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People v. Marquis

DECEMBER 23, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HOMER MARQUIS, JR., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. ANGELO PISTILLI, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Defendant was found guilty in the Circuit Court of Will County of aiding in the delivery of a controlled substance weighing 200 grams or more and of possession of a controlled substance weighing less than 200 grams. He was tried by the court without a jury and was sentenced to a term of 4 to 6 years on the delivery charge, and from 1 to 5 years on the possession charge, sentences to run concurrently.

On February 23, 1972, an agent of the Illinois Bureau of Investigation, Joseph Gryz, made contact with one Allen Kadlec to purchase 4,000 amphetamine tablets. Kadlec had made two prior sales of amphetamines to the agent Gryz. Arrangements were made for the sale to take place the following day.

In preparation for the event the Illinois Bureau of Investigation agents dusted $500 in currency with fluorescent powder and recorded the serial numbers of the bills. Gryz and six other Illinois Bureau of Investigation agents went to Kadlec's home and while Gryz entered the building the other six set up surveillance teams around the home. Gryz entered the home and was advised by Kadlec that he would have to get the pills. Kadlec was then observed leaving the home and driving his van across the street to defendant's residence and returning to his home in about 5 minutes. The Marquis home consists of a main house with a breezeway which annexes to a converted garage. Kadlec was seen entering the converted garage but the agents were unable to see if anyone was in defendant's residence or whether Kadlec carried anything out of the home. After Kadlec returned to his home he gave agent Gryz a sack that, as it was later proven, contained amphetamines and Gryz gave Kadlec $460 of the dusted money. After Gryz left, Kadlec was observed leaving his home and driving back to defendant's home. Three agents, including Gryz, approached the door to the garage annex. One of the agents, Thomas Petersik, testified that when he approached the garage annex the defendant opened the door and asked what he wanted. He testified that he advised defendant that he was an agent for the Illinois Bureau of Investigation and told him to return to the room. He further advised defendant that he was under arrest for aiding in the delivery of a controlled substance.

The testimony shows that as the agent entered the room Kadlec was seated on a bed with a sum of currency lying on the bed alongside of him. One of the agents arrested Kadlec and took possession of the money, and Kadlec was taken to the center of the room where the defendant was standing. Another agent then shone the ultraviolet light on the hands of both defendant and Kadlec, and the hands of both men showed traces of fluorescent powder. Of the $540 that the agent had taken from Kadlec, $460 proved to be the prerecorded money delivered by Gryz to Kadlec, the other $80 being the funds of Kadlec. Agent Gryz told the agent that $40 was missing and the agent then conducted a search of the room. The agents found a plastic bag containing amphetamines under the bed in the room. It developed later that Gryz had paid $460 for the amphetamines and that he still had $40 of the dusted money in his possession.

Defendant contends that the discovery of fluorescent powder on his hands resulted from an unlawful arrest not based on probable cause and that this evidence should have been suppressed. The evidence established that at the time of the arrest of the defendant the agents were aware of certain facts. First, that Kadlec, when approached by Gryz, stated he had to get the amphetamines and that he then proceeded to the defendant's home. Second, that he returned from the defendant's home and made delivery of the pills to agent Gryz, although it is not observed that Kadlec was carrying anything. That after the sale Kadlec immediately proceeded to the defendant's home. Third, that when defendant opened the door the agents observed Kadlec sitting on the bed in possession of a quantity of money and that money had been delivered to Kadlec in payment for the amphetamines.

• 1 An arrest without a warrant is lawful if a criminal offense has in fact been committed and the arresting officer had reasonable grounds to believe the person arrested committed it. Ill. Rev. Stat. 1967, ch. 38, par. 107-2(c); People v. La Bostrie, 14 Ill.2d 617, 153 N.E.2d 570; People v. Boozer, 12 Ill.2d 184, 145 N.E.2d 619; People v. Doss, 44 Ill.2d 541, 256 N.E.2d 753.

• 2, 3 In People v. La Bostrie the court said at pages 621-22:

"The great difficulty in all such cases lies not in determining the rule of law which is applicable, but in applying the law to the facts of each case. In particular, the problem narrows down to a decision of whether or not the arresting officer had reasonable grounds to believe that the person arrested had committed a criminal offense. A completely satisfactory definition of what constitutes reasonable cause is impossible to formulate, for the question must find its resolution in the facts and circumstances of each case. [Citations.] However, certain principles emerge from the many cases which have considered this problem. First, it can be stated that `reasonable cause' means something less than evidence which would result in conviction. * * * It is also established that reasonable cause may be founded upon evidence that would not be admissible at the trial. [Citations.] Specifically it has been held that reasonable cause may be founded upon hearsay evidence. [Citations.] In determining whether reasonable cause exists in a particular case courts deal with probabilities and are not disposed to be unduly technical; rather, they act upon `the factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act.' [Citation.] The test is whether a reasonable and prudent man in the possession of the knowledge which has come to the arresting officer, would believe the person arrested is guilty of a criminal offense."

• 4 Defendant cites People v. Galloway, 7 Ill.2d 527, 131 N.E.2d 474; People v. Moncrief, 131 Ill. App.2d 770, 268 N.E.2d 717, and United States v. Di Re, 332 U.S. 581, 92 L.Ed. 210, 68 S.Ct. 222. Each of these cases can be distinguished on the facts from the case at bar. Under the facts and circumstances in this case we believe that the arresting officers had reasonable cause to place the defendant under arrest and the right to make an examination of him to ascertain whether he in fact handled the bills.

Defendant next contends that this evidence, the amphetamines found in his home, was the product of a warrantless search and that the search could not be justified as an incident to the arrest and that the evidence should have been suppressed.

• 5, 6 A search that is incident to a valid arrest is an exception to the general rule that there must be a prior judicial approval of a search by the issuance of a warrant. (Coolidge v. New Hampshire, 403 U.S. 443, 45, 29 L.Ed.2d 564, 91 S.Ct. 2022; Katz v. United States, 389 U.S. 347, 356, 19 L.Ed.2d 576, 585, 88 S.Ct. 507.) The authority to conduct a warrantless search has been narrowly circumscribed. In Chimel v. California, 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034, the Supreme Court reviewed the history of search and seizure and gave further meaning to the rule of law that provides that a search incident to arrest must be a reasonable search for the purpose of discovering weapons which might be used in order to resist arrest or effect an escape, or in order to prevent concealment or destruction of evidence. The Supreme Court said:

"There is ample justification, therefore, for a search of the arrestee's person and the area `within his immediate control' — construing that phrase to mean the area from within which he might be in possession of a weapon or destructible evidence." (395 U.S. 752, 763, 23 L.Ed.2d 685, 694.)

The Supreme Court further stated:

"There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The `adherence to judicial ...


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