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People v. Rasmussen

OPINION FILED JUNE 7, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

JOHN RASMUSSEN, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Ogle County; the Hon. ALAN W. CARGERMAN, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

The defendant was charged with the offense of unlawful possession of not more than 2.5 grams of cannabis (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 704(a)). The defendant filed a motion to suppress items that were taken from his person at the time of this arrest, and the trial court granted the motion. The State appeals.

The evidence presented at the hearing on the suppression motion may be summarized as follows: the defendant testified that he was arrested on August 2, 1976, in front of the "Del Monte Cottages" in Rochelle, Illinois, while walking with Salvador Gonzales and Henry Holt. As the three were proceeding down the street, a squad car pulled up beside them, and a police officer got out of the car, and asked the defendant to empty his pockets. The defendant then produced identification and "emptied" his pockets; the officer nonetheless thereafter "patted him down" and found the contraband. According to the defendant, he was not told that he was under arrest. The defendant denied that Gonzales had given him anything in the presence of Brown.

The State called Grantford Brown, a retired police officer, who was employed as a security guard at the Del Monte Cottages. He testified that he was on duty on August 2, 1976, when he saw Salvador Gonzales go into one of the cottages. As Brown observed through a window, Gonzales opened a locker inside the cottage, removed a plastic bag from a shirt which was hanging in the locker, and placed the bag in his pocket. Brown, who had received training in identifying cannabis during his 22 years as a police officer, stated that the contents of the bag appeared to be marijuana. Brown called the police as Gonzales left the cottage and walked toward the gate. When Gonzales reached the gate, Brown saw him reach into his pocket, pull out the plastic bag and hand it to the defendant. The defendant, his companion Holt, and Gonzales, then began walking down the street. A squad car with two police officers arrived, and Brown told them that "a switch had been made" and that a plastic bag of marijuana had been given to the defendant.

Officer Jimmy Combs of the Rochelle Police Department testified that on August 2, 1976, he received a call from Brown whom he had known previously. After Combs arrived at the scene, Brown told him that he had seen the "Mexican fellow" pass marijuana to the defendant, whom Brown pointed to. Officer Combs testified that the officers then proceeded down the street, stopped by the defendant, and his companions, and advised the three that they were under arrest. The three were told to empty their pockets onto the hood of the car. Officer Combs then conducted a "pat down" search of the defendant, and discovered the pipe and marijuana.

Under defense cross-examination, Officer Combs admitted that he had not indicated in his police report that Brown told him the marijuana had been "switched" to the defendant. Combs admitted that his report merely stated that when the officers arrived on the scene, Brown pointed to the three subjects and "stated that the Mexican subject had just taken a bag of what appeared to be marijuana from his locker."

A court of review will not disturb a trial court order granting or denying a defendant's motion to suppress evidence unless the trial court's finding is manifestly erroneous. (People v. Williams (1974), 57 Ill.2d 239, cert. denied (1974), 419 U.S. 1026, 42 L.Ed.2d 302, 95 S.Ct. 506; People v. Clay (1973), 55 Ill.2d 501.) The defendant concedes that if the trial court had chosen to believe Officer Combs, the court could have found that Combs' search of the defendant was lawful. However, it is the defendant's contention that if his testimony is believed "there would have been no cause, much less probable cause for the search"; in the defendant's view, the suppression motion presented a simple question of the believability of witnesses, which was resolved against the State by the trial judge.

• 1, 2 The evidentiary conflict, regarding whether or not Combs verbally informed the defendant that he was under arrest, was not important in the context of the testimony presented at the suppression hearing. "If a police officer in his line of duty restrains an individual's liberty, then an arrest has occurred * * *." (People v. Ussery (1974), 24 Ill. App.3d 864, 869 (Stouder, J., specially concurring).) It is not necessary for a police officer to say any particular words, in order to effectuate an arrest. (See People v. Mirbelle (1934), 276 Ill. App. 533, 535 (words "`Stick them up, we are police officers * * *,'" along with detention of defendant, held to constitute an arrest)); thus, no formal declaration of arrest is necessary for a valid arrest to occur. (People v. Robbins (1977), 54 Ill. App.3d 298.) All that is required for an arrest is (1) the authority to arrest, (2) an assertion of that authority with the intention to effect an arrest, and (3) the restraint of the person to be arrested. (People v. Moore (1977), 55 Ill. App.3d 706, 709-10.) Combs' authority as arresting officer in this case was clear. The assertion of that authority was implicit in the halting of the defendant and his companions, and the order to them to empty their pockets. Since Brown, a retired police officer whom Combs had known before the incident, and who must necessarily have been regarded as a reliable informant, had told the officers that he had seen marijuana passed to the defendant, Combs was under a duty to arrest the defendant and can hardly have had any other intention when he halted him. Similarly, since Combs' order to the defendant to empty his pockets was not phrased in terms of a mere request (compare People v. Berry (1977), 54 Ill. App.3d 647, 649 (officer's request to defendant to "`[c]ome here for a minute'" held not to constitute an arrest)), and it is obvious from the record that, had the defendant fled, Officer Combs, who had gotten out of the squad car, would have pursued him, the conclusion is inescapable that the defendant was under restraint. Therefore, regardless of whether or not Officer Combs actually uttered the words, "[y]ou are under arrest," the trial court could not in these circumstances have reached any conclusion other than that the defendant was under arrest when Combs searched him.

• 3 Having reached this conclusion, we have no choice but to reverse the trial court's order granting the defendant's suppression motion. As this court and others have repeatedly held, "[a] peace officer may arrest without a warrant if he has reasonable grounds to believe the person arrested has committed a crime. * * *," and "[t]he belief may be founded upon hearsay evidence." (People v. Darrah (1974), 18 Ill. App.3d 1018, 1021.) In this case, the question of whether or not Brown actually observed marijuana being passed to the defendant was irrelevant. The trial court was not asked to determine whether Brown had probable cause to arrest the defendant. Instead, the issue was whether or not Officer Combs had probable cause. It is well established that:

"Probable cause for arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a man of reasonable caution in believing defendant has committed an offense * * *." (People v. Morrison (1978), 57 Ill. App.3d 468, 472.)

Here, the testimony of Brown and Combs that Brown told Combs that he had seen a plastic bag of marijuana passed to the defendant was uncontradicted, and the trial court would not have been justified in ignoring the testimony of these two otherwise fully credible witnesses, merely because Combs failed to record Brown's statement regarding the defendant in his police report. (See People v. Hampton (1973), 14 Ill. App.3d 427.) There can be no doubt but that a man of reasonable caution, upon being advised by such an obviously reliable informant as Brown that marijuana had been passed to the defendant, would believe that the defendant had committed an offense. Brown clearly provided Officer Combs with reasonable grounds to believe that the defendant had received cannabis from Gonzales, regardless of whether or not Brown had actually witnessed such a transaction, and the warrantless arrest was therefore valid. That being so, it follows that the search of the defendant's person was lawful, since:

"A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification." United States v. Robinson (1973), 414 U.S. 218, 235, 38 L.Ed.2d 427, 440-41, 94 S.Ct. 467, 477.

Therefore, the trial court's order of February 18, 1977, granting the defendant's suppression motion is reversed, and the cause remanded for further ...


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