APPEAL from the Circuit Court of Sangamon County; the Hon.
GEORGE P. COUTRAKON, Judge, presiding.
MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant appeals his conviction of burglary upon the verdict of a jury and a sentence of one and one-half to eight years imposed.
The sole issue argued upon appeal is that the trial court erred in denying defendant's motion to suppress as evidence three boxes of jewelry which defendant dropped as the arresting officers approached. We affirm.
Arresting officers Barnett and Tolley of the Springfield Police Department testified that at approximately 3:45 a.m. on September 1, 1973, they observed an automobile being driven by one McNear. Officer Barnett testified that he was aware of McNear's prior criminal record. Travelling in an unmarked automobile, the officers followed McNear a mile and a half until he parked in a residential area. The officers parked their vehicle about a quarter of a block away, facing McNear's automobile. The officers observed McNear and defendant get out of the car, walk up the street and eventually disappear between some houses. Officer Barnett testified that he was also aware of defendant's prior criminal record.
Waiting for McNear and defendant to return, the officers positioned themselves next to some bushes adjacent to a home facing McNear's parked automobile. After 30 to 45 minutes McNear and defendant were observed running in the middle of the street toward McNear's automobile. As McNear and defendant ran to the passenger's side of the automobile, the out-of-uniform officers approached. Officer Barnett testified that at this time he observed defendant carrying three small boxes.
The officers shined flashlights on McNear and defendant and exclaimed, "Hold it. Police officers." McNear testified that someone stated, "Police. You're under arrest. Halt." Defendant then dropped the boxes he had been carrying, jewelry spilled onto the ground, and defendant and McNear ran in opposite directions. While chasing McNear, Officer Barnett drew his weapon and fired three warning shots. McNear was not apprehended at this time. Defendant was apprehended by Officer Tolley approximately 100 feet from McNear's parked automobile.
When defendant stopped, he pulled a sock out of his pocket and put his hands in the air. Officer Tolley retrieved the sock from the defendant and frisked him for weapons. After returning to McNear's parked automobile, Officer Tolley conducted a more thorough search of defendant and discovered three pieces of jewelry and a cut-off nylon stocking in defendant's coat pockets. Defendant was then informed he was under arrest. Almost contemporaneously, a message was transmitted over the police radio that a robbery or burglary had occurred at 909 Greenview Drive (approximately 1 1/2 blocks from where McNear's car had been parked). The three boxes and the assortment of jewelry contained therein dropped by defendant were taken into custody by officer Tolley.
Defendant and McNear were charged by an indictment with the offenses of armed robbery, robbery, burglary, and armed violence. The court ordered a severance of the two cases. On motion of the State, the armed robbery and the robbery counts against defendant were dismissed prior to trial.
The court sustained defendant's motion to suppress the items which had been taken from the defendant (the sock and the three pieces of jewelry), on the grounds that there was not probable cause to arrest defendant.
• 1 The defendant argues that the three boxes and contents were the fruit of an illegal arrest and that defendant dropped the boxes when he thought he was under arrest as the result of the police announcing their presence.
The prosecution argues that there was, in fact, probable cause to arrest but that in any event, under the court's ruling, the boxes were abandoned prior to the consummation of the arrest, i.e., the actual taking into custody. Section 107-5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 107-5(a)) provides:
"An arrest is made by an actual restraint of the person or by his submission to custody."
It is clear that at the time the boxes were dropped, defendant was not restrained and his flight contradicts any claim of submission to arrest. This was the rule stated in People v. Jackson (1968), 98 Ill. App.2d 238, 240 N.E.2d 421. The boxes being dropped by defendant on the street were in plain view and the seizure by the officer did not violate the constitutional rights of the defendant. People v. Sylvester (1969), 43 Ill.2d 325, 253 N.E.2d 429.
As we read the record, the trial court reasoned that as of the time of the pursuit, the officers had no information that a robbery committed by defendant actually had been so committed, so that the officers had no occasion or reason to stop defendant. The court concluded that there was an attempted arrest without grounds for ...