APPEAL from the Circuit Court of Randolph County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal by the State, pursuant to Supreme Court Rule 604 (Ill. Rev. Stat. 1973, ch. 110A, par. 604), from an order entered by the circuit court of Randolph County suppressing evidence seized by the police after the defendant, Richard Eugene Blitz, was stopped, ostensibly, for a traffic offense.
The defendant was charged by information with the unlawful possession of cannabis in that he possessed more than 30 grams but less than 500 grams of the controlled substance in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56 1/2, 704(d)). The defendant moved to suppress the physical evidence against him on the grounds of unlawful search and seizure. After a hearing was conducted, the trial court granted the defendant's motion to suppress. This appeal followed.
The principle witnesses at the suppression hearing were the defendant and Kenneth Beam, a deputy sheriff of Randolph County. Beam had stopped the defendant who was driving a car on the night of February 23, 1975, in Steeleville. Beam testified that he and other officers searched the defendant's car and found cannabis in the trunk of this car.
Beam testified that he had the residence of a George Kraft, in Percy, under surveillance during the evening of February 23. According to Beam, the sheriff's office had received a "tip" that traffic in drugs was taking place at Kraft's house. Beam did not know the identity of the source of the "tip" and could not remember who in the sheriff's office told him about the alleged drug dealing at Kraft's.
Beam stated that during the night in question he observed a number of individuals drive up to and then enter the Kraft house. Then, in a relatively short period of time, these same individuals would depart. At one point, he saw two men go from the Blitz auto to Kraft's and then return to their car where they put a bag in the trunk.
Beam followed the Blitz auto when it left Kraft's. When they reached Steeleville, Beam pulled the Blitz car over. Beam described the defendant as being nervous because he hurried over to the squad car. Beam informed the defendant, who was driving, that he was stopped for having an inoperative license plate light. Within a few minutes, three other policemen arrived at the scene in response to a call for assistance by Beam.
After the occupants of the car were searched by the police, the interior of the car was searched. Finally, the police searched the trunk of the car. The defendant testified that the police searched the trunk without his permission. He admitted, however, that he did not protest because he was frightened by the "shotgun on me." Beam stated that the defendant gave him permission to search the car. According to police testimony, a paper bag was found in the trunk, which contained two plastic bags of cannabis.
The lower court entered a written order granting defendant's motion to suppress. The court found that Officer Beam did not have reasonable cause to search the trunk of defendant's car, nor was the search justified on account of the personal safety of the arresting officers. Furthermore, the lower court questioned the voluntariness of the defendant's consent to the trunk search given the fact that he was surrounded by four armed policemen, one of whom was brandishing a shotgun.
There are two issues raised by the State on appeal; first, whether the unverified information from an unidentified source together with certain "suspicious circumstances" observed by the police gave the police probable cause to search the trunk of defendant's car; and secondly, whether the search of the defendant's car was a valid search incidental to the arrest of defendant for a minor traffic violation. A collateral issue raised by the defendant, but ignored by the State, is whether the defendant consented to the search and if such consent was voluntary.
Addressing the first of these issues the State argues that "corroborative" observations of deputy sheriff Beam on February 23, 1975, together with earlier observations of his fellow officers, operated to cure whatever deficiency existed with reference to the reliability of the State's unidentified informant. We disagree.
1 While the legality of warrantless searches of automobiles differs from searches of stationary structures (Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280; Brinegar v. United States, 338 U.S. 160, 93 L.Ed. 1879, 69 S.Ct. 1302), the police must still have "`reasonable or probable cause' to believe that they will find an instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search." (Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221, 20 L.Ed.2d 538, 543, 88 S.Ct. 1472, 1475.) The record before us does not contain evidence that deputy sheriff Beam had reasonable or probable cause to believe that evidence pertaining to a crime would be found in defendant's vehicle. As far as the record shows, Officer Beam conducted the search of the defendant's vehicle because he suspected that there might be illegal substances in such car, however, the facts related by Beam are insufficient to constitute probable cause.
The trial court properly found that informant's information regarding drug traffic at the Kraft residence was unreliable. The trial court's finding was based on the fact that the State proffered no evidence regarding the informant's identity or his past reliability. Nor was this defect cured by the personal observations of deputy sheriff Beam, even if we include the earlier observations of other police which were allegedly related to Beam.
2 At most, Beam was advised by his fellow officers that a large number of persons had been frequenting Kraft's residence. His own observations were limited to seeing two individuals from the defendant's car enter the Kraft residence and depart after about 10 minutes. Upon departing these individuals placed a bag in the trunk of defendant's car. Beam recognized one of the occupants of this car to be Michael Blitz, the defendant's brother. It was not shown, however, that Michael Blitz was known to be associated with drug traffic. After following the defendant's car Beam observed that the defendant's license plate light was not illuminated and that the license plate was obscured by a trailer hitch. Beam continued to follow the defendant's car in his unmarked police car. Beam noticed that each time he used his police radio one or more of the occupants in the defendant's car turned around and looked at him. When Beam finally stopped the defendant's car, the defendant jumped out of his car and hurried back to Beam's vehicle. Beam characterized the defendant as "acting in a nervous manner." Beam observed a citizen's band radio in defendant's car, which he thought he heard when he approached the defendant's vehicle. After requesting all of the occupants to get out, each was searched. A knife was found on the person of Michael Blitz. None of the occupants attempted to flee the scene. We ...