APPEAL from the Circuit Court of Cook County; the Hon. DAVID
CERDA, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Eddie Cannon (defendant) was tried by the court without a jury for unlawful use of weapons (Ill. Rev. Stat. 1971, ch. 38, par. 24-1(a)(4)); defacing the identification marks upon a firearm (Ill. Rev. Stat. 1971, ch. 38, par. 24-5), and unlawful possession of a firearm without having in his possession an owner's identification card issued to him by the Illinois Department of Public Safety (Ill. Rev. Stat. 1971, ch. 38, par. 83-2(a)). Defendant was found guilty and sentenced to concurrent terms of 5 months upon each charge.
Upon his appeal, defendant first raises a constitutional question regarding an allegedly illegal search of the automobile in which he was a passenger. Defendant also urges that the proof fails to show that he knowingly concealed a weapon and that he ever owned or possessed a weapon. In this connection, he contends that the State failed to prove beyond a reasonable doubt that the weapon in question was so close to him as to be readily accessible. Defendant also contends that the complaint charging unlawful use of weapons was void and that he was denied a fair and impartial trial.
In response, the People urge that defendant had no standing to object to the allegedly unlawful search and seizure; and, in addition, that his fourth amendment rights were not violated. The People also contend that the evidence was sufficient to prove each of the charges beyond reasonable doubt; the complaint charging unlawful use of weapons was not void and defendant received a fair and impartial trial. We will consider each of the contentions but not in the order stated.
• 1 Defendant first urges that the complaint charging unlawful use of weapons was void. Defendant was charged with knowingly carrying "concealed a firearm (in a vehicle) or (on or about his person)." This issue was never raised in the trial court by defendant, by preliminary motion or in any other manner. Therefore, he may raise the point for the first time in this court only if the complaint fails completely to charge commission of an offense so that it is void. (People v. Bradley, 12 Ill. App.3d 783, 786, 299 N.E.2d 99, and cases therein cited.) The Code of Criminal Procedure of Illinois sets out various formal defects in indictments, informations or complaints which may be the subject of amendment on motion of the State's Attorney. Among such defects are "[t]he use of alternative or disjunctive allegations as to the acts, means, intents or results charged." Ill. Rev. Stat. 1971, ch. 38, par. 111-5(f).
The only case cited by defendant to this point is People v. Heard, 47 Ill.2d 501, 266 N.E.2d 340. The complaint in Heard was patently uncertain. The entire complaint consisted of a number of alternatives which necessarily made it completely uncertain and therefore void. (See 47 Ill.2d at 504.) In Heard, the supreme court pointed out that a charge which follows the language of the statute defining the crime and uses the disjunctive, will be sufficient under some circumstances but not where the statute names "disparate and alternative acts, any one of which will constitute the offense." (47 Ill.2d at 504.) As an example of a sufficient charge, the supreme court cited People v. Rosenfeld, 25 Ill.2d 473, 185 N.E.2d 236, where the indictment charged that the defendants unlawfully "possessed or had under their control" a narcotic drug. In our opinion, the complaint in the case at bar is much closer to Rosenfeld than it is to Heard. In the case before us, the defendant was fully informed of the nature of the charge. His counsel seemed to have no problem in presenting a spirited defense. The complaint was in the language of the statute and we think that it certainly apprised defendant with more than reasonable certainty of the precise offense with which he was charged. See People v. Harvey, 53 Ill.2d 585, 588, 294 N.E.2d 269.
As regards the motion to suppress physical evidence made by defendant's counsel and heard before trial, a police officer testified that he stopped an automobile for failure to have brake lights. (See Illinois Vehicle Code, Ill. Rev. Stat. 1971, ch. 95 1/2, par. 12-208(a).) The car was occupied by the driver and two passengers, one in the right front seat and one in the rear seat. The police officer learned that the driver did not have a driver's license in his possession and he had no traffic ticket which might have acted as a temporary replacement. (See Illinois Vehicle Code, Ill. Rev. Stat. 1971, ch. 95 1/2, par. 6-601.) The officer asked the driver to get out of the car. He then reached under the front seat on the driver's side where he found a loaded .32-caliber pistol. He then ordered the passenger in the front seat to leave the automobile. He reached under the front seat on the right side where he found a loaded .38-caliber pistol. The police officer then placed "everyone" under arrest. The officer testified that the defendant was the passenger on the right side in the front seat. Defendant testified, to the contrary, that he was seated in the rear on the passenger's side of the car. Upon hearing this evidence, the trial court denied the motion to suppress.
• 2 Counsel for both sides have extensively argued the merits of the motion to suppress. We need not review the various cases thus cited. In our opinion, this situation is governed by two recent decisions of the United States Supreme Court: U.S. v. Robinson, 38 L.Ed.2d 427, 94 S.Ct. 467, and Gustafson v. Florida, 38 L.Ed.2d 456, 94 S.Ct. 488. In Robinson, the Supreme Court held that where a police officer had probable cause for custodial arrest of a defendant for operating a motor vehicle after revocation of his driver's license, a complete search of the defendant's person was legal and permissible. In Gustafson, the court held that, where defendant had been arrested for driving without a valid driver's license in his possession, a complete search of his person was valid and legal.
On oral argument, counsel for defendant sought to dissuade us from following Robinson and Gustafson. In situations concerning application of a more restrictive view of the constitutional rights of an individual than previously enjoyed, the reviewing courts of Illinois have traditionally followed the Supreme Court of the United States. As an example, note the Illinois Supreme Court decision in People v. Lewis, 34 Ill.2d 211, 215 N.E.2d 283, following the United States Supreme Court in Preston v. United States, 376 U.S. 364, 11 L.Ed.2d 777, 84 S.Ct. 881. And, note also the later action by the Supreme Court of Illinois overruling Lewis as set forth in People v. Brown, 38 Ill.2d 353, 231 N.E.2d 577, and People v. Jones, 38 Ill.2d 427, 231 N.E.2d 580. This step was taken by the Supreme Court of Illinois to accomplish conformity with the decision of the United States Supreme Court in Cooper v. California, 386 U.S. 58, 17 L.Ed.2d 730, 87 S.Ct. 788, which had theretofore modified the decision in Preston. It is both logical and necessary that this court follow the precepts announced by the United States Supreme Court which is the final arbiter of Federal constitutional construction.
• 3 Applying the principles of Robinson and Gustafson to the case before us, the officer had the right and the duty to stop the automobile which was without brake lights. In such case, the driver was committing a misdemeanor. Upon ascertaining that the driver had no valid license in his possession, it then became the right and duty of the officer to make a custodial arrest for this additional misdemeanor and consequently he had the legal right to effect a complete search of the driver's person. (See also People v. Gilyard, 124 Ill. App.2d 95, 102, 260 N.E.2d 364.) Continuing further, it then became the right and duty of the officer to make at least a cursory search of the immediate vicinity of the driver's seat. In our opinion, this type of search was not only authorized by law but it was essential to insure the safety of the arresting officer. By analogy, the Supreme Court of Illinois has followed the principle that, where a defendant has been legally arrested in his home, police may search the immediate area from which he could have obtained a weapon or even something that could have been used as evidence against him. (See People v. Perry, 47 Ill.2d 402, 407, 408, 266 N.E.2d 330, citing and commenting upon Chimel v. California, 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034.) Recovery of the loaded pistol from the area within immediate control of the driver in turn rendered imperative the similar restricted search of the adjacent area beneath the other front seat.
We accordingly conclude that the trial court acted properly in denying the motion of defendant to suppress physical evidence. We need not consider other contentions bearing upon this point such as whether defendant had standing to raise the constitutional issue.
We will next consider the sufficiency of the evidence to prove guilt as to all three of the charges. After disposition of the motion to suppress, the police officer also testified that he had placed his initials upon the .38-caliber pistol and that the serial numbers had been obliterated from the weapon so that they could not be read. The officer then advised defendant as to his constitutional rights. Upon questioning, defendant told the officer that he did not have a firearm owner's identification card issued by the State of Illinois in his possession. The officer also testified that defendant was seated in the right front seat of the automobile. Defendant testified that he was seated in the rear seat of the automobile and that the passenger in the right front seat, a man named Taylor, left the car before he did. There was testimony by the officer and the defendant regarding the personal appearance and the clothing worn by Taylor and by defendant. Defendant was asked suggestively by his counsel if he "put a gun in that car" or had "a gun in your hand at any time?" He responded categorically to each question, "No, I didn't."
The primary issue here is whether defendant had actual or constructive possession of the .38-caliber revolver beneath the right front seat. This fact would be essential to each of the three convictions. Necessarily implicit in the result reached by the trial court would be a determination that defendant was seated in the right front seat of the automobile beneath which the loaded .38-caliber pistol was found. A determination of truth of this fact presented the trial court with an issue of credibility. A mere conflict in the evidence does not justify us in reaching a different result than did the trial court on this factual issue. (See People v. Reese, 54 Ill.2d 51, 58, 294 N.E.2d 288.) We will, however, examine the issue as to whether or not defendant had actual or constructive possession of the weapon beneath the front seat.
It is first important to note the precise language of the pertinent statute. The proscribed conduct consists in carrying the firearm "concealed in any vehicle * * * or on or about his person." (Ill. Rev. Stat. 1971, ch. 38, par. 24-1(a)(4).) Therefore, cases relied upon and cited by defendant such as People v. Liss, 406 Ill. 419, 94 N.E.2d 320, and People v. Niemoth, 322 Ill. 51, 152 N.E. 537, are inapposite here. These cases were decided under a former law which did not contain the ...