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People v. Tisler





Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of La Salle County, the Hon. Alexander T. Bower, Judge, presiding.


At a bench trial in the circuit court of La Salle County, the parties stipulated that defendant, Gregory Tisler, had possessed less than 30 grams of LSD. This crime constituted a Class 4 felony under the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1402(b)). Defendant was convicted and sentenced to 24 months' probation and one weekend in the La Salle County Correctional Center. In addition, defendant was fined $500 and ordered to pay costs of $120.

Before trial, defendant moved to suppress evidence that he claimed was obtained either through an illegal seizure or through a search incident to an illegal arrest. The trial court, after hearing testimony, denied the motions and allowed the evidence.

Defendant appealed, and the appellate court reversed the judgment without remand. Finding that defendant's arrest was without probable cause, the appellate court held that all evidence obtained as a result of the arrest must be suppressed. (114 Ill. App.3d 214, 216.) We allowed the State's petition for leave to appeal, which was filed pursuant to Supreme Court Rules 315(a) and 612(b). 87 Ill.2d Rules 315(a), 612(b).

Before this court, the State raises the issue whether the trial court properly denied defendant's motions to suppress evidence. We will address this question after a statement of the pertinent facts. Our disposition of this first issue renders it unnecessary to consider a second issue that the State raises in its brief.

James Hollenbeck, a police officer for the city of Marseilles, testified at the hearing on the motions to suppress. While off duty on Saturday, January 9, 1982, Hollenbeck received a telephone call at 2:30 p.m. from an informant. The caller identified himself, and the officer recognized him as an informant that he had dealt with before. The caller then related the following information: that at the time they were speaking, two Marseilles residents were on their way to Streator to pick up "some hits" of LSD. After they obtained the LSD, the two individuals — defendant Tisler and a friend, Jerry Cox — would return to Marseilles at 3:40 p.m., a little over an hour hence. They would be riding in Tisler's car, a green, two-door Chevrolet Camaro with the letters "JAT" on its license plates. After they entered Marseilles via the river bridge, Tisler and Cox would proceed north on Main Street to the Number Nine Game Room. There, they would deliver the LSD.

The informant also stated that the LSD would be in a very small container which easily could be disposed of if Hollenbeck were to detain Tisler and Cox with an ordinary traffic stop. Therefore, the informant advised, Hollenbeck should approach the subjects only after they had parked at the Game Room and were out of the car.

Hollenbeck had worked with this informant twice before, and the informant's tips had always been accurate. In one case, a single tip resulted in arrest and conviction. The other case involved the informant's supplying information at several times during a four- to six-week period. Again, the information led to an arrest and conviction. Tips supplied by this informant, however, had never been used by Hollenbeck or his police department to obtain a search or arrest warrant.

Certain aspects of the tip were familiar to Hollenbeck. He knew Tisler and Cox, and, to the best of his knowledge, Tisler was a Marseilles resident. He knew Tisler's car, recalling it as a lime green, two-door Chevrolet Camaro. He also knew that its full license plate number was JAT 76. Hollenbeck recognized the Number Nine Game Room as a Marseilles business that served as a hangout for local teenagers. Finally, he knew that several routes led from Streator to Marseilles, but that the road leading over the river bridge was the shortest, most direct route.

After the telephone call, Hollenbeck sought help in obtaining a warrant. Since it was Saturday, he knew that judges' offices were closed. In such a case, the La Salle County procedure was to contact an assistant State's Attorney and advise him of the facts on which the officer based his suspicions. If the assistant State's Attorney thought the facts would support a probable-cause finding, he would meet with the officer, draft a warrant, and contact a judge at home to request his signature. Although this procedure usually took from two to three hours, Hollenbeck attempted to contact the first assistant State's Attorney at home and at his office. Unsuccessful, he left a message for the attorney to call right away. After failing to reach another assistant State's Attorney at home, Hollenbeck proceeded without a warrant.

Hollenbeck and Officer Stevenson drove to South Main Street in Marseilles and parked where they could watch the river bridge. They wore street clothes and traveled in Hollenbeck's private car, an Oldsmobile with no police insignia or equipment. The winter weather that day was unusually severe: Hollenbeck testified that the temperature was 25 degrees below zero with a wind-chill factor of 60 degrees below zero. Snow fell, and area roads were becoming impassable.

At 3:45 p.m., the officers saw a green Chevrolet Camaro approach from the south, from the direction of the river bridge. The officers had not seen the car cross the bridge. On the Camaro's license plates was the number "JAT 76." Defendant was driving, Jerry Cox sat in front on the passenger side, and a third male, unknown to the officers, rode in the back seat.

Hollenbeck pulled in directly behind defendant's car and followed for about three blocks as defendant proceeded north on Main Street. When defendant parked across the street from the Number Nine Game Room, the officers left Hollenbeck's car and approached the Camaro.

Defendant stepped out of his car and Hollenbeck saw that his left hand was closed. What looked like a plastic bag extended from defendant's fist, but the officer could not see what its contents might be. While defendant stood between his car and its still open door, Hollenbeck asked him what he was holding. Defendant replied, "Nothing," so Hollenbeck inquired again, explaining to defendant that he could see something in his hand. At this point, defendant started to move his left hand around behind his back.

Hollenbeck then took defendant's left hand and removed a small plastic bag. It contained several pills, which the officer recognized as "dots." As Hollenbeck retrieved the plastic bag, he placed defendant under arrest. The officers then searched the area immediately surrounding defendant. After being patted down and handcuffed, defendant was taken to the police station in a squad car that waited nearby. Sometime after the arrest, a forensic scientist's report disclosed that the pills taken from defendant contained LSD.

Austin Tisler, defendant's father, also testified at the hearing on the motions to suppress. Mr. Tisler was familiar with the Number Nine Game Room. He described it as a pool room with game devices — a "soda fountain for teenagers." He was aware that defendant, his 17-year-old son Greg, frequented the Game Room. When asked how often his son visited the establishment, Mr. Tisler estimated that defendant stopped at the Game Room once a day.

Before proceeding, we note that the trial court viewed the police conduct in this case as a warrantless arrest accompanied by a search incident to arrest. We will treat the facts in the same manner. It follows, then, that the central issue is the legality of the warrantless arrest. If probable-cause requirements were met before the arrest, then evidence seized during the search incident to arrest was properly admitted at trial.

We now address whether the trial court correctly found that probable cause existed for defendant's arrest. While stressing the informant's past reliability, the State maintains that the tip in this case is sufficiently detailed to be self-verifying in nature. According to the State, the detailed tip, when considered in light of the officers' corroboration of the details, is sufficient to justify the trial court's finding of probable cause. Therefore, the State reasons, the LSD seized in the search incident to arrest was legally obtained and properly admitted into evidence. The State argues that the appellate court, which reversed and excluded the evidence, reached an incorrect result because it failed to consider either the self-verifying details or the subsequent corroboration.

Defendant, on the other hand, denies that the officers had probable cause for his arrest. Therefore, he argues, the police conduct violated his rights under the United States and Illinois constitutions. Defendant claims that, under these circumstances, the trial court should have excluded the LSD and other items seized at the time of the arrest. His theory is based on the informant's failure to explain how he learned the information that he related by telephone to Hollenbeck. Defendant explains that, for all Hollenbeck knew at the time of arrest, the tip was based on a casual rumor or even was wholly fabricated by someone who knew of defendant's routine visits to the Game Room. Given the absence of a statement from the informant assuring that he obtained his story reliably, defendant contends that the information known to the officers did not meet constitutional standards for probable cause. Defendant rejects the notion that the tip was sufficiently detailed or corroborated to cure this deficiency.

The fourth amendment to the United States Constitution guarantees the right to be free from unreasonable search and seizure. The amendment specifies that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (U.S. Const., amend. IV.) With respect to unreasonable search and seizure, as well as to the issuance of warrants, the language of the 1970 Illinois Constitution is nearly identical to that of the Federal guarantee. Ill. Const. 1970, art. I, sec. 6.

In reference to Federal and State warrant requirements, this court has explained that a detached judicial officer must resolve the question of whether probable cause exists to justify issuing a warrant. The decision is to be based on information contained in sworn statements or affidavits that are presented to the magistrate. (People v. Greer (1981), 87 Ill.2d 89, 92.) Whether probable cause exists in a particular case turns on the "totality of the circumstances and facts known to the officers and court when the warrant is applied for." (People v. Free (1983), 94 Ill.2d 378, 400.) The probability of criminal activity, rather than proof beyond a reasonable doubt, is the standard for determining whether probable cause is present. (Spinelli v. United States (1969), 393 U.S. 410, 419, 21 L.Ed.2d 637, 645, 89 S.Ct. 584, 590; People v. Exline (1983), 98 Ill.2d 150, 154.) Whether the necessary probability exists is governed not by technical legal rules, but rather by common-sense considerations that are factual and practical. Brinegar v. United States (1949), 338 U.S. 160, 175, 93 L.Ed. 1879, 1890, 69 S.Ct. 1302, 1310; People v. Mitchell (1970), 45 Ill.2d 148, 153-54.

When a police officer has proceeded without a warrant to search, seize evidence, or arrest a person, the trial court making a probable-cause determination is to apply standards at least as stringent as those that guide a magistrate in deciding whether to issue a warrant. (People v. Johnson (1983), 94 Ill.2d 148, 153.) The Code of Criminal Procedure of 1963 allows a warrantless arrest only when a peace officer "has reasonable grounds to believe that the person is committing or has committed an offense." (Ill. Rev. Stat. 1983, ch. 38, par. 107-2(1)(c).) As used in the statute, "reasonable grounds" is considered to have the same substantive meaning as "probable cause." People v. Wright (1974), 56 Ill.2d 523, 528-29, quoting Brinegar v. United States (1949), 338 U.S. 160, 175-76, 93 L.Ed. 1879, 1890, 69 S.Ct. 1302, 1310-11.

To determine whether a warrantless arrest meets the reasonable-grounds/probable-cause requirement, the trial court must decide whether "a reasonable and prudent man, having the knowledge possessed by the officer at the time of the arrest, would believe the defendant committed the offense." (People v. Wright (1968), 41 Ill.2d 170, 174.) In determining whether the officer had probable cause, the officer's factual knowledge, based on his prior law-enforcement experience, is relevant. (People v. Smith (1983), 95 Ill.2d 412, 419-20.) If the trial court finds that a warrantless arrest was based on probable cause, the arrest is deemed lawful, and evidence obtained during a warrantless search incident to that arrest is admissible to prove defendant's guilt. People v. Wright (1968), 41 Ill.2d 170, 173; People v. McCray (1965), 33 Ill.2d 66, 69, aff'd (1967), 386 U.S. 300, 18 L.Ed.2d 62, 87 S.Ct. 1056; see also Ill. Rev. Stat. 1983, ch. 38, par. 108-1; Chimel v. California (1969), 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034 (limiting the scope of a search incident to arrest to the area within defendant's reach).

A police officer need not have observed personally the facts that he presents to a magistrate making a probable-cause determination. The officer's statements may be based on hearsay, and frequently such hearsay statements originate with an informant's tip. If facts supplied in a particular tip are essential to a finding of probable cause, the tip must meet standards of reliability before the magistrate may consider it in his determination. In Illinois v. Gates (1983), 462 U.S. 213, 76 L.Ed.2d 527, 103 S.Ct. 2317, the Supreme Court held that a magistrate should look to the totality of the circumstances when assessing an affidavit that relies on an informant's story:

"The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates (1983), 462 U.S. 213, 238, 76 L.Ed.2d 527, 548, 103 S.Ct. 2317, 2332.)

The Supreme Court in Gates thus reaffirmed that the reliability of hearsay statements, as measured by the informant's veracity and basis of knowledge, is highly relevant to the existence of probable cause. Scrutiny of these factors, the court observed, is to guide a magistrate who must make a probable-cause determination. 462 U.S. 213, 230-31 n. 6, 76 L.Ed.2d 527, 543 n. 6, 103 S.Ct. 2317, 2328 n. 6.

The Gates court also reaffirmed other methods established in its prior opinions for evaluating a tip. The court again emphasized the value of independent police investigation that corroborates the details of an informant's story. (462 U.S. 213, 241-45, 76 L.Ed.2d 527, 550-52, 103 S.Ct. 2317, 2334-35.) When a tip is proved accurate on some counts, the court explained, the informant is more likely correct about other details, including the alleged illegal activity. (462 U.S. 213, 244, 76 L.Ed.2d 527, 552, 103 S.Ct. 2317, 2335 quoting from Spinelli v. United States (1969), 393 U.S. 410, 427, 21 L.Ed.2d 637, 650, 89 S.Ct. 584, 594 (White, J., concurring).) Corroboration operates in this way to reduce the risk that an informant's tip stems from an inaccurate rumor or a fabricated story. 462 U.S. 213, 244-45, 76 L.Ed.2d 527, 552, 103 S.Ct. 2317, 2335.

After recognizing the continued importance of corroboration, the Supreme Court in Gates restated the principle that a tip containing a wide range of detail — which would have been difficult to obtain or predict — may support an inference of reliability. A properly detailed tip suggests that the informant obtained his story in a reliable fashion, from either the alleged wrongdoer or from someone closely related to the criminal conduct. 462 U.S. 213, 245, 76 L.Ed.2d 527, 552-53, 103 S.Ct. 2317, 2335-36; see Spinelli v. United States (1969), 393 U.S. 410, 416, 21 L.Ed.2d 637, 644, 89 S.Ct. 584, 589.

By adopting the totality-of-circumstances approach, the United States Supreme Court abandoned its former test for assessing the reliability of an informant's tip. Before Gates, the standard for evaluating a tip required that a police officer seeking a warrant disclose certain underlying circumstances: those from which the informant drew his conclusions and those from which the police officer concluded that his informant was credible. Aguilar v. Texas (1964), 378 U.S. 108, 114-15, 12 L.Ed.2d 723, 729, 84 S.Ct. 1509, 1514.

These requirements became well known as the "Aguilar two-pronged test," and the test also was applied to probable-cause questions that arose from warrantless arrests and searches. The first or "basis of knowledge" prong required the magistrate to assess an informant's statements regarding how he learned the information. The second or "veracity" prong required an evaluation of either the informant's past record of truthfulness or facts indicating that the present information was reliable. (1 W. LaFave, Search and Seizure sec. 3.3, at 501-02 (1978).) The Aguilar test was designed to insure that the inferences which led to a finding of probable cause would be drawn by the magistrate, and not by the police officer or his informant. Aguilar v. Texas (1964), 378 U.S. 108, 115, 12 L.Ed.2d 723, 729, 84 S.Ct. 1509, 1514.

Under interpretations of Aguilar, each prong of the test involved an independent and distinct evaluation. When an informant's story contained facts sufficient to meet only one of the two prongs, the tip could not be used, even where the facts which supported the one prong indicated a fair probability that the tip was reliable. However, if the magistrate found that the tip satisfied both of the Aguilar prongs, he could consider the informant's tip when he made the probable-cause determination. See generally 1 W. LaFave, Search and Seizure sec. 3.3(b)(1978).

The Supreme Court's decision to replace the two-pronged test was prompted by the inflexible manner in which lower courts> had applied the test. The court explained in Gates that it never had intended the rigid compartmentalization that had developed around the Aguilar-Spinelli standards. (Illinois v. Gates (1983), 462 U.S. 213, 229-30 & n. 6, 76 L.Ed.2d 527, 542-43 & n. 6, 103 S.Ct. 2317, 2327-28 & n. 6.) Informants' tips, the court stated, are simply too diverse to effectively be measured with a set of rigid legal rules. "[T]he `two-pronged test' has encouraged an excessively technical dissection of informants' tips, with undue attention being focused on isolated ...

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