delivered the opinion of the court:
Defendant appeals his conviction in a jury trial of the offense of indecent liberties with a child in violation of Chapter 38, Section 11 — 4(3), Illinois Revised Statutes. Defendant asserts that the trial court committed error in denying defendant’s motion to suppress evidence obtained as a result of an illegal search and seizure and in refusing to permit defendant to reopen his case to present evidence which corroborated the testimony of an alibi witness, and that the State failed to prove defendant’s guilt beyond a reasonable doubt.
As part of its case the State introduced as exhibits a green tee shirt and a pair of paint covered black boots with a hole in them. These items had been taken from a trailer located on Austin Avenue in Flora, Illinois rented by defendant’s brother with whom defendant was residing. The exhibits were the subject of defendant’s motion to suppress upon which the court held a hearing prior to trial. After hearing evidence on the' motion the court denied the motion to suppress and at the trial admitted the tee shirt and boots into evidence, over objection.
At the hearing on the motion to suppress, a deputy sheriff and an agent of the Illinois Pardon and Parole Board, testified in that order.
The deputy sheriff testified that the first time he went to the trailer was “around noon” with the agent at the request of the agent; that the agent knocked and they were invited in by defendant. The deputy saw the tee shirt and boots; the shirt hanging on a chair, the boots on the floor against the west wall; he saw them only after he went inside; and they “were in plain view once you were inside the trailer”. The deputy knew that defendant’s brother had rented the trailer. The agent arrested the defendant, the deputy did not. He testified that “so far as defendant knew he was being picked up for parole violation”. They then took the defendant to the police station. The deputy and agent, after a conversation between them, went back to the trailer; 10 or 15 minutes “after we had brought the defendant to jail”. Upon reaching the trailer they found no one there. The agent knocked, opened the door, and walked in while the deputy remained outside. The agent brought the tee shirt and boots out. In answer to an inquiry as to whether he could see the shirt and boots from outside the door or from the inside, he testified, “I couldn’t see them. I think they could have been seen really”. Neither the agent nor deputy had a search warrant and the defendant had not been before a judge, was, not represented by counsel and had not been charged with the instant crime. He testified that on that day he did not know to whom the shirt and boots belonged, and that after defendant was charged with this crime, and before defendant had counsel, he asked defendant if the shut and boots belonged to him, and defendant said they did.
The agent testified that on August 20, 1969 and prior thereto, tire defendant was a parolee from the Illinois State Penitentiary where he had been incarcerated as a result of a felony conviction in Macon County. One of the conditions of his parole was that he was not to leave his assigned area in Decatur. In response to instructions the agent had received from his Springfield office, he went to the defendant’s brother’s trailer seeking the defendant. Defendant invited him in. He asked the defendant his reason for departing his assigned area in Decatur and defendant replied that he wanted to go back there. While in the trailer he saw the tee shirt and boots. The agent then left the trailer and called Springfield for instructions and was directed to pick up defendant and hold him pending an investigation. The agent then requested the assistance of the deputy sheriff in arresting defendant. Upon arriving at the trailer with the deputy, the agent knocked on the door and was invited by the defendant to “come in”. Both defendant and his brother were present at the time. The agent and deputy, who was in uniform, then entered the trailer and the agent told defendant that the Springfield office “had advised me to take him into custody and hold him pending an investigation with reference to employment and residence in Decatur”. While in the trailer on this second occasion the agent again saw the tee shirt and boots. The agent arrested defendant and he and the deputy took the defendant to jail. At the jail the deputy asked about seeing the boots and tee shirt and asked if it would be possible for the agent to get them. The agent went back and got the boots and tee shirt, which were in the same place as when defendant left the trailer. At the time the agent arrested defendant, the deputy did not arrest defendant. The agent admitted that he had no paper issued by any court authorizing him to go upon the premises and take anything from the trailer. He testified there was no one there when he went back the third time. He had been told that defendant was living with George Eastin, and testified that the tee shirt and boots had nothing to do with his coming to Flora to see defendant. “It was a routine assignment.”
The State presented no evidence other than by way of cross examination of these two witnesses, on the motion to suppress. There was no evidence that the boots or tee shirt were seen from outside the trailer when they went back and found no one there to consent to their entry, and the door was closed. Neither was there any evidence that defendant was on that date a suspect on the indecent liberties charge, nor was there testimony that the person who allegedly committed that crime had any connection with the articles seized, or that those articles were any factor of identification of the person who committed the alleged crime. In fact, that any crime in which a tee shirt or boots might be circumstantial evidence had been committed is not revealed by the record of the hearing on the motion to suppress, nor is there any evidence that a crime had been committed, or that the authorities had reasonable gounds to1 believe defendant had committed any illegal act, other than violating his parole by leaving Decatur. Although the property was seized at midday on August 20, 1969 (Wednesday) there is nothing in the record to indicate any reason for failure to get a warrant, other than the agents erroneous impression as expressed at the hearing, “By virtue of my office I had a search warrant” and that he had a right to enter the trailer on the third occasion, ‘by virtue of my position as Adult Parole Agent”. Neither is there anything in the record to indicate that the articles seized were contraband or that the trailer from which they were taken was in the custody of the authorities.
On this evidence, produced by the two witnesses called by the movant, and cross examined by the State and argument of counsel, the court summarily denied the motion to suppress, without “stating the findings of facts and conclusions of law upon which the order or judgment” was based.
Our statute on Motions to Suppress, ch. 38, sec. 114 — 12(e), Ill. Rev’d. Stat. 1969, provides:
“The order or judgment granting or denying the motion shall state the findings of facts and conclusions of law upon which the order or judgment is based.”
Our Supreme Court has recently had opportunity to review cases in which there was a failure by the trial court to comply with the statute; People v. Haskell (1968), 41 Ill.2d 45, 241 N.E.2d 430; People v. Donel (1970), 44 Ill.2d 280, 255 N.E.2d 454; People v. Holloman (1970), 46 Ill.2d 311, 263 N.E.2d 7. See also, People v. Drury, 130 Ill.App.2d 798, 268 N.E.2d 460 ( 4th District 1971), in which the defendant again expressly raised as error the failure of the trial court to make the findings of fact required by 114 — 12(e) when it denied his motion to suppress bloodstained clothing. The Court upheld the denial of the motion to suppress stating:
“While it is preferable that there be findings of facts and conclusions of law, the absence of such does not require a reversal if, as here, it can fairly be said that the record and evidence would sustain the ruling of the trial court notwithstanding the absence of such findings. Here the trial-court ruling is sustainable by consent or permissible area of search.”
A review of these cases indicates that if the evidence produced, at either the pretrial hearing on a motion to suppress or a hearing on the question at the trial, sustains the order of the trial court, compliance with section 114 — 12(e) is not mandatory. We find no authorities which excuse the trial court from compliance with the Statute when no evidence is produced which will sustain the order of the trial court. Furthermore, in People v. Braden, 34 Ill.2d 516, 216 N.E.2d 808, it was held that the trial court’s ruling on a motion to suppress is not final and may be changed or reversed at any time prior to judgment, and that additional testimony at the trial may cure the error in denying the preliminary motion to suppress, the latter being only a procedure of convenience to eliminate time consuming collateral inquiries during the trial of the principal issue. In that case, the search was incidental to a lawful arrest, and the question was whether it was unreasonably extended by the search of a closet inside the apartment and a refrigerator outside the door of the apartment; the Court held it was not in view of the evidence presented at the trial.
We are therefore compelled to review the evidence to determine whether the error in denying the pretrial motion to suppress was cured; and the trial court thus relieved by the testimony at the trial of its duty to state the findings of fact and conclusions of law on which its original order denying was based, as well as its denial of the objections of defendant and renewal of the motion to suppress made during trial.
The articles were marked as exhibits at the time the parole officer was called as a witness. He testified that he first saw the exhibits at the house trailer, that he had had them in his possession and gave them to the deputy sheriff. The deputy sheriff testified that he was in charge of the investigation of this case, that the exhibits were received from the parole officer on the day they were seized, and since that time had continuously been in his possession. He further testified that he had a conversation with defendant on the day following the seizure of the exhibits. Upon being asked what was said with reference to the exhibits, objection was made and an outside-the-presence-of-the-jury conference was held in which defendant’s counsel objected to the testimony of the conversation on the basis that at that time defendant had no counsel. The prosecutor answered that it was not interrogation because at the time of the conversation defendant had not been arrested and charged with the crime, and that he was ready to prove that defendant “was advised of all his constitutional rights”. No evidence of any warning in compliance with Miranda v. Arizona (1966), 384 U.S. 436, was presented and no offer of proof was made. The motion to suppress was renewed, the motion denied, and the objection overruled. The witness then testified, “I asked him if the boots and tee shirt belonged to him and he answered yes”. On cross examination, the deputy testified that he first learned of this incident on August 9th.
The exhibits were then offered into evidence and admitted over objection. The prosecuting witness subsequently testified and then identified the exhibits as having been worn by the defendant at the time of the alleged offense.
Here neither the evidence on the motion to suppress or that produced at the trial, sustains the order of the trial court in its denial of the motion to suppress or in its admitting the articles into evidence over objection. As in Holloman, supra, we are not confronted with the question of credibility of the officers, but unlike it find that the testimony does not even purport to meet the required standards of proof by the State to overcome the presumption of unreasonableness of a warrantless search and seizure.
The basic premise enumerated throughout the development of the doctrine of search and seizure by the United States Supreme Comt has been that all searches and seizures without warrants are per se unreasonable and in conflict with the Fourth and Fourteenth Amendments with certain exceptions. (Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022; Katz v. United States, 398 U.S. 347; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407.) The rule further provides, “When the right of privacy must yield to right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agency”. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367 as cited as controlling in Coolidge, supra.
The standards for search and seizure by the various States are those of the Fourth Amendment to the United States Constitution as applied through the due process of law clause of the Fourteenth Amendment. The requirements of the Fourth Amendment have been held to be basic to a concept of ordered liberty. Coolidge, supra; Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623.
United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, and later cases, clearly provide that by adherence to judicial process, the burden is on the prosecution to show exceptional circumstances which will make the search or seizure reasonable, such as the exigencies of the situation, which will create an exemption from the prohibition against unreasonable searches and seizures; in those situations in which it is contended an exemption lies, the burden is on those seeking the exemption to show the need for it. In other words, the prosecution has the burden of proving a warrantless search or seizure is reasonable. This requirement has most recently been reiterated in Coolidge, supra.
We have examined both People ex rel. Jeffers v. Brantley, 44 Ill.2d 31, 253 N.E.2d 378, and Ch. 108, sec. 204(e) Ill. Rev’d. Stat. 1969, both of which deal with the status of a parolee, and find nothing in those authorities that suggests that this defendant was not entitled to constitutional protection from illegal seizure. In Brown v. Kearney, Warden, 355 Fed.2d 199, the Court declared that “a parolee is entitled to constitutional protection from illegal search and seizure”. In U.S. v. Hallman, 365 Fed.2d 289 at 291, the Court said, “Hallman was not without basic rights because he was a parolee”. (Citing cases.) And at 292 said, “The veil afforded by Provenzano’s position as Hallman’s parole officer cannot here serve as a shield against what was plainly the action of the arresting officers to effect an illegal search.”
The State’s brief contends that in the present case there was no search and that seizure of articles in plain view cannot be considered unreasonable. Both freedom from unlawful search and seizure are protected by the Constitution and whether a search or a seizure is here involved is of no consequence — there is no question that the articles were seized without a warrant, by officers without the consent of defendant or his brother who was in possession, from the home of the brother who was not arrested or suspected of any crime and was not arrested, and that the officer who made the seizure was not legally on the premises at the time of the seizure. As was said in Preston v. United States, 376 U.S. 264, 84 S.Ct. 881, “Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest”. Plain view, itself is never, standing alone, enough to justify a warrantless seizure. The articles were not contraband nor instrumentalities of crime. The plain view doctrine only applies when the evidence seized is incident to the arrest, or is contraband and a seizure incident to arrest must be justified by the circumstances, such as dangers of destruction, or harm to the officers or the items being known contraband, and the officers are lawfully on the premises. See Coolidge and cases cited therein. Furthermore, the discovery of the evidence in plain view, must be inadvertent (here it had been in plain view on previous occasions when it was inadvertently discovered, but was not at the time of seizure) and the officers had made a special trip knowing the description and location well in advance with ample opportunity to obtain a valid warrant. In Coolidge, supra, the Court pointed out at 91 S.Ct., 2040 — 1, 405 U.S. 269:
“If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of ‘Warrants * * # particularly describing * * * the things to be seized’. The initial intrusion may, of course, be legitimatized not by a warrant but by one of the exceptions to the warrant requirement, such as hot pursuit or search incident to lawful arrest. But to extend the scope of such an intrusion to the seizure of objects — not contraband or stolen nor dangerous in themselves — which the police know in advance they will find in plain view and intend to seize, would fly in the face of the basic rules that no amount of probable cause can justify a warrantless seizure.”
Even the dissenters in that case would require probable cause for the seizure, and that the officers were lawfully at the place they made it; all agree that what may be an unreasonable search of a home may be reasonable in the case of an automobile. Here, we would point out that the record made on both the motion to suppress and on the objection during trial presents no probable cause for the seizure. In Coolidge, supra, the Court went on to point out, “The police had ample opportunity to obtain a valid warrant; they knew the automobile’s exact description and location well in advance; they intended to seize it when they came upon Coolidge’s property.”
We are aware that Coolidge was a divided opinion, but our examination of the concurring and dissenting opinions leads to the conclusion that any warrantless seizure without probable cause is prohibited by the Constitution. It was only after the articles were presented for admission, and the court had ruled, and before the complaining witness had identified them as being worn by her attacker, that probable cause could even be inferred in the present case.
The State’s brief suggests by cited cases that since the motion to suppress did not allege the property seized to be the property of the defendant, and he asked for no return of it, that he cannot complain of the seizure or the introduction of the articles into evidence. The point is not argued. As we have pointed out it was the deputy who testified that defendant claimed ownership of the seized articles and we need not further consider such contention. See Jones v. U.S., 80 S.Ct. 724, 362 U.S. 262, and People v. DeFilippis, 34 Ill.2d 129, 214 N.E.2d 897.
In DeFilippis, supra, our Supreme Court adopted from People v. Colonna, 140 Cal.App.2d 705, 295 P.2d 490, the following:
“The government cannot violate the fourth amendment and use the fruits of such unlawful conduct to secure a conviction. * * * These methods are outlawed and convictions obtained by means of them are invalidated, because they encourage the kind of society that is obnoxious to free men * * *. His right to object to the use of the evidence must rest not on a violation of his own constitutional rights, but on the ground the government must not be allowed to profit by its own wrong and thus encourage the lawless enforcement of the law.”
Our Court went on to say “* * * [Tjhere is nothing which inhibits us from extending the principle of Jones in such a way, and to such an extent, as to insure that the prohibition of our own constitution against unreasonable search and seizure may be made fully effective, and that its protection is not unfairly denied”.
Here the State has failed completely to even offer any proof that the exigencies of the situation made a warrantless seizure imperative, or that there was probable cause for the seizure. Under such circumstances, there was a lack of diligence on the part of the trial court in its failure to comply with the requirements of stating findings of facts and conclusions of law upon which his denial of the exclusion was based, and we would be justified in remanding this record for examination below to make such findings and conclusions.
However, our examination of the record discloses nothing to support denial of the exclusion, and there are no findings or conclusions of law which could be made from it to support the court’s ruling, and we therefore determine whether this cause should be affirmed under the doctrine of harmless error. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.
Defendant contends that the testimony of the prosecuting witness was uncorroborated by any competent testimony or evidence and that defendant’s guilt was not proven beyond a reasonable doubt. While it is true that there were no other witnesses to the illicit acts, as is usually the case, corroboration is found in the actions of the complaining witness immediately following the incident. She ran into her home screaming, shaking and trembling all over and had in her hand a quarter that had been given to her by the defendant. Prior to being called to testify the prosecuting witness was examined out of the presence of the jury for the purpose of determining her capacity as a witness. She testified that she understood the oath and knew the difference between telling the truth and telling a lie. She also satisfactorily answered other questions put to her by the court and the attorneys. At the conclusion of this hearing the court found her competent to testify and denied defendant’s motion to exclude her testimony. In People v. Davis, 10 Ill.2d 430, 140 N.E.2d 675, the court said:
“If the witness was sufficiently mature to receive correct impressions by her senses, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth, she was competent. Not age, but the degree of intelligence of a child, determines the question of the child’s competency. (Shannon v. Swanson, 208 Ill. 52; State of Segerberg, 131 Conn. 546, 41 A.2d 101.)”
It is apparent that she understood the questions asked of her and had no difficulty or hesitation in forming her answers. She told of her ample opportunity to observe the defendant throughout. the incident and she positively identified him in court. She told of his walking with a limp, his following her to and from the drug store and described the clothes he was wearing at the time. Our examination of the record of the testimony of the complaining witness leaves no doubt that she was indeed a competent witness and that the court properly exercised his discretion in permitting her to testify, and that reasonable men, from the evidence prop-' erly admitted would have agreed upon defendant’s guilt, had the improper evidence not been allowed. Testimony of one witness alone, if it is positive, and the witness credible is sufficient to convict. (People v. Miller, 30 Ill.2d 110, 113, 195 N.E.2d 694.) The other evidence is so great and convincing as to be considered overwhelming. The exhibits only corroborated her description of the clothes her attacker was wearing; they were not the instrumentalities or the fruits of the crime.
Although the Supreme Court reversed a number of fourth amendment cases since Chapman, supra, without discussing the harmlessness of the erroneously-admitted evidence, it indicated in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, that such errors of search and seizure could be harmless, citing Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, in which as. is true here, the case against defendant “was not woven from circumstantial evidence”.
Finding that the trial court did not abuse its discretion in refusing to permit defendant to reopen the case to hear evidence to corroborate an alibi witness, and that no prejudicial errors intervened in defendant’s trial, we affirm.
We take particular note of, and commend appointed counsel, in both the trial court and this court, for thoroughness and excellence in preparation and presentation of this cause.
Judgment affirmed.