APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
MORAN, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Winfred B. Johnson (hereinafter referred to as defendant) was arrested on May 20, 1971, for a traffic violation and charged with a U-turn violation and failure to carry a driver's license. He was searched and an unregistered gun and ammunition was found in his back pocket. The defendant was charged in Complaint No. 71 MCI 643484 with the offense of unlawful use of weapons (Ill. Rev. Stat. 1969, ch. 38, sec. 24-1(a)4), and in Complaint No. MCI 643487 with the offense of unlawful possession of firearms or ammunition. Ill. Rev. Stat. 1969, ch. 38, sec. 83-2.
The defendant filed a pre-trial motion to suppress which was overruled. Following a bench trial, he was found guilty of both charges and sentenced to six months in the county jail for unlawful use of weapons and fined $200 for unlawful possession of firearms or ammunition. There was a nolle and non-suit on the traffic violations.
The issues presented for review in this appeal are:
1. Whether the motion to suppress the evidence was improperly denied, due to the lack of probable cause for the arrest that led to the search which produced the evidence.
2. Whether the defendant waived his right to review by failing to make an oral or written request for a new trial.
The gun and ammunition were introduced into evidence after the court denied a pre-trial motion to suppress. The defendant's appeal is based on his belief that the court erred in denying his motion to suppress and finding him guilty after trial.
• 1 The motion to suppress the evidence was improperly denied. The evidence was the product of an unlawful search, made without a warrant and without probable cause. "The denial of the defendant's motion and petition to suppress the evidence and return the property unlawfully seized was reversible error." People v. Scaramuzzo (1933), 352 Ill. 248, 253, 185 N.E. 578, 580.
Patrolman Donald Nichols testified that on May 20, 1971, he was heading north on Calumet Avenue near 61st Street in the city of Chicago when he observed a car proceeding easterly on 60th Street make a U-turn and then proceed westerly. He believed there were three people in the car when he saw it making the U-turn at a distance of three-quarters of a block away. He could neither see who was driving the car at the time, nor could he tell if the driver was a man or a woman. The officer lost sight of the car. He later observed the car parked in front of 333 East 60th Street. No one was in the car at the time he arrived. The defendant was standing outside near the driver's side. A friend was standing near the curb.
In response to questioning by the officer, the defendant and his friend both informed the officer that the car was not his, he was not driving the car and he did not have a driver's license because he neither owns nor drives a car. He further informed the officer that the car belonged to his sister, who was driving it, and that she had gone inside the building. The officer stated that with respect to defendant: "I placed him under arrest to search his person." The officer then searched the car and the defendant personally. He also searched the defendant's friend. The officer had no arrest or search warrant. The officer discovered a gun in the right back pocket of the defendant who could not produce a State firearms owners' identification card.
There was nothing suspicious about defendant's manner or appearance to put the officer on alert. When the defendant was observed and questioned, he was standing peacefully outside the car. The officer did not observe the gun or any part of it before he conducted the search of the defendant and his friend. He had not received any prior information from any citizen or reliable informer.
Immediately after Officer Nichols arrested defendant and searched the car, the defendant and his friend, a lady, who identified herself as the defendant's sister, came out of the building and told the officer that she was the owner of the car in question and that she had been driving it.
The defendant testified that he neither owned the car in question nor did he drive it at any time. He did not have a driver's license because he does not drive. His sister was the owner of the car and was driving it while he and his friend were passengers on the day in question. When the defendant's sister pulled up in front of this particular address, she got out of the car and went into the house. The defendant and his friend were standing near it while waiting for her to come back out. This is when Officer Nichols approached and the arrest, search and seizure took place.
A search made incident to an arrest is deemed reasonable only where probable cause exists for the arrest. (People v. Schmidt (1972), 5 Ill. App.3d 787, 284 N.E.2d 72.) This was an appeal by the State from the granting of a motion to suppress certain property (claimed to be burglary tools) ...