APPEAL from the Circuit Court of Rock Island County; the Hon.
CONWAY L. SPANTON, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 1, 1976.
After a jury trial the defendant, Danny Ray Wolgemuth, was convicted of unlawful possession of a controlled substance. The defendant was sentenced by the circuit court of Rock Island County to a term of imprisonment of not less than one year nor more than three years.
Defendant was indicted for unlawful possession of less than 200 grams of a substance containing a derivative of barbituric acid, a violation of the Controlled Substance Act. (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1402(a)(5).) Defendant moved to suppress all of the evidence against him. The contraband was seized by police when they entered an apartment occupied by defendant after prevailing upon the building owner to open the apartment door for them.
At the hearing on defendant's motion to suppress, the only evidence presented was the testimony of Officer Donald Barker of the Rock Island City Police Department, who had been called by the defense. Officer Barker testified that he had seen a warrant issued by a court in Keokuk, Iowa for the arrest of Danny Ray Wolgemuth for burglary. The Iowa authorities used this arrest warrant to obtain an Illinois search warrant for a residence where they had expected to find Wolgemuth and the fruits of a burglary. The search authorized by the Illinois search warrant proved fruitless. The Iowa police, assisted by Barker, gained entry into the specified residence by climbing through a window but found nothing. Apparently, the Iowa authorities took both the Illinois search warrant and the Iowa arrest warrant back to Keokuk, Iowa when they left.
The next day Mrs. Helen Allen, a parole officer, relayed to Barker a tip that she had received from an anonymous informer who was unknown to Barker. Barker learned from this tip that Wolgemuth resided with a female parolee at a specific address in Rock Island. Barker, Mrs. Allen and Officer Smiley went to the address and climbed the stairs of the building to reach the door of a rear apartment. They knocked on the door for about 10 minutes but no one responded.
The officers checked with some neighbors who indicated they had seen people fitting the descriptions offered by the police going into, but not coming out of the apartment. According to Barker's testimony, these neighbors did not know whether anyone had stayed in the apartment that morning, but they believed the people still lived there.
The officer then went to the manager of the apartment building and had him call the owner. With the owner present the officers knocked on the door a second time for about five minutes. No one responded and no sounds came from inside. The owner then admitted the police. At the hearing Officer Barker did not remember whether any statement was made by the police announcing their authority or purpose as they entered the apartment.
Inside the apartment the police walked through a living area into a bedroom where they found Danny Wolgemuth asleep in a bed with a female parolee. As Officer Smiley took the defendant into custody Officer Barker noticed a table at the foot of the bed. Plastic pill bottles without prescription labels attached were on top of the table. Barker also stepped on pills scattered on the floor which appeared similar to those in the bottles. On closer inspection the officer recognized the pills contained in the bottles as controlled substances available by prescription. Officer Barker thought Wolgemuth close enough to the bottles to grab them. The officer then seized the pill bottles.
At the conclusion of Barker's testimony the People presented no evidence. The court then denied the motion to suppress and the case proceeded to trial. During the trial Helen Allen, Donald Barker and Richard Smiley testified to substantially the same facts disclosed by Barker at the hearing on the motion to suppress.
The defendant contends that the trial court erred when it failed to suppress evidence found in the apartment occupied by him. More particularly, the defendant urges the entry into the apartment was constitutionally impermissible and that therefore his subsequent arrest and the seizure of the drugs were improper.
The People contend the trial court properly denied defendant's motion to suppress since the evidence was found in plain view as an incident to a lawful arrest. It should be noted that since the drugs were in plain view, there was no search incident to the defendant's arrest. Furthermore, the validity of the defendant's arrest depends initially on the propriety of the arresting officers entry into the premises and subsequent search thereof. Morrison v. United States, 104 U.S. App. D.C. 352, 355, 262 F.2d 449, 452 (1958).
The general subject of warrantless arrests has received some attention by the United States Supreme Court in recent years. (United States v. Watson, 423 U.S. 411, 46 L.Ed.2d 598, 96 S.Ct. 820; Gerstein v. Pugh, 420 U.S. 103, 43 L.Ed.2d 54, 95 S.Ct. 854; Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (White, J., dissenting); Jones v. United States, 357 U.S. 493, 2 L.Ed.2d 1514, 78 S.Ct. 1253.) None of the foregoing cases deal specifically with the issue presented on this appeal, but since they do discuss related issues they are of significance both in illustrating the principles involved and in providing a basis for applying the principles to different factual situations.
Not only are we concerned with a warrantless arrest, but in the first instance we are concerned with a warrantless entry and a search of the premises as a condition prior to the arrest itself. The remarks of Mr. Justice Stewart in Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (White, J., dissenting), are relevant in the resolution of the principal problem raised on this appeal, namely, the propriety of a warrantless entry into a private dwelling. In dicta he observed:
"It is clear, then, that the notion that the warrantless entry of a man's house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man's house without warrant are per se unreasonable in the absence of ...