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People v. Weathers

OPINION FILED JULY 15, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MARY WEATHERS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Rock Island County; the Hon. CHARLES J. SMITH, Judge, presiding. MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Defendant Mary Weathers appeals from a conviction of carrying a concealed weapon in violation of section 24-1(a)(4) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(a)(4)). She was convicted by a jury based on her possession of a .22 magnum derringer which was found in her purse during an inventory search by police after defendant had been detained for violating the curfew provisions of her parole.

She was indicted for a Class 3 felony under the terms of the aggravated penalty provisions of section 24-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(b)). The State alleged that the defendant Weathers had been convicted of a felony within the previous 5 years. The jury found for the State on this allegation and the trial court imposed a sentence of 1 to 3 years in the penitentiary in the case.

On appeal in this court, defendant contends that the police were without authority to arrest her for a mere parole violation which was not otherwise a crime. She also contends that the introduction of evidence at trial concerning her prior conviction, without an appropriate limiting instruction, deprived her of a fair trial. She also contends that, in any event, the State failed to prove the prior conviction beyond a reasonable doubt, so that only the misdemeanor penalty provisions of section 24-1 are applicable.

From the record it appears that Officer Dove of the Rock Island police testified that he and his partner observed an automobile on the night in question which was being driven without headlights on a city street at approximately 3:40 a.m. The officers made a traffic stop and checked the driver's license of the driver. They then asked for identification from the two passengers in the automobile. When defendant Weathers, who was sitting in the back, produced identification, the officers recognized her name from a prior encounter and remembered that she was a parolee. Officer Dove also remembered that one of the conditions of her parole was an 11 p.m. curfew.

By reason of the apparent parole violation, the officers took defendant Weathers to the police station. They attempted to reach defendant's parole officer, but were unsuccessful, and the parole office advised the officers to hold the defendant until the parole officer was available in the morning. A standard inventory search, during booking procedures, disclosed that there was a gun in defendant's purse.

• 1 Defendant first contends that the police had no authority to arrest her for a parole violation which was not a criminal act and that the gun should have been suppressed as evidence, as a result of an illegal arrest. The arrest statute (Ill. Rev. Stat. 1973, ch. 38, par. 107-2) permits a peace officer to effect an arrest whenever:

"(a) He has a warrant commanding that such person be arrested, or

(b) He has reasonable grounds to believe that a warrant for the person's arrest has been issued in this State or in another jurisdiction; or

(c) He has reasonable grounds to believe that the person is committing or has committed an offense."

Insofar as the language of this section is concerned, we agree with defendant that there was no reasonable interpretation of such language which would authorize a warrantless arrest for parole violation since this is not an offense in the sense that it is a violation of a penal statute (Ill. Rev. Stat. 1973, ch. 38, par. 102-15). The State, however, pointed out at the trial, and on appeal, that the provisions of the Unified Code of Corrections pertaining to parole contain the following sentence:

"* * * A sheriff or other peace office may detain an alleged parole or release violator until a warrant for his return to the Department [of Corrections] can be issued." Ill. Rev. Stat. 1973, ch. 38, par. 1003-14-2(c).

The police clearly had authority under this section to detain Mary Weathers for violating the curfew provisions of her parole. This detention would extend until the parole officer could take charge at the earliest opportunity. Defendant argues that such interpretation of the sentence is a result of taking it out of context of the Unified Code provisions concerning parole (see Ill. Rev. Stat. 1973, ch. 38, par. 1003-3-1 et seq. and par. 1003-14-1 et seq.). While parole violation is a problem for the Department of Corrections, the Parole and Pardon Board, and the individual parole officer, and not normally for the local State's Attorney or the court system, the quoted phrase in section 3-14-2(c) still clearly grants authority to the police to hold an alleged parole violator until a parole officer can take over. Also, where such temporary detention is made, it becomes necessary to hold the person in custody for several hours. Under such circumstances it is clearly permissible for the police to conduct an inventory search normally incident to such detention.

Defendant directs attention to United States v. Hallman, 365 F.2d 289 (3rd Cir. 1966), which held that under New Jersey law, police could not arrest a person for a parole violation that was not a crime. Despite the fact that defendant claims the contrary, we find no language in the operative New Jersey statutes authorizing warrantless detention of alleged parole violators. (N.J. Stat. Ann. §§ 30:4-118, 123.22 (1964).) The presence of such language in Illinois, however, distinguishes Illinois law from the New Jersey situation, and, therefore, the Hallman case cannot be controlling.

• 2 We conclude that the police acted within their statutory authority in detaining the defendant for the alleged parole violation and in making the subsequent inventory search from which the evidence was ...


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