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People v. Blackman

OPINION FILED JULY 28, 1978.

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

v.

STEVEN BLACKMAN ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Tazewell County; the Hon. RICHARD E. EAGLETON, Judge, presiding.

MR. PRESIDING JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Following a bench trial in the Circuit Court of Tazewell County, defendants Blackman and Jarrett were convicted of unlawful possession of cannabis. Defendant Davis was tried separately in a stipulated bench trial and convicted of the same offense. Davis was sentenced to five years probation, four months of which were to be served in the county jail. Blackman and Jarrett were each sentenced to three years probation, with Blackman to serve 30 days of his sentence in the county jail and Jarrett to serve 120 days of his sentence on a work release program. At the defendant's request, these appeals were consolidated, and all three defendants challenge the denial of their motions to suppress evidence. Defendants Blackman and Jarrett also claim the evidence was insufficient to prove them guilty beyond a reasonable doubt.

On the morning of September 21, 1976, an auto driven by defendant Davis, with defendants Blackman and Jarrett as passengers, was stopped and searched in the city of Washington by officers of the Washington Police Department. During the course of the search the officers discovered a large quantity of freshly cut marijuana in the trunk of the auto. Defendants were charged with possession of cannabis, and they moved to suppress the evidence seized during the search.

At the suppression hearing the State presented two witnesses. Officer Joseph Switzer, a radio dispatcher for the Tazewell County sheriff's office, testified that at approximately 10:15 a.m. on September 21, 1976, he received a call from a man who identified himself as John Phillips. Phillips told Switzer that he had just observed three men picking what he believed to be marijuana along the Mackinaw River near Route 9. Phillips explained that he could name the individuals and describe their vehicle because he had seen them at his place of business, Upco Buildings Inc., earlier that morning. The caller said the men's names were Mike Davis, Steve Blackman and Dannie Jarrett and described their auto as a 1956 or 1966 white Chevrolet convertible. Dispatcher Switzer broadcast the information to all police units in the area.

Officer Thomas Libotte of the Washington City Police Department testified that approximately one-half hour after receiving the communication from Switzer he and another officer stopped a 1970 white Pontiac convertible. Defendant Davis was driving the auto, and Blackman and Jarrett were passengers in the front seat. Libotte was acquainted with Davis, and he knew the Pontiac was the car Davis had driven in the past. Libotte also knew of Davis' previous association with marijuana because he had searched a house where Davis was present and had discovered marijuana and marijuana smoking paraphernalia. After Davis failed to produce a valid driver's license, the officers conducted the search which resulted in discovery of the marijuana. Officer Libotte admitted he stopped and searched the auto solely to determine whether marijuana was present in it. Though he had neither consent nor a warrant to conduct the search, the officer testified he thought he was justified in doing so based on the police radio communication he had received and his personal knowledge of defendant Davis' past association with marijuana. The trial court agreed with Officer Libotte and so do we.

• 1 According to our supreme court's recent decision in People v. Blitz (1977), 68 Ill.2d 287, 369 N.E.2d 1238, whether a warrantless search was justified is to be determined by looking at the totality of circumstances presented to the investigating officer at the time of the search. Viewing the present case in light of the Blitz decision, we must conclude that Officer Libotte had more than sufficient justification for the search of defendant's auto.

• 2 First, Libotte had the information provided by John Phillips. Defendant claims this information should not have been considered by the officer because the "two pronged" test of Aguilar regarding hearsay information was not met. (Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509.) We disagree. Under Aguilar and its progeny, hearsay information from an informant may be considered as the basis for a search if the investigating officer is aware of some facts indicating that the informant is reliable and some facts indicating the informant ascertained his information in a reliable manner. In the present case both prongs of the Aguilar test were satisfied. First, evidence of the informant's reliability is not required in cases such as this where the informant is a private citizen rather than a paid police informer. (People v. Billings (1st Dist. 1977), 52 Ill. App.3d 414, 367 N.E.2d 337; People v. Hoffman (1970), 45 Ill.2d 221, 258 N.E.2d 326.) Lack of personal gain to the private citizen is indicative of his reliability. (People v. Frisco (1st Dist. 1972), 4 Ill. App.3d 193, 280 N.E.2d 557.) The second prong of Aguilar, requiring facts indicating the informant gained his information in a reliable manner, is also satisfied here because in this case informant John Phillips gained his information by personally observing the defendants picking what he believed to be marijuana. Personal observation by the informant is surely the most reliable means of all for obtaining credible information.

• 3 Defendants make much of the fact that Phillips did not specify why he thought the substance being picked was marijuana. They claim that lack of this bit of information precluded the officer from relying on the informant's report. Again we must disagree. Aguilar requires the officer to be aware of "some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were." (Aguilar, 378 U.S. 108, 114, 12 L.Ed.2d 723, 729, 84 S.Ct. 1509, 1514.) The officer is not required to be aware of all the facts underlying the informant's information. In search cases we are dealing with probabilities. As the Illinois Supreme Court has said:

"Police officers often must act upon a quick appraisal of the data before them, and the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to catch criminals." (People v. Watkins (1960), 19 Ill.2d 11, 19, 166 N.E.2d 433, 436.)

We believe the information provided by Phillips met the standards of Aguilar and was properly considered by Officer Libotte.

Moreover, the information provided by Phillips was substantially corroborated by Libotte's own observations. Phillips specifically named the three individuals he saw picking marijuana and described their auto as a 1956 or 1966 white Chevrolet convertible. No more than one-half hour after receiving this information, Officer Libotte saw the three named individuals, who he knew, together in an auto very similar to the one described by Phillips. Having personally verified a substantial portion of Phillips' information, Officer Libotte had "reasonable grounds" to believe that the remaining unverified portion — that the men possessed marijuana — was likewise true. Draper v. United States (1959), 358 U.S. 307, 3 L.Ed.2d 327, 79 S.Ct. 329.

Furthermore, Officer Libotte was aware of defendant Davis' previous association with marijuana. Libotte knew that Davis had been present in a house where marijuana and marijuana paraphernalia were found. Although Davis was not convicted of an offense as a result of that earlier search, the policeman's experience is a factor that cannot be ignored.

"We cannot conclude that a policeman's knowledge of a suspect's reputation — something that policemen frequently know and a factor that impressed such a `legal technician' as Mr. Justice Frankfurter — is not a "practical consideration of everyday life" upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant's tip." (United States v. Harris (1971), 403 U.S. 573, 583, 29 L.Ed.2d 723, 733, 91 S.Ct. 2075, 2081-82.)

It is clear that probable cause may be founded upon evidence which would not be admissible ...


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