APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
On April 27, 1971, the defendant, Lonnie E. Sturgis, was found guilty, after a jury trial, of unlawful possession of narcotics (Ill. Rev. Stat. 1969, ch. 38, par. 22-3). He was sentenced to a term of five to ten years.
On appeal defendant contends that (1) the trial judge erred in allowing the prosecution to use for impeachment purposes certain statements sworn to and signed by defendant which were included in his motion to quash arrest and suppress evidence; (2) the State's evidence was not sufficient to prove him guilty beyond a reasonable doubt; and (3) the case should be remanded for resentencing under the present Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 1100 et seq.).
Acting on information from an informer, on July 9, 1970, officers Wayne King, Raymond Westbrook and James Arnold drove to the vicinity of Seeley and Madison Streets in search of the defendant, for whom they had an arrest warrant charging the sale of narcotics. Officers King and Arnold drove together, in an unmarked police auto, while officer Westbrook drove his own private vehicle. Officer King testified that upon arriving at Seeley and Madison, the informer came up to the car and had a conversation with him. The informer then left the police officers and returned a short time later. The informer was never searched. After a second conversation with the informer, officer Westbrook, who at the time was acting as an undercover agent, drove his car to the vicinity of 2114 West Madison Street and parked where he could see the defendant sitting on a step at that location.
Officer Westbrook testified that he saw the defendant pick up a red Winston cigarette package and remove tin foil from it and give it to an unknown man after receiving some money from him. After observing this, officer Westbrook signaled the two other police officers to move in.
Officer King testified that after he saw officer Westbrook give the signal to move in, he and officer Arnold drove to where Westbrook was parked. After Westbrook told them about the cigarette package containing the suspected heroin, he walked over and picked up the package, which was on the sidewalk about two feet away from the defendant, and then both officer Arnold and he arrested defendant. Officer King further testified that no other person was in the immediate vicinity of defendant. At the time of the arrest, officer Westbrook left the scene, still trying to preserve his undercover identity.
Sergeant Charles Vondrak, a police chemist, testified that on July 22, 1970, he analyzed the contents of three of the 26 packets of tin foil, randomly selected, which were found in the Winston cigarette package. His analysis revealed that all three of the packets contained heroin. He testified as to the specific weights of the three packages but no evidence was presented as to the total weight of all the heroin found in the cigarette package.
Defendant took the stand on his own behalf. He testified that on July 9, 1970, he was with seven or eight other fellows drinking beer in front of Jimmy's Tavern at 2117 West Madison when officers King and Arnold approached and asked for his identification. Defendant produced a driver's license, union card and social security card, all having the name of Lonnie Sturgis. The officers then took him back in the alley where they had their car parked and produced an arrest warrant. After defendant was handcuffed and placed in the squad car, officer King went back to the tavern and then returned to the alley with a red cigarette package. Defendant testified that the officer's search of him revealed only a wallet with some identification and $6 in United States currency. He further admitted telling the police officers that he was attempting to purchase narcotics when apprehended and to being a narcotics addict for over seven months prior to the time he was apprehended.
Prior to trial defendant filed a written motion to "Quash and Suppress Physical Evidence" alleging an unlawful search and seizure and agreed that the evidence on the motion be heard along with the evidence at the time of trial. (This motion was denied by the court at the conclusion of the State's case.)
Defendant testified that he was arrested at 2117 West Madison and that police officers did not take any physical evidence from him. On cross-examination the prosecution was allowed to use the following statements contained in defendant's motion to quash arrest and suppress evidence to impeach the credibility of defendant's testimony:
"1. On 9th of July, 1970, petitioner was arrested at or near 2114 W. Madison, Chicago, Ill.
8. During the arrest and subsequent detention, the police and prosecution became aware of the existence of physical evidence, witnesses, and other evidence all the direct and indirect fruits of the arrest and detention, which connect petitioner with a crime."
Defendant first contends that the use of these statements was error because it penalized defendant for seeking to enforce his Fourth Amendment rights. He relies on Simmons v. U.S., 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967 (1963), to support his contention.
• 1 In Simmons defendant made a motion to suppress physical evidence which was denied by the trial court. Defendant's testimony, relating to possession of this physical evidence which was given at the suppression hearing, was later introduced at trial. The court, noting the tension which was created ...