APPEAL from the Circuit Court of Cook County; the Hon. JAMES
FELT, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant, James Fletcher, was convicted of attempt burglary by a jury and sentenced to the penitentiary for a term of three years and four months to ten years. On direct appeal, the appellate court reversed his conviction based solely on its determination that he was not proven guilty beyond a reasonable doubt. (46 Ill. App.3d 530, 361 N.E.2d 97.) The supreme court granted the State's petition for leave to appeal (66 Ill.2d 633) and reversed the appellate court's judgment. (72 Ill.2d 66, 377 N.E.2d 809.) The cause was remanded for this court's resolution of the other issues advanced by defendant but not considered in his intital appeal.
The evidence relating directly to defendant's criminal involvement was adequately set forth in this court's opinion and in the supreme court's opinion. However, in order properly to evaluate defendant's remaining contentions, it is necessary that we primarily concern ourselves with the facts and circumstances pertaining to defendant's arrest and the subsequent search of his hotel room by the police.
Immediately after the attempt burglary took place, on June 24, 1973, at 7:30 p.m., Mrs. George Lysy observed the defendant and another man run from the scene and enter a maroon automobile, which then sped away. When the police arrived at approximately 8 p.m., Mrs. Lysy described defendant as white, in his mid-twenties, with dark bushy hair and full sideburns. Additionally, Mrs. Lysy's husband informed the police that his suspicion had been aroused two days earlier when a maroon Oldsmobile had parked in the space where he usually put his own vehicle. This car had two or three stickers on the right side of its windshield, and its body was damaged on the left side. Since it was blocking his parking space, he had hurriedly written down this automobile's license number as TP 7521. According to Mr. Lysy, this was the same vehicle in which the two men escaped subsequent to the commission of said offense.
Immediately thereafter, one of the investigating police officers ascertained that defendant's automobile matched Mr. Lysy's description and bore license plate number TP 2571. On account of this similarity as well as their knowledge of defendant's physical characteristics, the police proceeded to defendant's hotel and set up surveillance outside the building. Defendant lived approximately 12 miles from the site of the attempt burglary. At about 10:15 p.m. the police entered this hotel and asked for defendant. The desk clerk rang defendant's room, but there was no answer. The police then left and returned to their posts on the street. Approximately an hour and a half later, the officers observed defendant drive up, park his maroon Oldsmobile in an adjacent rear alley and go into the hotel.
One of the police officers checked the automobile and determined that it fit Mr. Lysy's description. The other officer called for an assist car. When these tasks were completed, the two police officers went into the hotel, obtained defendant's room number from the clerk and proceeded to his floor. As he approached defendant's room, one of the officers noticed a young woman preceding him down the corridor. She came to defendant's room and knocked. Defendant asked, "Who's there?" At this juncture the police officer showed the woman his identification and silently signaled her to respond. She stated her name, then was directed by the officer, who had been joined by his partner, to get out of the way.
When defendant opened the door, he saw the two plainclothesmen. He tried to close the door, but the two police officers forced their way into his room. The testimony was conflicting as to when the officers identified themselves. Defendant was arrested as he fled toward the rear portion of the room.
Defendant's 12th-floor hotel room was a one-room studio. This room contained a sitting chair, several tables and a dresser. Subsequent to defendant's arrest, the police seized four clear plastic gloves which were lying in open view on top of the aforementioned dresser. One of the gloves was marked with a reddish tint. However, no scientific analysis was conducted by the police to determine whether this tint matched the red paint on the handle of the sledgehammer which was found at the scene of the attempt burglary. The police also drove defendant's Oldsmobile to the police station parking lot where it was viewed by Mr. Lysy.
Prior to trial, defendant moved to suppress this evidence on the basis that these items were the product of an unlawful arrest and search. At the hearing on this motion, defendant testified that he did not give the police permission to enter his hotel room, to search his room or automobile or to remove anything therefrom. He also stated that the police did not present an arrest warrant or a search warrant for his residence or car. Although this testimony was uncontradicted, the trial court, after hearing testimony from the arresting police officer and considering the arguments of counsel, denied defendant's motion and entered a finding of probable cause.
In considering the remaining issues raised by defendant's direct appeal to this court, the first contention that must be examined is defendant's assertion that his arrest was unlawful because it was conducted without probable cause and without an arrest warrant and that, in view of this illegality, the trial court erred when it refused to suppress the seizure of the plastic gloves and his automobile.
1, 2 The Federal Constitution and the constitution of the State of Illinois do not prohibit all searches but only those which are unreasonable. (GoBart Importing Co. v. United States (1931), 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374; see People v. Peak (1963), 29 Ill.2d 343, 346, 194 N.E.2d 322, 325.) The test of the constitutionality of a search is not whether it was reasonable or practicable for the police officers to obtain a search warrant but whether the search was unreasonable. (People v. Wright (1968), 41 Ill.2d 170, 173, 242 N.E.2d 180, 182-83, cert. denied (1969), 395 U.S. 933, 23 L.Ed.2d 448, 89 S.Ct. 1993.) It is well settled that a warrantless search incident to a lawful arrest is authorized when reasonably necessary to protect the arresting officer from serious bodily harm, to prevent the prisoner from escaping, or to discover the fruits of the crime. (See People v. Alexander (1961), 21 Ill.2d 347, 352, 172 N.E.2d 785, 788, cert. denied (1961), 368 U.S. 875, 7 L.Ed.2d 77, 82 S.Ct. 122; see generally Weeks v. United States (1914), 232 U.S. 383, 392, 58 L.Ed. 652, 655, 34 S.Ct. 341.) Additionally, criminal evidence which is in plain view may be seized pursuant to a legal arrest even though a search warrant has not been procured beforehand. (Ker v. California (1963), 374 U.S. 23, 42-43, 10 L.Ed.2d 726, 83 S.Ct. 1623; see People v. Wright.) The case authorities have imposed no requirement that the arrest be under the authority of an arrest warrant but only that it be lawful. (See Ker v. California.) Consequently, it is evident that if defendant's arrest was lawful, the arresting officers' seizure of the four plastic gloves was proper since these items were in full view when the arrest was effectuated.
The pivotal question, therefore, is whether defendant's arrest was lawful. In order to resolve this issue, we must first determine whether the police had probable cause to arrest defendant.
Police officers are authorized by statute to make arrests without warrants where they have reasonable grounds to believe that the person is committing or has committed an offense. (Ill. Rev. Stat. 1973, ch. 38, par. 107-2(c).) Defendant contends that at the time of his arrest the police officers had no reasonable grounds to believe that he had committed a criminal offense and, because of this, he argues that his arrest without a warrant was illegal.
3, 4 Whether or not reasonable grounds for an arrest exist in a particular case depends upon the totality of the facts and circumstances known to the officers when the arrest was made. (See People v. Higgins (1972), 50 Ill.2d 221, 227, 278 N.E.2d 68, 72, cert. denied (1972), 409 U.S. 855, 34 L.Ed.2d 100, 93 S.Ct. 195.) In deciding this question, courts> deal with probabilities and are not disposed to be unduly technical. These probabilities are the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. (Brinegar v. United States (1949), 338 U.S. 160, 175, 93 L.Ed. 1879, 69 S.Ct. 1302.) However, Illinois courts> have adopted the viewpoint that a police officer is not justified in making an arrest without a warrant on the "bare suspicion" that the suspected individual may be guilty of an offense. (People v. Edge (1950), 406 Ill. 490, 496, 94 N.E.2d 359, 363; Henry v. United States (1959), 361 U.S. 98, 101, 4 L.Ed.2d 134, 80 S.Ct. 168.) On the other hand, probable cause or reasonable grounds means something less than that quantum of evidence which would result in a conviction. (People v. Fiorito (1960), 19 Ill.2d 246, 253, 166 N.E.2d 606, 611, cert. denied (1960), 364 U.S. 870, 5 L.Ed.2d 93, 81 S.Ct. 113.) Probable cause for arrest exists when the facts and circumstances within the arresting officer's knowledge, and of which he had reasonable and trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in believing that an offense has been committed, and that the person arrested is guilty. (Ker v. California; accord, People v. Peak.) A reviewing court will not disturb a finding of probable cause unless it is manifestly erroneous. People v. Brooks (1972), 51 Ill.2d 156, 165, 281 N.E.2d 326, 332-33.
5 The information within the knowledge of the arresting police officers at the time they arrived at defendant's hotel room, as the trial court found, clearly supplied adequate grounds for a reasonable belief that defendant had committed the offense of attempt burglary. We base this conclusion on the following facts: The police officers had obtained from Mrs. Lysy a description of one of the two individuals seen fleeing the scene of the crime. That description was known to match the general physical characteristics of the defendant: White male, with curly black hair, pronounced sideburns and appearing to be in his mid- to late twenties. In addition, Mrs. Lysy's husband had observed the getaway car two days prior to this incident when it was parked in his parking space. He wrote down its license number rapidly because he was afraid that he would be seen. He then viewed the same maroon Oldsmobile with noticeable dents on the side and several vehicle stickers on its windshield pick up the two fleeing men and drive off on the night of the attempt burglary. After checking a list of known criminals, the investigating police officers discovered defendant's name next to license plate number TP 2571, which was the same as the one reported by Mr. Lysy except for the transposition of the first and third numbers. A recent police report listed defendant's address. Surveillance was then set up outside that location. Approximately 4 1/2 hours after the commission of this offense, defendant drove up to the hotel in a maroon Oldsmobile and parked in an adjacent alley. After defendant had exited this vehicle, one of the officers inspected it and verified that its license number was TP 2571 and that the automobile matched Mr. Lysy's description in that it was a maroon 1967 or 1968 Oldsmobile with four suburban vehicle stickers on the front windshield and a very discernible dent on its left side. Under such circumstances it is readily apparent that the police had probable cause to arrest defendant.
Defendant calls attention to the fact that the police failed to show either witness his photograph which they had in their possession at the initiation of the attempt burglary investigation. He contends that this omission indicates that the police did not have sufficient identification evidence to establish probable cause. We disagree.
It is true that the police did not show defendant's photograph to the Lysys, as they perhaps should have done. Identification of such photograph would have provided the police with additional corroborating evidence. However, in view of the convincing nature of the information that was made available to the police during their investigation, we cannot say that this failure establishes that the trial court's finding of probable cause was manifestly erroneous.
It is next argued that the lawfulness of defendant's arrest, even if it was based upon probable cause, was negated by the location of the arrest and the method of entry into defendant's hotel room. Defendant bases this argument on the following facts and allegations: (1) although the police could have arrested him on the street after he exited his automobile, they wrongfully waited until he went upstairs so that they could conduct a search of his room incident to the arrest; (2) the police improperly used subterfuge to gain entrance to his hotel room; and ...