dissenting:
From a careful reading of the record and an analysis of the pertinent law, I respectfully dissent.
In order to understand the factual and procedural aspects of this case, it is necessary to briefly review the testimony of the police officers which reveals what they knew and what they saw. Additional facts in the record, but not contained in the majority opinion, must also be set forth for a complete appreciation of the issues presented. Only Detectives Pettit and Gerace testified at the hearing on the motion to suppress evidence.
It is undisputed that Detective Gerace was investigating three recent burglaries, one of which was of J. P. Hannigan’s Restaurant from which an electronic video poker game was taken. At the time the police proceeded to dormitory room 431 where the defendants resided, one person was already under arrest for this burglary, and the detectives had just come down the dormitory hall after talking with the brother of the arrestee. Concerning property stolen in the burglary, Detective Gerace testified as follows:
“Q. When you went to that room your intent was not to, or you didn’t have enough evidence to arrest those people at that time, did you, when you went to the room initially?
A. We had knowledge that they were involved in these break-ins. We have knowledge that they had stolen property in the room.
Q. Did you have enough that you could have gotten an arrest warrant?
A. I’m not sure.
Q. You didn’t try, though?
A. No.
Q. How about a search warrant?
A. I didn’t try.
* * *
Q. Did you know the make, model and the size, color, or anything else, any of those specifics about the poker game?
A. I had a good idea.
Q. What was the basis of your good idea?
A. I’m familiar with that type of video poker game. I’ve seen them in other establishments.
Q. And they’re not illegal to possess?
A. Not that I know of.
Q. And a person can have one in their house or in the room and they’re not violating any law.
A. As long as it’s not stolen, yes.
Q. As long as they’re not stolen. Certainly. But there was no way, you didn’t have any information that differentiated the video game you were looking for from any other video game of a similar type, did you?
A. I had information that the video game taken from J. P. Hannigan’s may be up there.
Q. But you didn’t get a search warrant for it.
A. No.”
(Emphasis added.)
The foregoing testimony was uncontradicted and unimpeached. It is also undisputed that when Detective Gerace knocked on the defendants’ door, a voice from inside said “Come on in” and the detectives walked into the small dormitory room. Thus, consent was given to enter the room.
At this point, there is a divergence in the testimony of the detectives as to the sequence of the discovery of the video poker game. Detective Pettit stated that after Gerace read the defendants their rights, defendant Singer told Gerace he would rather have them get a search warrant in response to Gerace’s request for permission to search the room. Detective Gerace, however, testified that after their entry into the room, the following took place:
“Q. Now, you get into the room, what happens? Who says what?
A. I identified myself and introduced myself and Detective Pettit. I told them why we were there.
Q. Did you ask them for identification, or did you ask them what their names were?
A. Yes, I did.
Q. And did they tell you?
A. Yes, they did.
Q. What happened then?
A. I told them the reason we were there.
Q. And what did you tell them?
A. We were investigating some stolen property involving — .
Q. Did you mention anything particularly that you were investigating?
A. I don’t believe I did, no.
Q. And what happened then?
A. I advised them of their constitutional rights.
Q. And how did you do that?
A. Verbally.
Q. From memory, or off a card?
A. I’m not sure. One or the other.
Q. What happened then?
A. Detective Pettit pointed to some items underneath the bed. I observed several items underneath the bed. One in particular, a video game, poker video tame [sic]. Also an icecream [sic] light, a clock light that was on the foot of Mr. Genis’ bed on the wall. There was a dart game there. A few other items.
Q. How did Detective Pettit point these items out to you?
A. I believe she said, ‘Dan,’ I turned around, she was pointing underneath the bed, and I glanced over there and looked at the items.
Q. She have the same view point as you did at that point?
A. Well, it’s close quarters, but it actually may have been different. She was closer to the door, and I was closer to the other side of the room.
Q. One of the items you think you saw was the dartboard [sic].
A. There was a dartboard [sic] there.
Q. And where was that dartboard [sic] located in relation to this video game?
A. Video game was underneath the bed, the dartboard [sic] was on the floor also, as the video game. But I believe that was more towards the wall where the door was.
Q. How far away?
A. How far what?
Q. Were the dartboard [sic] and video game.
A. Three, four feet. I’m not sure.
Q. What did you do then?
A. I asked them if they had any stolen property in there.
Q. And they told you, ‘No’?
A. That’s true.
Q. And then what did you do or say?
A. I asked Mr. Singer if I could have permission to search the room.
Q. And what was his response?
A. His response was, ‘No.’
Q. Did you direct that question only to Mr. Singer? Did you say, ‘Mr. Singer, can I have permission to search your room’?
A. Most of the dialogue at that time was directed towards Mr. Singer.
Q. But my question was, prior to asking that question about searching the room, did you say, ‘Mr. Singer, can I search your room’?
A. I believe I was looking at Mr. Singer at that time. He was the one responding to my questions. I was looking at him, and I asked him.
Q. And he told you he’d rather you go get a search warrant.
A. Yes.
Q. And at that point you had Detective Pettit remove him from the room; correct?
A. I asked Mr. Singer if he would exit the room, and I asked Detective Pettit to go out there with him while I spoke with Mr. Genis.
Q. You hadn’t placed Mr. Singer under arrest at that point?
A. No.
* * *
[Cross-Examination]
Q. At the point in time that you began questioning Mr. Genis concerning his involvement in the offenses that you were investigating, you had already observed the item depicted in People’s Exhibit Number 1; is that right?
A. Yes.
Q. Subsequent to that did you determine that that in fact was the poker game that was taken during the J. P. Hannigan’s burglary?
A. Yes.
Q. So, when you saw it for the first time and recognized it as being proceeds of a burglary, you were right; is that correct?
A. Yes, I was.
Q. Is that the point in time that you observed the items that you have described — the green shirt, the poker game, the dartboard [sic]?
A. Yes.
Q. So, it was within a few seconds of your entry into that room.
A. Right.
Q. And it was within a few seconds of your entry into that room by invitation of one or both of the defendants.
A. Yes.
Q. And it was after you observed these items that the conversation took place between yourself, Genis, and Singer concerning involvement in burglaries.
A. Yes.
Q. And it was after you observed these items that Mr. Singer claims that you should have a search warrant, or you should get a search warrant, in response to your question, ‘Can I search the room.’ Is that right?
A. Repeat that, please.
Q. You’ve indicated that Singer, at some point, says, ‘Get a search warrant.’
A. Yes.
Q. You had already observed these items, however, prior to him making that statement, hadn’t you?
A. Yes, I did observe them.
Q. Was there anything obstructing your view of these items when you entered the room?
A. No, there was not.
Q. Were they in plain view?
A. Yes, they were.
Q. Did you have to move anything in order tó be able to observe most particularly the poker game and the shirt?
A. No, I did not.
* * *
[Redirect]
Q. Now, as far as these items being in plain view, would it be your testimony that anybody standing within, say, a three-foot radius of where you were standing in that room could have seen the items that you’ve told us about?
MR. COOK: I’m going to object on the grounds it calls for this witness to speculate beyond any realm of—
THE COURT: Well, he can answer. I’ll let him answer.
THE WITNESS: If you’re looking for the items, anyone in that room could have seen them.”
From this testimony it is clear that it was only after Gerace had observed the electronic video poker game that he asked permission to search the room, which was denied. Following this refusal, he then went across the room and removed a sleeveless shirt that was partly draped over the poker game. What then followed concerning the seizure of the poker game is quoted in the majority opinion.
Following the evidentiary hearing, the trial judge issued a letter of opinion indicating his finding that the detectives were lawfully in the defendants’ room and that the electronic video poker game was in plain view. While I recognize that Gerace’s testimony that he first viewed and recognized the poker game before he was denied permission to search the room conflicts with Pettit’s testimony, the trial judge, as the trier of fact, found the video poker game was in plain view. That finding is supported by the evidence and should not be overturned unless manifestly erroneous. See People v. Long (1983), 99 Ill. 2d 219, 231, 457 N.E.2d 1252.
The “plain-view” doctrine authorizes the seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior fourth amendment justification and who has probable cause to suspect that the item is connected with criminal activity. (Illinois v. Andreas (1983), 463 U.S. 765, 771, 77 L. Ed. 2d 1003, 1010, 103 S. Ct. 3319.) The “plain-view” doctrine is grounded on the proposition that once police are lawfully in a position to observe an item firsthand, its owner’s privacy interest in that item is lost. 463 U.S. 765, 771, 77 L. Ed. 2d 1003, 1010, 103 S. Ct. 3319, 3324; see Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022.
From the foregoing facts, I conclude the following: (a) Gerace was investigating a recent burglary where an electronic video poker game was taken; (b) Gerace had information that the defendants were involved in the burglary and that the electronic video poker game taken in the burglary was in the defendants’ room; (c) the detectives were given permission to enter the room; and (d) Gerace, within seconds upon entering the room, could observe the poker game in plain view from a place where he had a lawful right to be before he was denied permission to search and before he walked over to the bed and removed the shirt from the poker game.
Under these circumstances, the seizure of the poker game was authorized pursuant to the “plain-view” doctrine. Although the trial judge also concluded that the poker game was in plain view, he nevertheless erroneously concluded that the seizure was impermissible because there were no “exigent circumstances” to seize the poker game without first obtaining a search warrant.
Contrary to the trial judge’s legal conclusion that Gerace still should have secured a search warrant, citing People v. Keller (1981), 100 Ill. App. 3d 255, 426 N.E.2d 930, rev’d (1982), 93 Ill. 2d 432, 444 N.E.2d 118, and People v. Rinaldo (1980), 80 Ill. App. 3d 433, 399 N.E.2d 1027, where, as here, the poker game was visible from a place where the detectives had a lawful right to be upon permission, seizure was appropriate without the inconvenience of first securing a search warrant under these circumstances. (See Arizona v. Hicks (1987), 480 U.S _, _, 94 L. Ed. 2d 347, 355, 107 S. Ct. 1149, 1153.) Keller sad Rinaldo are not factually apposite and, therefore, not controlling.
Finally, the majority cites the recent case of Arizona v. Hicks (1987), 480 U.S. _, 94 L. Ed. 2d 347, 107 S. Ct. 1149, in apparent support of the conclusion that the police did not have “probable cause to conduct the search they conducted.” As contrasted to Hicks, where the police had to move stereo equipment to read the serial numbers to determine if the equipment was stolen without any prior evidence of it being stolen, the police here were investigating a burglary where a poker game was taken, they had information that it was in the defendants’ dormitory room, and Detective Gerace could identify it as an electronic video poker game upon his entry into the room by consent. This certainly is more than the mere suspicion present in Hicks, and it is, in my opinion, sufficient probable cause in order to invoke the “plain-view” doctrine. While the police obviously could not know beyond a reasonable doubt whether this was the actual video poker game taken in the burglary when they first observed it, based on all the information they had, this constituted the probable cause necessary for the purposes of the “plain-view” doctrine.
For the foregoing reasons, I would reverse the judgment of the circuit court granting the defendants’ suppression motions.