Appeal from the Circuit Court of Cook County; the Hon. Francis
J. Mahon, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
In a jury trial, defendant Hilmon Stamps (Hilmon) was convicted of illegal possession and delivery of more than 30 grams of cocaine, a controlled substance, and defendant Billy Stamps (Billy) was convicted of illegal possession and delivery of more than 30 grams of a substance containing cocaine and of more than 30 grams of a substance containing heroin. *fn1 (Ill. Rev. Stat. 1977, ch. 56 1/2, pars. 1401(a)(1), (2), 1402(a)(1), (2).) Merging the convictions for possession into the convictions for delivery, the trial court sentenced Hilmon to 12 years imprisonment and Billy to concurrent terms of 15 years for delivery of cocaine and delivery of heroin.
On appeal, defendants contend that (1) the seizure of the narcotics was improper; (2) Billy was not proved guilty beyond a reasonable doubt; (3) the trial court erred (a) in permitting a bank trust officer to give explanatory and opinion testimony as to a land trust agreement involving Billy, which purported error was compounded by the prosecutors' remarks in closing argument, (b) in barring the defense from cross-examining the arresting police officers as to bias and motive, and (c) in denying them the right to present a defense; (4) the jury (a) was not instructed on Billy's theory of defense, and (b) was improperly instructed that defendants could be convicted of illegal possession if they controlled the "area" where the substances were found; and (6) the trial court abused its discretion by sua sponte modifying the instruction defining possession.
Investigator Zito testified that in the early morning hours of November 21, 1977, he and Investigators Mokstead and DeSimone drove to a building located at 4654 West Madison Street after being informed that a large narcotics transaction would take place; that when their squad car was about 100 feet from the building, he observed three people standing at the doorway, and when they were 40 to 60 feet away he saw one of the individuals — identified as Carl Branch — with his arm outstretched holding a plastic bag which he was giving to the others; that when the squad car was 25 to 30 feet away, Branch dropped the container and ran into the building while the other two individuals fled east on the street; that Zito picked up the plastic container of white powder and put it into his pocket, and getting no response to a request to open the door he forced it open with a pry bar and sledgehammer; that he entered the building — a furniture warehouse — and followed an individual to the top of a stairway where he saw Branch and another man — identified by Zito in court as Hilmon — who was carrying a brown leather case with a strap; that Branch went into an office section, and he followed Hilmon into a lavatory where on a wastebasket under the sink he saw the leather case in which he found several plastic containers of white powder similar to the one recovered on the sidewalk; that he turned Hilmon and the case over to Mokstead and, when there was no reply to his demand to open the office door, he forced it open with the sledgehammer; that upon entering, he saw Branch throwing plastic bags of white powder against the wall and Billy crouching down and running to the right to Zito; that when Billy refused his order to stop, Zito threw the sledgehammer and reached for his revolver; that when the lights went on, he observed Billy on the floor holding his head; that he (Zito) had no intention of hitting Billy with the sledgehammer; that there was white powder on Branch's hands and clothing and on the floor immediately in front of him and on the wall; that on a desk in the room there were two plastic bags containing white powder, a scale, and several weapons; and that on another desk there were a number of plastic bags containing white powder.
Investigator Mokstead testified that at the request of Ruby Fay Thomas he obtained a wet wash cloth for Billy's face and then searched the office and secured the items which were lying on the desks, which included a mixer; that he searched a hole in the ceiling and recovered a brown paper bag containing three plastic bags of brown powder; and that, after Billy made a telephone call, his brother-in-law Paul Jackson arrived and was given a set of keys by Billy.
It was stipulated that the bag of powder recovered on the sidewalk contained 19.74 grams of cocaine; that the bags in the leather case contained 282 grams of cocaine; that the two plastic bags recovered from one of the office desks contained 49.29 grams of cocaine; and that the bags of brown powder recovered from the ceiling contained 45.13 of heroin. There was also testimony that telephone, gas, and electric company records listed Stamps Brothers Furniture at 4654 West Madison Street as a customer; that the telephone and gas service was billed to "Johnny Stamps" and the electricity billed to "W. Stamps doing business as Stamps Brothers Furniture"; and that no one in the Stamps family had a first name beginning with "W" aside from Billy.
Asserting that he was merely present at the warehouse at the time in question, Billy testified that he was a licensed trainer of horses, having sold a trucking business he had previously owned; that he had no interest in the building in question and had never obtained telephone, gas, water, or electrical service for it; that at the time in question (November 21, 1977), he was with Hilmon, Ruby Thomas, and Edna Jackson (his sister) in her bar next door to the warehouse; that Hilmon and Ruby left and went to the warehouse while he remained in the lounge to borrow $150 from Edna, who told him that while she was getting the money he was to wait for her at the warehouse; that since he had no keys, he knocked and Paul Jackson let him in; that Ruby and Hilmon were there along with two men whom he later learned were Carl Branch and George Washington; that he was on the second floor when he heard a door slam and a loud noise, as though someone was trying to break in; that Hilmon left the room, and Branch came in carrying a leather bag from which he pulled "stuff" out and threw it "every which way"; that Zito then entered and ordered him to "get upside the wall"; that when Billy asked what he had done, Zito shouted a profanity and again ordered him against the wall, this time striking him above the right eye with the sledgehammer and rendering him unconscious; that he was first taken to a hospital where he received treatment and then to the police station; and that, while Zito had originally intended to charge him with "disorderly," after Billy threatened to sue Zito he was charged with illegal possession.
We first consider the legality of the police conduct during the seizure of the narcotics. Defendants contend that the police illegally entered the warehouse and arrested Hilmon Stamps without probable cause and that the warrantless seizure of the leather case and of the items in the office area was illegal. Based on the record before us, however, we conclude that the trial court properly denied defendants' motion to suppress the evidence.
In Mancusi v. DeForte (1968), 392 U.S. 364, 367-68, 20 L.Ed.2d 1154, 1158-59, 88 S.Ct. 2120, 2123-24, it was stated:
"This Court has held that the word `houses,' as it appears in the [Fourth] Amendment, is not to be taken literally, and that the protection of the Amendment may extend to commercial premises. * * * [C]apacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion."
With respect to the warrantless searches of commercial or business premises, the court further stated that except in certain carefully defined classes of cases, a nonconsensual search of private property can only be made on the authority of a search warrant. (392 U.S. 364, 370, 20 L.Ed.2d 1154, 1161, 88 S.Ct. 2120, 2125.) Consistent with Mancusi, the courts> of this State have recognized that the protection of the fourth amendment may extend to places other than private residences. In People v. Davis (1980), 86 Ill. App.3d 557, 407 N.E.2d 1109, it was held that the police acted illegally in entering the premises of a grinding company without a warrant. The court found that those premises did not permit general public access and that the arrest of defendant, who was a part-time employee, was without probable and sufficient exigent circumstances. Similarly, in People v. Clark Memorial Home (1969), 114 Ill. App.2d 249, 252 N.E.2d 546, the court required suppression of evidence seized in a nonconsensual and nonexigent entry of law enforcement officials into an American Legion Post occupied by a veterans' organization open only to members and guests and found not to be public in nature. By contrast, in People v. Boyle (1977), 51 Ill. App.3d 320, 366 N.E.2d 600, police entry upon Chicago Transit Authority premises, over which accused had no legal control, did not require suppression of evidence seized without a warrant. The accused allegedly conducted gambling operations in a CTA building in potential view of employees and others using the facility, and the officer had previously been on the premises, implying CTA approval of his presence. Likewise, in People v. Johnson (1974), 21 Ill. App.3d 769, 315 N.E.2d 579 (abstract), the court held that no warrant was required for police entry into a pool hall open to the public (also see People v. Lerch (1966), 77 Ill. App.2d 151, 221 N.E.2d 664 (abstract), in which the court held that it was not a search where a police officer without warrant "caught a glimpse" of a slot machine through a partially open door of a room in a gasoline filling station). Thus, the question before us here is whether the warrantless, nonconsensual entry into the furniture warehouse was permissible.
• 1 The law is clear that police officers may make a warrantless entry of a private residence to effectuate a felony arrest if probable cause and exigent circumstances exist. (Payton v. New York (1980), 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371; People v. Abney (1980), 81 Ill.2d 159, 407 N.E.2d 543.) Furthermore, we interpret Mancusi as providing fourth amendment protection to business or commercial premises against warrantless searches and seizures if there exists "a reasonable expectation of freedom from government intrusion." Although it did not address the question of a warrantless entry by the police for the purpose of making a felony arrest, by reading Mancusi in the light of Payton and Abney, we believe that defendants here did have a reasonable expectation of freedom from governmental intrusion into the warehouse to make an arrest. While such expectation may be diminished in the context of commercial or business premises, it is unnecessary to decide that question since the standards of Payton and Abney, as applied to private residences, were satisfied in the present case.
• 2 It is apparent, first of all, that probable cause existed to arrest Carl Branch. As stated in People v. Thompson (1981), 93 Ill. App.3d 995, 1001-02, 418 N.E.2d 112, 118:
"A police officer has probable cause to arrest without a warrant, `when the facts and circumstances within his knowledge and of which he has reasonable and trustworthy information are sufficient in themselves to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested is guilty.' [Citation.] Whether probable cause for an arrest exists depends upon the totality of the facts and circumstances known to the arresting officer when the arrest is made. [Citation.] In deciding the question of probable cause, courts> are not disposed to be unduly technical, and the determination is to be based on the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. * * * Where a trial court conducts a lengthy hearing on this issue and determines that the officers had probable cause to arrest the defendant, courts> of review will not disturb this finding unless manifestly erroneous. [Citation.] A ruling on a motion to suppress is not final and may be changed or reversed at any time. [Citation.] Consequently, a reviewing court in passing upon the trial court's ruling may consider testimony adduced at trial as well as at the pretrial hearing. [Citation.]"
In the present case there was testimony at the hearing on the motion to suppress that Investigator Zito had received an informant's tip that a large narcotics transaction was to occur in the area of the warehouse, possibly involving persons who were armed and dangerous. Later, as the investigators approached the building, they observed Carl Branch holding a plastic container of white powder in his hand with his arm outstretched toward two other individuals. When the squad car was 25 to 30 feet away, Branch dropped the container and fled into the building. Then Zito, who had made some 500 narcotics retrievals, picked up the container — believing the substance to be cocaine or heroin. A police officer investigating possible criminal conduct may rely upon his knowledge and experience and the reasonable inferences drawn from observed facts. (People v. Crawford (1978), 64 Ill. App.3d 861, 381 N.E.2d 1183.) Accordingly, we conclude that the officers had probable cause to believe Branch had committed the offense of illegal possession of a controlled substance.
Applying the criterion of exigent circumstances, we note that several factors have been set forth in determining if such circumstances exist. As stated in People v. Sakalas (1980), 85 Ill. App.3d 59, 65-66, 405 N.E.2d 1121, 1127, the following factors are considered in order to justify a nonconsensual entry into a home to arrest a suspect:
"`"(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect `is reasonably believed to be armed`; (3) `a clear showing of probable cause * * * to believe that the suspect committed the crime'; (4) `strong reason to believe that the suspect is in the premises being entered'; (5) `a likelihood that the suspect will escape if not swiftly apprehended'; and (6) the peaceful circumstances of the entry."' [Citations.]"
Additional factors considered are (1) the need for prompt action by the arresting officers after receiving information establishing probable cause; (2) no deliberate or unjustified delay by the police during which time a warrant could have been obtained; and (3) the reasonable belief that the suspect may be armed and violent. (People v. Abney (1980), 81 Ill.2d 159, 407 N.E.2d 543; also see People v. Patrick (1981), 93 Ill. App.3d 830, 417 N.E.2d 1056.) All such factors need not be established but only satisfied on balance. People v. Thompson (1981), 93 Ill. App.3d 995, 418 N.E.2d 112; People v. Sakalas (1980), 85 Ill. App.3d 59, 405 N.E.2d 1121.
Here, in addition to having probable cause to arrest Branch, the officers had reason to believe he was inside the premises and possibly armed. Although Branch's possession of a controlled substance might not be regarded as a grave crime, the officers had reason to fear violence based on the informant's tip and the circumstances of the transaction. Their actions also were prompt, and there was no undue delay between the time probable cause was established and their entry of the premises. Moreover, upon seeing the officers, Branch immediately fled into the warehouse, thereby creating the likelihood he would escape if not swiftly apprehended. We conclude, therefore, that the officers' entry into the building was, on balance, consistent with the requirements of Payton and Abney.
Furthermore, we think it clear that in light of the above stated principles, there was probable cause to arrest Hilmon Stamps. The record indicates that the investigators had been informed of a narcotics transaction, and when they entered the building they were in pursuit of Branch, whom they had observed in possession of narcotics. Significantly, Zito first observed Hilmon on the second floor, standing near Branch, and after Zito announced his office and ordered Hilmon to stop, Hilmon failed to comply but, instead, fled into the lavatory carrying the leather bag. Deliberately furtive actions and flight at the approach of police officers are properly considered strong factors in the decision to make an arrest. (People v. Addison (1977), 56 Ill. App.3d 92, 371 N.E.2d 1025.) When Zito entered the lavatory, he observed the bag lying on top of the wastebasket under ...