APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN C. LAYNG, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 29, 1981.
Defendants, Walter Crowder and Jack Brewer, appeal from a jury verdict in the Circuit Court of Winnebago County, finding them guilty of theft of property having a value exceeding $150 in connection with the theft of a Corvette automobile. Ill. Rev. Stat. 1977, ch. 38, par. 16-1.
In response to a wave of car thefts, members of the Rockford Police Department and the Winnebago County Sheriff's Department established a surveillance post on the fourth floor of the local Ramada Inn. On the evening of March 17, 1978, they observed a blue Dodge van drive into the motel parking lot and pull up alongside a light-colored Chevrolet Corvette. The Corvette was owned by a guest of the motel. One of two occupants of the van was seen crouching beside the Corvette. He returned to the van and the second individual got out and entered the Corvette. Both vehicles then exited the parking lot.
An officer at the scene identified defendant Crowder on the basis of photographs he had seen earlier. A description of the vehicles and suspects was transmitted on the police radio. They were initially followed by the police but then managed to slip away.
One policeman who received the radio transmission was Tom Owens, who earlier had followed the suspects to the Ramada Inn. When he received word of the theft, he immediately drove to the farm of defendant Crowder and stationed his car with the lights out on the road in front of the farm. Owens testified that soon afterward a Corvette fitting the description of the stolen vehicle veered around his car, crossed a ditch and drove into a shed which was attached to a barn on the property. Although the Corvette's lights were out, Owens stated that he was able to read the license plate by the light of the moon reflected off the snow as the vehicle passed his. Moments later, defendant Crowder arrived at the farm in the van and was arrested by Owens.
Another officer who answered the police report, Layne Aden of the Cherry Valley police department, was stationed on the other side of the barn from Owens when the Corvette pulled into the shed. Aden testified that he saw defendant Brewer run from the shed toward the farmhouse, ignoring Aden's command to stop. Proceeding to the front of the shed, Aden shined his flashlight through the open doors and saw the Corvette whose color and license number matched those of the stolen car. According to Aden, the vehicle was actually parked beyond a second set of doors from the shed to the barn which had also been left open, and could not be seen without the aid of a flashlight.
From the shed, Officer Aden proceeded to the farmhouse where he assisted Officer Owens in the arrest of Brewer. They searched the house for additional suspects and then returned to the barn where other officers had turned on the lights and were examining the Corvette. Owens copied down the license number. While he was in the shed he also observed engine parts and a piece of another Corvette body lying beside the wall. Officer Aden leaned a ladder against a loft in the barn, climbed up and discovered some motorcycle fairings.
At approximately 8:30 a.m. a search warrant arrived at the farm which authorized the police to search the entire premises, including the house and out buildings, for the Corvette, other stolen automobiles, tools or keys for entering automobiles, titles or blank automobile titles, records of automobile sales and "other evidence of the offense of theft."
The warrant was issued pursuant to two affidavits, the first attested to by Charles Williams, a special deputy, and the second by Officer Owens. In his affidavit, Williams stated that he observed the theft from the stake-out at the Ramada Inn and recorded the license numbers of the Dodge van and Corvette which he relayed to the Winnebago County Sheriff's Department. Owens stated that he had followed the Dodge van on the night of the 17th and identified defendant Crowder as the driver; that he saw the van enter the Ramada Inn parking lot; that he was advised by Winnebago County Public Safety Communications that the Corvette had been stolen by an individual in the van; that he drove to the Crowder farm and observed the Corvette enter a shed on the property and the driver run into the house; that he arrested defendant Crowder when he arrived driving the van and then arrested defendant Brewer in the house; that in the previous 2 months, 18 Corvettes had been stolen in the Rockford area with no subsequent arrests; that he had observed Crowder looking at other Corvettes on 5 previous occasions and that 3 of those cars were later reported stolen; and that after arresting Crowder and Brewer he saw another dismembered Corvette in the shed.
Warrant in hand, the police seized the Corvette, van and all contents thereof. In addition, more than 175 items ranging from tires and tools to records, fireworks and a pickup truck were taken.
Defendants' motion to suppress the physical evidence was denied after a hearing. Among the items taken, only photographs of the Corvette, Dodge van, and their contents were used at trial.
• 1, 2 It is fundamental that searches conducted "without prior approval by a judge or magistrate are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." (Katz v. United States (1967), 389 U.S. 347, 357, 19 L.Ed.2d 576, 585, 88 S.Ct. 507, 514.) Further, when a search warrant is grounded upon information which itself was the product of a prior illegal search, the warrant should be quashed and the evidence suppressed as "fruit of the poisonous tree." (Wong Sun v. United States (1963), 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407.) It is defendants' contention that because the initial search of the Crowder farm was illegal, the warrant which subsequently issued on the basis of that search should have been quashed and the physical evidence suppressed at trial. The State, on the other hand, would justify the warrantless intrusion on the grounds that the circumstances of this case fall within the protective scope of either of two exceptions to the warrant requirement: first, that the search was incident to a lawful arrest, and second, that the evidence was in plain view when discovered.
In Chimel v. California (1969), 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034, the Supreme Court delineated the permissible scope of a search incident to arrest as the area within the "immediate control" of the arrestee, i.e., "the area from within which he might gain possession of a weapon or destructible evidence." (395 U.S. 752, 763, 23 L.Ed.2d 685, 694, 89 S.Ct. 2034, 2040.) By its terms, this exception is therefore delimited by the exigencies of the arrest to those circumstances wherein there is a significant danger that either the police officers' lives or evidence of the crime is in jeopardy. In the instant case, both Brewer and Crowder were in custody at the time Officer Owens searched the house and barn. The Corvette was not within the "immediate control" of the defendants and there was thus no danger that it would be destroyed. Furthermore, there is no basis in the evidence for the suggestion that the lives of the policemen might have been endangered by confederates hiding elsewhere on the farm. See Warden v. Hayden (1967), 387 U.S. 294, 18 L.Ed.2d 782, 87 S.Ct. 1642; Simms v. Reiner (N.D. Ill. 1976), 419 F. Supp. 468.
• 3 However, the reach of the search incident to arrest exception to the warrant requirement can be expanded when used in conjunction with the plain view doctrine. As explained by Justice Stewart in Coolidge v. New Hampshire (1971), 403 U.S. 443, 466, 29 L.Ed.2d 564, 583, 91 S.Ct. 2022, 2038:
"What the `plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being ...