People v. Fletcher

383 N.E.2d 1285, 66 Ill. App. 3d 502, 23 Ill. Dec. 258, 1978 Ill. App. LEXIS 3683
Appellate Court of Illinois·Decided November 8, 1978·No. 61205·Published·Cited by 13 cases

Opinion

Mr. JUSTICE PERLIN

delivered the opinion of the court:

Defendant, James Fletcher, was convicted of attempt burglary by a jury and sentenced to the penitentiary for a term of three years and four months to ten years. On direct appeal, the appellate court reversed his conviction based solely on its determination that he was not proven guilty beyond a reasonable doubt. (46 Ill. App. 3d 530, 361 N.E.2d 97.) The supreme court granted the State’s petition for leave to appeal (66 Ill. 2d 633) and reversed the appellate court’s judgment. (72 Ill. 2d 66, 377 N.E.2d 809.) The cause was remanded for this court’s resolution of the other issues advanced by defendant but not considered in his intital appeal.

The evidence relating directly to defendant’s criminal involvement was adequately set forth in this court’s opinion and in the supreme court’s opinion. However, in order properly to evaluate defendant’s remaining contentions, it is necessary that we primarily concern ourselves with the facts and circumstances pertaining to defendant’s arrest and the subsequent search of his hotel room by the police.

Immediately after the attempt burglary took place, on June 24,1973, at 7:30 p.m., Mrs. George Lysy observed the defendant and another man run from the scene and enter a maroon automobile, which then sped away. When the police arrived at approximately 8 p.m., Mrs. Lysy described defendant as white, in his mid-twenties, with dark bushy hair and full sideburns. Additionally, Mrs. Lysy’s husband informed the police that his suspicion had been aroused two days earlier when a maroon Oldsmobile had parked in the space where he usually put his own vehicle. This car had two or three stickers on the right side of its windshield, and its body was damaged on the left side. Since it was blocking his parking space, he had hurriedly written down this automobile’s license number as TP 7521. According to Mr. Lysy, this was the same vehicle in which the two men escaped subsequent to the commission of said offense.

Immediately thereafter, one of the investigating police officers ascertained that defendant’s automobile matched Mr. Lysy’s description and bore license plate number TP 2571. On account of this similarity as well as their knowledge of defendant’s physical characteristics, the police proceeded to defendant’s hotel and set up surveillance outside the building. Defendant lived approximately 12 miles from the site of the attempt burglary. At about 10:15 p.m. the police entered this hotel and asked for defendant. The desk clerk rang defendant’s room, but there was no answer. The police then left and returned to their posts on the street. Approximately an hour and a half later, the officers observed defendant drive up, park his maroon Oldsmobile in an adjacent rear alley and go into the hotel.

One of the police officers checked the automobile and determined that it fit Mr. Lysy’s description. The other officer called for an assist car. When these tasks were completed, the two police officers went into the hotel, obtained defendant’s room number from the clerk and proceeded to his floor. As he approached defendant’s room, one of the officers noticed a young woman preceding him down the corridor. She came to defendant’s room and knocked. Defendant asked, “Who’s there?” At this juncture the police officer showed the woman his identification and silently signaled her to respond. She stated her name, then was directed by the officer, who had been joined by his partner, to get out of the way.

When defendant opened the door, he saw the two plainclothesmen. He tried to close the door, but the two police officers forced their way into his room. The testimony was conflicting as to when the officers identified themselves. Defendant was arrested as he fled toward the rear portion of the room.

Defendant’s 12th-floor hotel room was a one-room studio. This room contained a sitting chair, several tables and a dresser. Subsequent to defendant’s arrest, the police seized four clear plastic gloves which were lying in open view on top of the aforementioned dresser. One of the gloves was marked with a reddish tint. However, no scientific analysis was conducted by the police to determine whether this tint matched the red paint on the handle of the sledgehammer which was found at the scene of the attempt burglary: The police also drove defendant’s Oldsmobile to the police station parking lot where it was viewed by Mr. Lysy.

Prior to trial, defendant moved to suppress this evidence on the basis that these items were the product of an unlawful arrest and search. At the hearing on this motion, defendant testified that he did not give the police permission to enter his hotel room, to search his room or automobile or to remove anything therefrom. He also stated that the police did not present an arrest warrant or a search warrant for his residence or car. Although this testimony was uncontradicted, the trial court, after hearing testimony from the arresting police officer and considering the arguments of counsel, denied defendant’s motion and entered a finding of probable cause.

In considering the remaining issues raised by defendant’s direct appeal to this court, the first contention that must be examined is defendant’s assertion that his arrest was unlawful because it was conducted without probable cause and without an arrest warrant and that, in view of this illegality, the trial court erred when it refused to suppress the seizure of the plastic gloves and his automobile.

The Federal Constitution and the constitution of the State of Illinois do not prohibit all searches but only those which are unreasonable. (Go-Bart Importing Co. v. United States (1931), 282 U.S. 344, 357, 51 S. Ct. 153, 75 L. Ed. 374; see People v. Peak (1963), 29 Ill. 2d 343, 346, 194 N.E.2d 322, 325.) The test of the constitutionality of a search is not whether it was reasonable or practicable for the police officers to obtain a search warrant but whether the search was unreasonable. (People v. Wright (1968), 41 Ill. 2d 170, 173, 242 N.E.2d 180, 182-83, cert, denied (1969), 395 U.S. 933, 23 L. Ed. 2d 448,89 S. Ct. 1993.) It is well settled that a warrantless search incident to a lawful arrest is authorized when reasonably necessary to protect the arresting officer from serious bodily harm, to prevent the prisoner from escaping, or to discover the fruits of the crime. (See People v. Alexander (1961), 21 Ill. 2d 347,352,172 N.E.2d 785, 788, cert, denied (1961), 368 U.S. 875,7 L. Ed. 2d 77, 82 S. Ct. 122; see generally Weeks v. United States (1914), 232 U.S. 383, 392, 58 L. Ed. 652, 655, 34 S. Ct. 341.) Additionally, criminal evidence which is in plain view may be seized pursuant to a legal arrest even though a search warrant has not been procured beforehand. (Ker v. California (1963), 374 U.S. 23,42-43, 10 L. Ed. 2d 726, 83 S. Ct. 1623; see People v. Wright.) The case authorities have imposed no requirement that the arrest be under the authority of an arrest warrant but only that it be lawful. (See Ker v.

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People v. Fletcher, 383 N.E.2d 1285, 66 Ill. App. 3d 502, 23 Ill. Dec. 258, 1978 Ill. App. LEXIS 3683 (Ill. Ct. App. 1978).

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