APPEAL from the Circuit Court of Sangamon County; the Hon.
BYRON E. KOCH, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
The defendants were found guilty by a jury of burglary and theft of property valued in excess of $150. Judgment was entered on both verdicts. The defendants were sentenced to an indeterminate term of 2 to 4 years for burglary and 1 to 3 years for theft, both sentences running concurrently. The defendants appeal.
Several issues are presented for review. However, we need only discuss those issues which are dispositive. Defendants submit the trial court failed to suppress evidence that was the fruit of an unlawful search and seizure. The State contends defendants lack standing to contest the validity of the search and seizure. We find defendants had standing and the trial court erroneously failed to exclude the contested evidence.
The issue arises out of a warrantless search of a rented locker located in the Greyhound Bus Station, Springfield, Illinois. Deputy Workman of the Sangamon County sheriff's department received a phone call on March 24, 1972, from an unidentified informant who implicated the defendants in a burglary that occurred on March 23, 1972. The substance of the phone conversation was that certain stolen articles could be found in a locker located at the Greyhound Bus Station in Springfield. Workman believed that the unnamed informant was one Ray Action whom he characterized as an unreliable individual. Under the test of Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509, and Spinelli v. United States, 383 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584, because of his characterization Workman could not have obtained the search warrant based upon the information acquired from the informant.
Workman checked the Springfield city police reports and determined that a burglary had taken place on March 23, 1972, at the residence of Otto Stolleis. He then proceeded to the bus station and contacted Mr. Edward Allen, the assistant manager of the bus depot. Workman asked Allen if he had any way that the contents of the lockers could be checked. At this time, Workman did not have a search warrant. Allen got a master key and proceeded to open the locked lockers in order to gain access to the contents thereof. According to Workman, Allen opened approximately 25 to 30 lockers before they found the locker that contained the items taken from the Stolleis residence. Mr. Allen stated that he only opened four or five lockers before they found the locker that the authorities were interested in. None of the items found in the locker were seized or removed by either Mr. Allen or Deputy Workman. Immediately thereafter, surveillance of the locker was commenced.
Deputy Sheriff Dan Hoffman was on surveillance duty in the Greyhound Bus Station around 6 P.M. on March 24, 1972, when he observed the defendants approach the locker. One of the defendants put a key in the locker, opened it and removed a transistor radio. Hoffman approached the two individuals and informed them they were under arrest. The defendants began to resist Hoffman but they were subdued. Shortly after the apprehension of defendants, Hoffman returned with another deputy to secure the remainder of the contents of the locker.
The defendants were subsequently indicted for burglary and theft of property valued in excess of $150.
The defendants filed a motion to quash their arrest and suppress the evidence secured as a result of the search and seizure in question. On August 14, 1972, hearing was held on the motion to suppress. At the hearing on the motion, certain facts in addition to those above mentioned were brought out and are as follows. Defendant McGuire testified that the key he used to open the locker was given to him by Ray Acton, and that the key was given to him approximately 1/2-hour before he and Miller went to the bus station. McGuire stated that he and Miller went to the locker only as a favor to Acton.
Mr. Allen testified that the locker the merchandise was found in was locked, thereby indicating that it had been leased to someone. Allen stated that any individual can rent a locker for 24 hours by paying 25 cents. The only written agreement that exists between the lessee and lessor of the locker is contained on a sticker which is placed on the face of the locker. The sticker tells a potential lessee how to use the locker and if items put therein remain for over 24 hours there will be a storage charge. If it is determined that an individual has left items in the locker over 24 hours, an agent of the lessor will remove the lock cylinder from the locker door and put a red tag thereon which states: "See Agent", at which time the lessee would pay their storage fee.
Allen stated that the locker in question had not been used for more than 24 hours and therefore not subject to a storage charge.
On cross-examination by the State's Attorney, Mr. Allen testified that the bus terminal reserves the right to enter the lockers under certain circumstances even when they are leased to someone. The relevant portion of his testimony on this matter is as follows:
"MR. LANTER: Q. So then it's a policy, you represent the bus lines or the person .
And, upon these renting these lockers out, do you as manager reserve the right to look into the lockers?
MR. CASPER: Objections, your Honor. I think that calls for a conclusion. If he can testify as to what terms they are rented on that's fine. As to whether or not he has a right to enter those lockers is a legal conclusion which I don't this gentleman can testify to [sic].
MR. LANTER: Your Honor, as to when a person rents his property out to someone else, I think that as owner of the property or in this instance representative of the owner, they ...