delivered the opinion of the court:
At the conclusion of a jury trial in the circuit court of Cook County, defendant, William L. Davis, was found guilty of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1). He was sentenced to serve a term of 20 to 60 years in the penitentiary.
On appeal, defendant contends the trial court erred in: (1) denying his motion to quash his arrest in his home which was performed without a warrant; (2) denying his motion to suppress evidence found in his automobile, which evidence was found pursuant to a search without a warrant; (3) denying his motion in limine to prohibit the State from introducing into evidence a dying declaration or spontaneous utterance made by the deceased victim; and (4) refusing to give his proposed jury instruction on circumstantial evidence.
We affirm.
The events in this case began on the evening of July 9, 1976. At approximately 9:30 p.m., two witnesses saw Lament Lloyd, the victim, in a Cadillac with defendant and defendant’s brother, Richard Davis. (The witnesses knew the names of the persons in the Cadillac from prior meetings.) Richard Davis was driving, defendant was in the back seat, and Lloyd was in the front seat. The Cadillac belonged to defendant. At approximately 9:50 p.m., Lawrence Martin, a United Parcel Service worker, found Lloyd lying in the street near the intersection of 15th and Union Streets in Chicago. Lloyd had been shot four times, once in the head. Lloyd was still alive when Martin found him but had lost a lot of blood. Lloyd told Martin he had been shot and asked to be taken to a hospital. Martin and an unidentified passerby helped Lloyd into Martin’s van.
The trip to the hospital took approximately five minutes. On the way, Lloyd continuously urged Martin to run the red lights and get him to the hospital. Shortly after the trip began, Martin asked Lloyd his name. Lloyd told him his name. Martin then asked, “Where are you shot?” Lloyd answered, “All over, William shot me.” Shortly thereafter, Lloyd, while continually urging Martin to run the red lights, said that he was dying. When they reached the hospital, Martin got out of his van to seek help. At this time, Martin saw Lloyd “jumping around” in the seat. After Martin returned with aid, Lloyd was removed from the van and taken into the hospital. At this time, Lloyd was unconscious. Minutes later, in the hospital, Lloyd was pronounced dead on arrival.
During the night of July 9, 1976, and throughout the early morning hours of July 10, police investigated the incident. They interviewed the two witnesses who had seen Lloyd with defendant in defendant’s Cadillac and also interviewed Martin. The two witnesses told them what they had seen and Martin told them of his conversations with Lloyd in Martin’s van. Martin took the police to the scene where Martin had found Lloyd. There, the police found a pool of blood. It was later determined that this blood, type O, matched Lloyd’s. The police also determined that defendant was the owner of the Cadillac and determined where defendant lived. At approximately 4 a.m., July 10, several police officers went to defendant’s basement apartment residence. No one was home but the police talked to defendant’s sister who lived in the apartment above defendant’s. The police told her they were looking for defendant and his brother, Richard. Defendant’s sister told them she had not seen them all day.
At approximately 8:30 a.m., July 10, the investigation of the incident was turned over to several police investigators when they came on duty. One of these investigators was Walter Siemieniak. After learning of the events of the previous night, Siemieniak and several other investigators went to defendant’s residence. When they arrived, they saw defendant’s Cadillac parked in the street across from defendant’s apartment building. Siemieniak walked over to defendant’s car and looked through the window. He saw what he thought to be blood on the front seat of the car. To him it looked as if someone had tried to wipe the blood off the seat.
Thereafter, the investigators went up to the defendant’s apartment. The door to defendant’s apartment was open. Directly outside the apartment, the police found Richard Davis. They approached him and asked him his name. He told them and they “took him into custody.” According to the investigators, Richard Davis then “allowed” them to walk into the apartment. Upon entry, the investigators encountered defendant, whom they immediately placed under arrest.
Upon the request of Siemieniak, defendant gave one of the investigators the keys to his car. Siemieniak told one of the other investigators to drive defendant’s car back to the police station. At the station, the car was thoroughly searched. Police took samples of the blood on the front seat of the car, and it was later determined that the blood was human blood but there was an insufficient quantity to determine the blood type. On the rear floor of the car, the police discovered a fired .22-caliber bullet. This bullet was later compared with the four bullets taken from Lloyd’s body. These four bullets were also .22-caliber. Because of the condition of the bullet found in the car, the police could not determine conclusively that it had been fired from the same weapon as the other four bullets, but there was a close similarity in the rifling characteristics between the bullet found in the car and the other bullets. No gun was ever found by the police.
After the defendant was arrested, he was taken to police headquarters and his Miranda rights were read to him. Thereafter, the defendant was questioned by Investigator Siemieniak. Defendant initially denied any wrongdoing. After further questioning, Siemieniak asked defendant if he had shot Lloyd. The defendant nodded his head up and down. Siemieniak then asked defendant how many times he had shot Lloyd. Defendant answered, “I don’t know, but it was a lot.” Defendant then retracted his statements and denied any wrongdoing.
At trial, all of the above evidence discovered by police, was admitted. The jury found defendant guilty of murder.
Opinion
I
Defendant first contends the trial court erred in denying his pretrial motion to quash his arrest and to suppress all evidence that resulted from his arrest. Defendant admits there was probable cause for his arrest but asserts that the entry into his home without a warrant to effect his arrest cannot be justified by probable cause alone. He correctly maintains that, absent consent to enter, “exigent circumstances” are necessary to render such a seizure of his person reasonable under the Constitutions of the United States and Illinois. (U.S. Const., amend. IV; Ill. Const. 1970, art. I, §6; Payton v. New York (1980),
In determining whether exigent circumstances justifying prompt police actions exist, our courts have generally relied on the factors set out in Dorman v. United States (D.C. Cir. 1970),
Before discussing the presence or absence of the above factors in this case, we first point out that we believe that the factors enumerated in Dorman are not necessarily the only factors that can be considered, nor do we believe that the absence of one of the Dorman factors necessarily precludes the police from making a warrantless entry into a home to make an arrest. The guiding principle governing searches and seizures under constitutional provisions is reasonableness, and whether the police have acted reasonably depends on the circumstances of each case. People v. Abney (1980),
We also point out, since defendant has placed great reliance on it, that the mere fact that the police may have had time to obtain a warrant, though important, is not necessarily controlling. The test under the Constitution is not whether it was reasonable to procure a warrant, but whether the search or seizure was reasonable. (Cooper v. California (1967),
In the present case, before determining whether exigent circumstances actually existed, we must first determine at what point in time it is necessary to determine whether exigent circumstances existed. It is the unauthorized entry into a home to effect a warrantless arrest that is presumed to be repugnant to the Constitutions of the United States and Illinois. Thus, in determining whether exigent circumstances existed, we must look back from the time just before the police made their attempt to enter defendant’s home and at the time of entry. Keeping this in mind, we now consider the factors enumerated in Dorman.
First, there was clearly a grave offense involved here, a crime of violence, murder. Second, the murder was obviously committed by use of a firearm, and the police could have reasonably believed that prompt action to apprehend the defendant was necessary because the defendant could still be armed and dangerous. Third, there was clear probable cause to believe that defendant was involved in the crime. The victim had been seen in defendant’s car with defendant minutes before the victim was found in the street. The police had a statement from the rescuer, Martin, that the victim had said, “William shot me,” and the police knew the defendant’s name was William Davis. Finally, when the police arrived at defendant’s residence, one of the investigators saw blood in defendant’s car. Thus, there was clear probable cause to believe defendant was involved in the incident.
Fourth, there was strong reason to believe that defendant was in the premises being entered. Defendant’s car was seen by police parked in the street outside his home. The police knew defendant lived in the basement apartment which they entered. The police, just before attempting to enter defendant’s apartment, found defendant’s brother, also a suspect in the crime, standing outside defendant’s apartment. Thus, the police had strong reason to believe defendant was inside the apartment.
Fifth, there was a strong likelihood that defendant would escape if not swiftly apprehended. Police placed defendant’s brother under arrest before attempting to enter, and there is little question that this action was valid. Defendant would obviously know that his brother had been apprehended. If police had then been required to leave to obtain a warrant, defendant could have escaped. Also, to require police, in these circumstances, to post a guard while a warrant was obtained could have created a situation of danger since police could have reasonably believed defendant was still armed.
Sixth, the entry into defendant’s apartment was clearly peaceful. The door to the apartment was open. Defendant’s brother “allowed” them to enter. Though this may not have been consent to their entry, it does show that no one protested to the entry.
Finally, the entry was made in the daytime when defendant could easily have discovered the presence of police outside of his apartment. Because defendant was believed to be armed and dangerous, an immediate entry was necessary to protect the police.
Hence, it is clear that all of the factors enumerated in Dorman were present in this case and that exigent circumstances existed for the police to take prompt action and make the entry into defendant’s home to effect his arrest without a warrant. Accordingly, we hold that the arrest of defendant without a warrant was constitutionally reasonable.
II
Defendant next contends the trial court erred in denying his motion to suppress the evidence found in his automobile. Defendant actually argues three distinct issues here. First, he contends that Investigator Siemieniak’s looking through the window of his car was an unreasonable search and Siemieniak’s testimony that he saw what he thought to be blood on the front seat should have been suppressed. Second, he contends that since he was already under arrest and the police had the keys to his car, the seizure of his parked automobile, without a warrant, constituted an unreasonable seizure and any evidence discovered as a result of this seizure should have been suppressed. Third, he contends that, assuming the seizure was proper, the subsequent warrantless evidentiary search of his car at the police station was an unreasonable search and the evidence found in his car should have been suppressed. We disagree with all of the defendant’s contentions.
We first consider the issue raised by defendant that Investigator Siemieniak’s looking through the window of defendant’s car was an unreasonable search. However, we find that we do not have to address the issue of whether the search was reasonable or unreasonable because we believe that Investigator Siemieniak’s acts did not constitute a search.
A search implies a prying into hidden places for that which is not open to view. (People v. Bombacino (1972),
Also, it has many times been said that a fundamental purpose of the constitutional right to be free from unreasonable searches and seizures is to shield a person from unwarranted government intrusions into his reasonable expectations of privacy. (United States v. Chadwick (1977),
We next consider whether the warrantless seizure of defendant’s car was reasonable. Defendant places great reliance on the case of Coolidge v. New Hampshire (1971),
We believe that defendant’s reliance on Coolidge is misplaced. Crucial to that decision was that the seizure of the cars occurred on defendant’s private property and thus the cars were seized from a place where the police had no right to be. The importance of this factor was pointed out by the Supreme Court in Cardwell v. Lewis (1974),
We believe the Cardwell decision stands, at the very least, for the proposition that police may, without a warrant, seize an automobile parked in a public place based on probable cause to believe that the automobile itself is an instrumentality used in a crime, and thus constitutes evidence of the crime, and on probable cause to believe that the automobile contains evidence of the crime. (See also People v. Peter (1973),
Our conclusion is further buttressed by the Supreme Court’s decision in G. M. Leasing Corp. v. United States (1977),
We next consider whether the subsequent warrantless search of defendant’s automobile was reasonable in this case. As defendant points out, lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it. (Cooper v. California (1967),
First, the exception of privacy in an automobile is much less than the expectation of privacy in a home or office. Automobiles, unlike homes or offices, are subjected to pervasive and continuing governmental regulation and control. (South Dakota v. Opperman (1976),
Second, the inherent mobility of an automobile creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible. (South Dakota v. Opperman (1976),
In the present case, the parties agree that probable cause existed to search defendant’s automobile. The parties are also in apparent agreement that if the exigencies justifying the “automobile exception” exist in this case, the police could have conducted an immediate search of the automobile on the scene, and the fact that the police chose to seize the automobile and search it later at the police station is irrelevant because such a search would still be reasonable. (Texas v. White (1975),
We will first discuss Chambers to show how this case contains the exigencies justifying the applicability of the “automobile exception.” We will then discuss Coolidge and point out why that case is inapplicable to the circumstances involved in this case.
The facts in Chambers are as follows. Shortly after learning of a nighttime armed robbery, police stopped on the highway an automobile containing four occupants. Two of the occupants and the car fit descriptions given to police as being involved in the robbery. The occupants of the car were immediately placed under arrest. The car was then driven by police to the police station and searched there without a warrant. The search was not done on the scene of the arrest ostensibly because it was too dark to do so. The Supreme Court upheld the search as reasonable based on the “automobile exception.” The fact that the car was not searched on the scene but was searched at the station was not deemed to be relevant. See also Texas v. White (1975),
There are crucial facts in Chambers that are similar to those in the present case. Both in Chambers and the present case the seizures of the automobiles, based on probable cause to believe they were instrumentalities used in the crimes and contained evidence of the crimes for which defendants were arrested, were reasonable because they were done in a public place. (Cf. Cardwell v. Lewis (1974),
In Chambers, one of the reasons an immediate search would have been proper was because otherwise the police, even if they had not had the people and equipment to do so, would have been constitutionally required to detach a special detail to watch the automobile while a warrant was obtained or impound the vehicle for a later search at the police station where a warrant could easily be obtained. (See Arkansas v. Sanders (1979),
Thus, the present case falls within the parameters of Chambers. The only distinguishing factor between Chambers and this case is that in Chambers, because it was dark, the police had a reason for not searching the car immediately, and the subsequent search was partially justified because of this. However, in Texas v. White (1975),
It is now clear that this case is controlled by Chambers and that the “automobile exception” applies. Other Illinois cases with similar facts have held the same. (See, e.g., People v. Peter (1973),
First, the police had obtained invalid warrants and could hardly assert that it was an impractical necessity to require a warrant before going out and seizing and searching defendant’s cars. In the present case, as we have already noted, requiring a warrant before the police went to defendant’s residence would have been an impractical necessity since the police did not know beforehand that defendant’s car would be where it was located and did not know for sure that defendant’s car contained evidence of the crime until the police saw blood inside the car.
Second, in Coolidge, defendant knew for a long time that he was a suspect and had ample opportunity and ample reason to remove any evidence from his cars long before they were seized. Thus, there was some doubt whether the police even had probable cause to seize and search defendant’s automobile. Furthermore, as pointed out by the court, the evidence that was found, gun powder, was hardly probative of the crime for which defendant was charged. In the present case, the defendant had not had ample time to remove evidence from the car, and police had clear probable cause to believe the automobile contained evidence of the crime for which defendant was charged.
Third, in Coolidge, defendant’s automobiles were completely immobilized. Defendant was under arrest. The police transported his wife to another location and had no reason to believe that anyone else could obtain access to the automobiles. The police posted two guards to watch defendant’s home, and these guards could easily have watched defendant’s automobiles and prevented anyone from gaining access while a proper warrant was obtained, and thus, in Coolidge, there was not even the added inconvenience in assigning a special detail to watch the cars while a warrant was obtained. In the present case, the defendant’s car was not completely immobilized, for the police did not know who else, including the possibility of defendant’s sister, could have had access to the car. Also, the police would have been required to detanh a special detail to watch defendant’s car while a warrant to search was obtained.
Fourth, in Coolidge, the seizure of the automobile was itself declared invalid because the seizure required an intrusion onto defendant’s private property. If the seizure had been proper, the decision in the case may well have been different. (See Cooper v. California (1967),
From the foregoing, it is clear that Coolidge is distinguishable from the present case. Since we believe that the present case is controlled by Chambers v. Maroney, we conclude that it would have been reasonable for the police to have conducted an immediate search on the scene, and thus the subsequent search was also reasonable. Consequently, we find defendant’s motion to suppress the evidence found in his automobile was properly denied.
Ill
Defendant next contends that the trial court erred in denying his motion in limine which requested the court to prevent the State from introducing into evidence the victim’s hearsay statement, “William shot me.” The State contends that the statement was properly admissible under either the “dying declaration” exception to the hearsay rule or the “spontaneous declaration” exception. Since we believe the deceased’s statement was properly admitted as a dying declaration, we will confine our discussion to that exception to the hearsay rule.
A dying declaration is a statement of fact by the victim concerning the cause and circumstances of his death. To be admissible into evidence as an exception to the hearsay rule, a dying declaration must appear to have been made by the victim under the fixed belief and moral conviction that death is impending and certain to follow almost immediately, without opportunity for repentance and in the absence of all hope of avoidance, when the victim has despaired of life and looks to death as inevitable and at hand. (People v. Odum (1963),
Defendant makes two arguments as to why the deceased’s statement was not a true dying declaration. He first contends the State failed to show, beyond a reasonable doubt, that the deceased believed his impending death was certain and that he had abandoned all hope of recovery. The deceased made the incriminating statement while he was being driven to the hospital by the testifying witness, Martin (the rescuer). The statement came shortly after the deceased had been shot four times, once in the head, and minutes before he was declared dead at the hospital. Moments after making the statement the deceased declared that he was dying. Because of these circumstances, we believe the trial court could have properly found that the deceased truly believed he was dying and his death was imminent. However, defendant points to the deceased’s continuous pleading with Martin to run the red lights and get him to a hospital as showing that the deceased had not lost all hope of recovery.
To say that the declarant must have lost all hope of recovery is merely to say that the declarant must have truly believed he was dying and his death was imminent. To require that the declarant should have lost every scintilla of a hope of recovery would be to require the impossible.
In most cases, a dying person will cling to whatever hope of recovery exists, no matter how unreasonable, even until his last desperate breath has expired. Thus, if we were to hold that the declarant is required to have absolutely no hope of recovery, no matter how unreasonable that hope is, we would have to hold that no such thing as a dying declaration exists. A statement should not be rejected as a dying declaration when only nebulous rays of hope exist. (People v. Hubbs (1948),
Defendant next contends that the deceased’s statement was inadmissible because the State failed to show he was in sufficient possession of his faculties to have accurately perceived, recollected and communicated the circumstances surrounding his imminent death. Testimony was presented to show that at the time of his death deceased had a substantial quantity of morphine in his blood and a trace of alcohol. A doctor testified that the amount of morphine, when considered together with the nature of deceased’s wounds, would probably have substantially affected the ability of the deceased to understand what he was saying. However, this doctor also testified that the effect would not have been as substantial if the deceased was a constant user of heroin or morphine and had built up a tolerance to the drug, and there is evidence in the record to show that deceased had used heroin on frequent occasions prior to the day of his death. Also, from Martin’s testimony, it is clear that when Martin asked questions of the deceased, such as requesting his name or asking where he was shot, the deceased answered promptly and accurately and thus understood what was said to him and what he said to Martin. Consequently, we believe the trial court properly found that deceased was in sufficient possession of his faculties when he made the dying declaration.
Accordingly, we hold that defendant’s motion in limine was properly denied and the statement of the deceased, “William shot me,” was properly admitted into evidence.
IV
Defendant’s last contention is that the trial court committed reversible error in refusing to give his proposed jury instruction on circumstantial evidence. The instruction given at the request of the State was the first paragraph of Illinois Pattern Jury Instructions, Criminal No. 3.02, which reads:
“Circumstantial evidence is proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.”
Defendant contends it was error not to include with this instruction its second paragraph, which reads:
“You should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.”
The committee note to this instruction says that the second paragraph should be given only when all the evidence is entirely circumstantial. Defendant contends all the evidence against him was circumstantial.
Generalizations aside, it is often difficult to draw a dichotomy between direct and circumstantial evidence. (People v. Boose (1978),
For the reasons noted, we affirm the judgment of the trial court.
Affirmed.
ROMITI, P. J., and JOHNSON, J., concur.