THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RICHARD EUGENE BLITZ, Appellee.
No. 48590
THE SUPREME COURT OF ILLINOIS
October 5, 1977
Rehearing denied Nov. 23, 1977
68 Ill. 2d 287
William J. Scott, Attorney General, of Springfield, and Herbert J. Lantz, State‘s Attorney, of Chester (James B. Zagel, Assistant Attorney General, and Bruce D. Irish and Raymond F. Buckley, Jr., of the Illinois State‘s Attorneys Association Statewide Appellate Assistance Service, of Mt. Vernon, of counsel), for the People.
Michael J. Rosborough, Deputy Defender, and John H. Reid, Assistant Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellee.
MR. CHIEF JUSTICE WARD delivered the opinion of the court:
On the evening of February 23, 1975, the defendant,
Kenneth Beam, a deputy sheriff of Randolph County, testified at the hearing on the motion to suppress that some officer of his office had received a tip from a “reliable informer” that drugs were being sold in a house in Percy occupied by George Kraft. Acting on this tip the sheriff‘s office maintained surveillance on the house for about a week prior to February 23, 1975. He said that, on the evening of February 23, he had the Kraft house under surveillance from a distance of a block and a half and that in a 15- to 20-minute period he observed between four to six cars separately pull up to the house. He testified that in each instance a person left the car, entered the house and returned to the car 5 to 10 minutes later. The auto would then be driven away. At about 7:30 p.m. he observed a car driven by the defendant park outside the Kraft house. Two persons left the car, entered the house and returned carrying a brown bag which was placed in the trunk. He said the bag was of a type large enough to carry 16 to 25 pounds of food. The defendant later testified that he did carry a brown paper grocery bag from the house but stated he placed it in the rear seat of the auto, not in the trunk.
Beam stated that he followed the defendant‘s car when it left the house and that it headed in the direction of Steeleville. He said that while following the car he tried to read the number on the rear license plate but he could
He testified that when he stopped the car the defendant “jumped out of the car and ran back [toward him], acting in a nervous manner.” He said he told the defendant that he had stopped him because of the license plate violation and that he asked for and was given what apparently was a valid driver‘s license. He said that as he walked toward the defendant‘s car he heard what he thought may have been police transmissions coming from an eight-band radio in the defendant‘s car. The witness stated that when he saw Michael Blitz, the defendant‘s brother, turn a knob on the radio, he opened the car door and took the radio from Michael. He then ordered the occupants out of the car and told the four of them and the defendant to place their hands on the trunk of the car. He said he kept a shotgun trained on the occupants for his own protection until the other officers arrived. When they did, the occupants were searched. A hunting knife was found on Michael Blitz, and he was then placed under arrest for possession of the knife, and Richard Blitz was arrested for the license plate light violation. He stated that the defendant gave him permission to search the interior of the car and then the trunk. (The appellate court held that there was not a valid consent to search the trunk. Whether there was a consent is not an issue here, because the People rely on other grounds to justify the search.) There was
On cross-examination Officer Beam stated he had stopped the car because of the license plate light violation and because he “wanted to look into that car *** to see if there was cannabis in there.” He said that he believed the car contained drugs and that there was cannabis in the bag because of all of the activities he saw while he had the Kraft house under surveillance, because the two occupants of the defendant‘s car placed the bag in the trunk and because his office had “a report from a reliable source, there was drugs being sold out of the house.” He said he did not remember who in the sheriff‘s office had told him of the tip or the circumstances of its being given.
When asked: “At the time you stopped the vehicle the only violation that you were aware of was of the traffic violation?” the officer responded: “No, I believed they had cannabis in it.” Later he was asked: “And you wanted to look into that car when you stopped that car to see if there was cannabis in there?” He answered yes. He also testified that he had followed the defendant‘s car from Percy and had stopped it so that he could examine the trunk.
The question presented to us is whether there was probable cause to justify the search of the trunk of the defendant‘s car. What this court observed in People v. Watkins (1960), 19 Ill. 2d 11, 18-19, is relevant:
“The constitution prohibits only unreasonable searches; it permits those that are reasonable. The critical issue in each case must be whether the situation that confronted the officer justified the search. That question can not be determined by an indiscriminate application of legal concepts that were evolved to meet quite different problems. ***
***
*** Police officers often must act upon aquick appraisal of the data before them, and the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to catch criminals.”
See also People v. Robinson (1976), 62 Ill. 2d 273; People v. Palmer (1976), 62 Ill. 2d 261.
In determining whether there was probable cause we must look at all of the circumstances presented to the investigating officer. Probable cause exists when “the facts and circumstances within the arresting officer‘s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. [Citation.]” (People v. Robinson (1976), 62 Ill. 2d 273, 276.) Facts sufficient to establish probable cause need not be sufficient to establish guilt beyond a reasonable doubt (Draper v. United States (1959), 358 U.S. 307, 311-12, 3 L. Ed. 2d 327, 331, 79 S. Ct. 329), and probable cause may be founded upon evidence which would not be admissible at trial (People v. Jones (1964), 31 Ill. 2d 42, 47). The court in United States v. Davis (D.C. Cir. 1972), 458 F.2d 819, 821, commented broadly on probable cause:
“Probable cause does not emanate from an antiseptic courtroom, a sterile library or a sacrosanct adytum, nor is it a pristine ‘philosophical concept existing in a vacuum,’ Bell v. United States, 102 U.S. App. D.C. 383, 386, 254 F.2d 82, 85 (1958), but rather it requires a pragmatic analysis of ‘everyday life on which reasonable and prudent men, not legal technicians, act.’ Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879 (1949). It is to be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience
and training. Jackson v. United States, 112 U.S. App. D.C. 260, 302 F.2d 194 (1962). It is ‘a plastic concept whose existence depends on the facts and circumstances of the particular case.’ Bailey v. United States, 128 U.S. App. D.C. 354, 357, 389 F.2d 305, 308 (1967). See McCray v. Illinois, 386 U.S. 300, 304, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967); Beck v. Ohio, supra, 379 U.S. at 91, 85 S. Ct. 223; Brinegar v. United States, supra, 338 U.S. at 175-176, 69 S. Ct. 1302. Because of the kaleidoscopic myriad that goes into the probable cause mix ‘seldom does a decision in one case handily dispose of the next.’ Hinton v. United States, 137 U.S. App. D.C. 388, 391, 424 F.2d 876, 879 (1969). It is however the totality of these facts and circumstances which is the relevant consideration. Davis v. United States, 133 U.S. App. D.C. 172, 173, 409 F.2d 458, 459 (1969); Dixon v. United States, 111 U.S. App. D.C. 305, 306, 296 F.2d 427, 428 (1961). Viewed singly these factors may not be dispositive, yet when viewed in unison the puzzle may fit.”
See Commonwealth v. Norwood (1974), 456 Pa. 330, 319 A.2d 908.
The deputy sheriff, Beam, testified that deputies of his office had kept the Kraft house under surveillance for a week prior to February 23, 1975, because of the tip that drugs were being sold there. (There was no attempt by the defendant to controvert this through the subpoenaing of patrol records of the sheriff‘s office or through the testimony of other deputies.) Beam personally observed four to six cars separately arrive at the house in a 15- to 20-minute period. In each instance people left their cars, entered the house and returned shortly to their cars. He testified he saw the defendant park his car outside the
For the reasons given, the judgments of the circuit and appellate courts are reversed, and the cause is remanded to the circuit court of Randolph County for further proceedings.
Reversed and remanded.
MR. JUSTICE CLARK, dissenting:
I dissent. The majority‘s recitation of a laundry list of generalities about the need to accord law enforcement officers a certain amount of discretion (a need which I recognize) does not address the issue raised by this case: whether this law enforcement officer had adequate grounds for this search. Resolution of that issue requires analysis of the precise facts which the law enforcement officer possessed at each significant stage of his intrusion upon defendant‘s fourth amendment rights, as well as comparison of those precise facts to the types of facts and circumstances which this court and the United States Supreme Court have found adequate to justify such
Kenneth Beam, a deputy sheriff of Randolph County, testified at the suppression hearing that the Randolph County sheriff‘s office had received a tip that illegal drugs were being sold at the residence of George Kraft in Percy, Illinois, a small town near the eastern edge of Randolph County. (Beam gave no other significant details regarding the tip.) The sheriff‘s office placed the house under surveillance.
About a week later, on February 22, 1975, one of the other deputies on the surveillance detail told Beam that a shipment of drugs was expected. (Beam again gave no other significant details regarding this additional tip.) The next evening, shortly after 7 p.m., Beam was stationed in an unmarked car across the street from the house when he observed a succession of four or five persons drive up to the house, enter, and depart after 5 or 10 minutes. About 7:30 p.m. he observed the defendant and the defendant‘s brother, Michael, similarly arrive, enter the house, and return about 5 minutes later carrying a brown paper bag which, Beam testified, they placed in the trunk of the car.
When the car departed, Beam followed it as it headed westward through Randolph County toward Steeleville. He testified that, while following the car, he was unable to read its license number because the light which normally illuminates the rear license plate was not working and because a trailer hitch obstructed his view. Beam radioed for assistance, and testified that, as he did so, he observed the occupants of the car turn around and look at him.
After stopping, defendant got out of his car and started walking back toward Beam‘s car in what Beam described as a “nervous manner.” The defendant gave Beam an apparently valid driver‘s license. Beam testified that, at about this time, he heard what he thought to be police radio transmissions coming from defendant‘s car, and that, when he saw Michael turn a knob on a radio in the car, he opened the door, took the radio from Michael, and told everybody to get out of the car and put their hands on the trunk. Beam then returned to his own car and ran an apparently fruitless radio check on defendant‘s driver‘s license and automobile license plate numbers. Beam then took a shotgun from his car and returned to the Blitz car and its occupants. Another officer arrived and took charge of the shotgun while Beam conducted an apparently limited search of the suspects. When even more officers arrived, one of them, Joe McDaniel, searched the suspects again, this time revealing a knife concealed on the person of Michael, who was arrested. At this point Beam formally placed defendant under arrest, and the officers began searching the interior of the car. McDaniel and Beam obtained the key to the trunk, which they unlocked and searched, eventually finding a brown grocery bag containing two plastic bags of a substance which appeared to be cannabis.
The State put forward several theories to justify the search; the theory which the majority evidently found persuasive was that Beam and McDaniel had probable
When Beam first observed defendant‘s car, all he knew was that someone had told someone in the sheriff‘s office something about drugs being sold at a particular house. This “tip” lacked the “sufficient detail” necessary to indicate “that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual‘s general reputation” (Spinelli v. United States (1969), 393 U.S. 410, 416, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 589). Even if the tip had come to him through a trusted superior (and Beam had no idea where he had heard it), he was not entitled to rely upon it. See Whiteley v. Warden (1971), 401 U.S. 560, 565-66, 28 L. Ed. 2d 306, 310-12, 91 S. Ct. 1031, 1035.
Beam‘s subsequent observations added little or nothing to the tip. Certainly the comings and goings of cars to a location rumored to be the site of criminal activity did not add anything. (See generally Recznik v. City of Lorain (1968), 393 U.S. 166, 21 L. Ed. 2d 317, 89 S. Ct. 342.) The paper bag (which defendant claimed to have put on the back seat) was not incriminating. Nor did the obscured license plate, the broken light, or even the discovery of
The majority evidently did not reach the State‘s argument that the search of the locked trunk was incident to the traffic arrest. In light of my position on the question of probable cause, however, I do reach that argument, and reject it. The locked trunk clearly contained neither potential threats to the safety of the arresting officers nor evidence of the alleged crime of driving with a broken license plate light, and the trial court properly so found. (Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034; People v. Hendrix (1974), 25 Ill. App. 3d 339.) Moreover, there is a serious question as to whether a full search of the car and trunk is justifiable on the basis of its being “incident” to a mere traffic arrest:
“Unlike searches of the person, United States v. Robinson, 414 U.S. 218 (1973); United States v. Edwards, 415 U.S. 800 (1974), searches of possessions within an arrestee‘s immediate control cannot be justified by any reduced expectations of privacy caused by the arrest.” United States v. Chadwick (1977), 433 U.S. 1, 16 n.10, 53 L. Ed. 2d 538, 551 n.10, 97 S. Ct. 2476, 2486 n.10.
Finally, the majority has ignored the impact of the trial court‘s finding that probable cause to search the trunk was lacking. There were factual disputes which the trial court must have resolved in reaching its decision to suppress the fruits of this search. By reversing that decision, the majority has cast a shadow upon the long-established rule that the trial court‘s findings of fact in connection with a motion to suppress evidence will not be overturned by a reviewing court unless manifestly erroneous. See, e.g., People v. Williams (1974), 57 Ill. 2d 239, 246; People v. Clay (1973), 55 Ill. 2d 501, 505; People v. Dailey (1972), 51 Ill. 2d 239, 242; People v. Brooks (1972), 51 Ill. 2d 156, 165; People v. Johnson (1970), 44 Ill. 2d 463, 470; People v. Daily (1968), 41 Ill. 2d 116, 120; People v. Henderson (1965), 33 Ill. 2d 225, 229.
One factual dispute concerned whether Beam actually had observed what he testified he had observed. Beam testified that he saw defendant put a paper bag in the trunk. The defendant testified that he put the bag on the
MR. JUSTICE MORAN, also dissenting:
Here, the trial court concluded that the warrantless search of the trunk was not a weapons search, and that the real reason for the traffic stop was to determine whether defendant‘s car was carrying drugs. This conclusion was well supported by the admissions of Beam. The court further determined that the tip of an unidentified informer was insufficient to provide probable cause to search the vehicle, “particularly the locked trunk.” It is clear that the standards for a finding of probable cause for a warrantless search are as strict as those under which a magistrate may issue a search warrant. Indeed, the United States Supreme Court has indicated a strong preference to be accorded searches under a warrant. “[I] n a doubtful or marginal
This general preference for searches pursuant to a warrant is modified to the extent that exigent circumstances may justify a warrantless search of an automobile where a warrantless search of a dwelling would not be justified. (Chambers v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975; Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280.) The automobile‘s mobility and the risk of loss of evidence is the underlying rationale, but with or without a warrant, “[a] utomobile or no automobile, there must be probable cause for the search.” (Almeida-Sanchez v. United States (1973), 413 U.S. 266, 269, 37 L. Ed. 2d 596, 600-01, 93 S. Ct. 2535, 2537-38.) This principle has lately been reacknowledged in Texas v. White (1975), 423 U. S. 67, 46 L. Ed. 2d 209, 96 S. Ct. 304, and United States v. Martinez-Fuerte (1976), 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074.
The cases of Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584, set the minimum standards under the Federal Constitution for the issuance of a search warrant in cases where an informer‘s tip is part of the basis for the magistrate‘s finding of probable cause. If the standards enunciated in Aguilar and Spinelli are the minimum for a search warrant, it follows that a warrantless search, in like circumstances, must at least meet those standards.
Aguilar established a two-pronged test: a warrant may issue where the affidavit in support thereof informs the magistrate of (1) facts upon which the affiant rests his conclusion that the informer is credible or his information reliable, and (2) the underlying circumstances upon which
In the case at bar, the bare assertion of an informer‘s tip, as revealed to the trial court, was patently insufficient to support a finding of probable cause, for it satisfies neither of the two prongs of the Aguilar test. Beam could neither identify the informer nor remember who in the sheriff‘s department had relayed the tip. His conclusional statement that a reliable, unidentified informer had told the sheriff‘s office that drug traffic was emanating from the Kraft house does not provide facts or circumstances
The State apparently concedes that the informant‘s tip was insufficient basis for a finding of probable cause under Aguilar. Instead, it argues that any insufficiency in the tip could be, and was, remedied by corroborative information gleaned by Officer Beam. In Spinelli, the court announced that a tip, insufficient under the Aguilar tests but adequately corroborated by police investigation, could be properly considered as a basis for a finding of probable cause.
In Spinelli, the informer‘s tip—held inadequate under both Aguilar tests—indicated simply that the FBI “has been informed by a confidential reliable informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of the telephones which have been assigned to the numbers WYdown 4-0029 and WYdown 4-0136.” (Spinelli v. United States (1969), 393 U.S. 410, 414, 21 L. Ed. 2d 637, 642, 89 S. Ct. 584, 588.) The “corroborative” information relied upon to validate the inadequate tip,
The court held that the informant‘s tip, even when corroborated to the extent indicated, was insufficient to provide a basis for a finding of probable cause. It reiterated that the corroborative bits of information supplied by the FBI contained “no suggestion of criminal conduct when taken by themselves and they are not endowed with an aura of suspicion by virtue of the informer‘s tip.” (Emphasis added.) (Spinelli v. United States (1969), 393 U.S. 410, 418, 21 L. Ed. 2d 637, 645, 89 S. Ct. 584, 590.) With the Spinelli standard in mind, it is profitable to test for the existence of probable cause as each bit of corroborative information was accumulated.
As detailed above, the informer‘s tip alone would not
Officer Beam then approached defendant‘s auto with defendant, heard voice sounds from the eight-band short-wave radio in the car, and observed defendant‘s brother turn a knob on the radio. The record reveals that Beam “assumed,” rather than heard, that the radio had been tuned to the police band. He further assumed that the occupants had intercepted his requests for police assistance. The presence of a shortwave radio capable of receiving police messages is not a crime, and is certainly no more unusual or indicative of criminal activity than was the presence of two telephones in the apartment under surveillance in Spinelli. There the court aptly observed that “[m]any a householder indulges himself in this petty luxury.” Spinelli v. United States (1969), 393 U.S. 410, 414, 21 L. Ed. 2d 637, 642-43, 89 S. Ct. 584, 588.
Under Spinelli, the circumstances related above must be judged without the incriminating aura of the inadequate informer‘s tip. Without that aura, these so-called corroborating facts are clearly insufficient to support a finding of probable cause to search defendant‘s car or trunk.
It is, in fact, questionable whether any weapons search was justified here, inasmuch as the circumstances did not indicate that the occupants were armed and dangerous or that they were involved in a violent crime. (See Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) The informer‘s tip did not so indicate. Beam clearly conceded that the search of the trunk was not a weapons search. He frankly stated that he searched the trunk only for drugs. Probable cause to search the trunk was, however, still lacking. The finding of the hunting knife by another officer during a second search of defendant‘s brother did not logically corroborate the informer‘s tip or
In an alternative attempt to establish legal justification for the search of the trunk, the State in essence asserts that there was probable cause where the “circumstances surrounding defendant‘s arrest gave the appearance of criminal activity.” At oral argument, it was asserted that such criminal activity was evidenced by the “totality of the circumstances.” Such a theory was a foundation of the court of appeals opinion in Spinelli and was explicitly rejected by the Supreme Court in circumstances “[w]here, as here, the informer‘s tip is a necessary element in a finding of probable cause ***.” Spinelli v. United States (1969), 393 U.S. 410, 415, 21 L. Ed. 2d 637, 643, 89 S. Ct. 584, 588.
The traffic violation for which defendant was ostensibly stopped was an inoperative license-plate light and partial obstruction of the plate by a trailer hitch. It was conceded by the State at oral argument to be the kind of violation routinely handled by a brief stop and the issuance of a traffic ticket. Forgetting Beam‘s admission that the stop was not for the traffic violation but to allow him to search the trunk, and disregarding, as we must, the suspicion derived from the inadequate tip, there were no circumstances surrounding the stop which would have justified the officer in concluding he was dealing with other than an ordinary traffic violator. Unlike the total absence of license plates, which could indicate car theft, the traffic offense here is not of the serious nature which of itself would reasonably justify a conclusion of criminal activity. (Compare People v. Palmer (1976), 62 Ill. 2d 261, with People v. Reed (1967), 37 Ill. 2d 91.) The State cites People v. McKnight (1968), 39 Ill. 2d 577, as a comparable traffic stop where a search was justified. However, in that
The circumstances of the traffic stop in this case were critically different. Again, untainted by the aura of the inadequate tip, they reveal nothing but the presence of an ordinary traffic violation. The trial court found, and it is clearly not against the manifest weight of the evidence, that the traffic arrest was a pretext for the police to search the automobile for cannabis. Lacking probable cause for such a search, the search cannot be justified under these circumstances as incident to a lawful custodial arrest. (Cf. United States v. Robinson (1973), 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467; Gustafson v. Florida (1973), 414 U.S. 260, 38 L. Ed. 2d 456, 94 S. Ct. 488, where certain searches incident to full custodial arrest for traffic violations were held permissible.)
I would therefore affirm the judgment of the appellate court.
MR. JUSTICE GOLDENHERSH joins in this dissent.