APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
R. WENDT, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant, Kenneth M. Huth, was charged by indictment with the offense of possession of more than 30 but less than 500 grams of Cannabis sativa in violation of section 4 of the Cannabis Control Act (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 704(d)). Upon a bench trial he was found to be guilty and was sentenced to serve a term of confinement of 1 to 3 years in the Illinois State Penitentiary.
From entry of the judgment of conviction defendant appeals and contends (1) that the trial court erroneously denied defendant's motion to suppress certain evidence as being the fruit of an unconstitutional search and seizure, and (2) that the evidence properly adduced at trial was insufficient to establish his guilt beyond a reasonable doubt.
On May 21, 1973, at approximately 1:45 a.m., defendant and two companions, Paul Hall and Geary Smith, were traveling in an automobile proceeding eastbound on Fullerton Avenue in the vicinity of its intersection with Wolf Road in the city of Northlake, Illinois. The vehicle was owned by Smith who was riding in the rear seat. The front seat of the vehicle was occupied by the driver, Paul Hall, and his passenger, defendant, Kenneth Huth.
Upon reaching the aforementioned intersection the vehicle negotiated a right hand turn onto Wolf Road. Northlake Police Officer Reid Paxton testified that he had been following Smith's vehicle for a distance of approximately 500 yards over a period of two minutes when Paxton observed that the driver of the vehicle failed to properly signal his turn. Officer Paxton pursued and curbed the vehicle. Hall exited the automobile and walked back to Paxton's squad car. Paxton asked for Hall's driver's license and summoned police assistance.
Hall produced a driver's license which had apparently been mutilated in that the back portion of the license was peeled off. Officer Paxton thereupon initiated a radio transmission to police headquarters requesting a "subject want" in the name of Paul Hall. Paxton was informed by return broadcast that, according to information received from the Office of the Illinois Secretary of State, Hall was currently "driving on suspended license."
At this point, and approximately two minutes after the initial stop, Northlake Police Officer Harvey Johnson arrived on the scene. Johnson exited his vehicle and approached the police car in which Officer Paxton sat speaking to Hall. Paxton called to Johnson and asked him to "check the other subjects for curfew."
Johnson then approached the passenger side of Smith's vehicle and asked its occupants to exit and produce identification. Johnson was carrying a lit flashlight which provided the only source of illumination in the immediate vicinity. Johnson did not draw his service revolver but indicated, "I am always in fear of my life at one o'clock in the morning with any offender."
Johnson placed his hand on the door handle. At trial he was unable to recall whether one of the passengers pushed open the door as Johnson was opening it or whether he single-handedly pulled it open.
Johnson indicated that according to "standard procedure" he "always check[s] the front seat and floor of a car when I have people get out." To this end he pointed the beam of the flashlight to a point on the vehicle's floor board toward the passenger side of the front seat recently vacated by defendant.
At a distance of 2-3 feet and aided by the flashlight Johnson observed that "a brown paper bag was under the seat with about maybe an inch or two showing with the plastic bag protruding out of it, out of the open end of the paper bag." Officer Johnson subsequently testified that on this occasion he observed a "plastic bag protruding about two and a half, three inches out from underneath the passenger seat." The observations of Officer Johnson were also the subject of cross-examination where Johnson testified that the "marijuana" that he saw was "protruding out from under the seat, about four inches." Officer Johnson apparently demonstrated to the court the positioning of the bags under the seat at the time of the arrest. Neither of the parties saw fit to describe this demonstration for the record. The confusion is further compounded by the stipulated testimony of chemist Rebecca Cerven which revealed that two packages of plant material were recovered from the vehicle, tested, and proven to contain 26.6 and 27.0 grams of Cannabis sativa, respectively.
Both passengers and the driver were arrested and charged with possession of marijuana. In addition, Hall was charged with driving on a suspended license and failure to make a proper turn. At the close of the State's case-in-chief the trial court entered directed findings of not guilty as to Hall and Smith in connection with the drug charge. A similar motion on behalf of defendant Huth was denied.
Defendant testified that he did not own or operate the automobile in which the contraband was discovered and denied any knowledge of the presence of contraband in the automobile. At the time of the arrest he had been a passenger in the vehicle for approximately 25 minutes during which period he occupied the front seat; that earlier that evening he had been a passenger in the vehicle for a period of approximately 20 minutes during which period he occupied the rear seat while the front passenger seat was occupied by Smith and the vehicle's driver, Paul Hall. According to Huth, he and his friends drove from Oak Park, Illinois, to Northlake during this time and upon their arrival spent several hours at a friend's home in a nearby apartment complex engaged in conversation and drinking beer. Smith became intoxicated and was being driven home by Hall when the vehicle was curbed by Officer Paxton. No testimony was adduced as to the distance traveled from the apartment complex to the scene of the arrest or the time required to traverse this distance.
Hall testified in defendant's behalf and indicated that prior to arriving at the Northlake apartment he, Smith, and Huth, spent approximately 30 minutes traveling from Oak Park to Northlake but testified that the vehicle was driven by Smith on that ...