author: MR. JUSTICE KLUCZYNSKI MR. JUSTICE CLARK,

text:
    (No. 51829.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BILL TIPTON, Appellee.

      Opinion filed February 22, 1980.

      CLARK, J., dissenting.
    William J. Scott, Attorney General, of Springfield, and Nicholas G. Byron, State’s Attorney, of Edwardsville (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Raymond F. Buckley, Jr., and Ann E. Singleton, of State’s Attorneys Appellate Service Commission, of Mount Vernon, of counsel), for the People.
    John H. Reid, Deputy Defender, and Patricia L. Morris, Assistant Defender, of the Office of the State Appellate Defender, of Mount Vernon, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Steven Jones and defendant, Bill Tipton, were charged by indictment with selling a substance represented to be a controlled substance (Ill. Rev. Stat. 1975, ch. 56/2, par. 1404). The white powder that they had sold contained no controlled substance. Jones pleaded guilty and testified on behalf of the State at defendant’s trial. A jury returned a verdict of guilty against defendant, and the circuit court of Madison County entered judgment and sentenced defendant to two years’ probation, with conditions. The appellate court reversed, finding entrapment as a matter of law (68 Ill. App. 3d 193), and we allowed the State’s petition for leave to appeal.

The State’s first witness was Michael T. Boyne, a narcotics agent with the Metropolitan Enforcement Group of Southwestern Illinois (MEGSI). Boyne first testified that on September 1 or 2, 1975, he went to defendant’s home, accompanied by fellow agent Charles Nunn and an informer, Nancy Niehaus. Niehaus, who had briefly dated defendant, arranged the meeting to see if defendant could find any cocaine. Defendant’s nine-year-old brother was also present.

Relating his account of the meeting, Boyne testified, “We had a general drug conversation and Nancy had asked him if he got the cocaine for us. *** He said that he would have to make some phone calls. *** He was telling us how he had taken some acid and he was out looking at the swimming pool and he kept telling the little brother to get out of the room and he told us that he was really funny when he gets him high. ” In his own testimony, defendant later admitted making the statement about getting his brother high. Also during the meeting, according to Boyne, defendant attempted two or three times to telephone someone whom he referred to as “Steve” in an effort to locate cocaine.

Boyne further testified that on September 3, 1975, he called defendant at 4:30 p.m., and defendant informed Boyne that a meeting was arranged with a third party for 6 p.m. that day at the Funland Miniature Golf Course. According to Boyne, defendant indicated that the third party had $30 worth of cocaine which could be broken down into six or seven “dime” bags. Boyne drove to defendant’s home, picked up defendant, and they then proceeded to Funland. On cross-examination, Boyne explained that he picked up defendant because he did not know the party with the cocaine.

Boyne testified that they arrived at Funland at approximately 5:40 p.m. and began playing pinball. A few minutes later, Steve Jones arrived and defendant introduced him to Boyne. According to Boyne, he, defendant and Jones engaged in general conversation, and defendant shortly thereafter asked Jones if he had the “stuff. ’’Jones suggested that they go to his car.

Boyne testified that, while in the car, he, defendant and Jones again held a general conversation on different topics, including drug usage, and that Jones handed him an aluminum package in exchange for $30 in MEGSI funds. Boyne testified that Jones said that the package contained “half cocaine and half speed.” Laboratory tests, however, later indicated that no controlled substance was present.

Boyne also testified that Jones offered to get Boyne LSD, cocaine or anything else that Boyne wanted. According to Boyne, Jones said that Boyne could contact him through defendant. Over objection of defense counsel, Boyne then testified that defendant arranged a similar sale with Jones approximately one month later, on October 1, 1975.

On cross-examination, defense counsel asked a series of questions to ascertain the nature of Boyne’s contacts with defendant. In response to these questions, Boyne testified that he never met defendant before September 1975; that, following their initial meeting, plans for a drug sale were not consummated; that he never saw defendant handle or receive money for drugs; that defendant did not say that he had any drugs but that he could get some; that defendant used the word “cocaine” rather than some slang term; that defendant never solicited Boyne to sell drugs; that, following the September 3 sale, Boyne called defendant; and' that, following the October 1 sale, Boyne called defendant once or twice more without any results, either because defendant could not get anything or because Boyne failed to follow up on his initial effort.

On redirect examination, Boyne testified that, if he called defendant and defendant did not then have anything, defendant would tell him to call back.

Steven Jones also testified on behalf of the State. Jones first testified that he received several phone calls from defendant in which defendant asked whether J ones had obtained any cocaine for Nancy Niehaus ’ “boyfriend,” referring to Boyne. Jones reiterated the details of the September 3 meeting and sale, and he then testified that he knew defendant from school and had known him for approximately V/z years.

On cross-examination of Jones, defense counsel again propounded a series of questions to ascertain the nature of the witness’ contacts with defendant. Jones testified that defendant never touched the drugs sold or received any money from their sale; that defendant never before had brought anyone to buy drugs; and that he had no agreement with defendant to arrange sales. Though apparently not anticipated by defense counsel, Jones also testified that, following the September 3 sale to Boyne, defendant brought a friend to buy drugs but that no more drugs were actually sold.

In his defense, defendant pleaded entrapment (Ill. Rev. Stat. 1975, ch. 38, par. 7 — 12), claiming improper inducement by Boyne and Niehaus, the latter said to be an agent of the government by virtue of her role as a paid informer. Defendant testified that he had dated Niehaus for three or four weeks but had ceased dating her a couple of weeks before Niehaus brought Boyne and fellow MEGSI agent Nunn to defendant’s home. At his home, according to defendant, the parties talked on various topics but not drugs.

Also according to defendant, on the next day, Niehaus called and asked if defendant could get her some cocaine, and he replied that he did not know and would have to see what he could do. According to defendant, Niehaus called him again, asking defendant again to try to get some cocaine and saying that the favor would be returned. Defendant testified that he had thought no more of finding cocaine until Niehaus called and again asked if he had found anyone to sell cocaine to Boyne.

Defendant testified that he saw Steve Jones at school the next day, and Jones said that he was selling cocaine and that defendant should let him know if he knew of anyone who wanted to buy any. Defendant testified that he had known Steve about six months and that it was known around school that Steve was “into drugs. ”

Defendant testified that, following the discussion with Jones, he received a call from Niehaus asking if he found anyone who would sell her cocaine, and he gave her Jones’ name. According to defendant, he then informed Jones that he knew someone who wanted to buy cocaine, and Jones suggested Funland as a meeting place. Defendant testified that he never used drugs, never had done anything like this before, and had arranged the sale only to do Niehaus a favor. He also testified that Niehaus thanked him for arranging the sale and said that she would return the favor.

Defendant next testified that, on the day of the sale, September 3, he, his brother and a friend were planning on going to Funland to play pinball and were waiting for the friend to finish washing dishes when Boyne arrived, asking where Funland was located. According to defendant, he gave Boyne directions but Boyne asked defendant to accompany him since both were going to Funland and since Boyne was not sure where it was located. Defendant agreed, and he and his brother left with Boyne.

Defendant’s account of the details of the actual sale followed and was substantially similar to that related by Boyne. On cross-examination, defendant admitted that the idea of getting the cocaine from Jones originated with him, but he reiterated that the sole reason for his involvement was his desire to do Niehaus a favor.

Following the close of defendant’s evidence, the jury returned a verdict of guilty and the circuit court entered judgment, sentencing defendant to two years’ probation with certain conditions, including the requirement that defendant spend the last 60 days of probation in the county jail. The appellate court reversed on the basis of its finding that entrapment existed as a matter of law.

In its appeal to this court, the State argues that the appellate court erred in finding entrapment. It also challenges the appellate court’s ruling that part of Boyne’s testimony, concerning defendant’s involvement in a subsequent drug transaction, is inadmissible. Because of the potential impact of Boyne’s testimony on the entrapment issue, we address the evidentiary issue first. The parties have cited no cases in this jurisdiction directly in point, and our research has revealed none. We have examined analogous cases in this State, however, and we now hold, in accordance with the majority of other jurisdictions addressing the point, that evidence of a defendant’s subsequent activities is admissible when a defendant pleads entrapment if the evidence is relevant to the issue of predisposition.

In the oft-cited Sorrells v. United States (1932), 287 U.S. 435, 451-52, 77 L. Ed. 413, 422, 53 S. Ct. 210, 216, the United States Supreme Court held that “if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue. If in consequence he suffers a disadvantage, he has brought it upon himself by reason of the nature of the defense.” In accordance with this principle, most courts addressing the issue of the admissibility of subsequent acts have approved the use of such evidence when a defendant raises the entrapment defense. (Annot., 61 A.L.R.Sd 293, 319-23 (1975), citing United States v. Rodriguez (5th Cir. 1973), 474 F.2d 587, 589-90; United States v. Santore (E.D. Pa. 1958), 164 F. Supp. 362, 366; Aller v. State (1974), 61 Wis. 2d 740, 741, 214 N.W.2d 431, 432; State v. Monsoor (1973), 56 Wis. 2d 689, 703, 203 N.W.2d 20, 27; People v. Calvano (1972), 30 N.Y.2d 199, 206, 282 N.E.2d 323, 326, 331 N.Y.S.2d 430, 436; Berlin v. State (1971), 12 Md. App. 48, 59-60, 277 A.2d 468, 474-75; see also United States v. Smith (2d Cir. 1960), 283 F.2d 760, 762-64; but see United States v. Daniels (5th Cir. 1978), 572 F.2d 535, 538; State v. Anaya (N.M. App. 1969), 81 N.M. 52, 54-55, 462 P.2d 637, 639-40.) The principle to be derived from these cases is that evidence of subsequent acts is admissible if relevant to the issue of predisposition of the defendant to commit the offense charged; relevancy is measured in terms of similarity and proximity in time.

More important than the fact that other jurisdictions have adopted this rule is that the principle upon which the rule is based can be found in the treatment of analogous situations under existing Illinois law. As Card states in his text, “Both prior conduct and subsequent conduct may be relevant ***, depending on the circumstances and the probative value of the collateral conduct sought to be proven. Evidence of other specific, though similar acts, may not be proven simply to show that, having done the same thing before, the person is likely to have done it on the occasion in issue. This would open the door too wide to the trial of side issues to the neglect of the immediate issue to be resolved. But for the limited purposes of proving state of mind, motive, intent, habit, pattern, or plan, conduct on other occasions is often the best if not the only evidence by which the facts can be established.” (Emphasis added.) (S. Card, Illinois Evidence Manual R. 4:09, comment, at 162-63 (2d ed. 1979); see, e.g., People v. Lehman (1955), 5 Ill. 2d 337, 343 (subsequent act admissible to show plan); People v. Allen (1971), 1 Ill. App. 3d 197, 200-02 (subsequent act admissible to refute argument that the defendant lacked intent); People v. Knox (1967), 90 Ill. App. 2d 149, 160-61 (subsequent act admissible to show plan).) The cases cited and the passage from Card do not specifically approve of the use of evidence of subsequent acts when a defendant pleads entrapment, but we believe that such a conclusion is logically required. By pleading entrapment, a defendant opens the door for the admission of evidence which might otherwise be inadmissible, and it would be inconsistent with this concept to exclude, in an entrapment case, evidence deemed admissible in other contexts. In People v. Stadtman (1974), 59 Ill. 2d 229, relied upon by the appellate court in holding that evidence of subsequent acts is inadmissible, neither predisposition nor any other issue was raised on which “other acts” would be relevant, and the appellate court’s reliance on that case was therefore misplaced.

In reviewing the present case, we cannot say that the circuit court abused its discretion in admitting agent Boyne’s testimony that defendant arranged a similar drug deal approximately one month after the offense for which defendant was on trial. By virtue of defendant’s plea of entrapment, the question of predisposition was raised, and the circuit court could reasonably conclude that evidence of similar activity one month later was of probative value on this issue.

The second issue raised by the State in its appeal is whether the appellate court erred in finding entrapment as a matter of law and setting aside the jury’s verdict of guilty. Once the entrapment defense is raised, it becomes incumbent upon the State to prove beyond a reasonable doubt that entrapment did not occur. (Ill. Rev. Stat. 1975, ch. 38, par. 3 — 2(b); People v. Dollen (1972), 53 Ill. 2d 280, 284.) The question of entrapment in a jury trial, however, is usually one for the jury, unless the trial court or a reviewing court can find entrapment as a matter of law. Sherman v. United States (1958), 356 U.S. 369, 377, 2 L. Ed. 2d 848, 854, 78 S. Ct. 819, 823; People v. Andreano (1978), 64 Ill. App. 3d 551, 556-57.

In finding entrapment, the appellate court cited the encouragement of Boyne and Niehaus, and it found that defendant was not predisposed to commit the offense. As to this latter point, however, it seems apparent from our review of the record, and as argued by the State, that the appellate court relied heavily on a presentence report in characterizing defendant as an innocent, shy individual particularly susceptible to the urgings of an ex-girlfriend. Statements contained in the report, however, were those of an apparently sympathetic probation officer, were not before the jury, and should not be considered by a reviewing court and used as a basis for setting aside a jury verdict. Cf. People v. Morgan (1977), 69 Ill. 2d 200, 206 (preliminary hearing report improperly considered by reviewing court).

Viewing the evidence presented to the jury, we find no basis for setting aside its verdict. The jury could have found that defendant was predisposed to commit the offense, and it therefore could have rejected the entrapment defense notwithstanding the involvement of Boyne and Niehaus. In this regard, we note defendant’s admission that the idea to contact Steve J ones originated with him; that defendant telephoned Jones two or three times during his initial meeting with Boyne and Niehaus; that defendant said that he had taken acid and that his brother is funny when he gets him high; that defendant arranged a second sale for Boyne one month after the September 3, 1975, sale; and that defendant arranged a third sale for someone other than Boyne sometime after the September 3, 1975, sale. In sum, the evidence indicated to the jury defendant’s familiarity with drugs, his knowledge of a supplier, and his willingness to accommodate those desirous of obtaining drugs. This, we believe, is sufficient to sustain the jury’s verdict. The fact that Boyne and Niehaus repeatedly encouraged defendant does not require acquittal for “entrapment is not available as a defense to a person who has the intent and design to commit a criminal offense, and who does commit the essential acts constituting it, merely because an officer of the law, for the purpose of securing evidence, affords such a person the opportunity to commit the criminal act, or purposely aids and encourages him in its perpetration.” (People v. McSmith (1961), 23 Ill. 2d 87, 89.) Defendant points out that the State did not call its informant, Niehaus, to the stand or explain her absence; according to statements of defense counsel in the record, she apparently “fled to Kentucky.” As a result, defendant argues that the evidence of inducement is uncontradicted and that his entrapment defense should therefore be accepted. This argument, however, overlooks any consideration of predisposition, a factor which must be considered when the entrapment defense is raised (People v. Cross (1979), 77 Ill. 2d 396, 405), and any inference which might arise against the State because of its unexplained failure to call the informer would be of little significance given the evidence of predisposition placed before the jury (People v. Cross (1979), 77 Ill. 2d 396, 406-07).

The judgment of the appellate court is reversed, and the cause is remanded to that court to allow it to address other issues raised by defendant but not decided by that

court because of its disposition of the case.

Reversed and remanded, with directions.

MR. JUSTICE CLARK,

dissenting:

The majority of this court has now upheld the conviction of a hapless adolescent with no prior history of drug abuse. His alleged crime was acting as an accessory to the sale of a white powder represented to be a controlled substance. For this crime, the defendant has received and must now serve a sentence of probation for two years, the last 60 days of which will be spent in jail.

I am not persuaded by the majority opinion that the State has proved the absence of entrapment beyond a reasonable doubt. Nor am I persuaded that the majority has promulgated the correct rule respecting the admission of subsequent-sales evidence in cases like this one. Therefore, I dissent.

Under our entrapment statute, the defendant has the burden of producing some evidence that he or she was entrapped. (See E. Cleary & M. Graham, Handbook of Illinois Evidence secs. 303.1-303.3, 404.4 (3d ed. 1979).) Upon the production of that evidence, the State must prove a lack of entrapment beyond a reasonable doubt. The crucial inquiry in disproving entrapment is whether the defendant was predisposed to commit the offense. Predisposition means an already-formed intent.

The defendant produced more than some evidence in this case that he was induced by Nancy Niehaus to commit the offense. Niehaus was a government informer for an undetermined period of time and had an undisclosed arrangement with the State. Defendant’s only reason for committing the offense was as a favor to her. He had been dating her for three to four weeks. He had never before used, bought, sold or attempted to buy or sell drugs.

The State did not even suspect the defendant of being a drug user before he became the subject of its investigative activity. During the relevant meetings, the defendant never used the slang vernacular for cocaine, something one would not expect from one predisposed to sell it. Several witnesses testified that they had known the defendant for substantial periods of time and that he was not predisposed to sell or use drugs. The State’s own witness, Steven Jones, the supplier in this transaction, testified to the absence of defendant’s predisposition prior to the State’s inducement. One would think that if the defendant was predisposed to commit this offense, he would have had an agreement or at least some drug-related contact with the person who turned out to be the supplier for the transaction in issue. This, however, was not the case.

Despite this evidence, the majority concluded that the following facts were sufficient to warrant a jury verdict of guilty: “defendant’s admission that the idea to contact Steve J ones originated with him; that defendant telephoned J ones two or three times during his initial meeting with Boyne [the testifying agent] ***; that defendant said that he had taken acid and that his brother is funny when he gets him high; that defendant arranged a second sale for Boyne one month after the September 3, 1975, sale; and that defendant arranged a third sale for someone other than Boyne sometime after the September 3, 1975, sale. In sum, the evidence indicated to the jury defendant’s familiarity with drugs, his knowledge of a supplier, and his willingness to accommodate those desirous of obtaining drugs.” (78 Ill. 2d at 487-88.) I have three major points to make about this summary of the evidence. First, the facts of the initial meeting between agent Boyne and the defendant are of less importance than the prior conduct of the State’s informer. On that issue, defendant’s unrebutted testimony is that she induced him to attempt to facilitate her procurement of cocaine. Second, the statement about defendant’s and his brother’s experimentation with drugs is uncorroborated and is an unreliable basis for upholding his conviction. Third, the alleged subsequent sales are irrelevant to the defendant’s predisposition, which is the crucial issue in this appeal.

The initial meeting of the defendant with agent Boyne was preceded by the efforts of the illusive informer for the State, Nancy Niehaus, to persuade the defendant to provide her with cocaine. He did not solicit her. She solicited him. Agent Boyne testified that he did not know the arrangements that were made between the State and Niehaus. He did not know her before this transaction was begun. She was unavailable at the time of the trial; she apparently had fled to Kentucky.

Niehaus had dated the defendant for three to four weeks prior to this incident. They had not been dating for two weeks prior to the date of the offense. During this time, Niehaus made several requests of the defendant to obtain cocaine. Agent Boyne would not have made contact with the defendant without these prior efforts and he testified to this effect. Then, after the meeting with Boyne and Niehaus, the defendant received a series of phone calls from them both. The requests for cocaine were repeated with a badgering frequency. Only then did the defendant commit the offense.

Upon all of these facts being produced by the defendant, the State had the burden of proving a lack of entrapment beyond a reasonable doubt. The majority in this case has taken the novel position that this burden does not include the burden of producing Nancy Niehaus’ testimony, despite her knowledge of the relevant circumstances.

The effect of a failure to produce such an important witness used to be clear in this State. In People v. Dollen (1972), 53 Ill. 2d 280, a defendant with no prior history of involvement in narcotics innocently gained possession of them from a vehicle he was inspecting. A police informer who had an opportunity and a motive to place narcotics in the vehicle immediately suggested their sale. The court stated:

“We do not imply that any law-enforcement official was involved in a plan to place narcotics in the vehicle, but we believe that the totality of the evidence was sufficient to indicate that Wright [the informer], acting independently, may have deposited the package so as to result in its detection by defendant, thus establishing the possibility of entrapment. The State, for example, may have easily rebutted defense testimony concerning the manner in which the drugs were found or the inference of their possible source by calling the informer to testify. However, it chose not to, explaining that Wright had disappeared, and simply relied upon the testimony of police officials which primarily related to the actual sale.” (53 Ill. 2d 280, 284-85.)

Mainly for these reasons, the court held that the State had not sustained its burden of proof on the entrapment issue. The import of Dollen is not confined, nor should it be confined, to its precise, never-to-be-repeated facts; the point in Dollen was that the defendant had produced evidence of entrapment which required rebuttal by the State. In Dollen this burden included that of producing the informer’s testimony about salient issues. A similar situation was presented in the case at bar, and this case, like Dollen, found the State relying primarily on testimony relating to the actual sale.

The majority here failed to even discuss Dollen on this issue, stating merely that other evidence of predisposition made Niehaus’ testimony unimportant. As we have seen, however, there is also evidence of entrapment. The conflict engendered between the evidence of entrapment and the allegations of predisposition could be resolved most accurately after hearing from Niehaus, an inquiry the majority terms unnecessary. This result far extends the holding in People v. Cross (1979), 77 Ill. 2d 396, 406-07, where the defendant admitted his predisposition. No prior case has gone this far in permitting the State to shirk its burden of producing relevant evidence.

The foregoing is not a mere academic inquiry. The trial judge, during arguments on the post-trial motion, stated:

“[T] he point that gives me cause for concern, and the point that has given me cause for concern from the very inception of this case, and I think I expressed that to both of you [the attorneys] at the time, *** I think at least this case borders on entrapment. That’s the issue that concerns me ***.”

After argument from defense counsel, he stated that the State’s failure to produce Niehaus was unimportant and then stated:

“Admittedly, I think it’s a very close case. If I, personally, would have been sitting on the jury, I might have found that there was entrapment, but *** [t] he issue before the Court is whether or not this is a jury question ***.”

Thus, the trial judge felt that the issue was close even without drawing the inference against the State that is required by Dollen. He based his decision on the other evidence produced at trial.

I do not think this other evidence should be ignored either. But the State and the majority opinion have relied heavily upon the defendant’s actions during his first meeting with agent Boyne: his attempted telephone calls to Jones and his apparent willingness to facilitate a sale. In a normal case, a willingness or eagerness to facilitate a drug transaction is probative of predisposition. The State’s failure to produce testimony of the informer, however, after the exculpatory evidence produced by the defendant in this case, prevents me from giving these actions much weight because the more relevant activity took place before that meeting. As to that activity, we only have the uncontradicted exculpatory testimony of the defendant.

The majority, however, argues that the defendant’s familiarity with drugs is demonstrated by his quoted statement that he had taken acid and that he had given drugs to his little brother. The defendant admitted making the statement but denied that it was true. The situation is akin to those cases where uncorroborated admissions or confessions form the sole basis of proof of an element of crime. In those circumstances, an unbroken line of cases have held that admissions or confessions require corroborative evidence before they are considered sufficient to support a conviction. (See Wong Sun v. United States (1963), 371 U.S. 471, 488-90, 9 L. Ed. 2d 441, 456-57, 83 S. Ct. 407, 417-19; People v. LaCoco (1950), 406 Ill. 303, cert. denied (1951), 340 U.S. 918, 95 L. Ed. 663, 71 S. Ct. 348; People v. Rogers (1953), 415 Ill. 343; People v. Lueder (1954), 3 Ill. 2d 487; People v. O’Neil (1960), 18 Ill. 2d 461, 464; People v. Norcutt (1970), 44 Ill. 2d 256, 263; People v. Taylor (1974), 58 Ill. 2d 69, 78.) These cases recognize that people say things, when they are outside of court and not under oath or subject to cross-examination, that they do not mean (People v. O’Neil (1960), 18 Ill. 2d 461, 464.) Consequently, they are inadequate alone as proof that the crime or the element thereof was committed. In this case, there is no evidence that the defendant used drugs or gave them to his brother. By analogy, this statement alone, though admissible, is insufficient to establish the defendant’s predisposition.

We have seen, then, that although it was defendant’s idea to contact Steve Jones and that he attempted to contact him during the initial meeting with agent Boyne, defendant produced evidence that he did so only as a result of the importunings of his former date and government informer, Nancy Niehaus. We have also seen that the State’s failure to produce her in rebuttal should require an inference to be drawn against the State, at least on the question of defendant’s readiness and eagerness to commit the crime. Finally, we have seen that the defendant’s statement regarding taking acid and getting his brother high lack crucial indications of reliability.

The only remaining evidence to be considered, then, is that relating to the alleged subsequent sales or attempted sales. I do not think such actions constitute evidence from which defendant’s predisposition could be proved. Nor do I think they should have been admitted in this case.

Predisposition means an already formed intent to commit the offense charged. Thus, the seminal entrapment case, Sorrells v. United States (1932), 287 U.S. 435, 442, 77 L. Ed. 413, 417, 53 S. Ct. 210, 213, stated the test to be whether the intent to commit the crime originated with the government or with the defendant. Illinois has adopted this test. (See Ill. Rev. Stat. 1975, ch. 38, par. 7 — 12, and Ill. Ann. Stat., ch. 38, par. 7 — 12, Committee Comments, at 436-37 (Smith-Hurd 1972).) Logically, the fact of subsequent sales alone has no relevance as to how the intent was acquired, where the intent originated or whether the intent was formed prior to the commission of the offense.

In an appropriate case, evidence of subsequent sales would be admissible. Thus, if the defendant denied having knowledge that the substance transferred was represented to be a controlled substance, a subsequent sale would be admissible to rebut this contention. If the defendant testified that the transfer was accidental, subsequent sales would be admissible. Other instances when the defendant’s intent would be in issue are easily imaginable. In this case, the crime charged was one of general intent. The intent can be inferred from the act itself. As I read the record, the defendant admitted his participation in the act and did not claim a lack of intent or knowledge on the day in question.

In a normal case, the defendant faces a Hobson’s choice if there is evidence of subsequent sales and the defense of entrapment is raised. If a defendant pleads entrapment and denies the intent to commit the offense, subsequent sales are admitted as probative of intent on the date of the offense. And, usually, there is sufficient evidence to justify a jury verdict of predisposition so that even if subsequent-sales evidence had a prejudicial impact, entrapment cannot be held proved as a matter of law. In this case, however, it was appropriate for the trial judge to weigh the probative value of evidence against its probable prejudicial impact. (See E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 404.5 at 136 (3d ed. 1979); People v. Cage (1966), 34 Ill. 2d 530, 534.) In the case at bar, it was likely that the jury would consider evidence of the subsequent sales as bearing on the issue of predisposition. That they would do so is not surprising, considering that the majority here made this same mistake. Thus, it was likely to have a prejudicial impact. Balanced against this is the small probative value of the evidence. It was only relevant to show defendant’s intent on the day of the offense, an issue that was not seriously in dispute. Consequently, it should not have been admitted and was likely to prejudice the defendant. However, it is important to note that even if it were admissible (if defendant’s intent on the day in question was in issue), it is still not probative of defendant’s predisposition and cannot be considered competent evidence on which to rebut defendant’s claim of entrapment.

The majority argues that the defendant opened the way to the admission of this evidence by pleading the defense of entrapment. I do not think, however, that by pleading a lawful defense a defendant forfeits his right to have the case against him proved with relevant evidence. Further, it is not necessarily the defendant who has brought on the “searching inquiry” into his own conduct. If the State’s informer entrapped him, it is the State which has brought on the defendant’s crime in the first place and then is in the position of seeking to compound his problems by arguing for the admissibility of irrelevant evidence. A more unjust result is difficult to conceive.

The majority also argues that the admission of this evidence is warranted in light of the case law of other jurisdictions. The list of cases cited by the majority in support of their position loses its luster, however, when they are examined more closely and when the position of other jurisdictions is studied. Thus, in United States v. Rodriguez (5th Cir. 1973), 474 F.2d 587, subsequent-sales evidence was not allowed as part of the prosecution’s case-in-chief. It was only allowed in rebuttal to the testimony of the defendant. Moreover, there was no evidence in that case that the government agent implanted the scheme in the defendant’s mind, and there was persuasive evidence that the defendant was a dealer in considerable quantities. To borrow a phrase from Mr. Justice Rehnquist, the case at bar is distinctly not of that breed.

In United States v. Santore (E.D. Pa. 1958), 164 F. Supp. 362, 366, the trial judge made it clear to the jury that the subsequent sales were only relevant to defendant’s state of mind on the date of the incident. This case, instead of supporting the majority opinion, supports my contention that subsequent sales are not probative of predisposition and, if admissible, are only admissible as bearing on the defendant’s intent on the day that the offense was committed. Alter v. State (1974), 61 Wis. 2d 740, 741, 214 N.W.2d 431, 432, also cited by the majority, is only a one-paragraph opinion restating the holding in State v. Monsoor (1973), 56 Wis. 2d 689, 703, 203 N.W.2d 20, 27. In that case, a large cache of marijuana was found in defendant’s basement after the sale for which he was on trial occurred. Although not pointed out by that court, this type of evidence is different from a subsequent sale. It may be probative of predisposition since the inference could be drawn that the contraband was procured before the date of the incident in question. No comparable inference can be drawn in this case. In People v. Calvano (1972), 30 N.Y.2d 199, 206, 282 N.E.2d 323, 326, 331 N.Y.S.2d 430, 436. evidence of a sale occurring between two incidents was allowed as part of a continuing chain of events. No similar contention was made here. The last case cited, United States v. Smith (2d Cir. 1960), 283 F.2d 760, 762-64, involved a prior sale that might indeed be relevant to show predisposition. Subsequent sales are not.

It was also misleading to suggest that these cases represent an overwhelming majority of jurisdictions. Many-jurisdictions have not been faced with this question. Many other jurisdictions, recognizing evidentiary and other hazards present in cases like this one, do not even permit a jury inquiry into the predisposition of the defendant. Instead, when an entrapment defense is raised, the trial judge determines as a matter of law whether the conduct of the government and its agents was such as to induce an ordinary law-abiding citizen to commit the offense. (See State v. Mullen (Iowa 1974), 216 N.W.2d 375; State v. Sainz (1972), 84 N.M. 259, 501 P.2d 1247; Grossman v. State (Alas. 1969), 457 P.2d 226; People v. Barraza (1979), 23 Cal. 3d 675, 153 Cal. Rptr. 459, 591 P.2d 947; People v. D’Angelo (1977), 401 Mich. 167, 257 N.W.2d 655; N.D. Cent. Code sec. 12.1-05-11 (1976); N.H. Rev. Stat. Ann. sec. 626:5 (1974); Pa. Cons. Stat. Ann., tit. 18, sec. 313 (Purdon 1973); Haw. Rev. Stat. sec. 702 — 237 (1976).) I have neither the space nor the inclination to offer a full-fledged analysis of the so-called objective test here. But it is important to note that evidentiary problems like the one encountered in this case are a cause of great concern in many jurisdictions and varying remedies have been suggested to prevent the prejudice to defendants like that involved in the instant case. Indiana, for example, requires law-enforcement officials to have some reason to suspect defendants before they can attempt to ensnare them. (Smith v. State (1972), 258 Ind. 415, 281 N.E.2d 803.) A similar holding in Illinois would have prevented the prosecution of this defendant because the State admittedly had no basis for suspecting him and did not in fact suspect him before asking him to procure controlled substances.

I have concluded that there was no competent evidence of predisposition and that, therefore, the State failed to carry its burden of proof on the entrapment issue. I have also concluded that evidence of subsequent sales should not have been admitted in this one particular case. Hence, defendant’s conviction should have been overturned in accordance with the appellate court’s decision.

In Sherman v. United States (1958), 356 U.S. 369, 384, 2 L. Ed. 2d 848, 858, 78 S. Ct. 819, 826, Mr. Justice Frankfurter, concurring, wrote that “Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.” In this case, the appellate court did not just look at the probation officer’s report in considering whether the defendant was entrapped. The record fairly shows an overweight, 17-year-old high school sophomore who was lured by the prospect of feminine companionship into ineptly committing a crime. He was initially reluctant to commit it and had no prior history of similar offenses. I think the State added to his problems and generated a crime.

The defendant received a sentence of two years’ probation with 60 days to be spent in jail. He never handled the money or the white powder. The person who did receive the money and handle the white powder and who was known to be “into” drugs pleaded guilty and received a sentence of only one year of probation with nine weeks to be spent in jail, plus a $500 fine.

I have no doubt that it is necessary for the government to engage in practices that would not be countenanced absent the alarming drug problem. Illicit drug organizations are well-financed, well-advised, sophisticated and dangerous to our society. But this case illustrates a pattern of law enforcement that is not likely to result in the defeat of these organizations and this problem in our time.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE GOLDENHERSH MR. JUSTICE RYAN,

license: Public Domain

text:
    (No. 51771.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RICHARD HILLS, Appellant.

      Opinion filed February 22, 1980.

      RYAN, J., concurring in part and dissenting in part.
    Robert Agostinelli, Deputy Defender, and Thomas Lilien, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.
    William J. Scott, Attorney General, of Springfield, and Carl £. Hawkinson, State’s Attorney, of Galesburg (Donald B. Mackay and David Cassorla, Assistant Attorneys General, of Chicago, and James E. Hinterlong, of the State’s Attorney Appellate Service Commission, of Ottawa, of counsel), for the People.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

In the circuit court of Knox County, defendant, Richard E. Hills, pleaded guilty to the offense of possesion of a controlled substance with intent to deliver (Ill. Rev. Stat. 1973, ch. 56V4, par. 1401(b)), and was sentenced to two years’ probation. A petition to revoke his probation was filed, and after a hearing the circuit court revoked probation and sentenced defendant to the penitentiary for a term of not less than two nor more than six years. The appellate court affirmed (71 Ill. App. 3d 461), and we allowed defendant’s petition for leave to appeal. The facts are adequately stated in the appellate court opinion and will be repeated here only to the extent necessary to discuss the issues.

We consider first defendant’s contention that he was denied the effective assistance of counsel at the revocation hearing. The record shows that on January 5, 1976, defendant was sentenced to two years’ probation. On April 13, 1977, a petition to revoke probation was filed, charging that defendant had burglarized a recreation center and had attempted to burglarize a drug store, both in Fulton County. The burglary of the recreation center was alleged to have occurred on March 10, 1977, and although the date of the attempted burglary was not alleged in the petition, the testimony shows that it occurred on March 14, 1977. A public defender was appointed to represent defendant.

On May 19, 1977, at the probation revocation hearing, the public defender moved for a continuance because he had not yet discussed the case with his client. He explained that he had been unable to reach defendant in the interval between his appointment and the hearing. Because a number of the People’s witnesses were present, the circuit court denied the motion, and the parties then agreed to hear the testimony of the People’s witnesses and continue the case for the defense to a later date.

Over defendant’s objection the People adduced testimony of a statement given by defendant in which he admitted the March 10, 1977, burglary. No motion to suppress the statement was filed before the hearing. The reason stated for defendant’s objection to the statement was that at the time the statement was given defendant was “laboring under the difficulty of intoxication. ” The officer taking the statement, Gary Phillips of the Illinois State Police Criminal Investigation Bureau, testified that at the time the statement was given defendant was “very tired” but “sober.” Fulton County Deputy Sheriff James Elam, testified that at the time of defendant’s arrest, approximately 12 hours before the statement was given, defendant was “less than stable.”

At the close of the People’s case the revocation hearing was recessed until June 16, 1977. On that date, the only evidence offered in defense was the defendant’s testimony. He was questioned about and denied only the allegations of count II of the petition to revoke probation, which involved the attempted burglary. Defendant did not testify as to count I, involving the burglary to which he confessed in his statement to Officer Phillips.

In his closing argument defense counsel said:

“I would ask the court to consider for a moment any reason for Mr. Hills in this case to prevaricate his testimony as to Count II. The court will — as the court well knows and as Mr. Kimbell pointed out we presented no evidence as to Count I. I think we are old enough, Your Honor, without contradictory testimony and knowing the nature of the evidence on behalf of the People as to Count I that the conclusion on that matter was foregone without evidence by way of answer. I think Mr. Hills testified truthfully as to Count II though realizing that the chances are quite great based on Count I alone that his probation may be revoked. ”

The circuit court found defendant guilty of violating probation as to both count I and count II. On July 28, 1977, a sentencing hearing was held and defendant was sentenced to the penitentiary for a term of not less than two nor more than six years. Although the circuit court stated that defendant was “to receive credit for all time spent in custody as a result of this offense,” no mention was made whether defendant was to receive credit for the time spent on probation. On August 5, 1977, the circuit court convened another hearing in order to “make the record clear as it should be” and ordered that defendant be denied credit for the time spent on probation.

In support of his contention that he did not receive effective assistance of counsel defendant cites the failure to move for a continuance prior to the hearing on May 19, 1977, on the ground that he had been unable to interview defendant. Defendant argues that counsel had ample time before the hearing to request a continuance and that he was unduly prejudiced by his failure to do so. He asserts that by waiting until the day of the hearing, when the People’s witnesses were present, appointed counsel made it difficult for the trial judge to grant a continuance, since to do so would inconvenience the witnesses. Defendant argues that by reason of counsel’s failure to investigate, or continue, the case, he was deprived of two clear bases for suppressing defendant’s statement: defendant’s intoxication and the State’s failure to produce all of the material witnesses to the statement. Finally, defendant asserts that his counsel, in closing argument, admitted guilt as to count I and thereby deprived defendant of a defense on that count.

In order to prevail in a claim of incompetence, a defendant represented by court-appointed counsel must establish (1) actual incompetence and (2) substantial prejudice resulting therefrom. (People v. Witherspoon (1973), 55 Ill. 2d 18; People v. Goerger (1972), 52 Ill. 2d 403.) Proof of prejudice cannot be based on mere conjecture (People v. Thomas (1972), 51 Ill. 2d 39; People v. Gonzales (1968), 40 Ill. 2d 233) nor can a defendant rely upon speculation as to the outcome of his case had the representation been of higher quality (People v. Thomas (1972), 51 Ill. 2d 39; People v. Gonzales (1968), 40 Ill. 2d 233).

It is pure speculation to assume that any amount of prehearing investigation would have discovered evidence which could have altered the outcome here. Moreover, there is no indication that further effort could have kept out defendant’s statement wherein he confessed to burglary. Testimony indicated that the attempted burglary took place at approximately 2 a.m. on March 14, 1979, and defendant was arrested shortly thereafter. Defendant’s statement was made at 2:30 p.m. that same day. Assuming, based on Officer Elam’s testimony, that defendant was intoxicated at the time of his arrest, we cannot assume that he was intoxicated when he gave his statement 12 hours later. In addition, the mere fact of intoxication is not enough, in itself, to render a statement involuntary. See People v. Hicks (1966), 35 Ill. 2d 390.

With regard to the People’s failure to call all the witnesses to defendant’s statement, defendant is correct in his statement of the general rule that where the voluntariness of a confession is challenged in a motion to suppress, all material witnesses to the confession should be produced. (See, e.g., In re Lamb (1975), 61 Ill. 2d 383; People v. Armstrong (1972), 51 Ill. 2d 471.) However, other than the fact that defendant had been drinking 12 hours prior to making his statement there is no evidence which suggests that it was coerced or otherwise involuntary. Defendant has failed to show that the result would have been altered had counsel required the People to produce all material witnesses.

Finally, we axe unable to say that the closing remarks of defendant’s counsel caused substantial prejudice. As the appellate court pointed out, given that defendant had made an ostensibly voluntary confession as to count I, and with respect to count II had admitted being in the immediate area of the attempted burglary, had admitted being intoxicated, and had admitted smoking marijuana, counsel did not have many options in choosing his remarks. Moreover, we cannot say, in light of the evidence, that a different approach taken in closing could have altered the result.

The record does not support defendant’s contention that he did not receive effective assistance of counsel.

Defendant contends next that the circuit court was without authority to deny him credit for the time served on probation. At the time of sentencing section 5 — 6—4(h) of the Unified Code of Corrections provided in pertinent part:

“Time served on probation, conditional discharge or supervision shall be credited by the court against a sentence of imprisonment or periodic imprisonment unless the court orders otherwise.” (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 6—4(h).)

Thus, by the terms of section 5 — 6—4(h), since the sentencing order entered on July 28, 1977, made no mention of credit, absent the “clarification” by the trial court eight days later, defendant would have received credit for the time spent on probation. Defendant contends that the circuit court’s action on August 5, 1977, resulted in an improper increase in the length of his sentence, contrary to section 5 — 8—1(d) (now section 5 — 8—1(c) of the Unified Code of Corrections), which provides:

“The court may reduce or modify, but shall not increase the length of a sentence by order entered not later than 30 days from the date that sentence was imposed. This shall not enlarge the jurisdiction of the court for any other purpose.” Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1(d); now par. 1005 — 8—1(c). Pub. Act 80 — 1099 (effective February 1, 1978).

The appellate court, while apparently agreeing that defendant’s sentence was increased, held that the increase did not violate the prohibition of section 5 — 8—1(d). Citing People v. Heil (1978), 71 Ill. 2d 458; People v. Watson (1946), 394 Ill. 177, and People v. Hamel (1946), 392 Ill. 415, it explained that the circuit court retains jurisdiction for 30 days after entry of a judgment in order to correct errors, subject to the restriction that in criminal cases the circuit court loses jurisdiction when the defendant begins serving his sentence in the penitentiary. In dealing with defendant’s assertion that section 5 — 8—1(d) replaced the rule of Watson, Hamel and earlier cases, the appellate court added:

“We interpret section 5 — 8—1(d) as giving the trial court the additional jurisdictional power to reduce or modify without increasing a sentence after defendant has begun serving his sentence until 30 days from the date sentence was imposed. We reach this conclusion in order to give effect to the last sentence of section 5 — 8—1(d) ***. This sentence must mean that the preceding sentence was intended to enlarge the jurisdiction of the court for the purpose of reducing or modifying a sentence within 30 days, and the only way jurisdiction could be enlarged would be by eliminating the previous restriction.” (71 Ill. App. 3d 461, 469.)

We do not agree. Under section 5 — 8—1(d) the circuit court had jurisdiction to “reduce or modify” the sentence for a period of 30 days “from the date sentence was imposed” without regard to when it may have been executed. [People ex rel. Carey v. Rosin (1979), 75 Ill. 2d 151, 157.) Increase of the sentence is, however, expressly proscribed, and the circuit court was without power to increase the sentence after it was imposed.

Defendant’s final contention is that his sentence was excessive. Taking into account that defendant will receive credit for the time spent on probation, we cannot say that the trial court abused its discretion in imposing the sentence. People v. Perruquet (1977), 68 Ill. 2d 149.

For the reasons stated the judgments of the appellate court and circuit court are affirmed and the cause is remanded to the circuit court of Knox County with directions to issue a corrected mittimus containing no provision for denial of credit for the time defendant was on probation.

Affirmed and remanded, with directions.

MR. JUSTICE RYAN,

concurring in part and dissenting in part:

I agree with the majority’s holding on all issues except its interpretation of section 5 — 8—1(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1(d), now par. 1005 — 8—1(c), Pub. Act 80 — 1099 (effective Feb. 1, 1978)). In my opinion, the reasoning of the appellate court on this issue is correct.

In Illinois the common law rule permitted a trial court to retain jurisdiction over a judgment until the adjournment of the term, except that in criminal cases the trial court lost jurisdiction before the end of the term when the defendant’s sentence was executed. Under the practice in this State, when a person accused of a crime was convicted, sentenced and delivered into the custody of the proper penitentiary officer under a mittimus, the sentence was considered executed and the court lost jurisdiction. That rule was later changed so that the court’s jurisdiction ended 30 days from the entry of the judgment rather than the expiration of the term; however, in criminal cases, trial courts lost their jurisdiction as soon as the sentence was executed, if prior to 30 days. Therefore, in criminal cases, the trial court retained jurisdiction to vacate, modify or set aside a judgment until the sentence was executed, or 30 days after the sentence was imposed, whichever occurred first. People v. Heil (1978), 71 Ill. 2d 458; People v. Lance (1962), 25 Ill. 2d 455; People v. Wakeland (1958), 15 Ill. 2d 265; People v. Putnam (1947), 398 Ill. 421; People v. Watson (1946), 394 Ill. 177; People v. Hamel (1946), 392 Ill. 415; People ex rel. Fensky v. Leinecke (1919), 290 Ill. 560; People ex rel. Huber v. Whitman (1917), 277 Ill. 408; People ex rel. Lucey v. Turney (1916), 273 Ill. 546.

The majority opinion holds that section 5 — 8—1(d) changes the common law rule by restricting the trial court to modifications which do not increase the defendant’s sentence. I cannot agree with this interpretation. The primary purpose of statutory construction is ascertainment of the legislative purpose and intent. When interpreting new legislation a court should consider the necessity for the law, the previous condition of the law on the subject, and the defects, if any, that are intended to be remedied. (People ex rel. Cason v. Ring (1968), 41 Ill. 2d 305, 310; Livingston v. Meyers (1955), 6 Ill. 2d 325; Anderson v. City of Park Ridge (1947), 396 Ill. 235.) The common law serves as a valuable aid to furnish guidance in determining legislative intent or the meaning that the text of the statute is to convey. (2A Sutherland, Statutes and Statutory Construction sec. 50.01, at 268 (4th ed. 1973).) It is also an elementary rule of statutory construction that effect must be given, if possible, to every word, clause and sentence of a statute, so that no part will be inoperative or superfluous. Mid-South Chemical Corp. v. Carpentier (1958), 14 Ill. 2d 514; Morris v. Broadview, Inc. (1944), 385 Ill. 228.

Applying these rules of construction, I interpret section 5 — 8—1(d) as giving the trial court the additional jurisdiction to reduce or modify, without increasing, a sentence after the defendant has begun serving his sentence until 30 days from the date sentence was imposed. This interpretation gives effect to the last sentence of section 5 — 8—1(d), which states: “This shall not enlarge the jurisdiction of the court for any other purpose.” (Emphasis added.) By this sentence, the legislature, being fully cognizant of the common law jurisdiction of the trial courts, sought to enlarge the court’s jurisdiction for the purpose of reducing or modifying a sentence within 30 days, thus partially eliminating the previous restriction. However, there is no indication that it sought to limit the court’s jurisdiction.

In the present case the defendant’s sentence was unexecuted when the trial court entered an order denying the defendant credit for probation time. I would hold that the common law rule is still applicable and that the trial judge’s denying the defendant credit for probation time served was perfectly proper.


author: MR. JUSTICE CLARK MR. JUSTICE UNDERWOOD, MR. JUSTICE WARD,

text:
    (No. 50647.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOSEPH V. OUELLETTE et al., Appellees.

      Opinion filed December 20, 1979.

      UNDERWOOD and WARD, JJ„ dissenting.
    William J. Scott, Attorney General, of Springfield, and L. Patrick Power, State’s Attorney, of Ottawa (Donald B. Mackay, Melbourne A. Noel, Michael B. Weinstein, and David Cassorla, Assistant Attorneys General, of Chicago, and James E. Hinterlong and John X. Breslin, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Vincent P. Paulauskis, of Nutting, Thacker, Sacks & Paulauskis, of Kankakee, for appellees.
   MR. JUSTICE CLARK

delivered the opinion of the court:

In the unrelated narcotics cases of the defendants, Joseph V. Ouellette and Thomas E. Smith, the circuit court of Kankakee County granted the defendants’ motions to suppress evidence. On a consolidated appeal, the appellate court affirmed (57 Ill. App. 3d 249). We granted the State leave to appeal (65 Ill. 2d R. 315(b)). The issue is whether police are required to knock and announce their authority and purpose in the execution of a search warrant for narcotics. Stated another way, the issue is whether there are circumstances which justify police failure to knock and announce their authority and purpose in the execution of a search warrant for narcotics, and which do not violate the fourth amendment’s prohibition against unreasonable searches and seizures. This narrow issue has not been decided by this court.

On July 30, 1976, at 7 p.m., a Kankakee police officer was told by an informant, that the informant, within the previous 24 hours, had been in defendant Smith’s apartment, where he saw heroin wrapped in tinfoil. Within 3Vz hours, a search warrant was issued and executed. It was stipulated that the police did not knock or announce their authority prior to the execution of the warrant. Smith was charged with possession of a controlled substance (Ill. Rev. Stat. 1975, ch. 5614, par. 1402(b)), possession of cannabis (Ill. Rev. Stat. 1975, ch. 5614, par. 704(a)), and possession of a hypodermic syringe or needle (Ill. Rev. Stat. 1975, ch. 38, par. 22 — 50). The circuit court granted Smith’s motion to suppress the evidence because the failure of the police to knock and announce their authority and purpose was not justified by exigent circumstances.

In Ouellette’s case, an informant told a Kankakee police officer that within the previous 24 hours the informant had been on premises occupied by defendant Ouellette and there had seen heroin which Ouellette offered to sell to the informant. That same day, December 13, 1976, a search warrant was issued; it was executed the next day. The evidence indicates the police neither knocked nor announced their authority and purpose prior to their entry to execute the warrant. Ouellette was charged with possession of a controlled substance, possession of cannabis, and possession of a hypodermic needle and syringe. The circuit court granted Ouellette’s motion to suppress the evidence because the failure of the police to knock and announce their authority and purpose was “an unreasonable method of searching” under the United States and Illinois constitutions.

The State argues that under existing law an entry to execute a search warrant, without a knock and an announcement, is justified in exigent circumstances. It cites, among other cases, Ker v. California (1963), 374 U.S. 23, 10 L. Ed. 2d 726, 83 S. Ct. 1623, and People v. Wolgemuth (1977), 69 Ill. 2d 154. The exigent circumstances here, the State maintains, were the ease with which the evidence in both cases — narcotics—could be destroyed; and, in the case of Smith, the concern the police had for their safety if they knocked and identified themselves, since less than two years before they had found Smith in possession of a handgun. The State, in effect, urges us to hold that, where narcotics are involved, exigent circumstances exist per se because narcotics are easily disposed of.

Section 108 — 8 of the Code of Criminal Procedure of 1963 provides:

“All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to execute a search warrant.” (Ill. Rev. Stat. 1975, ch. 38, par. 108-8.)

No statutory requirement of knocking and announcing authority and purpose exists. Hence, the propriety of the entry here must be determined by constitutional considerations. (People v. Hartfield (1968), 94 Ill. App. 2d 421, 430-31.) In People v. Wolgemuth (1977), 69 Ill. 2d 154, 166, this court recently held that “the mere failure of police to announce their authority and purpose does not per se violate the Constitution, [although] it may influence whether subsequent entry to arrest or search is constitutionally reasonable.” Given this and based on the reasoning which follows, we hold that, where exigent circumstances exist, the failure of police to knock and to announce their authority and purpose in the execution of a search warrant for narcotics does not violate the fourth amendment right against unreasonable searches and seizures. We do not, however, agree with the State that the existence of narcotics is, in itself, an exigent circumstance justifying such an intrusion into a defendant’s or a suspect’s premises.

In Wolgemuth, Rock Island city police, acting on a valid Iowa arrest warrant and after knocking on the defendant’s apartment door twice (once for 10 minutes and once for 5 minutes), let themselves in with the owner’s pass key. The officers failed to announce their authority and purpose, awakened the occupants, and seized pills which were the evidence the defendant unsuccessfully moved to suppress. Although the appellate court reversed, this court upheld the denial of suppression and the conviction. This court noted that Illinois has no statutory requirement of announcement of authority and purpose; that all “necessary and reasonable force may be used to effect an entry *** to make an authorized arrest” (Ill. Rev. Stat. 1973, ch. 38, par. 107 — 5(d)); and that, therefore, the issue before it had to be determined by reference to the fourth amendment. In reaching its conclusion that police announcement was not constitutionally required, the Wolgemuth court analyzed three United States Supreme Court cases, including Ker v. California (1963), 374 U.S. 23, 10 L. Ed. 2d 726, 83 S. Ct. 1623.

In Ker, the police had no warrant, did not knock, and did not announce their authority and purpose until after they were inside the apartment. California statutory law required an announcement of purpose prior to forcible entry to arrest. The majority in Ker did not specifically decide whether the Constitution required police to announce their authority and purpose because California law required it. Rather, the Ker majority considered whether the judicially created exceptions to the announcement requirement violated the fourth amendment. The majority found they did not: the defendant possessed narcotics which could be easily destroyed, and his furtive conduct in eluding police prior to arrest led them to believe he was expecting them, making an announcement superfluous. The Ker court found “the criteria under California law clearly include an exception to the notice requirement [i.e., announcement] where exigent circumstances are present.” 374 U.S. 23, 39, 10 L. Ed. 2d 726, 741, 83 S. Ct. 1623, 1633.

In holding that exigent circumstances may excuse a police announcement or that the failure to announce is not a per se violation of the Constitution, we “do not mean to devalue [the] importance” of the announcement requirement (People v. Wolgemuth (1977), 69 Ill. 2d 154, 166). Its purpose is to notify the person inside of the presence of police and of the impending intrusion, give that person time to respond, avoid violence, and protect privacy as much as possible. Yet, as Ker and Wolgemuth illustrate, circumstances — exigent circumstances — may exist which justify the failure to announce authority and purpose in the execution of a search warrant. (Accord, People v. Stephens (1974), 18 Ill. App. 3d 817, 821; People v. Richard (1975), 34 Ill. App. 3d 621, 625-26; People v. Jackson (1976), 37 Ill. App. 3d 279, 283; People v. Conner (1977), 56 Ill. App. 3d 565, 567;People v. Conner (1978), 67 Ill. App. 3d 133, 135, and dissent in Conner, based on majority’s application of the rule, 67 Ill. App. 3d 133, 136-41, rev’d (1979), 78 El. 2d 525. Cf. Dalia v. United States (1979), 441 U.S. 238, 247, 60 L. Ed. 2d 177, 186, 99 S. Ct. 1682, 1688; Coolidge v. New Hampshire (1971), 403 U.S. 443, 477-78, 29 L. Ed. 2d 564, 589-90, 91 S. Ct. 2022, 2044; Miller v. United States (1958), 357 U.S. 301, 308-10, 2 L. Ed. 2d 1332, 1337-39, 78 S. Ct. 1190, 1195-96.) See generally People v. Payton (1978), 45 N.Y.2d 300, 380 N.E.2d 224, 408 N.Y.S.2d 395, probable jurisdiction noted (1978), 439 U.S. 1044, 58 L. Ed. 2d 703, 99 S. Ct. 718; United States v. Houle (8th Cir. 1979), 25 Crim L. Rep. 2522; Commonwealth v. Terebieniec (Pa. Super. Ct. 1979), 25 Crim. L. Rep. 2502.) These exigent circumstances may encompass such considerations as danger to the policemen executing the warrant, or the uselessness of the announcement, or the ease with which the evidence may be destroyed. 2 W. LaFave, Search and Seizure 131-38 (1978) (hereafter LaFave).

The last consideration brings us to the State’s implied argument that, since narcotics by their nature are easily destroyed, exigent circumstances have been established. We reject such a blanket rule for the reasons stated in People v. Gastelo (1967), 67 Cal. 2d 586, 588-89, 432 P.2d 706, 708, 63 Cal. Rptr. 10, 12:

“Neither this court nor the United States Supreme Court has held that unannounced forcible entries may be authorized by a blanket rule based on the type of crime or evidence involved. Indeed in the Ker case the court was divided 4 to 4 on the question whether the evidence offered to excuse compliance with the notice and demand requirements was sufficient.
***
Thus we have excused compliance with the statute in accordance with established common law exceptions to the notice and demand requirements on the basis of the specific facts involved. No such basis exists for nullifying the statute in all narcotics cases, and, by logical extension, in all other cases involving easily disposable evidence. The statute does not contain the seeds of such far-reaching self-destruction.
Under the Fourth Amendment, a specific showing must always be made to justify any kind of police action tending to disturb the security of the people in their homes. Unannounced forcible entry is in itself a serious disturbance of that security and cannot be justified on a blanket basis. Otherwise the constitutional test of reasonableness would turn only on practical expediency, and the amendment’s primary safeguard — the requirement of particularity— would be lost. Just as the police must have sufficiently particular reason to enter at all, so must they have some particular reason to enter in the manner chosen.”

What is needed, beyond the knowledge that narcotics are involved, is that “ ‘police have particular reasons to reasonably believe in a particular case that evidence will be destroyed’ ” (2 LaFave 134-35). Particular reasons might include reliable and specific information that narcotics are always kept near a toilet (2 LaFave 135) or that buckets of water are kept near the toilet so as to aid in flushing the narcotics away.

Applying our holding to the facts before us, we affirm the appellate court’s decision in Smith’s case. Neither the search warrant, police reports, nor the testimony of Joel Coash, one of the police officers executing the search warrant against Smith, indicated any exigent circumstance justifying the failure to announce — other than Coash’s reference in his report to “its [heroin’s] ability to be readily disposed of.” This just is not sufficient given our refusal to establish a blanket rule.

Officer Coash’s testimony — that on two occasions, IV2 and 2 years before execution of the search warrant, he had personal knowledge of Smith’s possession of a handgun and a pistol box respectively — does not justify the failure to announce for several reasons. First, the purpose of announcement of purpose and authority encompasses protection of the police officer as well as avoidance of confrontation generally. Thus, each situation merits individual analysis; nevertheless, giving notice of police presence seems more compelling in the face of startling someone in possession of a weapon. Compliance with the announcement requirement should be excused, on this basis, “only where the officers reasonably believe the weapon will be used against them if they proceed with the ordinary announcements” (People v. Dumas (1973), 9 Cal. 3d 871, 878, 512 P.2d 1208, 1213, 109 Cal. Rptr. 304, 309; accord, 2 LaFave 136-37). We do not believe this to be true here, and this leads to our remaining points. Second, the police reports fail to show the police reasonably believed Smith possessed a firearm or would use it. (Coash’s report states only that the door was forced because of the quantity and nature of the controlled substance.) Third, like the appellate court, we are not convinced that the two prior occasions, involving a gun box and handgun, demonstrate a likelihood to use firearms: no evidence was offered “to prove that Smith was ever arrested or charged with unlawful possession of a weapon, or that he was the owner of the gun found in his car in 1975, that the weapon was loaded or concealed, or that the defendant had attempted to use the weapon,” or that he had used or threatened to use violence against police (57 Ill. App. 3d 249, 254).

Therefore we affirm the appellate court in the action against Smith.

In the case of Ouellette, Richard Whitehead, one of the executing police officers, at the suppression hearing testified his informant told him that the heroin was located in a gray box on a dresser near but outside the bathroom, and that the defendant never permitted anyone who came to the door to enter the premises until the defendant had the visitor fully identify himself. We do not believe this establishes a sufficiently exigent circumstance. The heroin was not located near the commode; and determining the identity of someone at the door is not an unreasonable precaution. Moreover, there is no indication whatsoever in the complaint for a search warrant of exigent circumstances (e.g., location of evidence, means to readily destroy it, etc.). (The record contains no police report.) Only the officer’s testimony, taken almost two months after the event, argues the existence of exigency. Given the magnitude of the instrusion, we do not agree exigency existed such as would justify the failure to knock and announce. Therefore, we affirm the decision of the appellate court.

The circumstances which justified the failure to announce authority and purpose in Ker (furtive conduct by the defendant as well as the easy destructibility of the evidence) and Wolgemuth (the prolonged knocking by the police) are not present in either case before us.

For the reasons given, we affirm the judgment of the appellate court.

Judgment affirmed.

MR. JUSTICE UNDERWOOD,

dissenting:

I join in Mr. Justice Ward’s dissent, and consider the majority’s creation of a “knock and announce” rule to be particularly undesirable in the drug cases. Mr. Chief Justice Weintraub, writing for the New Jersey Supreme Court in State v. Smith (1962), 37 N.J. 481, 499-500, 181 A.2d 761, 770-71, puts the question in its proper context:

“We must identify precisely what is involved. We are not dealing with the sufficiency of the basis for a search. Probable cause existed. The right to invade the privacy of the occupant was clear. And it is of no moment that a search warrant had not issued; the problem would be the same if the magistrate’s warrant were in hand. The State was entitled to seize the contraband. The nature of the contraband was such that if the officers’ mission had first been announced, the articles likely would have literally gone down the drain. Indeed, the tourniquet was successfully secreted despite the nature of the entry. In short, if admittance had first been demanded, the State’s clear right to search and seize as an incident to the arrest could have been defeated. Pushers of narcotics usually have but small quantities with them, the easier to part with their wares in the face of an arrest, and users rarely have a large supply.
The question then is whether the Fourth Amendment intended to nullify the State’s clear right to search by imposing a condition which would defeat it. If the State’s right to the contraband is to be denied, it must be because of the evident danger and rudeness of a sudden entry. But the danger and the rudeness are not the gratuitous product of official insolence or indifference; they are the consequences of the criminal enterprise, made inescapable by its nature. Moreover, in striking a balance between the right of the State and the rights of the individual, the need to protect the innocent is not a conspicuous factor; for, as we have said, the hypothesis includes the existence of probable cause and indeed a reasonable basis to believe a criminal event is in progress. Hence, to require that admittance be demanded and the mission revealed before entry into the premises would, overall, benefit the guilty alone. It seems to us that the Fourth Amendment does not transmute a ‘reasonable’ search into an ‘unreasonable’ one merely because the officer discharged his duty to arrest and search in a manner which fairly appeared necessary for the successful enforcement of the State’s right.”

If we must have a “knock and announce” rule in criminal cases, I would except the narcotics cases from that requirement. Exempting them would eliminate the troublesome questions posed by Mr. Justice Ward which the police officers must now answer in deciding whether the “exigent circumstances” test of the majority has been met.

Apart from these observations regarding the rule created by the majority of my colleagues, it seems to me they have clearly misapplied that rule as to the defendant Smith. Despite the fact that Officer Coash knew Smith had a handgun at an earlier time, the majority refuses to excuse the “knock and announce” requirement unless “the officers reasonably believe the weapon will be used against them.” Since Smith was known to have had a handgun at an earlier time, it does not seem to me unreasonable to believe he might still have it. Were I the officer obliged to search the occupied apartment of one possessing, and perhaps using, drugs, and reasonably believed to have a gun, I think I would prefer he not be warned of my arrival. The circumstances here seem to me to be sufficiently “exigent” to meet even the majority’s test.

I would reverse the appellate and circuit courts and deny the motions to suppress the evidence.

MR. JUSTICE WARD,

also dissenting:

While there are appealing reasons why officers should knock and announce their authority and purpose in executing search warrants, I believe there are even more strongly persuading grounds why this court should not impose the broadly stated obligation the majority announces here. The majority acknowledges there is no constitutional or statutory obligation to do so and I judge that the holding today will only increase uncertainty in the already nebulous area of search and seizure. Many new questions now arise to vex law enforcement officers, the bar and the courts. To whom must notice be given in order to satisfy a notice requirement? May officers assume that notice to any person who opens the door will be sufficient? Can the knock and the notice be only at the outer door of the house or apartment or must a knock and announcement be made on the inner door or doors? What do officers do in respect to a door that is already open? (Professor LaFave observes that “whether passage through an open door is the type of entry which ordinarily requires prior announcement is a matter which continues to divide the courts.” 2 LaFave, Search and Seizure 126-27 (1978).) The majority says that if police have ground to reasonably believe that evidence may be destroyed, there may be no necessity to knock and announce. It is said that “[p] articular reasons might include reliable and specific information that narcotics are always kept near a toilet” (78 Ill. 2d at 520). This statement will obviously cause questions of interpretation for officers and courts. The majority states, too, that there may be an entry without notice to execute a search warrant under certain circumstances when the police have knowledge of weapons on the premises to be searched. It is said, however, that failure of officers to announce will be excused “only where the officers reasonably believe the weapon will be used against them if they proceed with the ordinary announcements” (78 Ill. 2d at 520). This is calling upon officers whose lives may be at stake to make nice judgments as to whether decisions that their lives are imperiled are reasonable.

I consider, on balance, that the unfavorable effects of the holding today will outweigh its benefits. The bar, enforcement officers and courts will be vexed by added problems in a confused area.


author: MR. JUSTICE RYAN MR. JUSTICE UNDERWOOD,

text:
    (No. 51687.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LENORA CONNER, Appellee.

      Opinion filed December 20, 1979.

      UNDERWOOD and WARD, JJ., specially concurring.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, and Marcia B. Orr and Carol A. Kearney, Assistant State’s Attorneys, of counsel), for the People.
    No appearance for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This case involves a motion to suppress evidence obtained in an allegedly illegal search. According to the defendant, the police officers’ failure to announce their authority and purpose prior to the execution of the search warrant for narcotics violated the defendant’s constitutional right, guaranteed under the fourth and fourteenth amendments, to be free from unreasonable searches. The circuit court of Cook County found the existence of exigent circumstances to obviate a “knock and announce” requirement and denied the motion to suppress. The defendant was subsequently convicted by a jury of possession of more than 30 grams of heroin, in violation of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56V2, par. 1402(a)). The appellate court, with one justice dissenting, reversed the conviction, holding that the motion to suppress should have been granted. (67 Ill. App. 3d 133.) The issue before this court is whether the heroin should have been suppressed as being the result of an unreasonable search. We find the search to be reasonable and reverse the judgment of the appellate court.

At the time of the search, defendant, Lenora Conner, resided in a three-story brick building located at 3648 South Martin Luther King Drive in Chicago. The building could be described as impregnable: there were burglar bars on all of the first-floor windows; the doors, some of which were made of steel, were secured with either a single or double set of burglar bars; and 12 crossbred German shepherd — Great Dane dogs guarded the premises. The building also had mirrors located outside the defendant’s bedroom window; these mirrors enabled the occupant to view the premises without having to go to the window.

On December 16, 1973, Chicago police officer James Ahern obtained a search warrant for the defendant’s home. His request for the issuance of the search warrant was based on information he received concerning the presence of narcotics in the defendant’s residence. The warrant was executed by Officer Ahern and several other police officers during the early morning hours of the following day. Six of the officers made an unannounced forced entry through two second-floor windows by use of ladders provided by the Chicago Fire Department. Other police officers entered the building, unannounced, through a basement door.

The State acknowledges that Officer Ahem failed to knock and announce his authority and purpose in the execution of the warrant. However, the State contends that the exigent circumstances surrounding the execution of the search warrant obviated the need to announce the officer’s authority and purpose. Testimony at the hearing on a motion to suppress revealed that two prior search warrants for narcotics had been executed on the defendant’s home and, during the course of the searches, the defendant’s dogs were turned loose on the officers, who were compelled to shoot four of them in self-defense. These officers had also advised Officer Ahem that buckets of water were located near the toilet for the ready disposal of narcotics. It is the State’s position that the officers’ belief that the defendant possessed narcotics, their knowledge that the defendant kept buckets of water near the toilet to facilitate the disposal of contraband, their knowledge of the impregnable security maintained on all ground-floor doors and windows, and their knowledge that, on a previous unexpedited execution of a search warrant, the guard dogs had been loosed on the officers before they could execute the search warrant all justified the unannounced forcible entry.

The circuit court found the existence of exigent circumstances to justify the unannounced entry and denied the defendant’s motion to suppress. The appellate court reversed, holding that the fortress-like quality of the premises and the probable existence of easily disposable heroin were insufficient reasons to justify the officers’ entry. One justice, in his dissent, stated that the appellate court had failed to consider all the facts in evidence which clearly established the need of the police officers to make an unannounced entry.

In Illinois, a search warrant must be executed in compliance with section 108 — 8 of the Code of Criminal Procedure of 1963, which provides:

“All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to execute a search warrant.” (Ill. Rev. Stat. 1973, ch. 38, par. 108-8.)

In People v. Wolgemuth (1977), 69 Ill. 2d 154, 162, cert, denied (1978), 436 U.S. 908, 56 L. Ed. 2d 408, 98 S. Ct. 2243, this court held that Illinois has no statute requiring that an officer must announce his authority and purpose before entering a building to make an authorized arrest, pointing out that the “applicable Illinois statute merely states:

‘All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to make an authorized arrest.’ (Ill. Rev. Stat. 1973, ch. 38, par. 107-5(d).)”

The language of that statute is identical to that of section 108 — 8 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 108 — 8), except that the former pertains to making an authorized arrest, while the latter pertains to executing a search warrant. Following Wolgemuth, we likewise conclude that Illinois has no statutory requirement that an officer must announce his authority and purpose before entering any building or property to execute a search warrant. If such a requirement exists, it must be found in the fourth amendment of the Federal Constitution.

The United States Supreme Court has not yet ruled specifically on whether the fourth amendment mandates execution of a search warrant with notice of authority and purpose. (See 2 W. LaFave, Search & Seizure — A Treatise on the Fourth Amendment 123 (1978).) While the case of Ker v. California (1963), 374 U.S. 23, 10 L. Ed. 2d 726, 83 S. Ct. 1623, has often been cited as authority for the announcement requirement in the execution of a search warrant, it is not dispositive of the issue. The court in Ker examined the constitutionality of a warrantless arrest made pursuant to a California statute. The statute expressly required an announcement of purpose prior to a forcible entry to arrest; however, there was a judicially created exception that exigent circumstances may obviate the need of the police officers to comply with the announcement requirement of the statute. The Supreme Court in Ker held that the exception did not render the entry violative of the fourth amendment. The court did not state that an announcement of authority and purpose was required by the fourth amendment.

While this court has not specifically ruled on the fourth amendment issue, it has considered an unannounced entry to make an arrest pursuant to an arrest warrant. In People v. Wolgemuth (1977), 69 Ill. 2d 154, cert, denied (1978), 436 U.S. 908, 56 L. Ed. 2d 408, 98 S. Ct. 2243, the defendent filed a motion to suppress narcotics obtained during a search incident to an arrest. The arrest, made in the defendant’s residence pursuant to an arrest warrant, was not preceded by an announcement of authority and purpose. This court recognized that the “knock and announce” requirement had not been elevated to a constitutional level by the Supreme Court in Ker v. California (1963), 374 U.S. 23, 10 L. Ed. 2d 726, 83 S. Ct. 1623, and stated:

“Although the mere failure of police to announce their authority and purpose does not per se violate the Constitution, it may influence whether subsequent entry to arrest or search is constitutionally reasonable. The function of the requirement to announce authority and purpose is to notify the person inside of the presence of police and to afford the person an opportunity to respond, so that violence can be averted and privacy protected.” (People v. Wolgemuth (1977), 69 Ill. 2d 154, 166.)

Thus, we determined that the mere failure of the police officers to announce their authority and purpose when acting pursuant to an arrest warrant did not violate constitutional standards.

This court has yet to decide whether the Constitution requires police officers to knock and announce their authority and purpose prior to the execution of a search warrant for narcotics. While the Illinois appellate courts have pronounced the rule that an announcement of authority and purpose is necessary prior to the execution of a search warrant, the cases lack uniformity as to those circumstances which would excuse the announcement requirement. See, e.g., People v. Conner (1977), 56 Ill. App. 3d 565; People v. Jackson (1976), 37 Ill. App. 3d 279; People v. Richard (1975), 34 Ill. App. 3d 621; People v. Stephens (1974), 18 Ill. App. 3d 817; People v. Hartfield (1968), 94 Ill. App. 2d 421.

In the present case, the State does not challenge the defendant’s assertion that the fourth and fourteenth amendments require that police officers announce their authority and purpose prior to the execution of a search warrant. This is reflected in the State’s assertion that exigent circumstances justified the police officers’ failure to knock and announce. Judging the reasonableness of the search by the standards proposed by both the State and the defendant, we hold that the failure of the police officers to knock and announce their authority and purpose prior to entry did not render the subsequent search unreasonable under the facts and circumstances of this case. See People v. Ouellette (1979), 78 Ill. 2d 511.

Whether a search was reasonably conducted would be a substantive determination which, in the first instance, would be made by the trial court. (Ker v. California (1963), 374 U.S. 23, 33, 10 L. Ed. 2d 726, 738, 83 S. Ct. 1623, 1630.) The trial court’s determination would not be overturned by a reviewing court unless manifestly erroneous. (People v. Clay (1973), 55 Ill. 2d 501, 505.) This is the standard of review applicable to findings of fact in connection with a motion to suppress evidence and statements of defendants. (People v. Williams (1974), 57 Ill. 2d 239, 246, cert. denied (1974), 419 U.S. 1026, 42 L. Ed. 2d 302, 95 S. Ct. 506; People v. Clay (1973), 55 Ill. 2d 501, 505.) While the findings of fact to be considered are those drawn from the hearing on the motion to suppress, it is also permissible for the reviewing court to consider those findings of fact which are drawn from the testimony elicited at trial. People v. Braden (1966), 34 Ill. 2d 516, 520.

During the hearing on the motion to suppress evidence, the trial court found the search to be reasonable, and a trial on the merits followed. After a careful review of both the record of the hearing on the motion to suppress, and the record of the trial, we find the findings of fact by the trial court not to be manifestly erroneous. The trial court’s determination that the officers’ unannounced, forceful entry was constitutionally permissible was based on a consideration of several facts. Officer Ahern had a valid search warrant which was based on a reliable informant’s statement that narcotics were located on the premises to be searched. Officer Ahem testified as to his knowledge of prior raids conducted on the premises. He was aware that the building was difficult to enter due to the defendant’s elaborate security devices. He was also aware that buckets of water were kept near the toilet for the ready disposal of narcotics. He had been advised of the danger posed to the police officers by the guard dogs, and he was aware that the mirrors located outside the defendant’s bedroom windows provided the building’s occupants with early notification of persons on the property. Based on a consideration of all of these facts, the trial court properly denied the defendant’s motion to suppress.

Accordingly, we find that the defendant’s motion to suppress was properly denied. Therefore, the judgment of the appellate court is reversed and the judgment of the circuit court of Cook County is affirmed.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE UNDERWOOD,

specially concurring:

I agree that the motion to suppress the heroin should be denied, but I am puzzled by the language and tone of the opinion, which seem to imply that the majority opinion in People v. Ouellette (1979), 78 Ill. 2d 511, did not impose a “knock and announce” requirement upon the law-enforcement officers of Illinois. If Ouellette did not do so, Mr. Justice Ward and I spent a considerable amount of time writing unnecessary dissenting opinions in that case.

If enforcement of the criminal laws of this State must be burdened with a knock and announce rule, the “exigent circumstances” exception to that rule was clearly met here.

MR. JUSTICE WARD joins in this special concurrence.