APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
P. CAWLEY, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
The defendant, Ruben Ortiz, was charged by complaint with disorderly conduct, resisting arrest and battery in the municipal division of the circuit court of Cook County. After a bench trial, the defendant was found not guilty of disorderly conduct, and guilty of resisting arrest and battery. He was fined $100 for resisting arrest and was sentenced to thirty (30) days in the House of Correction for the battery conviction. He appealed from the judgment of conviction and sentence.
The issues presented for review are:
1. Whether the defendant was proven guilty of resisting arrest and battery beyond a reasonable doubt.
2. Whether the defendant understandingly, knowingly and voluntarily waived his right to trial by jury.
3. Whether the defendant was justified in resisting arrest.
4. Whether it was error to convict the defendant of both resisting arrest and battery arising from the same conduct.
On June 25, 1972 about 3:45 P.M. Chicago Police Officer Michael Chasen was working in plain clothes in an unmarked police vehicle driven by his partner, Ralph Zons, in the vicinity of 5150 North Avenue, Chicago. Officer Chasen observed defendant, Ruben Ortiz, whom he knew and had met on other occasions, and a few other males in a parked vehicle at that address. As the officers drove by they noticed a "flurry of activity" in the car. The officers proceeded around the block because of the traffic behind them. As they reached the intersection of Winthrop and Foster, Chasen noticed the occupants of the car get out and enter the schoolyard of Gowdy Elementary School, where there were numerous elementary-age school children. Chasen entered the schoolyard and observed the males he had seen in the car.
Although Officer Chasen admitted on cross-examination that Ortiz was doing nothing illegal, the officer announced his office, displayed his badge and prepared to conduct a search. When he asked the boys to line up against the wall, Officer Chasen testified that Ortiz "pushed himself into a corner so that search would be impossible." Chasen attempted to place Ortiz in a position where he could make a search. While Ortiz was turned away from him, Officer Chasen testified that he placed his right hand in Ortiz' crotch and his left hand in the middle of Ortiz' back so as to pull him out of the corner. Chasen said Ortiz struck him in the shoulder and jumped on him. They fell to the ground and Chasen got on top of Ortiz and handcuffed him. After Ortiz was handcuffed, Chasen's partner called for assistance. Ortiz was placed in a squad car, advised of his rights and transported to the 20th District Station. The record does not show if the search was completed or what, if anything, was found.
Ortiz testified that he was near his car, which he had entered to get a basketball, when he first saw the officer. Ortiz and his friends then entered the schoolyard where they played basketball every day. He observed Officer Chasen go around the block and then come into the schoolyard gate. Ortiz claimed that Officer Chasen had beaten him in a park on a previous occasion. At the time Police Officers Chasen and Zons approached the boys, neither Ortiz nor his friends were violating any law. As he was going toward the police officer, Chasen said, "You're not fast enough." The officer told him to go into the alley, but he refused to go because Chasen had beaten him up before. When Officer Chasen told him and his friends to get up against the wall, Ortiz told him he didn't do anything. Chasen said, "Don't get smart with me" and pushed him against the wall. When Ortiz said, "You don't have to push me so hard against the wall, I ain't doing nothing," Chasen said, "I'm going to get you for disorderly conduct." Ortiz denied striking or kicking Officer Chasen. He said the officer threw him to the ground and handcuffed him. Defendant was 18 years old at the time of trial.
Ortiz was found not guilty of disorderly conduct, but guilty of resisting arrest and battery. He was fined $100 for resisting arrest and sentenced to thirty (30) days in the House of Correction for the battery conviction.
• 1 The arrest in this case was made without a warrant and without reasonable grounds to believe that a warrant had been issued for the defendant in this State or in another jurisdiction. There was no reason to believe that the defendant was committing or had committed any offense at the time Officer Chasen told him to line up against the wall to be searched. There was no evidence that there was any reasonable grounds for any arrest, or even a stop and frisk, before the attempted search. The arrest failed to comply with the provisions of the Criminal Code as set out in Ill. Rev. Stat. 1971, ch. 38, § 107-2.
• 2 As this court has stated in the case of People v. Royer (1968), 101 Ill. App.2d 44, 48-50, 242 N.E.2d 288:
"To sustain the charge of resisting arrest under section 31-1 of the Criminal Code, the prosecution must show, among other things, that the defendant knowingly resisted the performance by one known to him to be a peace officer of an authorized act within his official ...