APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN S. GHENT, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
The defendants were indicted for burglary and for theft of property in excess of $150 and were tried by a jury. A mistrial was declared on the burglary charge and the defendants were convicted of theft and were sentenced to not less than 2 nor more than 6 years in the penitentiary.
In this appeal both defendants contend the court erred in denying a motion to suppress evidence seized by the police from Leavy's automobile because the seizure was pursuant to an illegal arrest. Defendant Leavy also contends that the court erred in denying his motion to sever his trial from that of defendant Beard.
It is necessary to relate the sequence of events which occurred on the morning of June 1, 1973, in order to consider the question raised as to the validity of the detention and arrest of the defendants.
At 8 a.m., June 1, 1973, one Mr. Green left his residence to go to work. At approximately 9:30 that same morning, Officer Harmon of the Rockford Police Force while driving his unmarked patrol car, received a police radio broadcast to the effect that two black men had attempted to trade some silver coins for currency at a liquor store and the order from headquarters which put out the broadcast was to watch for the automobile which was a black-over-red Cadillac with a given license number. At around 11 a.m., Mr. Green was informed by a neighbor that his house had been burglarized. At approximately the same time Officer Harmon received a second police broadcast (he referred to it as a "1068" order) to the effect that the previously described Cadillac had appeared at a different location and the occupants had again tried to trade some silver coins for currency. He testified in response to the question whether he had received a direct order to stop the Cadillac from police headquarters:
"Well I would say that when they put a message out, a Ten-Sixty-Eight, to be on the lookout, this means, yes, if you see the car, stop it, and investigate, so yes, I had a direct order."
At approximately 11 a.m. Officer Harriott, also of the Rockford Police Department, was assigned to investigate a burglary at the Green home. He arrived there shortly afterward and learned that a considerable quantity of silver coins had been taken in the burglary. At about 11:45, having completed his initial investigation, Officer Harriott telephoned the radio officer at police headquarters and informed him that there might be a connection between the Green burglary and the attempt to cash in the silver coins by the occupants of the Cadillac. Officer Harriott had received the same original message Officer Harmon had received about the Cadillac. Officer Harriott testified that he suggested to the radio officer that the search for the Cadillac be intensified under the circumstances.
About 12:50 Officer Harmon saw the Cadillac parked near a coin shop. He radioed to headquarters for assistance and said he was going to follow the Cadillac. As soon as the Cadillac began moving again Officer Harmon followed it and in a few minutes a marked squad car fell in behind the Cadillac and stopped it. This occurred at approximately 1:05 p.m.
Officer Schoeneweiss, who was driving the squad car which stopped the Cadillac, testified he did so because he had received a radio call from headquarters that Officer Harmon was following a black-over-red Cadillac and had asked for assistance. He testified that he had heard the previous "1068" order but had not heard anything about a burglary before he stopped the Cadillac. The radio request for assistance came from police headquarters, not from Harmon, and the radio message received about 1:10 p.m. was not the first message he had received about a black-over-red Cadillac.
When Officer Schoeneweiss had stopped the Cadillac he approached the driver's side and asked who owned the car, receiving an answer from Eric Beard that he owned it. Officer Schoeneweiss then asked for his driver's license and noticed when it was produced that the driver's license was not signed and therefore was not valid. While Schoeneweiss was giving Beard a citation for an invalid driver's license, Officer Harmon came up behind and asked Beard if he could look in the car. The officer testified he received an affirmative reply from Beard. Then he looked in the car and said he could see a great deal of half dollars. He also testified he could see a substance he believed to be cannabis on the front seat. He searched Beard and found more of the same substance on Beard's person. He then returned to the car and looked under the front seat, where he noticed "a quantity of half dollars loose in rolls underneath the passenger side" of the car. Both defendants were arrested at that time and taken to the police station where an inventory search was conducted. The coins and a watch the defendant Beard was wearing were later identified as being the property of Mr. Green.
We first consider the question raised by both defendants as to the legality of their arrest. It is the theory of the defense that there was no probable cause to stop the Cadillac, hence the arrest which followed the stop and detention was tainted and the fruits of such arrest that is, the evidence found in the car by the arresting officer cannot be used in the trial. Defendants cite the case of People v. Catavdella, 31 Ill.2d 382, in support of this contention. In Catavdella the defendants were stopped on the street without a warrant for their arrest or a search warrant. The officers noted some antique pistols and a camera case lying on the back seat of the car after the arrest. The car was taken to the police station where the trunk was forced open, revealing four other guns and a television set. While the officers testified at the trial that they had occasion to arrest the occupants of the car because they had observed the car weaving in traffic and that it made an improper left turn and that the license plate was obscured, this testimony was more or less impeached, so that it came down to a question of lack of probable cause. Our Supreme Court reversed the conviction saying:
"Arrest without a warrant is valid if a criminal offense has been committed and the arresting officer has reasonable grounds to believe that the person arrested committed the crime, or if a criminal offense is committed in the presence of the officer. The arrest here cannot be sustained upon the first ground, for it is admitted that the officers had no knowledge that a burglary had been committed, nor had any reason to suspect that the defendants had committed the crime of burglary at the time of the arrest. If the arrest and search can be sustained it must be on the ground that a criminal offense was committed in the presence of the arresting officers. The testimony of officer Nicolini casts grave doubt upon the validity of the arrest. At the preliminary hearing he testified that he had not observed the defendants violate any law prior to the time they were placed under arrest, while at the trial he testified that he had observed the defendants violating several traffic ordinances." 31 Ill.2d 382, 387-388.
• 1, 2 It should be observed that in Catavdella the State's case was weakened by the impeachment of the arresting officers' testimony as to their observation of a traffic offense. Since they had testified the traffic violation was the immediate cause of the arrest and they had no knowledge of a specific burglary, the impeachment of the testimony regarding the traffic violation left the police with no basis of probable cause for the arrest. In the present case the message to the officers to stop and investigate was justified by the knowledge possessed by police headquarters prior to the arrest regarding the theft of silver coins. The decision of this court in People v. Harr, 93 Ill. App.2d 146, is also invoked by the defendants. That case we do not find apposite to the present situation. There the stop was based on section 6-118 of the Illinois Motor Vehicle Law (Ill. Rev. Stat. 1965, ch. 95 1/2, par. 6-118) requiring the driver's license to be carried and exhibited on demand. In Harr this court said:
"The facts in this case indicate that the police officer here did not stop the defendant's car for the purpose of enforcing this statute. He stopped it, on the admitted facts, for the purpose of finding out who the defendant was, where he had been and where he was going. The statute cannot, in any event, be made applicable as authority to inspect the license as a mere subterfuge to ...