People v. Butler

298 N.E.2d 798, 12 Ill. App. 3d 541, 1973 Ill. App. LEXIS 2283
Appellate Court of Illinois·Decided July 5, 1973·No. 11621·Published·Cited by 14 cases

Opinion

Mr. JUSTICE SMITH

delivered the opinion of the court:

Defendant was convicted of forgery and theft under $150, both crimes involving postal money orders. The principal point on appeal relates to the denial of the motion to suppress the money orders (other than the one which was allegedly forged) as evidence. Thirteen money orders were found in the glove compartment of an automobile which defendant was driving, and he argues that the search was neither incidental to his arrest nor was there probable cause for a non-incidental search of the vehicle later on. We agree with him that the search cannot be justified as one incident to his arrest, since it was not searched at the time (which is not to say that his arrest was not justified). Hence we take up the remaining aspect as to whether the search can otherwise be legally justified. A recital of the salient facts is in order.

Defendant’s version of events was that he borrowed a car, drove a friend to a shopping center, he going into a grocery store and the friend to a bank. He testified that when he came out, he saw another friend and offered him a ride. The first friend came running past the car, calling out that the police were after him, and continued his run. When the police appeared, defendant and friend No. 2 drove off and were stopped shortly thereafter by them and taken to the police station. The car at that time was not searched and remained where it had been stopped. More or less contemporaneously, the radio dispatcher for the police department received a telephone call from an unidentified woman at the bank where friend No. 1 had supposedly gone advising that a person was trying to cash a forged money order. While she was on the telephone such person left. She concluded her report to the dispatcher with the information that a red Volkswagen with a black right front fender and a given Illinois license plate was involved. The woman at the bank gave no physical description other than that the person involved was a Negro. The dispatcher thereupon broadcast this information over the police network. The broadcast was received by a police officer and upon seeing the described Volkswagen, stopped it. As we have seen, defendant and his companion were then taken to the police station but by other officers in a back-up car and their car remained where it was. The officer who had stopped the car then contacted headquarters and he and another officer later returned and searched the car finding 13 money orders between the pages of a book in the glove compartment. This second officer had previously on that very day investigated a theft of 22 postal money orders from a substation located in a food store. He also heard the dispatcher’s broadcast and the further intelligence that the car in which the defendant and friend No. 2 were riding had been stopped. He thereupon went to the police station and he and the other officer who had stopped the car then went to where it was parked and searched it. The president of the bank testified that a teller had reported to him that somebody was trying to cash a money order which had been reported as stolen and he followed this person out of the bank but lost him when he disappeared in a department store. Upon returning to the bank the president observed a Volkswagen with an occupant wearing a coat similar to that worn by the person he had followed. He noted the license number and gave it to the police who had arrived in the meantime. He was unable to identify the person in the bank with the occupant of the vehicle.

We view our opinion in People v. Powell, 9 Ill.App.3d 54, 291 N.E.2d 669, as controlling. If so, the search here can be justified on the basis that the searching officers had probable cause to believe that they would find in the car the instrumentalities of crime or evidence pertaining to a crime. Why did they have probable cause? We have these facts: (1) the searching officers had heard on their police radio that someone was attempting to pass a forged postal money order; (2) they had known of a theft of 22 postal money orders from personal investigation that morning and prior to hearing the radio dispatches; (3) they had intelligence to the effect that the suspect was in a described vehicle with a given license number; (4) defendant was found in the described vehicle; and (5) that defendant fitted the description given, such as it was. These facts, it seems to us, furnish probable cause that a search of the vehicle would disclose the stolen money orders or maybe the one someone had attempted to pass. The fact that the latter was not in the glove compartment has nothing to do with the question of whether or not here was pre-existing probable cause any more than finding it would have justified a search lacking probable cause. As we said in Powell, this is not building inference upon inference — each inference comes from facts that the officers had and in our opinion supplied the basis for them to have probable cause to believe that either the money order which was the subject of forgery, or the stolen money orders, or both, would be in the car, that is, that the vehicle contained the fruits of a burglary or evidence of an attempt to pass a forged instrument, or both. Justification for the search here, as in Powell, finds its authority in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. In that case, it was held that even though a search could not be justified as incident to an arrest, it could be justified on the basis of the existence of probable cause to search an automobile. The Supreme Court recognized that automobiles could be searched without a warrant in circumstances which would not justify a warrantless search of a house or an office — the so-called automobile exception — provided that there was probable cause to believe that the vehicle contained articles that the police were entitled to seize and there were exigent circumstances — that there was a constitutional difference between a search of a store or a house, and the search of an automobile, because an automobile could be quickly moved (an exigent circumstance), thus the search could be upheld on a theory wholly different from that justifying a search incident to an arrest. In Chambers, following a robbery, the police received a description of the car and the clothing worn of the four alleged to have been involved. The police stopped the described car with four men in the described clothing. Though arrested, the car was not searched — but rather driven to the police station. Then followed a warrantless search of the car which produced revolvers, ammunition, and property taken in the robbery. As we have seen, the court held that such search was constitutionally permissible under the automobile exception.

Defendant stresses that the dispatching officer knew no more than he had heard from an unidentified caller. Of course, this is true— but such fact, does not argue against his relaying such information over the police network and the searching officers relying on same — simply because he didn’t know whether the facts related to him were true or not. A citizen’s report of criminal activities to the police is not the same as that of an informer. And certainly what one officer knew and communicated to others furnishes facts on which probable cause can be based. As was said in People v. Peak, 29 Ill.2d 343, 349, 194 N.E.2d 322, 326:

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People v. Butler, 298 N.E.2d 798, 12 Ill. App. 3d 541, 1973 Ill. App. LEXIS 2283 (Ill. Ct. App. 1973).

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