APPEAL from the Circuit Court of Cook County; the Hon. MARK E.
JONES, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
The State appeals pursuant to Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1977, ch. 110A, par. 604(a)(1)) from an order granting defendant's motion to suppress evidence and quash his arrest entered on February 16, 1977. The sole issue on appeal is whether the police had probable cause to arrest and search the defendant without a warrant. We reverse. The pertinent facts follow.
The defendant was charged by information with the unlawful possession of a controlled substance in that he possessed less than 30 grams of heroin in violation of section 402(b) of the Illinois Controlled Substances Act. (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(b).) Prior to trial, the defendant moved to suppress all evidence seized and all statements taken and to quash his arrest and the information charging him with the offense on the grounds of unlawful search and seizure. After a hearing, the trial court granted the defendant's motion and the State brought this appeal.
At the suppression hearing the defendant testified that on May 27, 1976, at about 8 p.m. he was a passenger in a car with Jo Marie Seabrook at the intersection of 130th and Torrence Avenue in Chicago. A train was blocking the intersection and they were waiting for it to pass. While they were waiting, some men ran up to their car with guns drawn. One of the men pulled the defendant from the car, put his hands on the roof and began to search him. The man found a cellophane bag containing a brown substance in a pocket on defendant's shirtsleeve. While he was being searched, defendant recognized one of the men as George Pfotenhauer, a Dolton police detective. Defendant stated that at no time did he attempt to reach for any weapon. The men did not identify themselves as police officers prior to pulling him out of the car nor did any of them wear uniforms. He was never shown an arrest or a search warrant.
Defendant remained at that intersection between 10 and 20 minutes but was not told that he was under arrest until he was taken to the Dolton police station. Miss Seabrook, the driver, received no traffic citation. While at the police station, two pocket knives were taken from him. Defendant claims he was allowed to leave the police station in return for his promise to aid in solving a recent murder. He was not formally arrested until June 10, 1976.
David Palmer testified. He was an agent with the Illinois Bureau of Investigation assigned to drug cases. An informer had told him that he had been in defendant's residence about four times in the two-week period preceding May 25, 1976. On each occasion, defendant indicated to the informer that he would be purchasing heroin later in the evening. Each time the informer returned to defendant's residence and saw heroin on the kitchen table. The informer told Officer Palmer that defendant picked up the heroin at 70th and Clyde in Chicago, leaving his house at about 6:30 or 7 p.m. and returning about an hour and a half later. Once home, defendant would distribute the heroin very rapidly so that none remained in his residence. In addition, Palmer was informed that defendant did not have a valid driver's license and would usually pick up Jo Marie Seabrook to drive the return trip from 70th and Clyde.
Palmer had observed defendant's residence once on May 25, 1976, before the arrest on May 27. On May 27, Palmer first observed defendant's car parked in front of his house at about 6:45 p.m. Defendant then drove the car to another location where he picked up Jo Marie Seabrook. Palmer, accompanied by Detective Pfotenhauer of the Dolton police, followed the car to 7045 South Clyde Avenue where defendant and Seabrook entered the building. They remained in the building for a little over an hour. When they left the building, Seabrook drove the car. Palmer followed the car to 130th and Torrence, where he parked to the right rear of defendant's car. At that point, defendant and Seabrook began looking around in the direction of Palmer. Palmer and four other police officers then approached defendant's car, where Palmer announced, "I'm a police officer." Defendant then made a quick move for his right pants pocket. Palmer grabbed defendant's hand and felt an object inside his clothes, which was a pocket knife. Palmer than gave defendant his Miranda warnings and removed him from the vehicle. The subsequent search revealed a second pocket knife in defendant's left rear pocket and the packet of heroin.
On cross-examination, Palmer was questioned about his report of the investigation, particularly about the informer and the information he gave Palmer. Palmer testified that he had used the informer on four prior occasions, resulting in three arrests and three convictions. However, he could remember the name of only one of the cases.
Palmer said that on May 27, 1976, the informer told him that he had a conversation with defendant, wherein defendant told him he was going to pick up some heroin, that he would return in an hour and a half, and would sell it as soon as possible. At this time the informer also told Palmer that defendant would first pick up Miss Seabrook so that she could drive on the return trip. However, this information about Miss Seabrook was not contained in Palmer's report of his conversations with the informer.
At the time of the arrest, there were five policemen and two unmarked cars. They had been waiting for the train about 10 minutes. When they approached the defendant's car, Palmer saw no guns drawn by the police.
At this point, the court commented:
"* * * It's a perfect kind of case to get a warrant on. I've signed many warrants based upon testimony like you've given, that you have a reliable informant who tells you that he's been in a certain address, that on three occasions he's seen the Defendant with heroin and that he's purchased it from him and that he believes that some will be there at a certain time and, therefore, police [sic] give me a warrant that I can go arrest the individual or a search warrant where a warrant would issue, and you could go and make a proper arrest."
The Assistant State's Attorney argued that Palmer was attempting to corroborate the informer's tip and gather more information when he was forced to stop his car in close proximity to the defendant's. Defendant began to look around and had ample opportunity to recognize Palmer or Detective Pfotenhauer, whom defendant knew. At that time, when it was apparent that defendant probably recognized one of the police officers, there was no opportunity to obtain a warrant.
The court responded to the Assistant State's Attorney's argument as follows:
"There was no opportunity at that time. The opportunity existed before that time. He got this information on May the 25th. He told him that on several occasions the informant told him that he had been there. It takes a half-hour to get a search warrant. He can get a search ...