APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. PRESIDING JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
The defendant, Freddie Martin, was convicted of robbery after a bench trial and sentenced to a prison term of 5 to 10 years.
On October 28, 1971, Mary Prendergast was taking care of her daughter's children at 1348 West 97th Street in Chicago. Around 11:30 A.M. she answered the front door and saw a black male, about 22 or 23 years of age with bushy hair, of medium height and slender build, wearing red pants and a red shirt. At the trial she identified that man as the defendant. He asked to use a telephone to call an ambulance because there had been an accident and a lady was lying in the street bleeding badly. She let him in, and he appeared to use the telephone for an ambulance, giving the address of the accident. He asked, and was permitted, to use the bathroom. After stepping from the bathroom and looking down the hallway, he walked toward the front door and then asked if he should call the police too. She agreed and looked up the number for him. While she was looking in the directory, the phone rang. The call was from her daughter, whom she told that there had been an accident and asked to call back. The defendant used the phone again, apparently calling the police and reporting an accident at 97th and Loomis. After this call, the man asked Mrs. Prendergast if he could show her where the injured lady lived. As he proceeded to point to the house, he turned and faced her saying, "Now, this is a robbery." He threw his arm around her neck, took her down the hallway to the back bedroom and told her to lie down and not get up. He then went through the house, searching all the rooms and drawers. He returned to her and asked where the money was. As he did this, the phone rang but was left unanswered. She told him that she didn't live there and that her daughter's bedroom was the middle bedroom. He then went to that room to search. The phone rang again and was again left unanswered. During this continued searching, a neighbor, Mrs. Boyland, came to the front door and called out for Mrs. Prendergast. Thereafter, the man apparently left. Mrs. Prendergast went to the front door and told Mrs. Boyland of the robbery. Mrs. Boyland had been summoned by Mrs. Prendergast's daughter by telephone. The man was in the house about a half hour, and it was an unusually bright day.
Mrs. Howland, Mrs. Prendergast's daughter, came home and found that her daughter's General Electric phonograph was missing, as was Mrs. Prendergast's purse. At trial, she identified her daughter's portable General Electric phonograph and said she recognized it from a certain chocolate mark and a slash on the inside cover.
A neighbor, James Johnson, had come home around 11:30 on the morning of October 28 and noticed an unoccupied car parked with its motor running. After watching the car for several minutes, Johnson, who was a security guard for Illinois Bell, walked by the car and wrote down the license number and make and year of the car. He testified that it was a light-blue or green Pontiac with license PT221. He watched for several more minutes and saw a man come out from between the houses and get into the car and drive off. Johnson was unable to see the man's face but he described him as a small, thin, black man with a brown case under his arm. He had a conversation with Mrs. Prendergast and Mrs. Boyland and gave one of them the piece of paper on which he had written the license number and the description of the car. At the trial, he identified pictures of the defendant's automobile as being the same car he had seen at the scene of the robbery.
The police arrived, and after receiving the description of the offender and the license number, patrolled the area in search of the vehicle. A registration search by Officer Walsh was made in an attempt to establish ownership of the plates by the license number, but this attempt failed to show an owner. It was later established, after the defendant was arrested, that the plates were registered to a "Fred Williams." After approximately 30 minutes, Officers Schwartz and Walsh received a radio communication directing them to proceed to 89th and May Street where other officers had located a 1963 blue Buick Wildcat, license PT221, in the alley behind 8840 South May Street. Walsh recalled that the vehicle was the same one he had seen several weeks earlier when Sergeant James Gorman had called for assistance in a street stop. On that occasion they had questioned the driver, whom Walsh recalled as giving the name, Freddie Martin. He had been stopped for failure to have a city vehicle license. Sergeant Gorman had also summoned a Lieutenant Collins in an effort to see if Freddie Martin fit the description of a man involved in a recent homicide. After the officers decided not to arrest Martin at that time, the lieutenant ordered Walsh to get a picture of Freddie Martin and note on the back his name and address for their file. Walsh obtained this picture 2 or 3 days later from Records and Identification at Police Headquarters and kept it in the files at the 6th District. Walsh then proceeded to the 6th District Station and obtained the address, 8840 South May Street, from the back of Freddie Martin's picture. A description of Freddie Martin and a notation "1963 Buick" was also on the back of the picture. Walsh then returned to the location of the car behind 8840 South May Street. The defendant was arrested in his bedroom, and the police recovered, 10 feet from the defendant, a brown portable phonograph, which was later identified by Mrs. Howland.
The defendant contends that the phonograph should have been suppressed for a number of reasons: (1) The police did not have probable cause to make the arrest; (2) they should have obtained a warrant; and (3) the search was too broad.
• 1 The evidence establishes that a robbery had in fact been committed; the police had a description of the offender which included the fact that he was wearing red pants and they had been informed that a brown phonograph had been taken; they had a description of a car and a license number that they could reasonably believe was used in the robbery; later investigation established that the car had been driven on a previous occasion by Freddie Martin and the car was parked behind Freddie Martin's home; they went to Freddie Martin's room and saw that he fit the description given by Mrs. Prendergast, including the color of his pants; and, finally, they saw a brown phonograph 10 feet from the defendant. This was a strong case of probable cause, and we agree with the trial court's conclusion that "it would have been a violation of the oath of the officers if they had not so arrested him at that time."
In People v. Johnson, 45 Ill.2d 283, 287-88, 259 N.E.2d 57, two robbery victims gave descriptions including approximations of height, weight, age and a speech impediment. When a second robbery occurred 3 months later, the police were given the name and address of a suspect and placed the building under surveillance. The police saw the defendant enter the apartment. When he came to the door in response to their knock, they noticed that he fit the description given and placed him under arrest. A subsequent search of the apartment disclosed stolen property. To the defendant's claim that the evidence was "tainted by an unlawful invasion of his apartment" since they did not have a warrant, the court said in upholding the search:
"Defendant argues, incorrectly, that a warrantless entry is permissible only in hot pursuit, or in any emergency when it is impractical to obtain a warrant. We agree that it is desirable for an arrest to be based upon a warrant when the circumstances permit, and such action here would have eliminated some of the problems now before us. At the same time, however, we recognize that an arrest may be lawful when based upon probable cause, notwithstanding the absence of a warrant. [Citation.]" (45 Ill.2d 283, 287-88.)
We believe the facts in this case are even stronger than Johnson, and the police could not "have been expected to bow out and return to headquarters to procure a warrant." United States v. Harris (D.C.C. 1970), 435 F.2d 74, 80.
• 2 In his contention that the search was too broad in scope, the defendant relies primarily on Chimel v. California, 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034. The rule of Chimel has been paraphrased in People v. Williams, 57 Ill.2d 239, 243, 311 N.E.2d 681: "[A] warrantless search incident to an arrest may be made of the defendant's person plus the area within his immediate control from which he might obtain either a weapon or an evidentiary item. [Citation.]" In Williams, the defendant was arrested in the kitchen area of his apartment. When the police made the arrest they had their guns drawn. After arresting and searching the defendant, one of the officers reached into a bag on an open kitchen shelf and found the defendant's gun. The bag was estimated to be between 7 and 10 feet away from where the defendant was standing. The court, in upholding the search and discussing the application of Chimel to other cases, concluded that results had not been entirely consistent and added (at page 246):
"These cases make it clear, we think, that there can be no hard and fast rule defining the permissible scope of a warrantless search incident to an arrest. Certainly an arbitrary limitation to a certain number of feet would be unsatisfactory. Whether the search is reasonable must depend on the particular facts of the case. Among the factors to be considered in this case are the knowledge that the suspect was armed, the presence of another person who might attempt to assist the suspect, the accessibility of the searched area, and the physical control of the situation exercised by the police."
In People v. Perry, 47 Ill.2d 402, 266 N.E.2d 330, the officers broke down a door and entered a room 10' by 12' in dimensions. The defendant was standing near the door about 8 feet from the window and had put something in or taken something out of the top dresser drawer. The officer searched the defendant and took him into the corridor. They continued the search of the room and found a gun in the partially opened dresser drawer and some shells and a purse belonging to a woman who was also in the room. The court held that the search did not violate the rule of Chimel "since it was within the area from which defendant could have obtained a weapon or something that could have been used as evidence against him." Judging from the standards of Williams and Perry, we deem that the search was ...