Appeal from the Circuit Court of Cook County; the Hon. Philip
Romiti, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
The defendant, Nathan Wright, was convicted on charges of conspiracy, attempted armed robbery of a Thillens check-cashing truck, and murder, in the circuit court of Cook County, by a jury which had been qualified to impose the death penalty. He was sentenced to 75 to 150 years in the penitentiary for murder, and a concurrent sentence of 5 to 10 years for attempted armed robbery. This is a direct appeal from the circuit court of Cook County.
On January 24, 1969, an attempted armed robbery of the Thillens truck took place at the Bell & Howell plant in Lincolnwood, Illinois. That attempt resulted in a gunfight between the police and 3 persons in a 1968 Buick.
In the course of the gunfight, 2 persons in the Buick were killed, the third was taken into custody, a police officer was mortally wounded and died 10 months later. The surviving suspect, James Allen, made statements to the police incriminating the defendant. Allen was granted a severance, and prior to Officer Singleton's death, he was tried before a jury and found guilty of aggravated battery.
The case against the defendant is based upon the theory of accountability. It is alleged by the People that the defendant was the driving force of the conspiracy, indeed, the mind behind the entire operation. The defendant does not challenge the allegation that the conspiracy existed; that some of the conspirators went to the Bell & Howell plant on January 24, 1969, in an attempt to carry out the conspiracy; or that as a result of this attempt, Detective Singleton was shot in the neck and died from this gunshot wound 10 months later. He argues only that there is insufficient evidence to connect him with the conspiracy and thus make him liable for the acts of the conspirators.
At the trial, the People produced testimony of a series of events beginning sometime early in the summer of 1968. The defendant had worked in the plant, and was familiar with the basic services provided by the Thillens check-cashing service. The service provided is that on payday the Thillens company sends an armored car to the plant which carries large amounts of cash for the purpose of cashing payroll checks.
The conspiracy was made up of a changing cast of persons as the months went by.
Joe Brown testified that he was one of the original conspirators, and that the defendant was the person who suggested and planned the robbery. Brown could not take part in the January 24, 1969, attempt because he was in custody on another charge at the time, but he claimed to have withdrawn from the conspiracy prior to his arrest because the risk was too great. His testimony set forth in detail the planning and initial abortive attempts to commit the robbery.
Brown, when first arrested for an unrelated armed robbery, denied participation in it, but told the police that the guns used in that robbery could be found in the defendant's apartment. The arrest of Brown and the search of the defendant's apartment took place on December 19, 1968. The police seized a .30-caliber rifle and a sawed-off shotgun.
On January 13, 1969, two days before he was to go on trial on the other charge, Brown informed the police of the Thillens robbery plans, and the police began surveillance at the Bell & Howell plant on January 17, 1969. Two officers identified Nathan Wright and Tyrone Oby as being present at the plant that night in a stolen Buick. The Thillens truck arrived late that night and the police made no attempt to arrest the defendant and Oby, who drove out of the parking lot when the truck failed to arrive. On January 24, 1969, the Buick returned to the Bell & Howell parking lot and parked. When the Thillens truck did not arrive, the Buick started to leave. The police attempted to halt the vehicle, but the only response from inside it was gunfire.
The defendant raises several allegations of error. He first urges that the warrantless search of his apartment in December, 1968, and the seizure of the weapons therefrom violated his rights under the fourth and fourteenth amendments. The weapons were introduced into evidence to connect the defendant to the crime.
The following facts were testified to at the hearing on the motion to suppress this evidence. Officer Spangelo testified that on December 18, 1968, he received information connecting Brown with an armed robbery of a milk-truck driver. The driver identified Brown from a photograph. The officer then arrested Brown the morning of December 19, 1968. Brown said he was not involved in the robbery but that he knew who was. Brown told the officer that the guns used in the robbery were at the defendant's apartment and "* * * if you get there before noon, you have a good chance of getting them, unless somebody in the building wired him or tipped him off that I am arrested." Brown also said, "* * * the rest of the crew will be there and also on the street by noon and if they are going out on the street, they take the guns with them."
The officer testified that he and several others rushed to the defendant's apartment to arrest him. He knocked on the defendant's door, the defendant admitted the officers, they noticed an empty holster on the kitchen table, and they then found the sawed-off shotgun and carbine lying on a dresser or chest.
The prosecution contends that the search and seizure were proper as being incidental to a lawful arrest. Under section 107-2(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1969, ch. 38, par. 107-2(c)), then in effect, a peace officer was authorized to make an arrest without a warrant if he had "reasonable grounds to believe that the person is committing or has committed an offense." The applicable standards were described by this court in People v. Wright (1968), 41 Ill.2d 170, 173-174:
"`* * * It is well established that a search without a warrant is reasonable and valid if it is incident to a lawful arrest and there is no requirement that the arrest be under the authority of an arrest warrant. (Ker v. California, 374 U.S. 23, 41, 83 S.Ct. 1623, 10 L.Ed.2d 726.) In turn, the validity of an arrest without a warrant depends upon whether the officers had reasonable cause to believe that an offense had been committed and that the defendant had committed it. (People v. Jones, 16 Ill.2d 569, 573.) The test is not whether there is sufficient evidence to convict the arrested person, but probable cause exists for arrest where a reasonable and prudent man, having the knowledge possessed by the officer at the time of the arrest, would believe the defendant committed the offense. (People v. Hightower, 20 Ill.2d 361, 366.) In deciding the question in a ...