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People v. Logan

OPINION FILED NOVEMBER 5, 1979.

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

v.

GERALD FRANKLIN LOGAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. GARLAND W. WATT, Judge, presiding.

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

After a jury trial, Gerald Franklin Logan (defendant) was found guilty on two counts of possession of a controlled substance. (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402(b).) He was sentenced to 1 to 5 years. He appeals.

The issues defendant raises are limited to his motion to quash his arrest and suppress evidence. Defendant argues that his warrantless arrest was improper because the State failed to establish probable cause or exigent circumstances and the warrantless search of defendant's apartment and seizure of narcotics therein was unlawful.

• 1 Defendant failed to raise any of these issues in his written motion for a new trial. His motion simply set forth in a general way that he did not receive a fair trial and requested a new trial "for the various reasons urged before and during the trial and every error as may appear from the official transcript of proceedings of the trial * * *." We have held that such a failure to specify alleged errors in a motion for new trial constitutes a waiver of these issues and they cannot be urged as a ground for reversal on review. (People v. Precup (1978), 73 Ill.2d 7, 16, 382 N.E.2d 227; People v. Pickett (1973), 54 Ill.2d 280, 282, 296 N.E.2d 856. See also People v. Witherspoon (1975), 33 Ill. App.3d 12, 21, 337 N.E.2d 454, appeal denied (1976), 61 Ill.2d 604.) We conclude that the defendant has waived all issues raised in his brief. However, for the sake of completeness, we will consider the merits of defendant's contentions.

Defendant made his motion to quash the arrest and suppress evidence at the preliminary hearing only. The motion was never raised at trial. Defendant testified that on September 29, 1976, at 12:15 a.m., a girl knocked on his door. When he opened the door, police officers "forced their way in." He was not shown an arrest or search warrant.

Officer Fournier testified that on the night in question he went to Mercy Hospital to question Lila Peterson, a narcotics overdose victim. He questioned her and her friend Alicia Lofthaus. He was able to question Patterson when she was coherent. She later lapsed into unconsciousness. A doctor informed the officer that Patterson suffered from a narcotics overdose. Officer Fournier stated the girls told him they obtained the drugs from a person named "Gerry" who lived at 5030 South Ashland. Alicia Lofthaus agreed to accompany Officer Fournier and his partner to point out the person from whom they obtained the drugs.

When they arrived, Lofthaus knocked on the back door and called out, "Gerry." Defendant opened the door and Lofthaus said, "`[t]hat is him'." The officers walked in and placed defendant under arrest for delivery of a controlled substance. Officer Fournier testified the officers did not force their way in. They "just walked in." As they were entering, "the narcotics were in plain view" on top of a refrigerator and on a kitchen table which was 6 to 7 feet from the back door.

The preliminary hearing judge found there was probable cause to make an arrest and that the narcotics were in plain view. He denied the motion to suppress.

In the trial court, the evidence shows that on the night of the arrest, at approximately 9:45 p.m., Officers Ruud and Gills responded to a radio call "of a woman down on the street" at 4829 South Ashland. There, they observed a woman (Lila Patterson) lying in the street and another woman (Alicia Lofthaus) "trying to hold her up." When Officer Gills approached the women, Lofthaus said Patterson was "sick." The officers thought Patterson was suffering from a drug overdose. They took the women to Mercy Hospital where Patterson was admitted to the emergency room. Officer Gills questioned Alicia Lofthaus and learned that Patterson had taken P.C.P. (phencyclidine). He called for a tactical unit and Officers Schultz and Fournier responded to the call. These officers questioned Patterson who "was going from consciousness to unconsciousness" and Lofthaus. Lofthaus agreed to accompany them to an apartment on 50th and Ashland and point out the person from whom they had obtained the drugs. Lofthaus told the officers that they would find pills in the apartment on the kitchen table; and a piece of white paper containing P.C.P. on top of the refrigerator.

At about 12 a.m. the four officers and Lofthaus went to the rear door of an apartment at 5030 South Ashland. Lofthaus knocked on the door. Someone inside said, "Who's there?" She responded, "Alicia." Defendant opened the door and Lofthaus identified him as "Gerry." Officer Fournier walked through the door into the kitchen, took defendant by the arm, placed him under arrest and advised him of his rights. Officers Ruud, Fournier and Gills all observed pills on the kitchen table and noticed a white folded piece of paper on top of the refrigerator. The officers also saw a mirror, razor blades and straws on the table. Officer Fournier inspected the folded piece of paper and saw a yellow powder inside which he thought was P.C.P. Fournier seized the pills, powder and paraphernalia. A police chemist determined that the pills were secobarbital and the powder was phencyclidine.

• 2 The first issue is probable cause to arrest defendant without a warrant. In motions to quash an arrest for alleged lack of probable cause, the burden of proof rests upon the moving party. (People v. Ross (1978), 60 Ill. App.3d 857, 861, 377 N.E.2d 230.) The pertinent statute provides that a police officer may arrest without a warrant when "[h]e has reasonable grounds to believe that the person is committing or has committed an offense." (Ill. Rev. Stat. 1977, ch. 38, par. 107-2(c).) The test here is subjective. The inquiry is whether "`the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense.'" (People v. Blitz (1977), 68 Ill.2d 287, 292, 369 N.E.2d 1238, cert. denied (1978), 435 U.S. 974, 56 L.Ed.2d 68, 98 S.Ct. 1622, quoting from People v. Robinson (1976), 62 Ill.2d 273, 276, 342 N.E.2d 356.) Probable cause may be found upon inadmissible evidence and the facts which lead to a finding of probable cause "need not be sufficient to establish guilt beyond a reasonable doubt." Blitz, 68 Ill.2d 287, 292.

• 3 In the instant case the officers were directly and specifically informed by Patterson and Lofthaus that drugs had been obtained from the defendant, then identified as "Gerry." In the very presence of the officers, Lofthaus knocked on the door and established contact with the person inside known as "Gerry." When defendant opened the door, Lofthaus pointed him out and identified him for the police.

Furthermore, Alicia Lofthaus and Lila Patterson were not paid informers but were ordinary citizens. Where an ordinary citizen supplies information to a police officer his reliability need not be established as in the case of a paid informant. (People v. Hoffman (1970), 45 Ill.2d 221, 226, 258 N.E.2d 326, cert. denied (1970), 400 U.S. 904, 27 L.Ed.2d 141, 91 S.Ct. 142; People v. Fisher (1979), 76 Ill. App.3d 331, 334, 395 N.E.2d 54; People v. Lawson (1976), 36 Ill. App.3d 767, 770, 345 N.E.2d 41.) In addition, the information that these two ordinary citizens furnished the police was completely corroborated by subsequent events. Thus the police were fully and reliably informed concerning the incident even to the extent that they were told specifically they could find the drugs on top of the refrigerator and on the table in the defendant's premises. In our opinion, this proof was sufficient beyond reasonable doubt to establish probable cause and to authorize arrest of the defendant without a warrant.

Defendant next argues that exigent circumstances must exist to authorize police to enter a person's home without a warrant to make an arrest. However, in People v. Wolgemuth (1977), 69 Ill.2d 154, 159, 370 N.E.2d 1067, cert. denied (1978), 436 U.S. 908, 56 L.Ed.2d 408, 98 S.Ct. 2243, our supreme court stated that "the United States Supreme Court has consistently reserved judgment on the constitutionality of a warrantless entry into a home to make an arrest absent exigent circumstances * * *." This court has refused to hold that exigent circumstances are required for a warrantless arrest in a private dwelling. (People v. Bean (1979), 73 Ill. App.3d 918, 924, 392 N.E.2d 650.) We have held ...


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