*1 (No. 35175. Illinois, of the State of Defendant in Er-

ror, Watkins, Plaintiff Error. James vs.

Opinion March filed *2 specially concurring. J., Daily, Sr., Geter, Geter, D. & of Geter Chicago, (Howard Benjamin Duster, Geter, counsel,) Howard D. and C. of for error. plaintiff Castle, General, and

Latham of Attorney Springfield, Benjamin Adamowski, Chicago, State’s Attorney, S. South, Leach, At- Assistant G. and William H. (Fred Riley, General, Edwin A. Francis and and X. torneys Strugala, for counsel,) Assistant State’s Attorneys, the People. (cid:127) delivered the opinion

Mr. Schaefer Justice court: Watkins, in the crim defendant, tried James possession

inal of Cook County upon charge him with the indictment charged Count 1 of “policy” slips. also and charged count 2 possession; repeated charge Rev. Stat. (Ill. former conviction for the same offense. first found on He was 413.) guilty chap. par. indictment, then, after he had count 2 of the applied to nolle prosse motion probation, prosecution’s count 2 was and he six months allowed was sentenced to in the on count 1. county jail the defendant that the merits contends

Upon judg- first, ment must be reversed on two because his grounds: motion to evidence taken him in from violation suppress denied, second, of his constitutional because rights original on count amounted to a finding guilty of not on count finding he guilty count which *3 was sentenced. reach ultimately Before we these conten- tions, however, it is to determine whether this necessary court, Court, or the jurisdiction review Appellate misdemeanor conviction a error writ of directly the trial court. The have that the case suggested Court, in the belongs and in of that Appellate support sug- gestion have first they directed our attention to the statutes that deal with the distribution of jurisdiction. appellate one, Although jurisdictional a familiar we problem do not find that it has heretofore been discussed in terms of the statutes, historical of the setting relevant and their precise language.

Section 11 of article VI of the constitution of authorized the establishment of courts “to which appellate such and appeals writs of error as the general assembly may be provide may prosecuted from circuit and other courts, and from which and of appeals writs error shall court, lie to the cases, in supreme all criminal and in cases of a statute a validity in which or freehold or the franchise involved, in and such other cases may provided law.” Court Act of created Appellate The Appellate shall have of that they courts. Section act provides of error of “all of or writs jurisdiction matters appeal, ** * law, in chancery in suit or at or any proceeding misdemeanors, in cases, other than and cases criminal freehold, a statute. or of validity franchise or volving * * * and of error shall lie directly writs Appeals Court, in in all and cases in criminal cases Supreme or a statute.” franchise freehold or the volving validity The italicized words were added (Laws 1877, p. 70, 71.) by amendment in With 156.) (Laws p. the relevant sec provisions exception, original tion remain Ill. Rev. Stat. unchanged. 1959, chap. 37, par. 32. another act

By section added adopted to the Practice Act of That section provided and “in writs all criminal appeals of error cases and cases which or franchise freehold or the of a validity statute is involved shall be taken directly to supreme case the such party writ of error appealing prosecuting amended, shall so elect.” In section and the sentence following the distribution concerning of jurisdic- tion between the and Supreme courts was Appellate enacted: * * * from and writs error “Appeals to circuit courts cases, in all criminal below grade felony, shall be taken directly court, all criminal appellate misdemeanors, cases above the grade cases which a franchise or freehold or the of a statute validity or con- *4 involved; struction the constitution all cases revenue, relating which the State is interested as otherwise, a party or shall be taken the directly to supreme court.” (Laws 1879, That p. 222.) sentence (with additional clause cases concerning the involving validity

15 section into carried forward was ordinances) of municipal 1907, Act of Laws of p. of the Practice 118 467. 1907. in 1934, Act effective the Civil Practice became When into two parts. the act was split sentence of single the 1907 transferred criminal cases were dealing provisions and became the Code XV of Criminal verbatim division 1959, chap. Rev. Stat. section division. (Ill. 14 jurisdictional provisions The balance of the par. 780%.) the Civil in section were change without incorporated 75 no, chap, par. Practice Act. Ill. Rev. Stat. 1933, are consistent. These not completely multiple provisions 8 Act seems to provide Section of Court Appellate review, “in Court has on direct Supreme jurisdiction, con- cases,” all criminal Court has and that Appellate the other cases. On jurisdiction current misdemeanor hand, seems section of division of the Criminal Code XV 14 for direct review of all misdemeanors provide has Neither results followed. Court. of these Appellate The General has not Assembly regarded Appellate control, Act as a when Court jurisdictional significant time, it it has from time to redistributed jurisdiction Act. It has made so Practice no done amending made in the to include the so attempt Appellate changes Court Act. 37, par. 32, Rev. Stat. Compare chap. no, with chap, par. 75. too, court,

Over has looked years provi sions of the standards. for its practice jurisdictional acts v. (People Ill. So (1929).) Clardy, 163 334 when jurisdiction taken convictions to review misdemeanor constitu of a validity statute or construction ; McGurn, involved, Ill. (1930) tion v. (People 632 341 Mc v. Ill. People People Humphreys, (1933); 340 Gowan, Ill.2d Shambley, Ill. (1953); People ; (1954); (1956) Ill.2d West, to exer has refused (1958),) issues, y, cise jurisdiction the absence those *5 16 Harrison,

Basuris, Ill. (1935); People 192 397 Ill. Ill. v. Estep, (1951); 618 (1947); People Williams, (1954). of a of the jurisdictional pro- transposition part has not from the Act to the vision Practice Criminal Code in the distribution any been regarded effecting change the Of between the Court and jurisdiction Appel- Supreme courts. is in the late There no suggestion contemporaneous that unlikely literature that intended. It is any was change was the General that redistribution Assembly thought made when no in the words used made being change the the only modification was part transposition case, .-of one sentence from the one act to another. In any General in the court’s Assembly to have appears acquiesced situation, of the view since it has made no change the jurisdictional scheme that is relevant present Under these circumstances we adhere problem. prior determinations of this court that this court has jurisdic- tion review misdemeanor cases which involve directly of a validity statute or a construction constitution. The People also that this court lacks jurisdic- suggest tion because a construction of the not in- constitution is volved the case.' The defendant maintains that our juris- is diction established his contention that by policy slips introduced into evidence at trial were obtained from him by unreasonable search and In seizure. their support state that the position, were seized policy slips after only the defendant had been arrested for a parking violation, that the of search and seizure legality incident to arrest, valid misdemeanors, even for minor has been and, settled by prior court, therefore, decisions of this the defendant’s contention no debatable presents question á 'requiring construction of the constitution.

This position the court in expressed by a few older decisions transferring illegal' cases to the Appellate Hord, Blenz, Ill. (See 117; People Court. based, however, It assumption Ill. on 639.) the unreason by the boundaries of protection provided may of our constitution able search and seizure provisions It rule. the declaration of one simple be determined be of some constitutional may provisions meaning But that can in that way. be settled authoritatively not true of the great generalizations -emphatically constitutions, State Their can and Federal. meaning *6 determined This is only by particu specific applications. in the true of the involved larly constitutional provision case. is a search is not to be present “What reasonable does determined fixed The by any formula. Constitution searches, and, not define are what ‘unreasonable’ regrettably, in our The we have test. discipline no ready litmus-paper of the reasonableness of searches must recurring questions find resolution case. the facts and circumstances of each States, Co-Bart Co. v. Importing United 282 U.S. 344, Rabinowitz, United States v. 56, 63, U.S. 357.” Tillman, L. ed 653; cf. Ill.2d People 525, 530. This approach jurisdictional problem implicit in the host of cases searches incident arrest involving to where court has taken on direct jurisdiction appeal. (See, West, Clark, e.g., People Ill.2d 171; Ill.2d 400.) the rule such Despite searches purported are we proper, acted on the that each individual assumption case raised debatable constitutional It be questions. may that some future cases will be so similar others already decided that the issues must they present regarded not, however, settled. That is true the case of now before us, hold, and we therefore, that we have jurisdiction on direct appeal based on debatable con questions requiring struction of the constitution.

To establish case, the validity of the search in this rely on a unanimous decision this court in which one of the for sus grounds a search taining was that it had been made The in connection with an arrest for a traffic violation. cases, cumulative impact coupled subsequent involved, has caused nature of the traffic violation here reconsider. The Clark rests on reasoning opinion misdemeanor; that runs like this: traffic is a a violation (1) misdemeanor officer has to arrest when a (2) police right committed in his an officer presence; (3) arresting to search right whom he arrests. one Each these taken itself and with propositions, context, limitations its is correct imposed by original enough. combined, But when are they and used transplanted, constitution, govern interpretation they produce an result. improper searches;

The constitution unreasonable prohibits only it permits those that are reasonable. critical issue each case must be whether the situation that confronted the officer justified the search. That can not be deter- question mined by indiscriminate application legal concepts that were evolved to meet different A uni- quite problems. rule arrest, form case of a valid permitting every violations, even minor traffic would our greatly simplify *7 task and that of law enforcement But officers. such an would consideration of the approach preclude reasonable- search, ness any and so would take particular away that the constitution is to Other protection designed provide. are in courts accord. have refused to establish a They rule uniform to all searches valid govern accompanying arrests, but rather have examined the nature offense circumstances to determine whether the surrounding v. Blodgett, People search was warranted. Cf. Cal.2d 46 State, Elliott v. 114, P.2d Tenn. 116 57; 203, Gonzales, S.W.2d 1009; People Mich. 247, 16; Einhorn, N.W.2d See: The Rule in Exclusionary L., ; Crim. Operation, 144, C. & P.S. 160 (1959) 50 J. Wis. L. Rev. A search incident to an arrest authorized when from to officer necessary reasonably protect arresting attack, dis from or to prevent prisoner escaping, fruits of a But in this cover crime. the violation involved crosswalk, case was too to a kind of close parking —the traffic in a minor offense that results ordinarily “parking car, ticket” on the handle of the door hung telling the offender that it if is not necessary appear he mails the amount of his fine. Such offense does not, itself, raise the of inferences kind which justify searches other cases. Some traffic violations justify would a search. The total absence of license plates, example, inas People v. Ill.2d could Berry, reasonably sug law, gest serious violation of the as could an obscured license a car plate upon driven being early morning hours, as in Ill.2d But Esposito, 18 when no more is than shown that a car was too close to parked a crosswalk curb, or too far from a the constitution does permit to search the policeman driver. To the extent Ill.2d Berry, views, conflict with these are they overruled.

The search that was made here can be justified, how- ever, without the traffic relying solely violation. officers arresting were members of the detail. gambling They knew the them, defendant and he knew because they had arrested him on occasions. previous watched They him his car park and saw him into the He go building. saw them at that time. later, He emerged twenty minutes ran but back into the as soon as he building saw that the officers were still there. Police officers often must act upon a quick appraisal them, data before and the reason- ableness of their conduct must be on the judged basis of their responsibility crime and prevent to catch criminals. mind, this in With we think that the circumstances made it reasonable for the officers arresting to assume that they were with a dealing situation more serious than a routine *8 violation. parking The search of defendant’s person after not, therefore, arrest did his violate his constitutional right seizure, unreasonable search and against and the policy tickets obtained the search by were admitted properly evidence.

The defendant contends that the trial court was power- less to enter a sentence count 1 indictment 2, because specific on count finding without guilty 1, any on count finding amounted to an oil count 1. acquittal We rejected same argument Berry, counsel, Ill.ad 247, case 252-53, the same argued by de- cided same trial an indictment judge, involving and procedural circumstances identical to those in the pres- ent case. What was said opinion applies equal stated, (cid:127)force here. For the reasons there it is our view that sentence was entered properly on the first count. The judg- ment is affirmed. Judgment affirmed.

Mr. Daily, specially concurring: Justice IWhile that the agree search of defendant’s person this case was I constitutionally permissible, do agree itself, more than a something valid arrest whether misdemeanor, be for a or a felony necessary bring search of the within person constitutional standards.

In the landmark case of States, Weeks v. United U.S. L. ed. 383, 392, said, 652, Court 655, Supreme reservation, without qualification or right been always recognized law, under American and English “to search the arrested, accused when person legally discover and seize the fruits evidences of crime.” decisions, States, Subsequent Carroll v. notably United U.S. L. Rabinowitz, ed. States United U.S. 56, L. ed. have and reaffirmed recognized the Weeks case as firmly that a cementing principle search of the of one arrested is lawfully not un reasonable, and that the into taking custody personal immediate control of an articles arrested *9 States, v. United not unlawful. also: (See 247 Blackford 944.) F. Supp. States Lassoff, United F.2d 745; 149 “It unreasonable said: court In the Rabinowitz case the Amendment. the Fourth by that are searches prohibited * * * the Consti- the framers by It was recognized no which searches for there were tution that reasonable to be secure of the right ‘people warrant was The required. concern in their was of as much certainly persons’ the person. framers of the Constitution as the property warrant, Yet no without a search one questions right, search search the to after a valid arrest. person right incident to arrest has been always recognized person * * * in had this in one Where country England. officers, been action the law valid placed custody by not unreasonable at to search him.” U.S. (339 L. ed. at rule has 657; The same emphasis supplied.) been held to even for a mis- where arrest is made apply States, demeanor. See: Garske v. 1 F.2d cir.) United (8th 620; States, Green v. United F.2d (D.C. cir.) 259

The decisions of this court Ill. over Edge, 490, and others now ruled by which a search of majority hold that opinion, is a person incident to a valid for traffic proper arrest violations, do no more than to follow the of the principle case as it Weeks has been and extended interpreted by Federal and subsequent State decisions.

To justify from the departure rule adhered to in the State, past, majority relies on Elliott v. opinion Tenn. case, (1938), In S.W.2d that how- ever, where motorist was for lawfully arrested reckless it was the driving, of the Tennessee holding only court that a search of the automobile was unreasonable in that it bore no relation to the offense for which the arrest was made. it clear that it Making would not have considered unrea- sonable a search of the motorist’s the court person, con- cluded its opinion “It follows: will be borne mind is not a in which case evidence commission had been described of another and offense independent search within recog- incidental the exercise the officer limits, case, nized authorized as for the Goodwin example on the where a concealed supra, weapon found ** in this the rule followed *. We adhere to heretofore that, when is within lawful of the search scope limits, testified offenses may discoveries of independent of such offenses.” (Emphasis supplied.) prosecution State, Goodwin Tenn. 682 S.W. (1924), to, the decision referred was a for a concealed prosecution after had been found on defendant’s weapon his arrest drunkenness. In holding *10 which the cate- was reasonable the court produced weapon states: the arrest is to gorically “When lawful the right search the follows.” person Gonzales, People Mich. N.W.2d (1959), is which also relied the upon by majority goes opinion, the Elliott case. The than

no farther court neither Michigan nor considered the whether there passed upon question must be more than a valid arrest to render a something person reasonable, the search of but decided that only automobile, search of an permit there must some other justification than a issuance of ticket traffic for offense. v. Blodgett,

The same is true of Cal.2d (1956), P.2d The court in that held case only that a violation would a search double-parking justify vehicle, of a and did not even deal with a problem whether lawful arrest for such a violation would have it person carried with to search authority one arrested.

In retrospect, may be seen that none of the cases have either cited modified or rejected the rule that reasonable when one is arrested lawfully so, they hardly a criminal offense. This present being our basis for a retreat from a persuasive compelling Ill.2d 400, holdings Ill. are representing which recognized Edge, 406 in this See: country: view majority prevailing L. Rev. 347, Wis. concedes that

The by my opinion adopted colleagues from attack is officers one protection arresting inci- makes a search of the a lawful grounds arrest, dent to a valid but refuses to its recognize applica- here by tion are a “minor we rationalizing dealing traffic offense that results in a ticket’ ordinarily 'parking car, on the handle hung the offender that it telling is not if necessary he mails the amount appear his fine.” This reasoning erroneous. mere hang- of a traffic ing citation on a car door is not an arrest. More- over, we are here with the dealing situation where an officer confronts an offender face-to-face and detains him from on his going way. When experience con- proved on trary, occasions at the cost of the life of an arresting officer, it is illogical we should establish by judicial fiat that all traffic minor offenders must be accepted arresting officers as who persons no threat to their pose personal safety.

Arrests for traffic violations can have serious conse- in our quences such as society loss of driving sub- privileges, *11 stantial fines or confinement in loss jail, of employment therefor, disqualification and we have always those cases in which an officer may halt a unwittingly stolen car for a minor violation, or confront a driver or wanted occupant for more serious violations. Human nature what it being is, we should not establish as a matter of law that none of these will persons react with violence. It is true that the great majority arrests for traffic offenses result in no untoward but, incidents seeking determine what is

reasonable, should be it that our concern seems to me enforcement and of law directed to safety protection officers, who have rather than to the welfare persons their the law. ma- forfeit violating put rights if that a is reasonable an says search of jority person more officer has basis for arresting something suspicion involved; but can than a routine traffic violation is this be little solace or to the officer who has no suspicions help until the offender The only suddenly produces weapon. view, as of ancient practical majority recognized by courts, modern and is that it is not unreasonable to of one validly who been arrested. person To me the is also to the vice opinion adopted subject fosters confusion in area where uncertainty exist, should none and in did exist fact heretofore. The result can be harassment to only law enforcement and the crime, effective prosecution detri- corresponding ment citizens this State. In from the departing view that a search is reasonable lawful effect, arrest the court says, that the search of the per- son here is unlawful because the offense is minor one. The reasonableness of the search is thus made to rest on crime, the nature of the rather than the fact of arrest itself. Neither law enforcement officials nor the can public know what crimes will a search justify and with the person, present opinion searches, the validity of all guide, even felonies, after arrest for some will be doubt until judi- tested. In cially my historic opinion that a approach search of the reasonable upon valid arrest more just and perceptive, view logical should re- tained jurisdiction.