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People v. Byrd

OPINION FILED APRIL 7, 1977.

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

v.

RAYMOND BYRD, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. GARLAND W. WATT, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 5, 1977.

Raymond Byrd, defendant, was charged with unlawful use of weapons. (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(a)(4).) Defendant filed a motion to suppress evidence and, following a hearing, the trial judge sustained the motion. The State appeals pursuant to Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1973, ch. 110A, par. 604(a)(1)).

We affirm the trial court.

At the hearing upon the motion to suppress, Officer Sulky of the Chicago Police Department testified that on October 20, 1974, he observed defendant, who was wearing a silver colored, waist length, leather jacket, walking along the intersection of 61st and Racine Streets. Defendant was not behaving in a manner which was unusual or suspicious. Sulky stated that his attention was drawn to defendant because the day before he had heard a police radio broadcast alerting him to look out for a suspect who was involved in an armed robbery that had taken place at 71st and Halsted Streets. He asserted that the place where the armed robbery occurred was seven blocks from where he observed defendant. *fn1

Further, he claimed that the radio alert described the suspect as wearing a silver colored, *fn2 waist length, leather jacket. In addition, the physical characteristics of defendant as to height, weight and complexion were similar to those of the suspect described in the radio broadcast. Consequently, he decided to stop defendant.

As Sulky approached, he noticed a small bulge in defendant's pants pocket. Sulky conducted what he characterized as a "protective search." As he patted down the defendant, he felt a hard bulge in the shape of a small gun. Sulky reached into defendant's pocket, recovered a small automatic pistol, and thereupon placed him under arrest. Sulky did not tell defendant that he was under arrest prior to the search.

At the close of the evidence, the trial judge sustained defendant's motion to suppress the gun as evidence.

The State contends that there was probable cause to arrest defendant since he matched the description of the armed robbery suspect, and accordingly the trial court should have denied the motion to suppress. We believe, however, that there is a threshold issue which must be ruled upon: whether Officer Sulky's actions in stopping and searching defendant, prior to arresting him, were reasonable under the circumstances. If the stop and search of defendant was unreasonable, then we need not address ourselves to the issue of whether the subsequent arrest was valid.

Following the United State's Supreme Court's pronouncements in Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, and Sibron v. New York (1968), 392 U.S. 40, 20 L.Ed.2d 917, 88 S.Ct. 1889, our legislature enacted two statutes codifying the rules relating to stop and search situations. These statutes provide in relevant part:

"A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense as defined in Section 102-15 of this Code, and may demand the name and address of the person and an explanation of his actions." Ill. Rev. Stat. 1973, ch. 38, par. 107-14.

"When a peace officer has stopped a person for temporary questioning pursuant to Section 107-14 of this Code and reasonably suspects that he or another is in danger of attack, he may search the person for weapons." Ill. Rev. Stat. 1973, ch. 38, par. 108-1.01.

• 1 It is clear that a police officer's conduct in a stop and search situation must be governed by the standard of reasonableness. In determining the reasonableness of the stop and subsequent search of defendant in the instant case, our inquiry is directed to "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the ...


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