*1 Pеople v. Herron Illinois, Plaintiff-Appellee, The of the State of
Love, Defendant-Appellant. 57086;
(No. 5, 1973. First District (1st Division) March denied 1973. Rehearing July Opinion by Mr. EGAN. JUSTICE Fowlkes, Chicago,
Glenn C. for appellant. Hanrahan, Edward V. for the Attorney, Chicago, People. People Illinois, of the State of v. Thomas Plaintiff-Appellee, al., et Defendants-Appellants. cons.;
(Nos. 57130-31
First District (2nd Division) April 1973. denial Supplemental opinion upon 1973. rehearing July *2 DOWNING, J., part. took no Defender, Public of Doherty, Sacks and Chicago, (Stanley L. J. James Defenders, Assistant Gray,
Robert Morel Public of counsel,) appel- lants. Kissane C. Attorney, Chicago, (Elmer Hanrahan, State’s
Edward V. counsel,) Attorneys, Keane, Assistant and George Jr., M. the People.
PER CURIAM: ain Williams, convicted
Defendants, were Thomas and Golden in a vehicle concealed in bеnch trial of carrying weapon knowingly in their have failing violation of ch. sec. 1(a) 24— 38, sec. ch. card in violation possession firearms identification owner’s on condition year for one 83—2. Defendants were probation On in of Correction. sixty еach the first the House days serve because it was unlawful appeal argue: defendants search (1) the informant conducted in reliability without cause probable established, “exigent there no and because were was not to search warrant obtaining the officers from which prevented present” vehicle; stipulation the defense did not consent since (2) in be allowed taken on the motion to suppress that the evidence case-in-chief, to connect defendants involved; defendants or the car (3) either the weapons question the prosecu- a reasonable doubt because proved beyond were not guilty that the firearms were tion knowledge did show *3 Since immediately the automobile and were accessible to the defendants. unlawful, we that the search it is to consider conclude was unnecessary the contentions. latter evidence,
At on the as guns defendants’ motion to 1971, 16, he Golden Williams testified: At 1:00 October about A.M. on was his mother’s аnd Boyde; in automobile with Thomas Bernard was and the and told “us to out police approached get car parked with our hands told them to out and hold their up”; police get in the air and then hands lie down on and up ground, proceedеd see a to to if we had asked for any search “us him weapons”; them; license, and, driver’s which he showed a his after search of person, made a and search of the vehicle recovered a .22 caliber police automаtic from the and pistol compartment, a caliber glove .25 pistol and trunk; and a “.30R6” from the he rifle, a a had been shotgun, parked [sic] hour; 1:00 it was about W. Lexing- about half A.M. 2836 there for ton, side street. residential a William then officer Brown testified: he is an оfficer
Chicago police 16, 1971, and Unit on Intelligence October about 12:30 Gang Lexington California, he in the area received information A.M. in this at a time, would be area certain that an automobile 1:00 A.M. 358 exact,
to be and have guns ammunition аnd in the car to sell to a certain area; in the party he conducted a “stake-out” at and Lexing- California ton, and, minutes, white, a A.M., after about 45 30 to 1:00 approximately 1965, Mercury automobile came in address front up parked 2836 W. in Lexington; three minutes before the officers approximately automobile, approached the five six “through or automobiles had come officer, the area” and “just passed”; he announced himself as a told police the ocсupants automobile, “to remove themselves” from the arrest, cross-examination, them under and searched the vehicle. Upon testified that at “about five minutes to twelve” he had received a phone call occur; that a sale of to the call was from an weapons going informant he white, had known for two was that a years; information late model area, vehicle would be in the and would contain two people (but three were, fact, in the officer informant knew the vehicle); years, two occasions, ten, had received information him on from times, fifteen and some resulted in actual but not convictions. arrest, State, lawful conceding apparently violation, automobile, a traffic search an argues right to to or is not opposed defendant) premises, person (of suspect arrest, right to but can be on the reasonable dependent grounded cause that the officers to that the contents the automobile have bеlieve 132, offend United against (Carroll law. States 267 U.S. 280; 42, 543, 69 Maroney L.Ed. 45 Chambers v. 399 S.Ct. U.S. 419, 1975; 26 L.Ed.2d S.Ct. 403 Coolidge 90 New Hampshire (1971), U.S. Defendant, L.Ed.2d S.Ct. on the same author 2022.) movable, ity, warrantless search of a parked, although vehicle requires cause, cir but also only probable еxigent proof justifying search. determining
One of the circumstances prob considered cause, is whether the information argues, able the defendant upon and, is is while a search hearsay, hearsay may support the search based substantiаl, warrant, independent there must also be basis to hearsay information. v. Texas credibility (Aguilar of .the Court U.S. S.Ct. The Illinois 1509.) Supreme warrants, than has that it encourages said seek police own; standard is higher required act consequently, on their *4 warrants, thеir than of and a magistrates issuing officers on own acting be “on evidence less issuance of warrant will magistrate’s upheld would have officer on his justified acting character than persuasive (People determination and without warrant”. v. Saikеn own “substantial, Therefore, the 381.) 275 N.E.2d inde- Ill.2d information the hearsay credibility the support basis” to pendent must also a warrant issuance of the Aguilar v. Texas before requires acting here, is where, an officer as greater degree and to an even present of an auto- search was his a warrant. The fact own without the need not affect does the or of mobile, premises, than of person of the cause; the merely it affects to for the State show probable the failure of police excuse the “exigent circumstances” which may a warrant. officers to procure that only reveals suppress
The evidence on the motion and information that the had known the informant for two officer years toor but not to convictions any furnished had led previously in that informant’s State the The recovery any contraband. search, but was the “events” by just formation substantiated is “the defendants arrived “event” to which the State refers that only in area, at in the of car as described by the time and type However, formant, testimony a third by were individual”. joined does heard at the on the motion to not hearing individual”. State’s assertion that two men were third “joined by The of the defendant officer that three policе agreed made; men car when the arrest was the officertestified no cars were in the three minutes before the officer It not stopped approached. was until that recalled in connection with case-in-chief many answered a about “how were in the question vehicle people” time, in, that at the “Two and one came in.” Once the de stopped: got a prima fendant has made case that the probable lacked police facie сause had no evidence that the warrant and defendant was by police (i.e. when doing nothing unusual State must stopped), probable prove itself, cause not at trial. v. (People later Cassell 279, 284-285, 243 N.E.2d that Ill.App.2d 363.) We conclude substantial, the informant’s statement was supported any inde by basis, pendent Aguilar Texas required by (1964), 378 U.S. 723, 84 S.Ct. 1509. officers in this observed case was by behavior innocent. the situation here is absent from evidence from any which the Entirely any that suspect illegal afoot. This activity officers could total what circumstance is incriminating distinguishes lack of case from case, People Canaday Illinois 49 Ill.2d leading N.E.2d 356. did not the State officers prove had probable
Since cause that the contents of automobile оffended against believe the law exigent present justified and that were a warrant- *5 360 search,
less search of defendant’s automobile was unlawful and motion to suppress, should have been granted. consequently, judg- ment of the Circuit Court of Cook is reversed. Cоunty reversed.
Judgment SUPPLEMENTAL OPINION UPON DENIAL OF PETITION
FOR REHEARING PER CURIAM: petition
On contends that the of rehearing, State conviction defendants was reversed. The State that the improperly probable cause to in- conduct the warrantless search on the based formant’s We held tip. that it did not. Texas, 114,
In Aguilar 108, 378 held Supreme U.S. Court hearsay may the issuance of a if the affidavit justify search warrant sets forth some underlying circumstances substantiate the in tending to conclusions, formant’s and some it from underlying could believed that the re informant’s information was credible or liable. A showing of both in underlying circumstances to support formant’s conclusions and his is even more in order reliability necessary to show probable cause for a warrantless v. Saiken search (People 504, 511, 49 Ill.2d 275 cir N.E.2d 381), though underlying to show not bе when in strong need reliability former is a citizen informer rather than a informer professional (Draper Moreover, v. U.S. 3 358 U.S. 79 327). S.Ct. just stated as to the principles reasonableness of a warrantless search a presuppose reasonablе showing exigency.
Our holding essentially on the targeted matter underlying conclusions, circumstances to the informant’s than on the matter of exigency To illustrate our view prior reliability. case, of the basic flaw in instant we contrast the instant case case of People Herbert N.E.2d Ill.App.2d in which this court reversed trial remanded with directions Herbert, court to deny defendant’s motion to evidence. In police officer testified had received call from an informant whom he had for nine knоwn months. He knew through person conversations, “prior meetings, prior prior acquaintances”. These prior resulted in occasions had ten but approximately no convictions as of the time of the incident. The that, informant told ap- the officer P.M.,in the vicinity Avenue, 3:30 of 2621 proximately W. Greenleaf individual was deliver narcotics to the Lincoln Park going area Cadillac. The did gold-colored informant not describe the indi- put seen the individual that he had vidual, told but began surveillance Thе officer of the car. “contraband” in trunk P.M., defendant saw 3:30 Greenleaf, and, at approximately W. Cadillac. enter a gold-colored and another person was credible officer’s Our in Herbert held court In that the Cadillac. cause to search had probable and that the officers case, reliability were met: Aguilar all the requirements because, arrests based though prior established informant was convictions, told the informant had had not the informant’s led tips Cadillac of the in the trunk that narcotics were officer that he knew *6 there; officers, by seen “the contraband” because had de- scene, had corroborated personally descriptive observation at been informant. given by tails which had case, been to the officers In the instant the informant had known had led to arrests two and information which he furnished years, fact recovery not to of contraband. latter (as but convictions Unit the further fact that partially explained by Gang Intelligencе the fact informant here was frequently juveniles), plus deals informant, cir- requirement a citizen well meet the may underlying the informant’s And the time reliability. may movability available the car well reasonable plus provide a But there to how exigency. by knew the informant the car or weapons would that there was Therefore, weapons. to be sale of no underlying circumstances were to substantiate the tending informant’s The cor- presented conclusions. at roboration observatiоn the scene substantiated by police by personal some of facts of the but none tip, facts, substantiated as ad- motion duced on the suppress, were themselves in- acted. time Under is not criminating up Aguilar this sufficient.
Petition for rehearing denied.
DOWNING, J., took no in the consideration or part decision of this case.