People v. Berg , 67 Ill. 2d 65 ( 1977 )

MR. JUSTICE MORAN

delivered the opinion of the court:

Defendants, Larnell Lowery, James Smith, Leon Berg and Burton B. Levitz, were charged with the theft of 61 water meters. An order of the Cook County circuit court, affirmed by the First District Appellate Court (39 Ill. App. 3d 455), suppressed certain evidence (water meters) as the product of an illegal prearrest search, and quashed Lowery’s resulting arrest for lack of probable cause. The complaints against Smith, Berg and Levitz assertedly grew out of this suppressed evidence. This appeal concerns only the circumstances of the arrest of Lowery (hereinafter defendant).

The motion to suppress was granted after a pretrial hearing at which the arresting officer presented the only evidence. His testimony revealed that at approximately 6 a.m. on November 4, 1974, while in uniform and in a marked police car, he observed defendant in front of 2203 South Trumbull with a leather shopping bag and a baby carriage which had left a trail of water extending back to the 2300 block of South Trumbull. The carriage contained an army duffel bag, and the wheels of the buggy were bent as if overburdened. As the officer watched, the defendant placed the leather bag on the sidewalk next to the baby carriage and walked northward. The officer approached defendant and questioned him. (See Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) Defendant stated that he lived six to eight blocks away and was on his way to catch a bus to work. The officer stated that defendant could not, however, identify the block on which they stood or account for his presence there. Finding defendant’s answers unsatisfactory, the officer walked over to the baby carriage and “observed” that the leather shopping bag and the duffel bag contained water meters. He asked defendant where he had obtained them, and defendant refused to answer, whereupon the officer placed him under arrest.

At the hearing on the motion to suppress, defense counsel asked the officer if, at the time he first observed defendant, Lowery was committing a crime. The answer was “no.” Counsel then asked, “*** at the time you stopped him you didn’t know what was in that shopping bag or in that duffel bag?” The officer replied, “No, sir, not until I examined it.” (Emphasis added.) The defense rested. The State repeatedly attempted to elicit from the officer the specific circumstances surrounding his “observation” of the water meters, but because defense counsel’s objections were sustained, it was prevented from doing so. The court concluded that there had been an illegal search, suppressed the evidence, and held that the other events prior to defendant’s arrest did not provide probable cause for the arrest. Any evidence gained from defendant after the illegal arrest was said to have flowed from that illegal arrest and to be inadmissible as “fruit of the poisonous tree.”

Affirming the trial court’s order, the appellate court held that the burden of proving an illegal search and seizure — imposed by statute upon a defendant moving to suppress evidence — was met when the defendant made a prima facie showing that the police had no warrant, the defendant was not seen committing a crime when stopped, and the officer was not aware of any crime having been committed. The court went on to hold that once the defendant had made this prima facie case, the burden of proof shifted to the State; that there was ample evidence to sustain the trial court’s finding of a search; and that there was an absence of evidence to indicate the water meters were in plain view.

It is the State’s position that the record does not support the finding of a search, or that, in the alternative, it reveals the subject property was abandoned. Because of our disposition of the first issue we do not address the question of abandonment.

Section 114 — 12(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 114—12(b)) provides in pertinent part that “The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were unlawful shall be on the defendant.” The defendant concedes that the above provision requires a defendant who urges the suppression of illegally obtained evidence to make a prima facie showing that it was obtained by an illegal search and seizure. (See People v. Black (1972), 52 Ill. 2d 544, 554.) Clearly, aprima facie showing means that the defendant has the primary responsibility for establishing the factual and legal bases for the motion to suppress. Where the basis for the motion is an allegedly illegal search, it is incumbent upon the defendant in the first instance to establish both components: that there was a search, and that it was illegal. We do not reach the second of these components because of the condition of the record.

A “search” has been defined recurrently by the court as a prying into hidden places for that which is concealed. Conversely, it is not a search to observe that which is in open view. People v. Sylvester (1969), 43 Ill. 2d 325, 327; People v. Davis (1965), 33 Ill. 2d 134, 138.

In the instant case, the defendant did not testify to events which would have constituted a search; the sole evidence presented was the testimony of the arresting officer. His testimony reveals only that he “observed” the water meters which were not evident to him until he “examined” the leather shopping bag and the baby carriage. Clearly, the word “observed” alone implies no search. The word “examined” is variously defined as “to inspect or observe carefully; to look into the state of; to view in all aspects in order to find out the facts, physical condition, etc. of; to scrutinize; to investigate; to inquire into ***” (Webster’s New Twentieth Century Dictionary (2d ed. 1965)), or “1(a): to inspect closely (b): to test the condition of (c): to inquire into carefully” (Webster’s Seventh New Collegiate Dictionary (1967)). Thus, the word “examine” is consistent with a “search” for, or the mere “observation” of, the water meters. It cannot be determined from this language or any part of the record whether or not the officer viewed the contents by unsealing, opening, or otherwise prying into a concealed place. In fact, the very questions designed to elicit this information were objected to by defense counsel, and the objections were sustained by the trial court. Upon the State’s initial attempt to permit the officer to clarify the import of his testimony, the following colloquy took place:

“THE COURT: He has no right to go inside of it. That is what counsel is seeking to suppress.

[PROSECUTOR]: * * *

THE COURT: *** The motion to suppress is to suppress the search of those items.

[PROSECUTOR]: It wasn’t a search, your Honor.

THE COURT: It was not a search? Opening up the bags and looking through them?

[PROSECUTOR]: It’s not a question of opening it up, Judge. It’s in plain view. The officer doesn’t have to shut his eyes, does he?

The trial court’s inference that the officer opened the bags and looked through them was unfounded. The record is devoid of any evidence to substantiate such conclusion. The State attempted twice more to clarify the circumstances under which the bags’ contents were observed, asking the officer, “[W] hen you observed these items, where were they physically?” Objection by the defendant was sustained by the court. The State then attempted to explain the circumstances by inquiring, “The shopping bag, Officer, was it in a sealed condition when you first saw it?” but it was again precluded from doing so when the court sustained defendant’s objection to the question.

It was the State’s position that the water meters were in plain view when the officer first observed them. Since the defendant did not testify that a search in fact occurred, it was crucial that circumstances leading to the discovery of the water meters be established. Because the court did not allow the officer to respond to the questions, the record before us fails to disclose whether the meters were within plain view in open bags or were sealed within the bags.

For the reasons stated, the judgments of the appellate court and the circuit court of Cook County are vacated, and the cause is remanded to the circuit court with directions to conduct further evidentiary hearings.

Vacated and remanded, with directions.