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People v. Perry

OPINION FILED SEPTEMBER 29, 1977.

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

v.

TOMMY L. PERRY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. EARL E. STRAYHORN, Judge, presiding.

MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal by the People of the State of Illinois (hereinafter "the People") of an order by the circuit court of Cook County granting a motion to suppress evidence and quash the arrest of Tommy L. Perry, Rudolph R. Martin and Sherly McKee (hereinafter "defendants"), who were indicted and on trial for the April 5, 1974, armed robbery of Ella Johnson, theft and unlawful possession of a motor vehicle. The cases were consolidated on appeal.

The issue presented for review is whether the trial court erroneously excluded the evidence discovered by the arresting officers.

On April 5, 1974, the defendants were arrested for armed robbery, theft and unlawful possession of a motor vehicle. The defendants were arraigned and pleaded not guilty to the charges. Prior to the trial, the defendants filed motions to quash the arrest and suppress all evidence obtained, alleging the arrest was without probable cause.

At the hearing on the motions, Sherly McKee testified that on April 5, 1974, she was riding in an automobile traveling south on Michigan Avenue with Perry and Martin, when their auto was stopped by a police car. The driver of the auto, Martin, got out to "see what was wrong." Shortly thereafter, Perry got out of the car. McKee was seated in the car for approximately three minutes when a police officer approached the auto and told her to get out of the car. One of the officers searched the car while she stood on the sidewalk. The other officer searched Perry and Martin. At this time, McKee was wearing a loose fitting, long sleeve, hip length suede coat. This coat was snapped all the way down from her neck to her hips. One of the police officers unsnapped her jacket and took a gun from her, which was tucked in her pants. About seven minutes had elapsed from the time the car was stopped until McKee's jacket was opened by the officer.

Rudolph Martin, the driver of the auto, next testified for the defense and, in general, corroborated Sherly McKee's testimony.

A stipulation was then entered into that if Martin and McKee were called on behalf of Perry, on the motion to quash the arrest and suppress evidence, their testimony would be identical to the testimony they gave on their own behalf. All the defendants then rested on their motion.

Officer James Leyden testified for the People that on April 5, 1974, he was parked in an unmarked squad car on Scott Street, west of Lake Shore Drive. He saw a 1965 dark blue Oldsmobile with three occupants driving at a high rate of speed and in a negligent manner. When the Oldsmobile passed the squad car, the officer and his partner pursued. Officer Leyden estimated the Oldsmobile was traveling at 40 miles per hour as it proceeded on Scott Street. They followed the Oldsmobile until it reached Michigan Avenue, when they used blinking lights and a hand stoplight to stop the auto. Two of the occupants of the auto got out as soon as the car stopped. The officers left their car and approached the other auto at this same time.

Officer Leyden also testified that approximately 15 minutes prior to stopping the Oldsmobile, he had received a radio message to watch for an armed robbery suspect in a dark blue, late model, General Motors car, possibly an Oldsmobile. The suspect was described as an 18-year-old male Negro, between five feet and five feet two inches tall, 100 pounds, wearing a black hat, black jacket and light colored slacks.

Officer Leyden further testified as soon as they stopped the Oldsmobile, two of the occupants got out and approached the squad car. The passenger, Perry, resembled the description Officer Leyden had received earlier of the armed robbery suspect. Officer Leyden ordered both men up against the car. He and his partner then frisked the men for weapons, and told McKee to get out of the car. She hesitated, and, as she got out of the car, the officer observed her right hand attempting to stuff a revolver into her waistband. Her coat was open at the time. When the officers saw the gun they grabbed her and took possession of the gun.

On cross-examination, Officer Leyden testified he issued no traffic citations to Perry, or Martin, and no description was given over the radio of a Negro woman or a five feet seven inch Negro man. The officer gained possession of the weapon from McKee within a minute of the stop of the car, and the gun was five or six inches long in total. Lastly, the officer admitted he could not see the clothing worn by the occupants of the Oldsmobile as it passed his squad car. Both sides rested on the motion.

The trial judge, after hearing the testimony of the witnesses, and having read the briefs in support of the motion, stated:

"The court does not believe the officers when they stated that that automobile was being driven by Martin at a high rate of speed and leaving the impression that an automobile chase ensued. None of the facts support such statement by the officers. Had there been an automobile chase I am certain that there would have been put on the radio another flash message coming from the officer's automobile requesting assistance in an attempt to curb an automobile which was attempting to elude the police officers in the proper exercise of their duties.

There has been no indication of any such flash message having been given by the officers in this case, which further strengthens the court's belief — rather, disbelief as to the officer's testimony that the automobile was being driven at a high rate of speed, violating statutes with reference ...


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