{ "id": 2717778, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES HARRISON DOWNING, Defendant-Appellant", "name_abbreviation": "People v. Downing", "decision_date": "1976-04-08", "docket_number": "No. 74-372", "first_page": "297", "last_page": "303", "citations": [ { "type": "official", "cite": "37 Ill. App. 3d 297" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "309 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. 2d 493", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405202 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0493-01" ] }, { "cite": "282 N.E.2d 462", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill. App. 3d 953", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2917500 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0953-01" ] }, { "cite": "273 N.E.2d 637", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "133 Ill. App. 2d 542", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2472971 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/133/0542-01" ] }, { "cite": "218 N.E.2d 97", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "34 Ill. 2d 572", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2880696 ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0572-01" ] }, { "cite": "378 U.S. 108", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165107 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/378/0108-01" ] }, { "cite": "203 N.E.2d 888", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "889" } ], "opinion_index": 0 }, { "cite": "32 Ill. 2d 101", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2841079 ], "weight": 2, "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0101-01" ] }, { "cite": "358 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3650729 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/358/0307-01" ] }, { "cite": "268 N.E.2d 205", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 2d 518", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2909913 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/131/0518-01" ] }, { "cite": "241 N.E.2d 419", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "41 Ill. 2d 7", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2851872 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-2d/41/0007-01" ] }, { "cite": "244 N.E.2d 188", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "41 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2851829 ], "year": 1968, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0465-01" ] }, { "cite": "145 N.E.2d 609", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2778187 ], "opinion_index": 0, "case_paths": [ "/ill-2d/12/0151-01" ] }, { "cite": "213 N.E.2d 536", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "34 Ill. 2d 52", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2878394 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/ill-2d/34/0052-01" ] }, { "cite": "311 N.E.2d 685", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. 2d 232", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5408291 ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0232-01" ] }, { "cite": "353 U.S. 53", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6159521 ], "weight": 3, "pin_cites": [ { "page": "62" }, { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/us/353/0053-01" ] }, { "cite": "386 U.S. 300", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174244 ], "weight": 3, "year": 1957, "opinion_index": 0, "case_paths": [ "/us/386/0300-01" ] }, { "cite": "192 N.E.2d 379", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "345 N.E.2d 97", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426412 ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0001-01" ] } ], "analysis": { "cardinality": 698, "char_count": 14506, "ocr_confidence": 0.886, "pagerank": { "raw": 9.834738116924958e-08, "percentile": 0.5336656693112224 }, "sha256": "9b248b4384762c4a775abcd663827490c29c8788703e6c014453eb96fab66793", "simhash": "1:e3b53850f0c69f3f", "word_count": 2334 }, "last_updated": "2023-07-14T17:14:56.744968+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES HARRISON DOWNING, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE GUILD\ndelivered the opinion of the court: The defendant, James Downing, was convicted in a bench trial of possession of cannabis in an amount in excess of 10 but less than 30 grams and possession of LSD in excess of 30 grams. He was sentenced on the LSD conviction to serve a 4-8 year term with the Illinois Department of Corrections. No sentence was imposed on the conviction of possession of cannabis. On appeal, defendant contends: (1) that the statutes under which he was convicted, section 4 of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56%, par. 704) and section 402 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56%, par. 1402) are unconstitutional; (2) that the trial court erred in denying defendant\u2019s motion to suppress evidence; and (3) that defendant\u2019s conviction for possession of cannabis should be reversed since it arose from the same conduct as his conviction for possession of LSD.\nDefendant\u2019s first contention is that the statutes under which he was convicted are unconstitutional, as violative of due process and equal protection, because they impose graduated penalties based upon the amount of a \u201csubstance containing\u201d cannabis or a controlled substance rather than upon the amount of pure cannabis or controlled substance possessed. This issue has recently been decided by our Supreme Court adversely to the position taken by defendant in People v. Mayberry (1976), 63 Ill. 2d 1, 345 N.E.2d 97, wherein the court concluded:\n\u201c\u00b0 * # the classification schemes are not unconstitutional merely because they are based on the amount of the \u2018substance containing\u2019 the cannabis or controlled substance rather than upon the pure cannabis or controlled substance.\u201d\nAccordingly, defendant\u2019s contention in this regard is without merit.\nAnalysis of defendant\u2019s second contention, regarding the denial of his motion to suppress evidence, requires a summary of the hearing on defendant\u2019s motion to suppress. Defendant grounded his motion to suppress upon alleged violations of his rights under the Federal and State constitutions occurring as a result of a search of his person by Rockford police officers without a warrant.\nAt the hearing on the motion to suppress there was testimony by the defendant and two police officers. Defendant testified that on October 5, 1973, he was riding in a car being driven by one Gary DuSavage. As Du-Savage parked his car on the street, two officers pulled up and told them to get out of the car. The officers searched the car and the persons of defendant and DuSavage. Defendant testified that, to his knowledge, DuSavage had not been violating any traffic laws and that the officers did not present either a search or arrest warrant. Defendant admitted that the officers did find something in his shirt. Following the search, defendant was placed under arrest.\nMichael Smith, a narcotics investigator with the Winnebago County Sheriff\u2019s office, was then called as the State\u2019s first witness. Smith testified that at about 6:10 p.m. on October 5, 1973, he received a telephone call from an informant. The informant advised Smith that there was a 1962, green and blue Chevy in the area of Reed Avenue and 11th Street with the trunk tied down with a rope and with some rear end damage. The informant further advised Smith that two individuals were in the vehicle, Gary DuSavage, who was driving, and the defendant, who was a passenger. In addition, the informant told Smith that the defendant had tried to sell the informant some LSD and that he had observed the LSD in a plastic bag which was rolled up in defendant\u2019s left shirt sleeve. Smith then relayed this information to Detective McMahon, the third and final witness at the hearing, who drove to the 11th Street-Reed Avenue area and observed an automobile matching the description given. Detective McMahon and his partner then followed the vehicle until it stopped. At that time the officers advised the occupants of the car that McMahon and his partner were police officers and then ordered them out of the car. A subsequent search revealed the plastic bag containing drugs in defendant\u2019s left shirt sleeve.\nOn direct examination, Officer Smith testified that the informant had given information which led to \u201cat least three\u201d arrests and convictions, some dealing with narcotics and some dealing with burglaries. He also testified that with respect to one or two individuals whom the informant had identified as narcotics dealers, the informant\u2019s information proved to be accurate but no arrests were made. On cross-examination, the number of arrests and convictions resulting from informant\u2019s information became unclear. On cross-examination, Smith testified that the three cases he had referred to on direct examination were all burglaries, that some of the informant\u2019s information regarded narcotics, and that the informant had given information which lead to arrests and convictions \u201c[p]robably six times, seven times.\u201d Defense counsel then asked Officer Smith, \u201cCan you identify them?\u201d An objection was interposed by the State to this question on the ground that the question called for information which would tend to reveal the identity of the informant. The court then sustained the objection, stating, \u201c* \u00b0 6 you are not entitled to the identity of the informant \u00b0 \u00b0 The defense then ceased its cross-examination of Officer Smith. Following the testimony of Officer McMahon, referred to above, the court found that the officers had probable cause to search and denied defendant\u2019s motion to suppress.\nDefendant\u2019s position on appeal is that when the trial court sustained the State\u2019s objection to the defense question above noted, it thereby prevented the defendant from inquiring about the identity of the informant and particular instances in which the informant\u2019s information had led to arrests and convictions. This, as defendant phrases the issue, prevented the State from negating defendant\u2019s prima facie case that the police lacked probable cause to arrest defendant. Defendant thus appears to actually raise two questions regarding the motion to suppress, to-wit: whether the identity of the informant should have been disclosed and whether the reliability of the informant was established.\nIt is clear that Illinois recognizes a privilege against the disclosure of the identity of an informant in certain situations (see Ill. Rev. Stat. 1973, ch. 110A, par. 412(j)(ii); People v. Durr (1963), 28 III. 2d 308,192 N.E.2d 379) and that this privilege is constitutional. (McCray v. Illinois (1967), 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056.) It is also clear that this privilege is not absolute, as noted by the United States Supreme Court in Roviaro v. United States (1957), 353 U.S. 53,62,1 L. Ed. 2d 639, 646, 77 S. Ct. 623:\n\u201cWe believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual\u2019s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer\u2019s testimony and other relevant factors.\u201d\nIn People v. Lewis (1974), 57 Ill. 2d 232, 311 N.E.2d 685, our Supreme Court, applying the above balancing-of-rights test in the situation involved therein, held that at the trial on the merits, disclosure of an informant\u2019s identity is required. The court specifically noted, however, that it was not reaching the issue of whether disclosure would be required at hearings on motions to suppress, or at similar pretrial proceedings. In a motion to suppress, where the informant was not present at the time of arrest, did not participate in the crime and did not help to set up its commission, disclosure of the identity of the informant is not required. (People v. Nettles (1966), 34 Ill. 2d 52, 213 N.E.2d 536; People v. Durr; People v. Mack (1957), 12 Ill. 2d 151, 145 N.E.2d 609.) Thus, in this case, defendant was not entitled to disclosure of the informant\u2019s identity.\nNext we find that the reliability of the informant was sufficiently established and that the police had probable cause to search the defendant. While the State seeks to uphold the search and seizure as properly incident to the arrest of the defendant, it is clear that in this case the actual arrest occurred subsequent to the search. This, however, is not fatal because it is well established that in certain circumstances a search without a warrant is valid, and the evidence seized thereby is admissible, if the search is based upon probable cause, that is, if the information on which the officers acted \u201c* \u201d e would warrant a reasonable and prudent man in believing that a crime was being committed.\u201d (People v. Owens (1969), 41 Ill. 2d 465, 467, 244 N.E.2d 188,190. See also People v. Tassone (1968), 41 Ill. 2d 7, 241 N.E.2d 419; People v. Herbert (1971), 131 Ill. App. 2d 518, 268 N.E.2d 205.) It is also well established that reasonable grounds for believing that an individual has committed a criminal offense may be based upon information furnished by an informant if the reliability of the informant has been previously established or independently corroborated. Draper v. United States (1959), 358 U.S. 307, 3 L. Ed. 2d 327,79 S. Ct. 329; People v. Durr.\nIn this case, the reliability of the informant was both established and independently corroborated. The informant\u2019s information was independently corroborated by the officers\u2019 personal observation of a green and blue Chevy with its trunk tied down and with rear end damage occupied by two individuals in the 11th Street-Reed Avenue vicinity. (See Draper v. United States; People v. McFadden (1965), 32 Ill. 2d 101, 203 N.E.2d 888.) In McFadden, the court stated:\n\u201cHere all of the information furnished by Ware, except possession of narcotics by defendant, was personally verified by the officers before the arrest. Here, as in the Draper case, we believe the proven past reliability of Ware plus the independent verification of all of the present information, except possession of narcotics by defendant, gave the arresting officers probable cause to believe that the final bit of information was also correct.\u201d (32 Ill. 2d 101, 103, 203 N.E.2d 888, 889.)\nAlso, in this case, Officer Smith testified that the informant told him that defendant had tried to sell LSD to him and that the informant had personally observed the drugs which defendant was carrying in a plastic bag rolled up on defendant\u2019s shirt sleeve. The fact that the informant represented that he gained his information from personal observation is an additional factor justifying crediting the informant\u2019s information and acting upon it. See Aguilar v. Texas (1964), 378 U.S. 108,12 L. Ed. 2d 723, 84 S. Ct. 1509.\nPrior reliability of the informant was established in this case by Officer Smith\u2019s testimony at the hearing on defendant\u2019s motion to suppress. Although some confusion was brought out on the cross-examination of Officer Smith as to the number and types of convictions made as a result of the informant\u2019s information, the cross-examination of Smith tended to indicate that the informant\u2019s prior information had led to more arrests and convictions than Smith had indicated on direct examination. Also, while it has been held that prior arrests alone based upon an informant\u2019s information do not serve to establish his reliability (People v. McClellan (1966), 34 Ill. 2d 572, 218 N.E.2d 97), convictions are not essential in establishing reliability. (People v. Lawrence ((1971), 133 Ill. App. 2d 542, 273 N.E.2d 637.) It is accurate information which is the real test of reliability. (People v. Lawrence.) Where it is established that an informant\u2019s information has proven accurate in the past, his reliability is thereby established even though the precise.number of prior arrests and convictions based upon such information is either not stated or uncertain. See People v. Nettles; People v. Ranson (1972), 4 Ill. App. 3d 953,282 N.E.2d 462.\nThus, we find that the trial court did not err in denying defendant\u2019s motion to suppress. The police had probable cause to search the defendant based upon the information supplied by the informant who represented to the police that he based his information on personal observation and who had proven reliable in the past, and upon their independent corroboration of the informant\u2019s information.\nWe turn then to defendant\u2019s third contention, that his conviction for possession of cannabis should be reversed because it arose out of the same conduct as his conviction for possession of LSD. Defendant argues that since the cannabis and LSD were found in the same plastic bag rolled up in defendant\u2019s sleeve, and since the unlawful conduct and the motivation therefore were the same, to-wit: to possess drugs, only one conviction may stand.\nWe first note that under the authority of People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1, we may consider this contention despite the trial court\u2019s failure to impose a sentence upon the conviction of the offense of possession of cannabis, since this case is properly before us on appeal with respect to defendant\u2019s conviction for possession of LSD. As to the merits, we believe that the rationale behind the numerous cases dealing with multiple convictions for offenses arising out of the same conduct does not support defendant\u2019s position. Clearly, possession of cannabis and possession of LSD are distinct offenses requiring different elements of proof. The \u201cconduct\u201d for which defendant was convicted of possession of cannabis was not the same as the conduct for which defendant was convicted of possession of LSD; nor can the motivation for such possession be considered identical. Thus, the defendant\u2019s conviction for possession of cannabis will not be vacated.\nAccordingly, defendant\u2019s convictions and sentence are hereby affirmed.\nAffirmed.\nSEIDENFELD and HALLETT, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE GUILD" } ], "attorneys": [ "Ralph Ruebner and Ira A. Moltz, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Philip G. Reinhard, State\u2019s Attorney, of Rockford (Edward N. Morris, of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES HARRISON DOWNING, Defendant-Appellant.\nSecond District (1st Division)\nNo. 74-372\nOpinion filed April 8, 1976.\nRalph Ruebner and Ira A. Moltz, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nPhilip G. Reinhard, State\u2019s Attorney, of Rockford (Edward N. Morris, of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0297-01", "first_page_order": 325, "last_page_order": 331 }