APPEAL from the Circuit Court of Cook County; the Hon. JAMES
A. CONDON, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
Defendant, Oscar Jackson, was charged with the offense of unlawful use of a weapon in that he knowingly concealed in his vehicle a .38-caliber revolver in violation of section 24-1 of the Illinois Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 24-1). Pursuant to a motion by the State, the complaint was stricken on leave to reinstate. Thereafter, defendant petitioned the court for the return of his revolver, but his motion was denied and a confiscate and destroy order was entered pertaining to that weapon. Defendant appeals from the denial of his motion.
The facts of the instant case are uncomplicated. On March 24, 1974, defendant was stopped by two Chicago police officers as he was driving home from work. Officer Steven Scholl searched defendant's vehicle and discovered a gun in the trunk. Thereafter, defendant was arrested and charged with carrying a concealed weapon. Defendant plead not guilty to the charge and filed a written motion to suppress the gun as evidence.
In his motion to suppress, defendant alleged that he was a security officer, and that at the time he was stopped by the two officers, he was returning home from work. He showed the officers his identification, but they nevertheless searched his person. Thereafter, the officers took his car keys, unlocked the car trunk, and pried open a locked briefcase which they found therein. The briefcase contained the gun which was sought to be suppressed. At the time of the search defendant had in his possession a valid gun registration and license and a detective's identification card. Defendant's motion to suppress charged that the gun was seized in violation of his constitutional rights in that the search was conducted without a warrant, was not incidental to a lawful arrest, and was made without his consent.
At the hearing on defendant's motion to suppress, Officer Scholl testified that he arrested defendant, searched defendant's vehicle and found the gun in question. He further stated that he had neither a warrant for the arrest nor the search, and that other than an improper left-hand turn, he did not see defendant violate any law. At the conclusion of Officer Scholl's testimony, the State moved to strike the complaint with leave to reinstate and requested that a confiscate and destroy order be entered with respect to the gun.
The trial judge commented that he knew defense counsel would ask for the return of the gun, but ruled that he would have to go to civil court to obtain it. Defense counsel replied that he had been through this before and presented the court with a petition for the return of the revolver. He alleged that his client was a fully licensed security guard who needed the gun for his livelihood and could not work without it. The court denied defendant's petition for the return of the gun, granted the State's motion to SOL and entered a confiscate and destroy order.
The sole issue on appeal is whether a weapon seized from its owner pursuant to an arrest must be returned to the owner when the charges upon which that arrest was based are subsequently stricken on leave to reinstate, and when there is no showing or claim that the weapon is contraband.
The thrust of defendant's contention is that it is incumbent upon the trial judge to make all determinations regarding the disposition of property seized pursuant to an arrest up to and including the final disposition of the criminal proceedings. The State, on the other hand, asserts that the determination of ownership and right to possession of property seized is civil in nature, for which the civil remedy of replevin is proper. Thus, the State argues that the trial judge in the case at bar acted within his discretion in not ordering the return of defendant's revolver and directing that he seek relief in an independent civil proceeding.
Defendant concedes the court's power to order a confiscation under proper circumstances, but argues that where no conviction is attained and where there is no finding that the weapon is contraband, the court must order the return of the weapon to its lawful owner. In support of his contention defendant first cites section 24-6 of the Illinois Criminal Code which states as follows:
"(a) Upon conviction of a violation of Section 24-1 or Section 24-3.1 of this Article, any weapon seized shall be consficated by the trial court.
(b) Any stolen weapon so confiscated, when no longer needed for evidentiary purposes, shall be returned to the person entitled to possession if known. All other confiscated weapons when no longer needed for evidentiary purposes, shall in the discretion of the trial court, be destroyed, or preserved as property of the governmental body whose police agency seized the weapon." Ill. Rev. Stat. 1971, ch. 38, par. 24-6.
Defendant finds particularly appropriate the committee comments to this section, revised in 1961 by Charles H. Bowman. The comments state:
"Section 24-6 provides for the disposition of confiscated weapons. Of course, a mere arrest or imprisonment is insufficient to justify confiscation of the subject's property. A conviction must be obtained. However, once the defendant has been convicted, the appropriate disposition of the weapon involved is now provided for by statute. This clarifies what has been a rather nebulous area of controversy." Ill. Ann. Stat., ch. 38, par. 24-6 (Smith-Hurd 1970).
Defendant points out that the legislative intent of section 24-6 is to withhold future possession of a weapon, and that such retention cannot be justified under the statute absent a conviction for unlawful use or unlawful possession of a weapon. Since there was no conviction in the instant ...