APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
A. POWER, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT AS MODIFIED UPON DENIAL OF PETITION FOR REHEARING:
After a jury trial defendant was found guilty in July of 1964 and sentenced to a term of 30 to 60 years on a charge of rape and a concurrent term of 5 to 10 years on a charge of robbery. On appeal his conviction and sentences were affirmed. A post-conviction petition was dismissed without an evidentiary hearing and the Illinois Supreme Court reversed and remanded (41 Ill.2d 151) with directions that a hearing be held "at which the trial judge may be fully apprised as to the defendant's representation at his trial and as to the admissibility of the challenged evidence and its significance." Following this decision, an evidentiary hearing was held and the trial court again denied the petition. On appeal our Supreme Court again ordered the cause remanded with directions to hold a new hearing and to provide the time and opportunity prior thereto for defendant's counsel to consult with him so that his grievance could be recast in proper legal form. Subsequent thereto another evidentiary hearing was held and the petition was again denied.
Defendant then filed an appeal with the Illinois Supreme Court which transferred the matter to this court. He raises two issues, (1) whether evidence used by the State had been unlawfully obtained and (2) whether appointed counsel's failure to make a motion to suppress the use of this evidence, alone or coupled with other alleged failures, deprived defendant of his right to effective assistance of counsel.
At trial Mrs. Barbara Oliver testified that on the morning of December 30, 1963, she was on her way to work at about 5:30 A.M. and, as she entered the elevator at the 11th floor of a building where she had been visiting her mother, a man, later identified as defendant, was standing in the elevator. She saw his face and said "good morning" to him. The elevator stopped at the 5th floor and defendant told her "This is a stick-up. Don't make a sound or I will shoot you." He did not exhibit a gun, but kept his left hand in his pocket leading her to believe he had a weapon. At his direction she left the elevator and both proceeded down the corridor to the entrance of a laundry room on the 5th floor. The room was open and an inside light was on and apparently remained on during the entire occurrence. Defendant pushed her into a metal caged area inside the laundry room and asked for her money. When she said she had none he reached into her brassiere with his right hand. At this time he was facing her standing about a foot or two away. She pushed him and he then choked her to the extent that she momentarily passed out. She next remembers being on her knees and being pushed to the floor and then defendant pulled off one of her pants legs and raped her. Afterwards he took one dollar from her coat pocket and her wrist watch and some change from her purse. He then locked her in the metal cage and left. The entire occurrence lasted about 10 or 15 minutes.
On January 5, 1964 she twice identified photographs of defendant at police headquarters, initially from motion pictures of a group of about ten persons who moved across the screen, one at a time, and later that day from a collection of about 15 photographs in a police book. On January 13, 1964, at a police station at 48th and Wabash, in a line-up with four other males of his race, she identified defendant as the man who had raped and robbed her.
In her original description to the police of the man who had raped her she said he had "a rash over his entire face, wore a brown leather jacket, waist length, black army boots, no hat, needed a hair cut." At trial she identified defendant as her assailant and testified that a jacket and boots, which were admitted into evidence, were those worn by defendant at the time of the rape.
Defendant and his brother James testified they were visiting their parents in Momence, Illinois at the time the rape took place. They had gone there with Betty McBride and her three children. Defendant also testified that he never had a rash on his face and although he occasionally wore the jacket and boots which had been admitted into evidence, they were actually the property of James. Defendant's parents were available during trial, but neither was called to support his alibi testimony.
At the trial defendant also testified that he was involved in two line-ups, the first on January 13, 1964, at a police station at 48th and Wabash and he states that Mrs. Oliver identified him at this time only after a policeman had pointed him out to her. He also testified that there was a second line-up on January 14th at the 11th and State Street police headquarters and at the time Mrs. Oliver identified his brother James as her assailant and not him. Police officer Richard Dwyer testified at the trial and at the post-conviction hearing that Mrs. Oliver was not present during the January 14, 1964 line-up at 11th and State which concerned a different crime and a different complainant.
Police officers Dwyer and Henry Kaminski testified at trial that on January 13, 1964 Mrs. Oliver positively identified defendant from a line-up of five males of his race who were about the same height and weight and that defendant was not wearing the jacket or the boots at that time.
At the post-conviction hearing defendant testified that immediately before the January 13th line-up he was placed in a small room with Mrs. Oliver at a police station at 57th and Cottage Grove where police officers told her about him and showed her the leather jacket and boots which they said had been taken from him. Officer Dwyer testified at the hearing that defendant was first identified by Mrs. Oliver in a line-up January 13th at 48th and Wabash without the leather jacket or boots and later that day the police took defendant to 57th and Cottage Grove where a statement was taken from Mrs. Oliver while defendant was in the same room and at that time they exhibited the leather jacket and boots to her.
Defendant first contends that the brown leather jacket and the boots were improperly admitted into evidence because they were the result of unlawful searches and seizures. Defendant testified that on January 13th two police officers, having been admitted by another occupant, were waiting with drawn guns and arrested him when he entered the apartment in which he lived with his brother and Betty McBride and her three children. One of the officers testified that he asked defendant before they left the apartment whether he could look through his clothing and that defendant "showed me a closet and there I found a pair of army type boots which I took along with me." Later, defendant drove his own car with the officer to a police station and there the officer asked him for his keys which were given to him. The officer then searched the trunk and found a brown leather jacket.
• 1 After defendant's trial in 1964, the U.S. Supreme Court, in Chimel v. California (1969), 395 U.S. 752, held that a warrantless search to be constitutionally valid should be limited to the person of the arrestee and the area "within his immediate control." In the instant case neither the closet nor the automobile trunk could be considered as areas within defendant's immediate control so that under Chimel, in the absence of consent, the searches would have been unreasonable. The Supreme Court, however, in Williams v. United States (1971), 401 U.S. 646, held that the principle expressed in Chimel was not retroactive. Chimel had overruled Harris v. United States (1947), 331 U.S. 145, and United States v. Rabinowitz (1950), 339 U.S. 56, both of which stood for the general principle that a lawful arrest would justify a warrantless search beyond the immediate reach of the person arrested.
In Williams, the defendant was arrested in his residence pursuant to a warrant with an extensive warrantless search of his entire house conducted by eight officers. The Supreme Court sustained the search and seizure of heroin on the premises. In Elkanich v. United States, which was collaterally decided with Williams, defendant was arrested by three agents in his apartment without a warrant but with probable cause. The agents waited about 15 minutes for three other agents, all of whom then extensively searched the apartment. The court sustained the search and seizure of marked money which had been used to purchase narcotics.
• 2 Here, there is no contention by defendant that his arrest was without probable cause and it would appear that under the pre Chimel rule, as expressed in Harris, Rabinowitz, Williams, and Elkanich, the searches and seizures were lawful. Defendant points out, however, that the Illinois courts have consistently limited the scope of a permissible search incident to an arrest to that which "is reasonably necessary to protect the officers from attack, to prevent the escape of the prisoner, or to discover the fruits of the crime * * *." People v. Alexander, 21 Ill.2d 347, 172 N.E.2d 785 (1961).
• 3 On the rationale of Alexander defendant argues, and we agree, that without his consent, considering the charge here (rape), the searches of the apartment and the car two weeks after the crime were unreasonable, in that they were made to obtain evidence rather than to protect from attack, prevent escape or discover fruits of the crime. However, the State argues that defendant consented to the searches. Consent constitutes a waiver of the constitutional privilege against unreasonable search. (People v. Harris, 34 Ill.2d 282, 215 N.E.2d 214.) It is also well established that the consent must be clear and without duress or coercion. People v. Haskell, 41 Ill.2d 25, 241 N.E.2d 430.
The question of whether there was consent was not passed upon by the trial judge because defendant's attorney did not move to suppress the use of the boots or jacket or object to their admission into evidence. At the post-conviction hearing defendant testified that his coat was already on the floor of the apartment when he arrived and that he did not give permission to the police to search the closet or his car. He testified that he gave his car keys to the officer who said he wanted to check whether defendant had a key to the laundry room where the rape had occurred.
The credibility of the testimony in a post-conviction hearing, as in other cases tried without a jury, is a matter for the trial judge to determine and unless it is manifestly erroneous his determination should be upheld. (People v. Caise, 38 Ill.2d 486, 231 N.E.2d 596.) There, a post-conviction petition alleged, inter alia, that defendant was ineptly represented by the public defender, his trial counsel. Only the defendant and his trial attorney testified in that case and the hearing judge found he was adequately represented and that he suffered no substantial denial of his constitutional rights. At p. 489 the court stated:
"[W]e note that a post-conviction proceeding is civil in character and in such a proceeding the petitioner has the burden of showing that he was deprived of a substantial constitutional right. [Case cited.] While the petitioner's allegations, if true, would have justified relief under the Post-Conviction Hearing Act, the evidence in support thereof consisted solely of his own testimony, which was directly contradicted in material part by that of the Public Defender and the transcript of the original proceedings. * * * It is apparent that the trial judge at the instant hearing found the testimony of the Public Defender more credible."
In the instant case only defendant and his trial attorney testified at the hearing and defendant stated he did not give consent to the searches and seizures. It is noted, however, that the transcript of the trial testimony was considered, without objection, by the hearing judge from which it appears a police officer testified at the trial defendant had shown him the closet where the officer found the boots and, subsequently, when he asked defendant for his keys they were given to him and he then found the jacket in the trunk of the automobile. In addition, defendant's trial attorney, at the hearing, testified to his belief that consent had been given. He stated "to the best ...