APPEAL from the Circuit Court of Hardin County; the Hon. JOHN
D. DAILY, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 1, 1977.
This cause is an appeal by the defendant, Phillip Walker, from a judgment of conviction for the crime of unlawful delivery of cannabis entered by the circuit court of Hardin County, pursuant to a jury verdict of guilty. Three issues are presented for review in this court, to-wit: Did the trial court err in denying the defendant's motion to suppress evidence as illegally seized, did the trial court err in denying the defendant's motion to suppress defendant's confession, and did the trial court err in denying defendant's motion to dismiss for failure to receive a speedy trial pursuant to section 103-5(b) of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(b)).
It is necessary to examine the factual background with regard to the defendant's first two contentions. On March 4, 1974, pursuant to an investigation, conducted by the office of the Hardin County sheriff, sheriff's deputies arrested Kevin Vinyard for possession of cannabis. At the time of his arrest, Vinyard allowed an inspection of his truck after he was told that if he refused, the sheriff's department would take legal steps and obtain permission to search it. That search produced three bags of a green, leafy substance believed to be cannabis. After that discovery, Vinyard told police he believed the substance to be marijuana and, further, that he had obtained that marijuana from the defendant, Phillip Walker, in exchange for an automobile. The Hardin County sheriff's office then telephoned the office of the sheriff of neighboring Pope County and requested only that his office take the defendant into custody and hold him until Hardin County officials could arrive. Late in the afternoon Pope County deputies arrested the defendant in Pope County. Upon notification of defendant's arrest, the Hardin County sheriff's office dispatched two officers to Pope County where they arrested the defendant without a warrant at 5:30 p.m. and, after advising defendant of his rights, as required by law, returned with the defendant in custody to the Hardin County courthouse. They arrived there at approximately 6:30 p.m. The defendant was not taken before a judge in Pope County. On arrival, the defendant was placed in a jury room where he was held until approximately 9:05 p.m. while the sheriff's office was questioning other persons. He was not provided any dinner as the dinner hour had ended prior to defendant's return. Defendant was then taken to the sheriff's office, advised of his rights and, after one hour and ten minutes of questioning, signed a statement admitting delivery of cannabis to Vinyard in exchange for an automobile. He was thereafter charged by criminal complaint with unlawful delivery of cannabis and, after posting bail, was released.
• 1 The defendant's first contention, that the cannabis seized in Vinyard's truck was inadmissible against the defendant by reason of an illegal search of Vinyard's truck, is premised entirely upon defendant's ability to assert an alleged infringement of Vinyard's constitutional right against unreasonable searches and seizures. This defendant may not do. The defendant lacks standing as a person aggrieved to raise any such alleged infringement. As the United States Supreme Court said in Jones v. United States, 362 U.S. 257, 261, 4 L.Ed.2d 697, 702, 80 S.Ct. 725, 731:
"In order to qualify as a `person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else * * *."
This rule applied in Illinois, People v. McNeil, 53 Ill.2d 187, 290 N.E.2d 602.
The second contention of the defendant, that his confession was involuntary and should have been suppressed, raises a considerably closer question. The defendant argues that he did not give the confession voluntarily, and that it was in fact obtained in violation of his Fifth Amendment right to be free from self-incrimination. Defendant also argues that the confession was obtained by means of an illegal seizure of his person in violation of his rights under the Fourth Amendment to the United States Constitution.
The States raises the issue of whether this issue was properly preserved for purposes of appeal. The denial of pretrial motions is given as one ground for reversal although all the motions are not stated specifically. In this case, we believe the reference to "pretrial motions" is sufficient to preserve the issue for appeal.
No question is raised on this appeal as to whether the defendant was adequately advised of his rights as prescribed in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. The question is, having been so advised, did the defendant waive those basic constitutional rights voluntarily, knowingly and intelligently. The rule in Illinois is clearly stated in People v. Prim, 53 Ill.2d 62, 70, 289 N.E.2d 601:
"Whether a statement is voluntarily given depends upon the totality of the circumstances. The test is whether it has been made freely, voluntarily and without compulsion or inducement of any sort or whether the defendant's will was overcome at the time he confessed. (People v. Hester, 39 Ill.2d 489.) In making its decision the trial court need not be convinced beyond a reasonable doubt, and the finding of the trial court that the statement was voluntary will not be disturbed unless it is contrary to the manifest weight of the evidence. (Lego v. Twomey, 404 U.S. 477, 30 L.Ed.2d 618, 92 S.Ct. 619; People v. Higgins, 50 Ill.2d 221; People v. Johnson, 44 Ill.2d 463.)"
The defendant was arrested without a warrant, and transported from Pope County to Hardin County without having first been advised of his rights by a judge in Pope County. This was in violation of section 109-1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 109-1) which provides:
"(a) A person arrested without a warrant shall be taken without unnecessary delay before the nearest and most accessible judge in that county, and a charge shall be filed. A person arrested on a warrant shall be taken without unnecessary delay before the judge who issued the warrant or if he is absent or ...