also dissenting:
In my opinion the motion to suppress should have been denied. I agree with Mr. Justice Underwood that it would be idle to remand this matter for further hearing, particularly in view of defendant’s obstructiveness which interfered with the orderly procedure on a motion of this character. The remand order should be for a trial on the merits.
The facts admit no other conclusion other than reasonable cause for an examination of the contents of the baby carriage. Here in a high crime neighborhood — a very important fact to be considered on a motion of this character (People v. Robinson (1976), 62 Ill. 2d 273, 274-75)—we have the baby carriage on the street at 6 a.m. Its wheels are bent, apparently from overloading. It has left a trail of water in its wake almost a city block in length. It is being pushed by a man with a leather bag. When a policeman in uniform approaches, the defendant places the leather bag on the public sidewalk next to the baby carriage and walks north on the north-south street for an undetermined distance.
When the police officer properly questioned the man, he stated he lived six to eight blocks away and was on his way to work. He could not identify his own location or account for his presence. The police officer then walked to the baby carriage and “observed” — a word in common usage with no hidden meaning — that both the leather bag and the duffel bag within the carriage contained water meters.
When the defendant refused to answer the officer’s query concerning where the water meters had been obtained, the officer arrested him.
The officer had probable cause for his action. It was a judgment which had to be made under the realities of the situation — not in the cloister of this court. Certainly he was not required to act as a naif or an innocent and regard the baby carriage and the leather bag as if they had labels “Do not open until Christmas.” The probable cause factor developed on the scene. So long as the totality of the circumstances justifies the officer’s conduct, we cannot second-guess the man on the street charged with the responsibility of protecting the public. People v. Clay (1973), 55 Ill. 2d 501, 504.
If the officer did conduct his search — and as has been noted the record is silent on this point, although the burden was defendant’s — it was reasonable under the circumstances. Certainly he was not required to get a search warrant. The fourth amendment provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
It is well established that there is a constitutional difference between automobiles and houses or offices. (See South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092; Cady v. Dombrowski (1973), 413 U.S. 433, 37 L. Ed. 2d 706, 93 S. Ct. 2523; Cooper v. California (1967), 386 U.S. 58, 59, 17 L. Ed. 2d 730, 732, 87 S. Ct. 788, 790.) This area of the law has been described as “something less than a seamless web.” Cady v. Dombrowski (1973), 413 U.S. 433, 440, 37 L. Ed. 2d 706, 714, 93 S. Ct. 2523, 2527 (Rehnquist, J.).
In South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092, a car was towed away for overtime parking. At the impound lot an officer noted items of personal property within the car. He directed the automobile to be unlocked and an inventory taken of the personal property within the car. In so doing he unlocked the glove compartment, where he found marijuana. The defendant’s motion to suppress was denied, and he was convicted. South Dakota’s Supreme Court reversed the judgment on the basis that the incriminating evidence had been obtained by violating the fourteenth amendment prohibiting unreasonable searches and seizures.
In a reversing opinion the United States Supreme Court pointed out the difference between automobiles and homes or offices. Automobiles have an inherent mobility. Automobiles are subject to local governmental regulations, including inspection and licensing requirements. The expectation of privacy diminishes because of its function as transportation.
In Cady v. Dombrowski (1973), 413 U.S. 433, 37 L. Ed. 2d 706, 93 S. Ct. 2523, a Chicago off-duty police officer had an accident in Wisconsin while driving a rented car. Wisconsin police believed Chicago police officers were required to carry a service pistol at all times. Upon finding no revolver on the person of respondent, who was confined to a hospital in an injured condition, one of the police officers returned to the garage where the car had been towed after the accident to look for it. He found within the car a flashlight with “a few spots of blood on it.” He opened the locked trunk and found two pairs of trousers, a night stick, raincoat, part of a floor mat, and a towel, all covered with blood.
When respondent was confronted with these matters later in the day, he desired the presence of counsel. In the subsequent murder trial these items were introduced into evidence, and respondent was convicted — a judgment affirmed by the United States Supreme Court.
While it is true that a baby carriage is not subject to local governmental regulations as an automobile, nonetheless at least this one had an “inherent mobility.” There was likewise a diminution in the expectation of privacy because of the baby carriage’s function on the public street as a transporter of property. These are among the principal reasons for classifying automobiles differently from houses or offices. I believe that the baby carriage under these circumstances had no more sanctity than an automobile.
Even if there had been a search here, certainly reasonableness justified it. Neither the Illinois Constitution, article I, section 6, nor the fourth amendment to the Constitution of the United States guards against all searches, but only against unreasonable searches. Such, after all, is the test as Mr. Justice Black, a staunch defender of constitutional rights, observed in Coolidge v. New Hampshire (1971), 403 U.S. 443, 509-10, 29 L. Ed. 2d 564, 608, 91 S. Ct. 2022, 2059:
“[T]he Fourth Amendment does not require that every search be made pursuant to a warrant. It prohibits only ‘unreasonable searches and seizures.’ The relevant test is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts.” (Emphasis supplied.)
Lastly, the abandonment of both baby carriage and bag on a public street by the defendant upon the approach of the police officer in itself would have justified the search under the circumstances. (People v. Brasfield (1963), 28 Ill. 2d 518, 520.) The contents of the baby carriage could have run the whole gauntlet from an infant in distress to the products of crime.
I would deny the motion to suppress, and remand the cause for trial without further hearing on this motion.