The opinion
Mr. JUSTICE JONES specially concurring:
I agree with Mr. Justice Eberspacher that the admission of the T-shirt and boots into evidence in this case would be harmless to the defendant and that the judgment of the trial court should be affirmed. However, I do not agree that such evidence was illegally seized or that the defendant was deprived of his fourth amendment protection against illegal search and seizure.
In his opinion Mr. Justice Eberspacher discounts the status of the defendant as a parolee and finds nothing in the case of People ex rel. Jefferson v. Brantley (1969), 44 Ill.2d 31 , 253 N.E.2d 378 , cert. denied 400 U.S. 834 , and ch. 108, sec. 204(e), Ill. Rev. Stat., to suggest that the defendant is not entitled to the constitutional protection against illegal seizure. I respectfully differ with his interpretation of these authorities and with his reliance upon the 1966 Federal Circuit of Appeals cases of Brown v. Kearney, Warden, 355 F.2d 199 and U.S. v. Hallman, 365 F.2d 289 .
The Brantley case was not concerned with search and seizure but rather dealt with the right of a parolee to fourth amendment protection against the issuance of an arrest warrant without probable cause being established by a sworn complaint. In considering the legal status of a parolee our Supreme Court there held that until final discharge a prisoner during parole should be considered in the legal custody of the officers of the Department of Public Safety, and that the State has jurisdiction over him until he has served the maximum term of his sentence or until the sentence has been terminated according to law. To the same effect is the cited statute. Similar statutory provisions are contained in art. 14, sec. 2 of the new Illinois Unified Code of Corrections (Ill. Rev. Stat., ch. 38, sec. 1003-14-2), effective January 1, 1973. The protection afforded by the fourth amendment to the constitution is obviously no less applicable to unreasonable searches and seizures than it is to the issuance of warrants without probable cause. I think it is clear from Brantley that if a parolee, because of his peculiar “in-custody” status, is not entitled to the fourth amendment protection against issuance of warrants without probable cause, he is likewise not entitled to the fourth amendment protection against unreasonable searches and seizures. Also see People ex rel. Johnson v. Pate (1970), 47 Ill.2d 172 , 265 N.E.2d 144 , where our Supreme Court held:
“Admission to parole does not, of course, entitle a prisoner to his discharge. It is simply an alternative method by which he may serve his sentence; a part of the rehabilitative process applicable to those whose history, conduct and prognosis, in the judgment of the Parole and Pardon Board, justify such action. Although not confined in prison, a parolee remains at all times in the custody of the Department of Public Safety, and subject to the authority of the Parole and Pardon Board until expiration of the sentence.”
A case with facts strikingly similar to the case under consideration is that of United States ex rel. Santos v. New York State Board of Parole (2nd Cir. 1971), 441 F.2d 1216 cert. denied 404 U.S. 1025 . There the question for review was whether the appellant, a parolee under the custody of the New York State Board of Parole, was deprived of his fourth amendment rights by a search of his residence, without a warrant, conducted by his parole officer in the presence of a police officer after which evidence seized was used by the police for purposes of a new prosecution rather than for the revocation of appellant’s parole. The defendant was not present at the time of the search nor was he arrested in conjunction therewith. Prior to pleading guilty, the appellant moved to suppress the seized evidence, contending it had been obtained in violation of his fourth amendment- rights. The motion was denied and affirmed upon appeal and a writ of certiorari was denied by the Supreme Court of the United States. Thereafter, appellant brought an action of habeas corpus which reached the Circuit Court of Appeals. The appellant contended that the fourth amendment bestows on parolees rights coextensive with those guaranteed to ordinary citizens. The court there held:
“Without attempting to define precisely the extent of Fourth Amendment protection against searches and seizures which a parolee might have in the abstract, it is indisputable that the Fourth Amendment affords protection only against unreasonable searches. A search which would be unlawful if directed against an ordinary citizen may be proper if conducted against a parolee. United States ex rel. Randazzo v. Follette, 418 F.2d 1319, 1322, n.7 (2nd Cir. 1969).
As Mr. Justice Steur stated in the Appellant Division’s review of the present case:
** * * The very concept of parole entails a degree of supervision of parolees consonant with its purposes. Included within that supervision would be such searches as would reasonably be called for. It cannot be questioned that the parole officer had reasonable grounds for investigation as to whether the defendant here was violating his parole and that the search was a proper incident of that investigation. In that context, it was reasonable.’ ”
To me the import of these authorities is clear. The seizure of the T-shirt and the boots from the defendant-parolee Eastin, under the circumstances presented in this case, was fully justified and the trial court was correct in denying defendant’s motion to suppress.