APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM J. LEWIS, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, Henry Michael Chriest, was indicted for the April 6, 1975, burglary of and theft from the Karr Drug Company in Herrin, Illinois. Defendant filed a motion to suppress certain evidence that had been seized from a van in which defendant had been a passenger at the time of his arrest. The evidence consisted of a large quantity of drugs that had been taken during the burglary of the Karr Drug Company. A hearing was held on defendant's motion to suppress, and the motion was denied. The case then proceeded to trial before a jury; and defendant was found guilty of both burglary and theft. Subsequently, the trial court dismissed the charge of theft and imposed a sentence of imprisonment of from two to 20 years on the burglary conviction. Defendant has appealed and raises three issues.
Defendant's first contention on this appeal is that the trial court erred in denying defendant's motion to suppress the drugs seized from the van in which defendant had been a passenger. The hearing on defendant's motion to suppress was held on June 26, 1975. The testimony at the hearing showed the following.
During the evening of April 8, 1975, Carl Kirk, a security officer at Southern Illinois University at Carbondale, received a telephone call from a confidential informer concerning certain drugs that had been stolen two days earlier during a burglary of the Karr Drug Company. Following the telephone call Kirk met with the informer personally in Herrin, Illinois. Kirk had known the informant for three or four months as of that date. The informant had previously supplied Kirk and other officers information on "somewhere between eight and fifteen cases," and had also "helped in the purchase of other controlled substances and narcotics." Upon analyzation of the drugs previously purchased, "[t]he report came back from the crime lab that the drugs were as purported being controlled substances." As of April 1975, no arrests had been made or court action taken as a result of information that had been supplied by the confidential informer; but that information had been used as an "investigative tool" by the police.
The informant told Kirk that defendant had the drugs which had been taken from the Karr Drug Company and that the drugs were in a paper grocery bag that "had a tear in it." The informant's information had been obtained "between the informant and Chriest." The informant indicated that he had "seen and observed" the bag containing the drugs in a van in which defendant was to be a passenger. The van was described as a white, International van, with the "engine out in front" and with "windows around the side." The van was to be at either of two named taverns in Herrin, Illinois later that evening.
As a result of this information, a surveillance team was organized. Two members of the surveillance team went to the two named taverns, but they were unable to find defendant or the van at either place. However, while Kirk was driving in Herrin later that evening, he saw the white, "Travel-all" type van described earlier by the informant parked along a street. As the van began to move, Kirk contacted the other members of the surveillance group and followed the van. As he followed, Kirk saw that the defendant, whom Kirk was able to recognize, was a passenger in the vehicle.
Kirk and other members of the surveillance team following the van to Marion, where it stopped at a Dairy Queen. One of the drug agents in the surveillance group, Agent McClain, approached the van, talked with the driver of the van and defendant, and then returned to his car. (Apparently the van occupants were unaware that the man was a drug enforcement agent.) Thereafter, McClain drove his car and the driver of the van drove that vehicle to a nearby service station. There McClain entered the van and, apparently, spoke with the driver of the van and defendant and then left the van. After McClain left the van, but prior to the stopping of the van during which the drugs were seized, McClain spoke with Kirk. During the conversation, McClain did not mention to Kirk whether he had seen the paper bag earlier described by the informer. (Whether or not McClain was asked about the bag at that time is not indicated in the record.)
Eventually the van left the service station. As it was being driven in Marion, Mike Wiseman, the director of the Williamson County Detective Unit, sent out a radio call to stop the van. Paul Davis, a uniformed police officer, then stopped the van in an area well lighted by mercury vapor lights. Davis asked the driver of the van and defendant for identification. As Davis stood on the passenger side of the van, defendant got out of the van. At that point, Davis saw a paper bag on the floor of the van in the area which "would have been in the proximity of between his [defendant's] legs as he was sitting." Davis could see that the bag was ripped and contained vials of pills. He reached into the van, removed the bag, and informed defendant and the driver that they were under arrest.
At the conclusion of all the evidence presented at the hearing on the motion to suppress the court ruled that the warrantless seizure of the drugs had been based upon probable cause. The court denied the motion to suppress.
Defendant's first contention on this appeal is based primarily upon the law enunciated in Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509, and Spinelli v. United States, 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584. No question is raised about the lack of a warrant for the arrest or seizure.
In Aguilar the United States Supreme Court held the whenever a warrant is sought based upon information supplied by an anonymous informant, the warrant should not be issued unless the application sets forth: (1) the underlying circumstances necessary to allow a judge independently to determine the validity of the informant's conclusion; and (2) the underlying reasons for the applicant's belief that the informant is credible and his information is reliable. In Spinelli the court held that if the informant's tip alone is inadequate to establish probable cause under this two-pronged Aguilar test, then other information corroborative of the tip but obtained independently of the tip, should be considered in determining whether there is probable cause for issuing a warrant.
The instant case, in contrast to Aguilar and Spinelli, involved a warrantless seizure. Nevertheless, the Aguilar-Spinelli standards still apply; for the standards applicable to a policeman's on-the-scene assessment of probable cause are at least as stringent as the standards applied when a judge is asked to issue a warrant. (Whiteley v. Warden, 401 U.S. 560, 28 L.Ed.2d 306, 91 S.Ct. 1031; People v. Saiken, 49 Ill.2d 504, 275 N.E.2d 381, cert. denied, 405 U.S. 1066; see Aguilar v. Texas; People v. King, 12 Ill. App.3d 355, 298 N.E.2d 715.) Were this not so, any resort to the procedure for obtaining a warrant would, in effect, be discouraged. Aguilar v. Texas; Whiteley v. Warden.
• 1 In our opinion, the informant's tip in the instant case was sufficient to establish probable cause under the two-pronged Aguilar test, and independent corroboration was unnecessary. First of all, it is apparent that the information contained in the tip had been based on the personal observation of the informant. As Kirk explained, the information had been obtained "between the informant and Chriest," and the informant had "seen and observed the drugs" in the van in which defendant was a passenger. Secondly, the informant had proven to be credible and his information reliable in the past. Kirk had known the informant for three or four months, and the informant had supplied information and helped in controlled drug purchases on eight to 15 occasions. The drugs obtained in these prior purchases had been analyzed and proven to be controlled substances.
It is true that no arrests or convictions or formal court action of any type had resulted, as of the date of the suppression hearing, from the information previously supplied by this informant. But that fact alone is not determinative of the issue of the informant's credibility or the reliability of his information. In a case such as the instant case, the informant's credibility is determined at the point when the substances confiscated as a result of the information previously supplied by him are analyzed. If analysis has proven those substances to be illicit drugs, as the informer has claimed them to be, then the information supplied by the informer is shown to be accurate and his credibility is established. On the other hand, if the confiscated substances ...