dissenting:
I do not agree that a further hearing or additional evidence is necessary on the motion to suppress the water meters. As the majority states, the defendant bore the burden of establishing that the water meters were illegally seized. He failed to do so in my judgment, since the evidence may fairly be interpreted as indicating the meters were in plain view of the officer when he looked at the buggy. When the assistant State’s Attorney sought to more clearly establish that fact by questioning the officer, the defendant’s objections were sustained by the trial judge. The judge’s rulings were, of course, patently erroneous. That error, however, was induced by the defendant, and I believe the interests of justice are not well served by rewarding his failure to meet his burden of proof by remanding for a second hearing.
There is an additional reason supporting the conclusion that further evidence is not needed. When defendant saw the marked squad car and approaching officer, he placed his bag beside the buggy and walked an undisclosed distance away from them. That action, in my judgment, may well have constituted an abandonment of the bag and buggy, rendering the subsequent seizure proper and the evidence admissible. (People v. Brasfield (1963), 28 Ill. 2d 518, 520.) If, however, the undisclosed distance between defendant and the buggy on this public sidewalk was so short as not to constitute an abandonment, and to bring the buggy “within his immediate control,” a search as incident to an arrest may well have been permissible. (Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034.) I emphasize again the defendant’s obligation to establish the unreasonableness of the search, and his failure to do so by evidence proving only that the officer arrested defendant without a warrant.
Finally, I am troubled by the court’s insistence that something more than the evidence before us is necessary in order to justify a search incident to defendant’s arrest, if, in fact, a search of the buggy or bag occurred. It seems to me clear that to require a search warrant in the circumstances of this case, even assuming the water meters were neither abandoned nor in plain view, is simply not a reasoned judgment. As the majority opinion indicates, the uniformed officer in a marked squad car observed defendant, at dawn, with a leather shopping bag and baby carriage which left a trail of water extending nearly a block behind it. The carriage wheels were bent, indicating the buggy was overburdened. The buggy and bag were abandoned on the sidewalk by defendant when he saw the officer approaching. The majority agrees the officer was entitled to stop and question him as the officer did. The answers were rather clearly unsatisfactory. It seems to me that at this point the officer has eminently reasonable grounds and probable cause to believe defendant has committed a crime, the fruits or evidence of which are in the buggy and bag. In these circumstances, our statutes and both Federal and State case law permit an arrest and incidental search. (Ill. Rev. Stat. 1973, ch. 38, par. 107—2(c); Draper v. United States (1959), 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329; Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034; People v. Robinson (1976), 62 Ill. 2d 273.) Indeed, in my judgment, the officer would have been derelict in his duty had he done otherwise.
The language from People v. Clay (1973), 55 Ill. 2d 501, 504-05, quoted in People v. Robinson (1976), 62 Ill. 2d 273, 276-77, is particularly apposite here: “Whether or not probable cause for an arrest exists in a particular case depends upon the totality of the facts and circumstances known to the officers when the arrest was made. [Citations.] In deciding the question of probable cause in a particular case the courts deal with probabilities and are not disposed to be unduly technical. These probabilities are the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. [Citations.] ” Similarly, “it is proper to recognize in judging whether there was probable cause that ‘[p] olice officers often must act upon a quick appraisal of the data before them, and the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to catch criminals.’ People v. Watkins, 19 Ill. 2d 11, 19.” 62 Ill. 2d 273, 277.
In my opinion, defendant has not established that a search of the bag or buggy occurred. If a search did actually occur, it was not an unreasonable one. I would accordingly deny the motion to suppress and remand for trial.