APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
T. DELANEY, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendant, James Moorhead, was found guilty after a bench trial of the offense of unlawful possession of a narcotic drug, in violation of section 22-3 of the Criminal Code, *fn1 and was sentenced to a term of four years and one day. He contends on this appeal that the trial court committed reversible error in failing to suppress evidence seized from him without a warrant, after an allegedly improper arrest.
In his motion and supplemental motion for "probable cause" (as captioned by defendant), filed pro se in this matter, the defendant alleged that on April 29, 1969, he was stopped in the 2100 block of West Madison Street by the Chicago police who found a quantity of heroin in the defendant's pocket and thereafter searched and arrested him. Defendant further alleged that at the hearing held to determine whether probable cause existed for his arrest, the police officer testified they had stopped defendant based on information that a cleaning store had been robbed and a general description of the robber which they had received. Defendant stated he had never been arrested for, questioned, or charged with robbery.
Defendant also filed a motion to suppress physical evidence alleging that he had been searched and a quantity of a narcotic drug taken by the police without any warrant or authority.
The trial court conducted a hearing on these motions, prior to trial, eliciting the following testimony.
Defendant testified that he was arrested at about 4:00 P.M. on April 29, 1969, at Madison Street and Hoyne Avenue, and that as one uniformed police officer held a gun on him, a second officer took his "stuff" out of his pocket while he held his hands in the air. The defendant was carrying a sweater over one arm. He further testified that he had earlier been walking westerly along Madison Street, but that he was walking easterly when he was placed under arrest. He testified that one of the officers stated, "Hey you," that he did not turn around but did look over his shoulder and saw the officers, and that he then turned and stopped. The witness also testified that he had one hand in his pocket and one hand free.
Officer Ralph Gibson, of the Chicago police, testified that on the date in question he and his partner were working in a marked police vehicle on an assignment involving the armed robbery of several cleaning stores in the area; that he observed the defendant, who matched the general description of the robbery suspect, walking on the street; and that the defendant was carrying a sweater over his arm, leading the officer to believe that defendant was going to a cleaning store. The officer observed the defendant look at the officer, turn abruptly, and proceed in the opposite direction. The officer wished to get a better look at the defendant, who had turned around in a crowd of people, the officer being unable to better observe him. The officer alighted from the vehicle and called for the defendant to wait. The defendant looked over his shoulder but continued walking; the officer again called to the defendant; the defendant stopped, turned toward the officer, and held the sweater he was carrying in front of him in a "covering" manner while reaching into his rear pocket with the hand of the other arm. The officer told the defendant to remove the hand from the pocket but the defendant did not comply; the officer unholstered his gun and again asked defendant to remove his hand and again the defendant failed to comply; the officer then took hold of the defendant's hand while still in the pocket, at which time the defendant was turning away from him. The officer testified that he did not intend to arrest the defendant when he initially observed him on the street, but that when the defendant placed his hand into his pocket after being summoned by the officer, it "became something else and that is what I arrested him for." According to Gibson, the defendant was placed under arrest for refusing to remove his hand from his pocket (at which point, the officer stated, defendant had not yet stopped walking) and for the officer's own personal safety.
When the officer removed the defendant's hand from the pocket after having taken hold of it, the defendant was holding a brown paper package containing 10 tinfoil packets of white powder, and defendant was told that he was under arrest. (The packets according to stipulation at the bench trial contained 2.1 grams of heroin.)
Gibson recalled that he had testified at a preliminary hearing that he stopped the defendant while he was cruising in the area and looking for a man wanted for the robbery of a cleaning store which had taken place about an hour before the arrest; the defendant was placed under arrest about 5:00 P.M. on that date, but the aforementioned robbery in fact took place about 2:15 P.M. at 759 South Kedzie Avenue rather than at a location three to four blocks from where the arrest took place, as the officer had testified at the preliminary hearing. The officer admitted that the man who had committed the aforementioned robbery had been apprehended inside the store and he stated that at the time that he arrested the defendant he was not aware that that other man had been apprehended. The officer denied arresting the defendant specifically in connection with the aforementioned cleaning store robbery and he stated that defendant was stopped to determine if he fit the description of the suspect wanted in connection with the entire series of robberies. The officer testified that he felt that there was a possibility that the defendant was the man who had committed the aforementioned cleaning store robbery; that the defendant fit the general description of that man; and that the officer did not "take sufficient evidence at that time to place him under arrest [sic]."
Defendant was recalled in rebuttal and testified that after he was stopped he was not questioned about the cleaning store robberies; that he was never placed in a line-up; and that he was advised of his constitutional rights. (It was stipulated that the evidence taken at that hearing would stand as the evidence in the bench trial of the matter.)
On appeal defendant takes the position that at the point when Officer Gibson restricted the defendant's freedom of movement, the arrest was complete. Correspondingly, he argues there was no probable cause for his arrest and thus the search of his person cannot be justified as an incident of a valid arrest.
An "arrest" is "the taking of a person into custody" (Ill. Rev. Stat. 1969, ch. 38, par. 102-5) and is accomplished "by an actual restraint of the person or by his submission to custody" (Ill. Rev. Stat. 1969, ch. 38, par. 107-5(a)). We have previously discussed the question of "arrest" and the many legal principles involved in People v. Howlett (1971), 1 Ill. App.3d 906, 274 N.E.2d 885.
The problem is analyzing the facts in each case in order to determine the correct legal category applicable to such facts. From the testimony contained in the record we do not believe that the officers' detention of the defendant can be properly called an arrest within the meaning of our State's statutes. Rather, their conduct amounted to temporary questioning without an arrest as defined by our legislature, to wit:
"A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense as defined in Section 102-15 of this Code, and may demand the name and address of the person and an explanation of his actions. Such detention and temporary questioning will be ...