APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
E. DOLEZAL, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Defendant, Andre Nunez, was indicted for the offense of unlawful use of weapons (Ill. Rev. Stat. 1971, ch. 38, par. 24-1(a)(7)) in that he knowingly possessed a shotgun with a barrel less than 18 inches in length, commonly known as a sawed-off shotgun. After a trial in the circuit court of Cook County, the jury found him guilty as charged. He was sentenced to a term of 2 to 5 years in the penitentiary and he appeals from the conviction.
We vacate and remand with directions.
Defendant, through his appointed counsel, presents four issues for review. He contends that (1) his motion to suppress evidence was erroneously denied, (2) he was not proved guilty beyond a reasonable doubt, (3) he was denied due process of law by the State's suppression of evidence favorable to the defense, and (4) his sentence was excessive. The State opposes the first three of these contentions but concedes that his sentence must be modified in order that it conform to the provisions of the Unified Code of Corrections, now applicable.
On March 1, 1971, at 5:30 A.M., three Chicago police officers went to the apartment of defendant's mother, Ana Nunez. They had an arrest warrant for her son; however, the record does not show what offense was alleged in the warrant. Officer Green testified that defendant was sleeping in a single bed in a small bedroom of the apartment when they entered. Officer Green leaned on the bed with his hand and told defendant to get up and that he was under arrest. Green felt a hard object under his hand at this time. When defendant had gotten out of bed and while he was standing next to it, Officer Green recovered a sawed-off shotgun from between the box spring and mattress. The weapon was found in approximately the place where defendant's legs would have been if he had been lying in the bed. Examination revealed a live shell in it. The shotgun and shell were admitted in evidence at trial during the prosecution's case-in-chief. Defendant's mother, Ana Nunez, let the police into the apartment and was present in the bedroom during defendant's arrest.
Defendant's mother testified for the defense that on February 25, 1971, she found the weapon abandoned on the stairs leading to her apartment. She testified that she saw two street gangs having a fight in front of her apartment building that afternoon. She further testified that she took the weapon into her apartment and placed it where it was later found by the police. She maintained that she called the police to report the weapon but no one from the police came in response. She claimed that she never told defendant about the gun.
Defendant's sister, Saida Gonzales, also lived in the apartment. She testified that there was a gang fight. She further testified that her mother never told her about the weapon and that she never heard her tell her brother about it. The first time she learned of the weapon was when her brother was arrested.
Defendant testified on his own behalf. He denied knowing that the shotgun was beneath the mattress. He denied feeling anything lumpy in the bed on the night of the arrest or on the previous night. He claimed that his mother had not told him that she put the shotgun there.
Defendant's first contention is that the court committed reversible error in denying his motion to suppress evidence. He contends that the evidence obtained, namely the shotgun and shell, must be suppressed because they were seized as a result of an unlawful search.
Defendant concedes the validity of the arrest warrant. His argument is that because the record does not disclose the offense for which the warrant was issued, the search under the mattress cannot be justified. Counsel hypothesizes a situation in which an arrest warrant was issued because defendant failed to respond to citations issued for traffic violations. Absent other circumstances, defense counsel argues that the arresting officers would not have been justified in searching defendant's bed.
However, the testimony of Officer Green, adduced at the hearing on the motion to suppress, shows that as he was leaning on the bed to arouse the defendant he felt a hard object under his hand. He testified that in his opinion, the object felt like the stock of a rifle or a shotgun.
• 1 We think that it makes no difference for what offense defendant was arrested. Under the circumstances the search of the mattress was justified. The proper scope of a search incident to a valid arrest is determined by what was reasonable. (People v. Wright, 42 Ill.2d 457, 248 N.E.2d 78.) When Officer Green felt what he thought was a dangerous weapon underneath the mattress, it was reasonable that he conduct a search of the area in order to protect himself or prevent escape. (People v. Brown, 38 Ill.2d 353, 231 N.E.2d 577; People v. Barksdale, 14 Ill. App.3d 415, 302 N.E.2d 718.) That the weapon recovered also turned out to be contraband does not make the search any the less reasonable. People v. Pruitt, 79 Ill. App.2d 209, 223 N.E.2d 537.
Defendant's second contention is that he was not proved guilty beyond a reasonable doubt of the offense charged. A person commits unlawful use of weapons when he "knowingly * * * possesses * * * any shotgun with a barrel less than 18 inches in length." (Ill. Rev. Stat. 1971, ch. 38, par. 24-1(a)(7).) Defendant does not dispute that the weapon seized was the kind which the statute defines as contraband. He maintains that the prosecution failed to prove that he knowingly possessed the weapon within the meaning of the statute.
• 2, 3 Criminal possession can be either actual or constructive. (People v. Mack, 12 Ill.2d 151, 145 N.E.2d 609.) Because defendant did not have actual possession of the weapon, the prosecution's case was aimed at showing that he had constructive possession of it. A person is in constructive possession of contraband when it is in a place under his immediate and exclusive control. (People v. Cogwell, 8 Ill. App.3d 15, 288 N.E.2d 729.) Defendant presented evidence to show that the weapon was not under his immediate and exclusive control. Defendant, his sister, and his mother all testified that defendant was not the only person who used the bedroom. There was testimony that defendant's brothers used the room and that his mother and sister kept clothes there. However, just before his arrest, ...