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People v. Smith





APPEAL from the Circuit Court of Cook County; the Hon. LAWRENCE I. GENESEN, Judge, presiding.


Dennis Smith, otherwise known as Randolph Darden, Jr. (defendant), was charged with theft of property valued at less than $150. (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(a), (e)(1).) After a bench trial, he was found guilty and sentenced to imprisonment for 6 months. He appeals.

In this court defendant contends that the State failed to prove him guilty beyond a reasonable doubt and that the court erred in denying defendant's motion to suppress certain physical evidence.

At the hearing on defendant's motion to suppress, he testified that he lives at 7625 South Honore, in Chicago. On May 17, 1976, he spent from 7:30 until 8:30 p.m. bowling at Marina City with his girlfriend, Pamela Brown. They then stopped for a bite to eat. He put the young lady into a taxicab and started home. At about 9:30, after walking down several streets, he was waiting for a southbound bus on the west side of LaSalle Street.

A police officer testified that, at approximately 10 o'clock that night, while on routine patrol with another officer, he responded to a call concerning a man wanted for breaking a window at 169 North Clark Street. Almost immediately after this call was received, the officer saw defendant on the east side of LaSalle Street peering through the window of a tavern at 215 North LaSalle Street. He asked defendant what he was doing at that location. Defendant responded that he was waiting for a bus to go home. The officers asked where he lived and he gave them the address of 4151 West Washington Street. In view of the fact that defendant was on the wrong side of the street for a southbound bus, the officers conducted a patdown search. A number of objects were found which will later be described.

At this point the court denied defendant's motion to suppress the evidence. On the State's case in chief, the same officer testified that shortly before 10 p.m. defendant was observed at 215 North LaSalle Street as above stated. After the conversation above detailed, the patdown search of defendant disclosed three or four watches. These watches were inventoried and received in evidence. On cross-examination, the officer added that defendant told him that he had been bowling at Marina City and was taking a bus home. The only bus stop on LaSalle Street in that vicinity is a northbound stop on the east side of the street. There are no bus stops on the north sides of either of the east-west streets bounding that block. The officer also testified that, after the watches had been discovered, defendant was placed under arrest and taken to 169 North Clark Street where the officer observed a broken window and the display therein in disarray.

The owner of the shop in question identified the watches as his property. When he closed the store at 8 p.m. that day, the window and display were intact. At about 11:15 p.m., he saw the glass window broken and watches, the same as those in court, were missing. The watches in question are brand names without serial number and without other identification. The watches are "well-known."

Defendant testified in his own behalf. He denied that he had taken the watches from the window. He and his friend left Marina City, as above shown, and went to eat at a restaurant on Clark and Lake Streets in Chicago. Defendant put his friend in a cab on Dearborn or Clark Street. Then he saw two men and a lady walking down the street. The lady then stood still. Defendant heard glass breaking and one of the men ran past him. The other man dropped the watches in the alley. Defendant saw this, "[a]cross the street from the restaurant I ate at." He saw the man drop the merchandise "in the middle of LaSalle in the street — in the alley. LaSalle and the street before you get to LaSalle."

The first issue on the motion to suppress is the legality of the patdown search of defendant. The pertinent Illinois statutes are a codification of the frequently cited decisions 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. See People v. Lee (1971), 48 Ill.2d 272, 278-79, 269 N.E.2d 488; People v. Sanford (1976), 34 Ill. App.3d 990, 993, 341 N.E.2d 453, appeal denied, 63 Ill.2d 554. The first of these statutes (Ill. Rev. Stat. 1975, ch. 38, par. 107-14) provides:

"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. Such detention and temporary questioning will be conducted in the vicinity of where the person was stopped."

In addition, section 108-1.01 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 108-1.01) provides:

"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. If the officer discovers a weapon, he may take it until the completion of the questioning, at which time he shall either return the weapon, if lawfully possessed, or arrest the person so questioned."

On the motion to suppress, the burden of proving that the search and seizure were unlawful is on the defendant. (Ill. Rev. Stat. 1975, ch. 38, par. 114-12(b), see People v. Wright (1969), 42 Ill.2d 457, 460, 248 N.E.2d 78.) In reviewing the ruling of the trial court on the motion, it is our duty to affirm the result reached unless the ruling of the trial court was "manifestly erroneous." People v. Williams (1974), 57 Ill.2d 239, 246, 311 N.E.2d 681, and cases there cited.

• 1, 2 In the case before us, in our opinion, the stop and frisk patdown search of defendant was justified. The police had legal right to stop defendant for a reasonable period of time. The legal test of the conduct of the police officer requires that he "`be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant * * *'" the stop of the citizen. Sanford ...

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