APPEAL from the Circuit Court of Cook County; the Hon. JAMES
E. MURPHY, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
Daniel Campbell, Patrick Myers and Michael Ward were arrested for the possession of marijuana at O'Hare International Airport, Chicago, soon after their arrival on a commercial airline flight from San Antonio, Texas. Their luggage was searched, marijuana was found and they were charged with the knowing possession of the drug in violation of section 4 of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 704). Prior to trial they filed separate motions to suppress the seized evidence. The State has appealed from the trial court's order granting such a motion. Ill. Rev. Stat. 1973, ch. 110A, par. 604(a)(1).
At the hearing on the motions, Dale Anderson, a special agent assigned to the Chicago office of the Federal Drug Enforcement Administration, testified that about 2 p.m., on February 27, 1974, he received a telephone message from Agent Robinson of the administration's San Antonio office that three men suspected of having marijuana in their possession had boarded a plane for Chicago. Robertson gave Anderson the following background information: the San Antonio office had been informed by Agent Nichols of their El Paso office that Ward had been stopped at the Texas border after having entered the United States illegally from Mexico. Ward, who had been arrested previously in Brownsville, Texas, for possessing marijuana, had $2,700 on his person; upon questioning him it was learned that he planned to take a plane to Chicago and then go on to Michigan. Released, but kept under surveillance, Ward was next observed reentering Mexico. His name was placed on the United States Customs "look-out" system so that various law enforcement agencies would be alerted should he attempt to return. He was next seen at a bus station in El Paso in the company of two other men who were subsequently identified as the defendants Campbell and Myers. The men, with eight suitcases and a footlocker, boarded a bus bound for San Antonio. Upon their arrival in San Antonio they were kept under observation, and Robertson said they took Braniff flight #58 which was scheduled to arrive in Chicago at 4:30 p.m. that afternoon.
Anderson notified the Chicago Police Department that three men were coming to Chicago who were suspected of carrying marijuana in their luggage. Two dogs, trained in narcotics detection, were placed at Anderson's disposal by the department's Vice Control Unit. The dogs and their handlers were stationed in a nonpublic area in back of the Braniff Airlines' luggage retrieval conveyors at O'Hare. The luggage from flight #58 was brought to that area and the dogs were allowed to sniff all of it. Ward, Campbell and Myers had been observed disembarking from the plane, but neither Anderson, nor Donald Senece, the officer in charge of the vice control detail, nor the policemen handling the dogs, knew what suitcases belonged to them. Independent of each other, the dogs reacted vigorously to two suitcases a reaction which their handlers told Anderson and Senece was caused by the scent of marijuana emanating from the suitcases.
All the luggage was then released. Campbell and Myers claimed nine pieces including the two suitcases the dogs had attacked. They loaded the baggage on two carts and wheeled them to an upper level of the airport where they met Ward. The three men then walked to a North Central Airlines ticket counter. As they were about to check the eight suitcases and the footlocker into North Central, they were arrested by Senece. The suitcases that had received the dogs' positive response, and which still bore traces of their saliva, were opened and searched. Marijuana was found in them, as it was in the remaining seven pieces of luggage when they were opened later at the headquarters of the Vice Control Unit.
• 1, 2 Since the search of the two suitcases was made without a warrant, its validity can be sustained only if the arrests preceding it were legal. (Chimel v. California (1969), 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034.) Two components must be considered in determining whether there was probable cause to arrest the defendants: the information the Chicago law enforcement authorities received from their counterparts in Texas and the information conveyed to them by the dogs' reaction to the suitcases. A warrantless arrest is proper if the arresting officer has reasonable grounds to believe that the person he is about to arrest has committed or is committing a criminal offense. (Ill. Rev. Stat. 1973, ch. 38, par. 107-2(c); People v. Wright (1969), 42 Ill.2d 457, 248 N.E.2d 78.) The reasonableness of the arrest must be determined by the knowledge and information possessed by the police officer at the time the arrest is made. (People v. Clay (1973), 55 Ill.2d 501, 304 N.E.2d 280.) The test is whether the facts and circumstances known to the officer warrant a prudent man in believing an offense has been committed. (Henry v. United States (1959), 361 U.S. 98, 4 L.Ed.2d 134, 80 S.Ct. 168.) An arrest cannot be based on mere suspicion (People v. Marino (1970), 44 Ill.2d 562, 256 N.E.2d 770), but in determining if probable cause exists courts deal with probabilities and act upon the factual and practical considerations of everyday life upon which reasonable and prudent men must act. (Brinegar v. United States (1949), 338 U.S. 160, 93 L.Ed. 1879, 69 S.Ct. 1302; People v. Fiorito (1960), 19 Ill.2d 246, 166 N.E.2d 606.) The factual basis for the arresting officer's belief that a crime has been or is being committed need not be as persuasive as that necessary for the conviction of a defendant for a crime. (People v. Peak (1963), 29 Ill.2d 343, 194 N.E.2d 322.) Reasonable grounds for an arrest may be supplied by an informer of established reliability. (People v. Durr (1963), 28 Ill.2d 308, 192 N.E.2d 379.) Apart from the question of its sufficiency, which will be discussed later, the information received by Anderson came from agents of the Federal Drug Enforcement Administration and the United States Border Patrol. The information was supplied by reliable sources and Anderson and Senece had good reason to rely upon it.
The probative value of the information they obtained by observing the dogs' reaction poses a more difficult problem. At the hearing on the motion to suppress it was stipulated that if the dogs' handlers were called as witnesses they would testify:
"* * * that these dogs are specially trained for the purpose of detecting narcotics * * * that their actions in the airport indicated to the handlers, based on their previous experiences with the dogs, that there was narcotics in the suitcases."
Despite this stipulation the defendants contend that the dogs' reliability was not established they were alerted by only two suitcases although there was marijuana in all nine pieces of luggage; that the dogs could not be cross-examined, the testimony of their handlers was hearsay and there was no evidence as to the basis of their conclusion; that the defendants were thus deprived of their right to the confrontation of witnesses, the assessment of their credibility and the protection of cross-examination.
Because of their keen olfactory sense, dogs for many years have assisted police in tracing human beings and in the detection, pursuit and capture of criminals. With the present day increased traffic in narcotic drugs and the growing menace from their widespread use, dogs have been trained to recognize the scent of these drugs and have been used with much success in their detection. Judicial acceptance of this detection in the determination of probable cause has been mixed. Illinois appellate courts have not passed on this question directly and courts of other jurisdictions have expressed divergent views.
This is illustrated by the following cases. In United States v. Fulero (D.C. Cir. 1974), 498 F.2d 748, an employee at a bus station in Arizona notified the local police of the suspicious actions of three men who were shipping two footlockers to Washington, D.C. An officer went to the station and examined the lockers. He smelled the odor of mothballs which he knew was frequently used to conceal the odor of marijuana. He obtained the services of a dog handler and a marijuana-sniffing dog from the Federal Customs Service. The handler brought the dog into the baggage room where there were several pieces of luggage. The dog went immediately to one of the footlockers; he was pulled away, but he returned three times, pawed at it and attempted to chew it. The officer obtained a search warrant, opened the lockers and found 88 pounds of marijuana. The defendant, Fulero, was arrested when he reclaimed the luggage in Washington. He was found guilty of the unlawful possession of marijuana and he appealed, contending that having the dog sniff at his footlockers was an unconstitutional intrusion into them and that there was no probable cause for the issuance of the warrant. The reviewing court called the intrusion argument frivolous, held there was ample probable cause for issuing the warrant and said that the conduct of the police was a model of intelligent procedure.
In contrast, the court in the case of United States v. Solis (C.D. Calif. 1975), 393 F. Supp. 325, held that the positive reaction of two trained United States Customs' dogs to the scent of marijuana coming from the inside of a semi-trailer did not establish probable cause for the search of the trailer. Before conducting the search, the government agents had obtained a warrant which had been issued upon information supplied by an informer and had employed two dogs said to be 100 percent reliable in detecting narcotic substances. The court, characterizing the case as one involving the "uninvited canine nose," held the search warrant was defective because the informer was of unproven reliability and that consequently the warrantless search, based as it was entirely on the dogs' reaction, was invalid. In its opinion the court stated that the owner of the fully enclosed trailer had a reasonable expectation that the interior of the vehicle, even though parked at a gasoline station accessible to the public, would be treated as a private place. The court concluded that by employing the olfactory senses of the dogs, the agents gained information substantially equivalent to what they would have acquired had they actually opened the doors and examined the trailer's concealed interior and that this constituted an unreasonable search under the Fourth Amendment.
A dog was also used in the case of United States v. Bronstein (2d Cir. 1975), 521 F.2d 459. In Bronstein the court affirmed the denial of a motion to suppress marijuana which was detected in the defendants' suitcases by a marijuana-sniffing police dog. The warrantless search of the suitcases occurred at a Connecticut airport where the two defendants arrived after a flight from California. The defendants' behavior at the California airport attracted the attention of ticket agents who alerted an agent of the Federal Drug Enforcement Administration. The agent had previous experience with the ticket agents and had found them to be reliable informants. The agent relayed the ticket agents' suspicion and the description of the men and their luggage to his Connecticut office. The State police of Connecticut were notified and they, government agents and a trained dog were at the airport when the California flight arrived. Fifty pieces of luggage from the flight were lined up on a conveyor belt which was not moved into the public retrieving area until the dog, termed by the court a "canine cannabis connoisseur," was given the opportunity of sniffing the baggage. The dog vigorously nipped at two suitcases. When the baggage reached the public area two men, who fitted the descriptions received from California, picked up two suitcases each, including one of those identified by the dog. Each man was arrested after he admitted the suitcases he was carrying belonged to him. After some discussion the men agreed to open the bags. Each one of the four bags was found to contain 60 pounds of marijuana, packed in a quantity of mothballs, designed, the court said, to disguise the "pungent and offensive aroma" of the marijuana. The defendants' motion to suppress the evidence was denied. In affirming the denial, the reviewing court noted that there can be no reasonable expectation of privacy when one transports baggage by airplane, stated that the sniffing of the dog was not a search within the meaning of the Fourth Amendment, and held that the use of the dog by agents who had ample reason to pursue the reliable information they had received from California did not render the subsequent search constitutionally suspect. The court concluded that there was probable cause to arrest the defendants and that the search of their suitcases and the seizure of the marijuana did not violate the Fourth Amendment.
There are many similarities between the Bronstein case and the present one. The dog in Bronstein, like those in this case, did not react to all the suitcases that contained contraband. In Bronstein, the marijuana was packed in mothballs, here it was wrapped in small bags surrounded with talcum powder. In both cases the defendants were arrested at airports after arriving from distant States and their arrival was preceded by information received from narcotics agents in those States. However, the information received by the Federal agent in Chicago was much more incriminating than that received by the agent in Connecticut. The latter's information came from a fellow agent, but it rested on the suspicions of airline employees aroused by the actions of the defendants in the California airport and their having four identical pieces of new luggage. The Chicago agent's information came from his associates whose own ...