APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
A. HIGGINS, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 17, 1975.
The defendant, Commodore Tilden, was charged in a complaint with committing the offense of unlawful use of weapons in that on or about October 10, 1971, he "knowingly carried concealed on or about his person, or in a vehicle, a gun, to wit: one .22 Cal. Luger automatic pistol," in violation of section 24-1(a)(4) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 24-1(a)(4).
Prior to trial the defense attorney moved to suppress evidence. A hearing was held on the motion and evidence heard. Raymond Krakausky, the arresting police officer who was called as a witness for defendant, testified that on October 10, 1971, he observed a 1960 green Oldsmobile going south on Prairie Avenue from 43rd Street in Chicago being driven by the defendant. One other person was in the car with the defendant. The officer noticed that the vehicle "had no headlights or taillights" so he stopped it. The defendant got out of the car. He asked him for his driver's license and the defendant gave it to him. He questioned the defendant about the violation and the defendant told him he had just left a tavern and forget to put the lights on. During the course of the investigation the officer observed an empty holster on the right side of the defendant's pants. He thereupon first searched the defendant, then went to the automobile, the front door of which had remained open, and looked under the front seat. On cross-examination by the assistant State's Attorney the officer said he observed the holster on the person of defendant, not as a result of any search, but because it was in plain view.
Commodore Tilden, the defendant, testified that the officer stopped him and upon request he gave him his driver's license. The driver's license was in his top coat pocket, which he said was buttoned. He denied having a holster on his person. He said that after the officer questioned him the officer proceeded to search the car. On cross-examination he denied that a holster shown to him was his and that the officer found it on his person.
The motion to suppress the evidence was denied. The case then proceeded to trial after the defendant entered a plea of not guilty and waived a jury. It was stipulated that Officer Krakausky's testimony on the motion to suppress would be the same as on trial. The officer then further testified that when he looked under the front seat on the driver's side he found a loaded gun, which he identified as State's Exhibit Number One. He said a female was sitting on the passenger side of the front seat in the car. After he found the gun he advised the defendant of his constitutional rights. On cross-examination he stated that the defendant never admitted owning the gun, and that the female passenger never admitted owning it either.
The defense counsel moved for a directed finding of not guilty at the close of the evidence and it was denied. The court then entered a finding of guilty as charged and sentenced the defendant to 6 months in the House of Corrections.
It is argued in this appeal that (1) the defendant's motion to suppress should have been sustained since there was no showing that the stopping of his auto was lawful, nor any showing that the subsequent search of his auto was justified and (2) the evidence is insufficient to establish the defendant's guilt beyond a reasonable doubt.
It is most strenuously argued regarding the alleged error in the court's denial of the motion to suppress that the State offered no evidence to establish that the arrest (which is how defendant categorizes the initial traffic stop) of the defendant was lawful, and that therefore any information or evidence obtained as a result of it should have been excluded from evidence. (Wong Sun v. United States, 371 U.S. 471.) This is premised on the assertion that the State failed to show that the officer had, in fact, stopped the defendant's auto because of the commission of a traffic violation, since no evidence was proffered to establish that driving without lights at night violated any State statute or municipal ordinance, or that the stop was actually made at night.
We acknowledge the State's burden to go forward with evidence to show reasonable grounds for the initial seizure once the defendant had made a prima facie case that the seizure was unlawful. (People v. Cassell, 101 Ill. App.2d 279, 243 N.E.2d 363; People v. Ezell, 61 Ill. App.2d 326, 210 N.E.2d 331 (abstract opinion).) But here that was not done. The only two witnesses at the hearing on the motion to suppress were the police officer and the defendant. The officer testified, upon questioning by defense counsel, that he stopped the defendant's car for having no lights. He stated that after taking the defendant's driver's license, he began questioning him about the "violation," which we can only interpret as meaning driving without lights at a time when they were required by law. The officer then said the defendant told him "he just left a tavern and he forgot to put the lights on." This admission by the defendant was never controverted, at the hearing or at trial. After the officer's testimony, defense counsel argued only the invalidity of the search based on the mere alleged presence of a gun holster, and concluded by stating, "[a]s to the violation of not having lights, that is a very minor traffic charge." The defendant's testimony at the hearing, which immediately followed, in no way touched upon the validity of the initial traffic stop, but was concerned only with events subsequent to the stop.
• 1 Based on this record, we hold that the defendant failed to make out a prima facie case that the stop was unreasonable, and that the officer's testimony was clearly sufficient to establish a proper purpose for the stop and to support a denial of the motion to suppress. Indeed, a fair reading of the record would indicate that the defendant never raised the issue of the validity of the initial stop at the hearing, and has waived any right to have it reviewed on appeal.
People v. Ezell, 61 Ill. App.2d 326, 210 N.E.2d 331, and People v. Cassell, 101 Ill. App.2d 279, 243 N.E.2d 363, cited by the defendant, are manifestly not in point. In both of these cases the denial of a motion to suppress was held to be error. But in Ezell the testimony of the defendant was the only evidence adduced at the hearing on the motion. It showed without contradiction that at the time of the defendant's arrest he was doing nothing more than walking on a public street, and that when the police officer commented to him that he had heard the defendant was doing wrong, the defendant denied it to him. A subsequent search was held improper, since the defendant had made out a prima facie case that the arrest was unlawful and the State offered no evidence to contradict it. Likewise, in Cassell, the defendant's testimony was the sole evidence submitted on the motion to suppress, and it established that he was doing nothing unusual at the time of his arrest. In the case at bar the police officer's testimony clearly articulated a legitimate purpose for the initial stop, i.e., because the defendant was driving without lights, and this, together with the other testimony and absent any evidence that for some reason such a stop was unjustified, sufficiently established its validity.
Having determined that the initial traffic stop was justified, the defendant's argument on appeal that the officer's observation of the empty gun holster was made while he was unlawfully detaining the defendant, and that therefore it could not provide a basis for a subsequent search and seizure, loses its basic premise. The defendant further urges, however, that the mere "presence of an empty holster * * * could give rise to no more than a suspicion that somewhere, sometime, Defendant may have carried or inserted a gun in it," that "[i]t did not qualify as probable cause that Defendant was violating the law by carrying a gun in his automobile," and therefore that the search precipitated by an observation of the holster was unreasonable because it was not incident to a valid arrest.
We first note, as the defendant correctly implies, that the initial stop alone was not necessarily grounds to conduct a search of his person and car, since a mere traffic violation was involved. (But cf. United States v. Robinson, 414 U.S. 218; Gustafson v. Florida, 414 U.S. 260.) But the ultimate search was not based only on the traffic stop. After the stop, and while the officer was questioning the defendant regarding the traffic offense, he noticed a gun holster on the defendant's person. He testified that the holster was in "plain view," and not the result of an intrusion which deprived the defendant of any justifiable expectation of privacy. It could thus legitimately provide a basis for further investigation or arrest. As explained in Coolidge v. New Hampshire, 403 U.S. 443, 466, "the police officer * * * had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused." At that ...