APPEAL from the Circuit Court of Winnebago County; the Hon.
ROBERT C. GILL, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendant, James Downing, was convicted in a bench trial of possession of cannabis in an amount in excess of 10 but less than 30 grams and possession of LSD in excess of 30 grams. He was sentenced on the LSD conviction to serve a 4-8 year term with the Illinois Department of Corrections. No sentence was imposed on the conviction of possession of cannabis. On appeal, defendant contends: (1) that the statutes under which he was convicted, section 4 of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 704) and section 402 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1402) are unconstitutional; (2) that the trial court erred in denying defendant's motion to suppress evidence; and (3) that defendant's conviction for possession of cannabis should be reversed since it arose from the same conduct as his conviction for possession of LSD.
1 Defendant's first contention is that the statutes under which he was convicted are unconstitutional, as violative of due process and equal protection, because they impose graduated penalties based upon the amount of a "substance containing" cannabis or a controlled substance rather than upon the amount of pure cannabis or controlled substance possessed. This issue has recently been decided by our Supreme Court adversely to the position taken by defendant in People v. Mayberry (1976), 63 Ill.2d 1, 345 N.E.2d 97, wherein the court concluded:
"* * * the classification schemes are not unconstitutional merely because they are based on the amount of the `substance containing' the cannabis or controlled substance rather than upon the pure cannabis or controlled substance."
Accordingly, defendant's contention in this regard is without merit.
Analysis of defendant's second contention, regarding the denial of his motion to suppress evidence, requires a summary of the hearing on defendant's motion to suppress. Defendant grounded his motion to suppress upon alleged violations of his rights under the Federal and State constitutions occurring as a result of a search of his person by Rockford police officers without a warrant.
At the hearing on the motion to suppress there was testimony by the defendant and two police officers. Defendant testified that on October 5, 1973, he was riding in a car being driven by one Gary DuSavage. As DuSavage parked his car on the street, two officers pulled up and told them to get out of the car. The officers searched the car and the persons of defendant and DuSavage. Defendant testified that, to his knowledge, DuSavage had not been violating any traffic laws and that the officers did not present either a search or arrest warrant. Defendant admitted that the officers did find something in his shirt. Following the search, defendant was placed under arrest.
Michael Smith, a narcotics investigator with the Winnebago County Sheriff's office, was then called as the State's first witness. Smith testified that at about 6:10 p.m. on October 5, 1973, he received a telephone call from an informant. The informant advised Smith that there was a 1962, green and blue Chevy in the area of Reed Avenue and 11th Street with the trunk tied down with a rope and with some rear end damage. The informant further advised Smith that two individuals were in the vehicle, Gary DuSavage, who was driving, and the defendant, who was a passenger. In addition, the informant told Smith that the defendant had tried to sell the informant some LSD and that he had observed the LSD in a plastic bag which was rolled up in defendant's left shirt sleeve. Smith then relayed this information to Detective McMahon, the third and final witness at the hearing, who drove to the 11th Street-Reed Avenue area and observed an automobile matching the description given. Detective McMahon and his partner then followed the vehicle until it stopped. At that time the officers advised the occupants of the car that McMahon and his partner were police officers and then ordered them out of the car. A subsequent search revealed the plastic bag containing drugs in defendant's left shirt sleeve.
On direct examination, Officer Smith testified that the informant had given information which led to "at least three" arrests and convictions, some dealing with narcotics and some dealing with burglaries. He also testified that with respect to one or two individuals whom the informant had identified as narcotics dealers, the informant's information proved to be accurate but no arrests were made. On cross-examination, the number of arrests and convictions resulting from informant's information became unclear. On cross-examination, Smith testified that the three cases he had referred to on direct examination were all burglaries, that some of the informant's information regarded narcotics, and that the informant had given information which lead to arrests and convictions "[p]robably six times, seven times." Defense counsel then asked Officer Smith, "Can you identify them?" An objection was interposed by the State to this question on the ground that the question called for information which would tend to reveal the identity of the informant. The court then sustained the objection, stating, "* * * you are not entitled to the identity of the informant * * *." The defense then ceased its cross-examination of Officer Smith. Following the testimony of Officer McMahon, referred to above, the court found that the officers had probable cause to search and denied defendant's motion to suppress.
Defendant's position on appeal is that when the trial court sustained the State's objection to the defense question above noted, it thereby prevented the defendant from inquiring about the identity of the informant and particular instances in which the informant's information had led to arrests and convictions. This, as defendant phrases the issue, prevented the State from negating defendant's prima facie case that the police lacked probable cause to arrest defendant. Defendant thus appears to actually raise two questions regarding the motion to suppress, to-wit: whether the identity of the informant should have been disclosed and whether the reliability of the informant was established.
2 It is clear that Illinois recognizes a privilege against the disclosure of the identity of an informant in certain situations (see Ill. Rev. Stat. 1973, ch. 110A, par. 412(j)(ii); People v. Durr (1963), 28 Ill.2d 308, 192 N.E.2d 379) and that this privilege is constitutional. (McCray v. Illinois (1967), 386 U.S. 300, 18 L.Ed.2d 62, 87 S.Ct. 1056.) It is also clear that this privilege is not absolute, as noted by the United States Supreme Court in Roviaro v. United States (1957), 353 U.S. 53, 62, 1 L.Ed.2d 639, 646, 77 S.Ct. 623:
"We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony and other relevant factors."
In People v. Lewis (1974), 57 Ill.2d 232, 311 N.E.2d 685, our Supreme Court, applying the above balancing-of-rights test in the situation involved therein, held that at the trial on the merits, disclosure of an informant's identity is required. The court specifically noted, however, that it was not reaching the issue of whether disclosure would be required at hearings on motions to suppress, or at similar pretrial proceedings. In a motion to suppress, where the informant was not present at the time of arrest, did not participate in the crime and did not help to set up its commission, disclosure of the identity of the informant is not required. (People v. Nettles (1966), 34 Ill.2d 52, 213 N.E.2d 536; People v. Durr; People v. Mack (1957), 12 Ill.2d 151, 145 N.E.2d 609.) Thus, in this case, defendant was not entitled to disclosure of the informant's identity.
3 Next we find that the reliability of the informant was sufficiently established and that the police had probable cause to search the defendant. While the State seeks to uphold the search and seizure as properly incident to the arrest of the defendant, it is clear that in this case the actual arrest occurred subsequent to the search. This, however, is not fatal because it is well established that in certain circumstances a search without a warrant is valid, and the evidence seized thereby is admissible, if the search is based upon probable cause, that is, if the information on which the officers acted "* * * would warrant a reasonable and prudent man in believing that a crime was being committed." (People v. Owens (1969), 41 Ill.2d 465, 467, 244 N.E.2d 188, 190. See also People v. Tassone (1968), 41 Ill.2d 7, 241 N.E.2d 419; People v. Herbert (1971), 131 Ill. App.2d 518, 268 N.E.2d 205.) It is also well established that reasonable grounds for believing that an individual has committed a ...