APPEAL from the Circuit Court of St. Clair County; the Hon.
KENNETH JUEN, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
After a jury trial in the Circuit Court of St. Clair County, defendant, Carl Eugene Robbins, was convicted of the unlawful possession of a substance containing cannabis and sentenced to one to three years in the penitentiary. Defendant appeals, arguing that the trial court should have granted his motion to suppress evidence on the ground that it was obtained through a search which violated his fourth amendment rights and his motion to suppress a confession as the product of the illegal search.
A two-count indictment was returned against the defendant on August 22, 1975. Count I charged him with possession of 124.7 grams of a substance containing cannabis, in violation of section 4(d) of the Cannabis Control Act. (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 704(d).) Approximately 90 percent of the substance mentioned in count I consisted of cannabis seeds which had been discovered in a closed dresser drawer by the police during a warrantless search of defendant's room. Count II of the indictment charged that defendant had produced Cannabis sativa plants, in violation of section 8 of the Act. (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 708.) The cannabis plants were also seized during the aforementioned search. Defendant pleaded guilty to count II of the indictment, a misdemeanor, and was fined therefor; he pleaded not guilty to count I, the only charge involved in this appeal. In regard to count I, defendant filed a motion to suppress evidence, that is, the 124.7 grams of cannabis, and a motion to suppress a confession. The following evidence was adduced at the hearing on defendant's motion to suppress evidence.
The defendant testified that on July 8, 1975, he resided with his girl friend on the second floor of a two-story building located at 405 West Main Street, Mascoutah, Illinois. Defendant's parents also lived in the house, apparently on the first floor. Defendant said that he was alone in his room on the morning of July 8 when he heard a noise downstairs. He, therefore, walked out of his room and into the hallway to investigate. At the bottom of the stairs stood a policeman who pointed a gun at the defendant and ordered him to come down the stairs. After complying with the officer's demand, defendant was handcuffed and taken outside, where another officer was waiting. The three men then reentered the house, walked up the stairs and into defendant's room. Defendant stated that the policemen searched his room thoroughly and found cannabis plants and seeds. The seeds were discovered in a closed dresser drawer.
During cross-examination, defendant said that immediately before hearing the noise downstairs he had looked through his window and seen a police officer "[l]ooking towards the street talking to a guy in the electric truck." The officer did not say anything to defendant. Defendant also stated that when he and the police officers entered his room there were five or six containers in the window. Growing in the containers were plants which defendant knew to be cannabis.
William G. Beatty testified that he was one of the police officers who had arrested defendant on July 8. He stated that approximately two days before the arrest he had observed plants growing in defendant's window and had studied them through binoculars. He also said that photographs of the plants were taken. Based upon his experience and training. Officer Beatty decided that the plants were cannabis. Thereafter, he and another officer, Louis E. Ashby, continued observing defendant's home, waiting for someone to touch the plants or otherwise exhibit control over them. At 9 a.m. on July 8, Officer Beatty saw the defendant begin removing the plants from his window. Beatty shouted at defendant, telling him not to touch the plants. Defendant, however, ignored the officer and "just moved a few more in on the floor." Beatty said that Officer Ashby entered defendant's building through the front door while he, Beatty, ran around the building to make sure that no one escaped through a rear exit. A short time later, Officer Beatty walked to the front door and entered the building. As he did so, he saw Ashby at the bottom of the stairs, handcuffing the defendant. Beatty's testimony concerning the search which followed does not vary in any significant way from defendant's account. He further stated that when he and Officer Ashby searched defendant's room, defendant was standing 6 to 8 feet away from the dresser wherein the cannabis seeds were found.
Officer Louis E. Ashby also testified at the suppression hearing. He said that he had noticed the cannabis plants in defendant's window several days, perhaps as many as four or five days, before the arrest. Ashby stated that at some time prior to July 8, Officer Beatty had applied for a search warrant at the office of the State's Attorney. An Assistant State's Attorney informed Beatty that he had probable cause for a search, but advised him to continue watching defendant's house and to make an arrest when someone touched the plants. Ashby's testimony concerning the arrest of defendant and subsequent search was virtually identical to Officer Beatty's. He also stated that he handcuffed defendant's hands behind him when he took defendant into custody at the bottom of the stairs.
Officer Beatty was then called as a rebuttal witness for the defense. He stated that although he had called the State's Attorney's office seeking advice concerning the case, he had not applied for a search warrant.
• 1 The first issue which we must consider is whether the search of defendant's room was incident to arrest. Because a search incident to arrest must be limited to the arrestee's person and the area into which he might reach in order to grab weapons or evidentiary items (Chimel v. California, 23 L.Ed.2d 685, 89 S.Ct. 2034 (1969)), it is impossible to determine whether such a search was properly limited in scope without first determining when and where the arrest was made.
• 2 An arrest involves the following three elements: authority to arrest, assertion of that authority with intent to effect an arrest, and restraint of the person to be arrested. (People v. Ussery, 24 Ill. App.3d 864, 321 N.E.2d 718 (3d Dist. 1975).) No formal declaration of arrest is necessary for a valid arrest to occur. (People v. Huggin, 25 Ill. App.3d 409, 323 N.E.2d 370 (1st Dist. 1974).) All of the foregoing elements were present in the instant case when defendant's liberty was restrained at the bottom of the stairs. Therefore, we are of the opinion that defendant was arrested at that time and that the search of defendant's room greatly exceeded the permissible scope of a search incident to his arrest.
Nonetheless, the State argues in fact, it assumes a priori that defendant was not arrested until after he was forced to accompany the police officers upstairs and into his room. We simply cannot accept this misinterpretation of the facts. We also think that the State's position is untenable for the following additional reasons.
• 3, 4 First, we question whether the police officers had the right to enter defendant's room at all. They did so only because they had previously viewed cannabis plants from outside defendant's window and, as the Supreme Court has pointed out:
"[P]lain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle * * * that no amount of probable cause can justify a warrantless search or seizure absent `exigent circumstances.' Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. [Citations.]" (Coolidge v. New Hampshire, 403 U.S. 443, 468, 29 L.Ed.2d 564, 584, 91 S.Ct. 2022, 2039-2040 (1971).)
However, we need not decide whether the foregoing principles apply here, as both defendant and the State have assumed that the initial entry ...