APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
H. LAPLANTE, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendants James Slawek and Donald J. Slawek were charged in complaints for preliminary examination with possession of burglary tools (Ill. Rev. Stat. 1979, ch. 38, par. 19-2(a)), theft (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(a)), and burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19-1(a)). A preliminary examination was held at which only one witness appeared, at the behest of the State. Defendants then made oral motions to quash their arrest and to suppress evidence seized by the arresting officer. The circuit court granted the motions.
The state appeals this disposition, contending (1) that defendants were legally stopped and then arrested with probable cause, and (2) that the search which turned up the suppressed evidence was either (a) not subject to attack by defendants because they abandoned the searched vehicle and lacked standing, or (b) valid as a search incident to defendants' arrest.
At the preliminary examination held to determine the viability of the complaints filed against defendants, the State called as its sole witness Elk Grove policeman Fred Ortiz, who had arrested defendants. Ortiz testified that on February 29, 1980, he was on patrol. He received a radio call of a burglary in progress. The call informed him that a complainant had seen two white males enter a building and then exit, with one of them carrying a white bag over his shoulder. The individuals were described as wearing dark clothing, and one was wearing a knit cap.
As he continued on patrol, Ortiz spotted a car parked at a curb with two persons standing at its rear. The car was located one-half block from the scene of the reported burglary. Ortiz made the sighting some 15 minutes after the radio report. One of the men threw a white bag "in the rear of the vehicle." Ortiz identified defendants as the two persons. He approached them. The following testimony relates the gist of Ortiz' conversation with defendants:
"A [Ortiz]: * * * I asked what they threw in the trunk of the car.
A: They replied it wasn't their car. They did not know what I was talking about.
I asked to open the trunk of the car.
A: Again they repeated the vehicle wasn't theirs."
Ortiz then found the car keys on the floor of the vehicle's back seat. He opened the trunk and discovered a white pillowcase. Inside the pillowcase, he found several items, including a drawer and a pipe wrench. He then advised defendants that they were under arrest, and gave them the Miranda warnings.
On cross-examination, Ortiz stated that defendants were arrested "just prior to opening the trunk." He stated that he had asked defendants to remain where they were as he searched the trunk.
Upon completion of Ortiz' testimony, the State indicated that it did not plan to call any further witnesses. Defendants then made an oral motion to quash the arrest and suppress the items seized from the trunk of the car. After hearing argument of the parties, the court ...