APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
V. ZELEZINSKI, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendant was charged in four separate complaints with the offenses of: (a) possession of a controlled substance, i.e., heroin (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 1402); (b) unlawful use of a weapon in that he knowingly carried a concealed weapon, a revolver, in a vehicle (Ill. Rev. Stat. 1971, ch. 38, par. 24-1); (c) failure to carry a firearm owner's identification card (Ill. Rev. Stat. 1971, ch. 38, par. 83-2(a)); and (d) theft of lost or mislaid property in that defendant obtained control over a revolver owned by Harry Commings with intent to deprive said owner permanently of the use of said property (Ill. Rev. Stat. 1971, ch. 38, par. 16-2). The cases were consolidated in the trial court. Defendant made a motion to suppress evidence, (the gun and heroin) which was granted by the trial court. The State appeals pursuant to Supreme Court Rule 604(a)(1). (Ill. Rev. Stat. 1971, ch. 110A, par. 604(a)(1).) The sole issue on appeal is whether the trial court properly sustained the motion to suppress evidence.
The following evidence was adduced at the motion to suppress evidence. Chicago Police Officer Drakulich, called by defendant, was the sole witness to testify. On direct examination he testified that on October 1, 1973, he saw defendant in an all-night shopping mart, the Food Basket, at 79th and Yates Avenue. Officer Drakulich was in uniform on patrol duty and accompanied by a fellow officer. At that time he said hello to the co-defendant, Britton, *fn1 whom he had known for approximately 8 months. He then left the food store and was waiting in his car across the street in a parking lot.
Sometime later he saw defendant and Britton leave the food store and enter their vehicle. Defendant was in the passenger seat and Britton was in the driver's seat. They proceeded to drive westbound on 79th Street. He and his partner followed them, close enough to observe their license plate number. He finally stopped their vehicle at 79th and Greenwood, for driving too fast for conditions, in that the car was going 38 m.p.h. in a 30 m.p.h. speed zone. This was at 6 A.M. while it was raining severely and dark out. He gave Britton a ticket for driving too fast for conditions.
Both he and his partner got out of the car. Defendant and Britton got out of their car. He then conducted a search of defendant, who at that time was not in violation of any laws. He had ordered defendant out of the car. He also searched the motor vehicle and found contraband both in the car and on defendant's person. When he searched the car, defendant was standing to the rear passenger side of the car with his partner.
During cross-examination by the assistant State's attorney it was brought out that prior to curbing the vehicle he ran a registration check on the license plate. The results of this investigation showed that the vehicle was owned by a corporation, State Lincoln Mercury, Incorporated, 2701 South State Street, Chicago. Officer Drakulich was then questioned as to the specific time sequence of the events following his curbing of the vehicle. He explained that after he curbed the vehicle, he approached Britton who was still seated in the driver's seat. He notified Britton of his violation and asked him for his driver's license and to whom the car belonged. Britton responded that the car belonged to his girl friend and said, "I don't have a driver's license." He told Britton to get out of the vehicle, that he could not drive, and that he was under arrest for driving without a driver's license. He then searched Britton and found a cylindrical flask, 3 inches long, containing a white crystal which he suspected was cocaine.
After this he asked defendant to get out of the car, told him that he could drive the car if he had a driver's license, "but only after to come in to the station with the vehicle, and only after I searched him for my own protection." He then searched defendant and the car.
Drakulich testified he searched the vehicle first and located directly under the seat where defendant was sitting, a small caliber revolver. He recovered the revolver before searching defendant's person. Upon searching defendant he found contraband (heroin). At that time he placed defendant under arrest.
On redirect examination it was brought out that he told defendant to get out of the car when he came up. At that time he was not in violation of any law. He then proceeded to search the car. He reiterated that he searched Britton before searching defendant.
On recross-examination Drakulich testified that at the time he searched Britton, he was under arrest.
The following colloquy then took place with the court:
"THE COURT: According to the officer's testimony, Mr. Britton was charged, he was arrested and he was searched. That's when the substance was found.
Now, as to Mr. Charles Williams, he was merely a passenger in the car. The officer did not know whether this vehicle was stoen [sic] or not. However, he did testify that he wanted Charles Williams to drive the car to the station.
Is that what you testified to?
OFFICER DRAKULICH: That he had the ...