APPEAL from the Circuit Court of Rock Island County; the Hon.
FREDERICK P. PATTON, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
After a jury trial in the circuit court of Rock Island County, the defendant, Freddie Lee Lott, was convicted of armed robbery.
On this appeal, the defendant contends the trial court committed error when it denied his motion for discharge under the four-term rule (Ill. Rev. Stat., ch. 38, par. 103-5(a)) and his motion to suppress evidence.
The defendant was arrested and incarcerated on April 19, 1973. The grand jury returned a one-count indictment of armed robbery against him on May 8, 1973. The defendant remained in custody until his trial on August 27, 1973.
On August 20, 1973, the defendant moved for discharge, alleging that the State had failed to comply with the speedy trial requirement. After a hearing was held, the motion was denied.
The defendant relies upon section 103-5(a) of the Code of Criminal Procedure (Ill. Rev. Stat., ch. 38, par. 103-5(a)) which provides that:
"Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * * *."
The defendant filed numerous pretrial motions. Because of the view which we take of this case, we need not recite the entire proceedings before the trial court.
On May 30, 1973, the defendant moved to suppress evidence. On June 1, 1973, during a hearing on another motion, the People provided the defendant with a report, previously requested, of the arresting officer who had searched defendant's automobile. The defendant indicated that he was ready to proceed on the motion to suppress. The People were also ready to proceed, but the court could not hear the motion because of other scheduled matters. As a result, defense counsel requested the prosecution to set a hearing on the motion, since the People would have to assemble the witnesses. Defense counsel included a similar request, on June 5, 1973, in an unrelated answer filed with the court. No hearing date was set by the prosecution and so the defendant set a hearing date on July 16, 1973 for August 3, 1973. (Although the motion was actually heard on July 26, 1973, that factor would not change the result we reach.)
• 1 The controlling question in determining if the defendant is entitled to discharge on the 120-day rule is whether the delay of the trial beyond 120 days was occasioned by the defendant. If the delay is attributable to the defendant's actions, he is not entitled to discharge. The criterion in each case is whether the defendant's acts in fact caused or contributed to the delay. The purpose of the rule is to prevent a "mockery of justice" either by the State's technical evasion of the right to speedy trial, or by the defendant's discharge after a delay in fact caused by him. People v. Nunnery, 54 Ill.2d 372, 297 N.E.2d 129; People v. Fosdick, 36 Ill.2d 524, 224 N.E.2d 242.
Where the defendant causes delay, the 120-day period is tolled and begins to run anew from the date to which the cause is continued. People v. Gulick, Ill. App.3d 427, 287 N.E.2d 727; People v. Cornwell, 9 Ill. App.3d 799, 293 N.E.2d 139; People v. Ellis, 4 Ill. App.3d 585, 281 N.E.2d 405.
Since the time between the defendant's arrest on April 19, 1973, and the trial on August 27, 1973, only slightly exceeded 120 days, if the defendant was responsible for the delay, he would not be entitled to discharge under the statute. Cf. People v. Leonard, 18 Ill. App.3d 527, 310 N.E.2d 15.
• 2 Under section 114-12 of the Code of Criminal Procedure (Ill. Rev. Stat., ch. 38, par. 114-12), the defendant has the primary responsibility for establishing the factual or legal basis for a motion to suppress. The defendant knew that a disposition of this motion would necessitate some delay. Over a month and a half elapsed before the defendant set a hearing on this motion. In response, the defendant urges that he requested the prosecution to set a hearing date, since the People would have to assemble the witnesses. The defendant's consideration in attempting to avoid inconvenience to witnesses does not relieve him of the responsibility of having his pretrial motion heard. (People v. Stock, 56 Ill.2d 461, 309 N.E.2d 19.) The defendant cannot, by such an assertion, attribute blame to the prosecution for failing to set a hearing date with respect to a matter for which he was primarily responsible. (See People v. Ross, 132 Ill. App.2d 1095, 271 N.E.2d 100.) We hold, therefore, that the defendant was responsible for the delay occasioned by the motion to suppress evidence.
We are mindful of the recent opinion in People v. Lewis, 60 Ill.2d 152, 330 N.E.2d 857, in which the Supreme Court declined to reinterpret the 120-day rule to exclude from the computations any delays occasioned by the defendant. We note also that the record in the case at bar demonstrates several instances of delay attributable to the State. Nevertheless, the authorities dictate the result we reach.
Having found that the trial court properly denied the defendant's motion for discharge, we must consider the ruling on the motion to suppress evidence.
On April 18, 1973, at approximately 10 P.M., an armed robbery of a service station was reported to the Rock Island Police. The complaining witness, an attendant at the station, described the offender as a black man with a bayonet, wearing a blue denim coat, blue jeans, black shirt and a black hat.
Early the following morning, at 2:30 A.M., the defendant was driving a vehicle heading west on Blackhawk Road in Rock Island. State Trooper Terry Vujakovich, approaching from the opposite direction, noticed that defendant's vehicle was proceeding at five miles per hour, considerably below the minimum of 35 or 45 miles per hour. The trooper turned his vehicle around and stopped defendant, pulling him over into a driveway. Vujakovich noticed there were no license plates on the car. Upon inquiry, the defendant stated that something went wrong with the gas pedal. The defendant was unable to produce a driver's license when requested to do so by the trooper. The defendant stated that he had left it in his other pants and that it had expired in January. Defendant also stated the car belonged to one Lynn Brooks. At this point, the trooper arrested defendant and removed him to the police car.
The State trooper called in for a driver's license check. While waiting for the reply to the license check, the trooper walked to defendant's vehicle and flashed a light on the "license applied for" sticker, located on the front windshield on the passenger side. While viewing the sticker, he noticed an object on the floorboard underneath the front seat on the passenger side. A coat covered the object but about one-half of a handle was visible.
At this time Corporal Robinson arrived on the scene to determine if assistance was needed. Corporal Robinson checked the sticker and observed the object in the car. At the same time, Trooper Vujakovich opened the car door and Corporal Robinson reached in and picked up the object, a bayonet. The officers then advised defendant that he was under arrest for a weapons charge and escorted him to the Rock Island County Jail.
After conferring with detectives who were investigating the service station robbery, Trooper Vujakovich procured a warrant to search the car defendant had been driving. In the course of this search, the trooper seized a black hat and a wig.
On May 8, 1973, the grand jury returned a one-count indictment of armed robbery against defendant.
The defendant contends that the trial court erred in denying a motion to suppress evidence seized pursuant to the warrantless search. The defendant further urges that the evidence seized pursuant to the warrant should have been suppressed as "fruits of the poisonous tree."
In response, the People maintain that no search occurred, since the bayonet was in plain view when the trooper seized it. Alternatively, the People contend that, even if a search did occur, here the search falls into one of the recognized exceptions to the warrant requirement.
Trooper Vujakovich, while flashing his light on the "license applied for" sticker, observed what he described in his police report as ...