Appeal from the Circuit Court of Cook County; the Hon. Jack
Arnold Welfeld, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 15, 1985.
Following a jury trial in the circuit court of Cook County, defendant was convicted of armed robbery and sentenced to serve a 15-year term in the Illinois Department of Corrections.
On appeal, defendant claims as error the trial court's denial of his motions (1) to suppress evidence, (2) to compel the State to disclose the identity of a citizen-informant, and (3) for a mistrial based on a discovery violation; he also claims he was denied a fair trial by (4) the admission of certain hearsay evidence, (5) the State's attempt to shift the burden of proof and its misstatement of the evidence, and (6) the systematic exclusion of blacks from the jury.
We affirm the decision of the trial court.
On May 18, 1981, at approximately 7 p.m., Cynthia Glenn completed her shopping at the Jewel food store in Oak Park, took her groceries, and walked out to the parking lot. As she was placing her groceries in the trunk of her car, she heard a man's voice yell, "Hey." Glenn turned around to see a man, later identified as defendant Charles Loggins, sitting in the front seat of a car some 3 to 5 feet way, pointing a gun at her.
Defendant then said to Glenn, "If you scream, I will blow your head off," and ordered her to put her groceries in the back seat of his car. He then asked Glenn for her purse and her car keys, all the while looking directly at her. After Glenn gave defendant her keys, defendant told her to walk to her car and act as if she were getting into it. She walked to her car, and defendant drove away.
Glenn turned around and watched defendant's car drive off, making a mental note of the license plate number and noticing a line of rust across the back of the car. She then ran into the store and told a man at the main desk that she had been robbed. The man called the police. An officer came in response to the call, interviewed Glenn and another witness, and then drove Glenn home.
At approximately 10 p.m. that same evening, Glenn was with friends at a bowling alley in Forest Park when two officers arrived and asked to speak to her. After speaking to them about the crime, Glenn was shown a photo album containing 97 photographs. She was instructed by the officers to go through the album twice and attempt to identify a photo of the man who had robbed her earlier that evening. After looking through the album, Glenn picked out a photo of defendant.
The following afternoon, a citizen-informant delivered to the police station some of the proceeds of the crime, which he had found in a trash can behind the building in which defendant lived. The informant told the police the defendant's address, where he was employed, and the location and description of defendant's car. An arrest warrant was issued shortly thereafter.
Having obtained a warrant, Officers Schoff, Kelly, and Toll proceeded to defendant's address and knocked on his apartment door. When defendant opened the door and saw the officers with their weapons drawn and badges displayed, he immediately slammed the door. Officer Kelly then heard footsteps and a disturbance inside the apartment and a male voice say, "Come in and get me, fuckers." The officers shouted through the door to defendant to lie down on the floor, place his hands in front of him, and crawl towards the door. When the officers opened the door, defendant was lying on the living room floor in a prone position.
Officers Kelly and Toll restrained defendant, and Kelly told Schoff to get defendant's weapon and be careful, because he did not know if there was anyone else inside the apartment. Kelly asked defendant if he had a weapon or where the weapon was located, and defendant said, "It's under the pillow," referring to a pillow lying near him on the floor. Kelly lifted up the pillow and found the gun. Kelly announced to the other officers that the gun had been found.
Schoff stepped over the defendant and pushed open the door to the bedroom, wherein he saw a purse standing on the dresser. Schoff radioed the police communications center and requested a description of the purse that had been taken from Glenn the previous day. Kelly, hearing Schoff's inquiry, responded with a description of Glenn's purse. Schoff entered the bedroom and opened the purse, in which he found credit cards and identification belonging to Glenn. Schoff then radioed communications again and asked for the name of the victim of the robbery. Upon learning that Glenn was the victim's name, Schoff took possession of the purse. Defendant was placed under arrest, and defendant's vehicle was seized and brought to the police station.
The following day, Glenn was called down to the police station to view a six-man lineup. After viewing the men and hearing each man speak the words which had been spoken to her during the robbery, Glenn identified defendant. She was then taken into an office and shown a billfold, which she identified as the one taken from her by defendant. She also identified the gun used in the robbery. Glenn then went out into the parking lot and, out of approximately 100 vehicles, identified defendant's car as the one used during the commission of the crime. Glenn identified defendant for a third time in court at trial.
Following a jury trial, defendant was convicted of armed robbery and sentenced to serve a 15-year term in the Illinois Department of Corrections.
He appeals his conviction.
• 1 Defendant first contends on appeal that the trial court erred by denying his motion to suppress physical evidence, namely, the purse taken from defendant's apartment during the arrest and the seizure of his car. The State maintains that the seizure of the purse was proper by virtue of defendant's "invitation" to the officers to enter his apartment, based on the exigent circumstances surrounding the arrest, and under the "plain view" doctrine. The State justifies the warrantless seizure of defendant's car on the basis of exigent circumstances, and argues alternatively that any error resulting from the seizure was harmless.
The search incident to a lawful arrest exception to the warrant requirement, the permissible scope of which has been delineated as an area within the immediate control of the arrestee, can be expanded when used in conjunction with the plain view doctrine. (People v. Crowder (1981), 99 Ill. App.3d 500, 425 N.E.2d 994.) A police officer may lawfully seize an item in plain view without a warrant if he views the object from a place where he has a right to be and if the facts and circumstances known to him at the time he acts give rise to a reasonable belief that the item seized constitutes evidence of criminal activity. People v. David (1981), 96 Ill. App.3d 419, 421 N.E.2d 312.
In the instant case, Officer Schoff viewed the subject purse from the living room, in which defendant was lawfully being arrested. Schoff radioed in to obtain a description of the purse taken during the crime and his co-officer, hearing the inquiry, supplied him with a description that matched the purse on the bedroom dresser. Schoff then entered the bedroom and seized the purse. Because he had an initial right to be in the living room, he viewed the purse from the living room, and he had a reasonable belief, based on his co-officer's description, that the purse constituted evidence of the crime, the seizure of the purse was reasonable.
• 2 We cannot find, however, that the warrantless seizure of defendant's automobile was similarly justified. The validity of a warrantless search and seizure must be determined on the basis of whether the State has shown that the exigencies of the situation made that course of conduct imperative. (People v. Grant (1974), 57 Ill.2d 264, 312 N.E.2d 276.) Here, the State bases its claim of exigent circumstances on the possibility that proceeds of the crime might still have been present in defendant's car and that the female who shared defendant's apartment could easily have "spirited" the vehicle and its potentially inculpatory contents from the scene.
We find that, in this context, these circumstances fail to constitute the type of exigencies needed to justify the warrantless seizure of defendant's car. Coolidge v. New Hampshire ...