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People v. Montgomery

OPINION FILED MAY 27, 1980.

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

v.

WALTER MONTGOMERY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. EARL E. STRAYHORN, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Sometime between 5 and 6 a.m. on November 27, 1976, the defendant was arrested in his Chicago home by the Chicago police. Without a warrant of any type the defendant was arrested for an alleged rape which occurred on November 17, 1976. Certain articles were seized by the police at the time of the arrest. Thereafter defendant was indicted on four separate charges of rape which occurred during the months of August through November of 1976. The trial court, as the result of pretrial motions in the first case to be tried, suppressed certain physical evidence.

The State appeals, contending the trial court erred (1) in suppressing items that were in plain view when seized by the police at the time of defendant's lawful arrest, and (2) in suppressing the defendant's palm print which was recovered from the scene of another rape from which a common design and modus operandi could be demonstrated.

In summary the evidence at the pretrial hearing indicated that on November 17, 1976, Elfreda Bronstein was raped on Chicago's north side. She immediately reported the incident to the police giving a description of her assailant. Two days later the victim tentatively identified a photograph of defendant as her assailant. The police on November 20, 1976, began surveillance of the area where the rape had occurred. Two women police officers acted as streetwalking decoys while other officers covered them. On November 20, between 1:20 and 4 a.m., the police observed the defendant following a decoy on three separate occasions. Because of persons or cars appearing each time, the defendant abandoned his pursuit. This surveillance continued each day through November 27, 1976.

On November 27, between 5 and 6 a.m., approximately eight policemen went to the defendant's apartment to arrest him, some officers going to the front door, others to the back door. The police did not have any warrant. The policemen at the front door knocked and announced their office. The record is unclear as to who opened the door. In any respect, when the door opened, defendant, who was standing there in a hallway, was immediately arrested. The hallway was described as being approximately 6' by 6' to 6' by 12'. At the end of the hallway was an adjoining living room. In the living room was a portable bar with a footrest. One of the policemen testified that this bar was located against a wall on the immediate left inside the entrance to the living room. On the footrest in plain view were gloves, a mask, and a strip of cloth, which items a police officer seized. This police officer testified that before he entered the apartment he had information that the assailant in a series of rapes which occurred in the same vicinity as the instant rape wore gloves, blindfolded his victims, and was masked. One of the officers walked to the rear of the apartment and opened the back door for the other officers waiting there.

After making specific findings of fact, the trial court denied defendant's motion to quash his arrest but granted defendant's motion to suppress the mask, gloves, and strip of cloth seized from his apartment. Based upon the totality of the circumstances known to the officers at the time of the arrest, the court found that the police had sufficient probable cause to arrest the defendant, and that his arrest in the hallway of his apartment was therefore legal. The court stated that it would have been much better police procedure to have presented the facts to a magistrate and have requested an arrest and a search warrant, but that the failure to do so did not vitiate the arrest. However, the court suppressed the physical evidence seized from the defendant's apartment finding Chimel v. California (1969), 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034, controlling. Chimel limits a warrantless search incident to an arrest to the arrestee's person and area where the arrestee might gain possession of a weapon or destructible evidence. The court stated:

"Walter Montgomery, when he opened the door to his apartment, was immediately placed under arrest in the hallway, at which point, he was some six to eight feet removed from the livingroom where the items which are cited to be suppressed were observed in plain view. However, the authority holds, plain view alone is not enough to justify the warrantless seizure of evidence."

Citing Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022, the trial court found that the police failed to demonstrate "any exigent circumstances which would permit evidence secured in the manner that this evidence was, to be [cleansed] of the Constitutional taint, which their seizure branded this evidence with."

The defendant also filed a pretrial motion seeking the exclusion of a palm print, identified as defendant's print, found on a piece of cardboard at the scene of a rape which occurred a couple of weeks before and in the same vicinity as the rape in question. It was brought out at the hearing that on November 2, 1976, 15 days before the instant rape, Judy Hoffman was raped in the same area at approximately the same time. Both Hoffman and the victim here told the police that they had been blindfolded, a knife was placed at their necks, and they were pulled into a gangway. In the instant rape, the assailant placed a coat underneath the victim. In the Hoffman rape, a piece of cardboard was placed underneath the victim from which the police were able to recover a palm print which an expert determined matched the palm print of the defendant. Because Hoffman was blindfolded, she could not see her assailant but estimated that he weighed about 150 lbs. The victim involved in the instant case said she was also blindfolded, but it loosened enabling her to see her assailant whom she described as a large, tall, black male. In the police report the assailant was described as about 6'5" tall and 245 lbs.

The trial court refused to allow the State to use the cardboard containing the defendant's palm print as evidence of common scheme, motive, and design finding the prejudice of using the print outweighed its probative value. The trial court relied on the facts that Hoffman never saw her assailant and described him as weighing only 150 lbs. which differed greatly from the defendant who was 6'5" and weighed 285 lbs. The court stated that it would not prohibit the State from attempting to establish a common scheme and design but it had to do so without using evidence of the palm print.

I.

The State contends that the trial court's reliance on Chimel v. California in its decision to suppress the items seized from the defendant's apartment was misplaced. In Chimel, the Supreme Court defined the scope of a permissible warrantless search incident to a lawful arrest to include a search of the defendant's person plus the area within his immediate control from which he might obtain possession of a weapon or destructible evidence. It is the State's contention that no search was conducted, rather the items seized were in plain view and Chimel did not abolish the plain view exception to the search warrant requirement.

• 1 A search implies a prying into hidden places for that which is concealed; it is not a search to observe that which is open to view. (People v. Berg (1977), 67 Ill.2d 65, 68, 364 N.E.2d 880.) Under the plain-view exception to the warrant requirement, an arresting officer may seize evidence within a dwelling that inadvertently comes into plain view, even though outside the area under the immediate control of the arrestee. (Coolidge v. New Hampshire (1971), 403 U.S. 443, 465-66 n. 24, 29 L.Ed.2d 564, 582-83 n. 24, 91 S.Ct. 2022; People v. Holt (1974), 18 Ill. App.3d 10, 12, 309 N.E.2d 376.) However, this seizure is proper only when three conditions are met: (1) the object seized is in plain view; (2) the officer views the object from a position where he has a right to ...


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