one of the pocket knives for protection and intended to give the other pocket knife to his nephew in the Navy. He denied using any of the knives to gain entrance to the building.
Spencer's testimony on cross-examination showed that he was looking for a man named Emil Wells who had promised him a job but whose address he did not know. After inquiring in the neighborhood as to the whereabouts of Wells, Spencer was directed to the middle of Winchester Avenue between 78th Street and 79th Street. Spencer did not see Wells's name on the mailbox at 7837 South Winchester and received no answer when he rang the bell for the first floor apartment. He further testified that the inner door of the vestibule was ajar, that he entered, and that when he received no answer to his knocking on the door of the first floor apartment, he returned to the point where he was arrested. He denied putting the kitchen knife under the doormat. As to the accordian case, he denied opening it.
At the close of the State's case, the court granted defendant's motion for a directed verdict of not guilty as to the burglary count and the attempt to commit burglary count, and denied the motion for a directed verdict as to the possession of burglary tools count.
The defendant contends that the evidence was insufficient to support a finding that he was guilty of possession of burglary tools. The statute provides in pertinent part: "Whoever possesses any key, tool, instrument, device, * * * suitable for use in breaking into a building, * * * or any part thereof, with intent to enter such place and with intent to commit therein a felony or theft shall be imprisoned * * *." Ill. Rev. Stat. 1969, ch. 38, sec. 19-2.
• 1 In order to sustain a conviction pursuant to this statute the prosecution must prove: "(1) that the tools are adapted and designed for breaking and entering; (2) that the defendant possessed them with knowledge of their character; and (3) that he intended to use them for breaking and entering." People v. Faginkrantz (1960), 21 Ill.2d 75, 79, 171 N.E.2d 5, 7.
• 2 The defendant argues that he did not have possession of burglary tools at the time of his arrest. He argues further that the kitchen knife found under the vestibule floormat was not in his possession even under the doctrine of constructive possession. Addressing ourselves first to the issue of constructive possession, we find that the case of People v. Richardson (1961), 21 Ill.2d 435, 172 N.E.2d 801, is controlling. In that case a conviction for possession of narcotics was sustained by the testimony of a police officer that he saw the defendant make a motion as if he were throwing something to the ground, and that he found a package of heroin a few feet from where the defendant was standing. It was thought that the defendant threw away the package when he suspected that the police were approaching. In the instant ...