APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:
Unlawful use of weapons by knowingly carrying a weapon concealed in a vehicle. Ill. Rev. Stat. 1969, ch. 38, par. 24-(1)(a)(4).
After a trial without a jury at which defendants were found guilty, each was sentenced to serve six months in the county jail.
CONTENTIONS RAISED ON APPEAL
(1) The trial court erred in denying defendants' motion to suppress certain physical evidence seized at the time of the arrest because the arrest was unlawful.
(2) Defendants were not proved guilty beyond a reasonable doubt. EVIDENCE (It was stipulated that the evidence introduced on the motion to suppress would stand as evidence at the trial.)
John Babusch, for the State:
On August 14, 1969, at 1:30 A.M., while a police officer for the Chicago Police Department, he observed defendants driving a car southbound on Yale Avenue toward 63rd Street in Chicago. When at a point about one-third of a block from 63rd Street the stop light at 63rd was red, and the car turned west into a dark alley between Yale and Princeton. The witness and his partner followed in their car. Defendants' turn into the alley was in violation of an ordinance prohibiting the avoidance of traffic signals. When defendants' car stopped at the other end of the alley, the witness pulled in behind and turned on his spotlight. Then he and his partner, Officer Bell, left their car and, with guns drawn, approached the two-door car in which defendants and others were seated. He asked the driver, defendant Barksdale, for his driver's license and, when he did not have one, the witness placed him under arrest. He told Barksdale to step out of the vehicle, but a person on the passenger side got out first and, as he did so, a light come on inside the car and the officer observed a gun sticking out from underneath the front seat of the car. The gun was right by the driver's side, partially under the seat near the transmission housing hump in the floor. There was a light in the alley 50 feet from the car at the place where the elevated tracks cross the alley. The handle and trigger guard could be seen protruding from under the seat. He told Officer Bell the gun was under the seat, and then went around to the passenger side to get Walker, the first man out of the car. A search revealed a gun on Walker's person. He returned to the driver's side, unwired the door which had been damaged and wired shut, and ordered Barksdale out of the car. By then, other officers were on the scene. Barksdale was searched but no gun was found on his person. The three other passengers in the back seat were ordered from the car and a search of the vehicle disclosed another pistol sticking between the back rest and the bottom of the rear seat to the right of defendant Randolph. Randolph, who had been seated in the rear seat of the car between two other passengers, was placed under arrest. In his arrest report, the witness wrote that he found a gun "lying on the rear seat," by which he meant that "the gun was stuck down between the rear seat."
Allen Randolph, on his own behalf:
On August 14, 1969, he was a passenger in a car stopped for a traffic violation near 6243 S. Princeton. David Barksdale was driving and he was seated in the rear between two other passengers. Barksdale had to relieve himself, so the car entered the alley and stopped. Then they noticed the police behind them. Officer Babusch came to the driver's side of the car with his gun drawn, and said, "We got Barksdale now," told everyone to get out of the car, face the wall, and then searched them. Everyone got out on the passenger's side. He didn't see the light go on in the car. None of the officers said anything about weapons before or after the search, and the defendants were told they were being taken in for a traffic violation. He did not see the gun on the seat next to him.
David Barksdale, on his own behalf:
On the night in question, he turned into the alley between 62nd and 63rd Streets, stopped the car, and was about to get out and relieve himself when he noticed a police car behind him. Before he turned into the alley he noticed the traffic light a half block away was not red but the caution light was on. Officer Babusch approached the driver's side and said, "You got a warrant on you. Get out." He was never shown a warrant. He was told to get out of the car and did so on the passenger's side because the door on the driver's side was wired shut. The subsequent search revealed nothing on his person, but a gun was found in the car. He did not know ...