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People v. Montgomery





APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. MORAN, Judge, presiding.


Defendant, Charles Montgomery, was found guilty, after a bench trial, of the offense of the attempted theft of an automobile (Ill. Rev. Stat. 1973, ch. 38, par. 8-4(a)). The circuit court of Cook County sentenced him to two years probation. Defendant submits two primary issues on appeal: (1) that the trial court erred in denying his motion to suppress the arrest; (2) that the defendant was not proven guilty beyond a reasonable doubt, because the State failed to prove the necessary intent and failed to prove a specific overt act had been taken toward the commission of the offense.

At the trial, the complainant Douglas Bell, testified that: on October 12, 1975, at approximately 3:30 p.m., he was visiting at a hospital located at California and Ogden Avenue, in the City of Chicago; he parked his 1967 Lincoln, which he had driven to the hospital, at the corner of California Avenue; the car was in good condition when he locked it up; there was no damage to the ignition and there was a stereo tape player mounted under the dash; when he returned to his car between 5 and 6 p.m., he observed the defendant leaning over the steering wheel "as though he were tampering with something"; he yelled at the defendant and asked him "what was he doing in there"; the defendant looked up, grabbed the tape player, exited the vehicle, and began running across Douglas Park; he entered his vehicle and proceeded across California Avenue in an attempt to cut the defendant off in the parking area; he noticed at this time that the ignition ring, which was previously intact, was now missing and that the ignition was damaged, and that two tape cartridges were missing; when he arrived at the parking area, he noticed that plain clothes detectives "had him," the defendant.

On cross-examination, Mr. Bell testified that: the tape player was located approximately 12 inches from the ignition and that it could be removed without tools; he did not believe that the key ring, which was previously located around the ignition, could be removed without tools; approximately 5 to 10 minutes elapsed from the time he first observed the defendant inside his car until the time he was in the custody of the police officers; during this time period he lost sight of the defendant only once, for a "couple of minutes."

Officer McNichols of the Chicago Police Department testified that: at the time in question, he and his two partners, all of whom were in plain clothes, were on the way to the police station, when they observed the defendant running across Ogden Avenue with a tape player, "clutching it towards his chest"; he was approximately 50 to 100 feet away from the defendant, exited his vehicle, identified himself as a police officer and ordered the defendant to halt; the defendant merely turned and looked at him and continued to run, causing him to pursue the defendant on foot, with the two police partners following in their vehicle; after a two-minute chase, the defendant was apprehended by the officers; he, Officer McNichols personally stopped the defendant but at that time he did not have any knowledge that a crime had been committed; he asked the defendant why he didn't stop; the defendant failed to respond; he also asked the defendant whether he owned the tape player; he didn't recall whether or not the defendant answered; at that time, the victim, Mr. Bell, arrived at the scene; Bell, referring to the defendant exclaimed, "that man's got my tape player and he was in my car"; the defendant was placed under arrest, advised of his rights and searched; he recovered two tape cartridges from the defendant's person, as a result of the search, and the tape player which was in "plain view"; at no time during the course of the chase or arrest did he draw his service weapon; upon searching the victim's automobile, he discovered that the ignition was damaged and that the retaining ring which must be taken off in order to "pop" the ignition, was missing; Mr. Bell stated that this damage did not exist prior to his going into the hospital.

At the close of the State's case, the defendant moved to quash his arrest and suppress the evidence seized pursuant to this arrest. Following argument on the motion, it was denied.

The defendant, Charles Montgomery, testified that: he and his friend were walking on Cermak Avenue when his friend noticed a tape player that was inside a 1967 Lincoln; his friend wanted to take the tape player but the defendant told him "I don't want anything to do with it" and went across the street to the park; his friend entered the vehicle, and pulled out the tape deck and cartridges which were on the dash; his friend then walked across the street, gave the defendant the tape player and apparently seeing Mr. Bell, told him to run; he and his friend ran in opposite directions; he never saw a police car on the corner of Ogden Avenue nor did he hear "any police officers holler anything"; he did not see his friend use any tools nor did he himself have tools on his person, on that date; he did not notice the ignition ring on Mr. Bell's automobile and he never attempted to remove the ring from the vehicle.

On cross-examination, the defendant testified that he only took the tape player from his friend to look at it, and that this tape player was unusual in that it had a handle.

Defendant first contends on appeal that the trial court erred in denying his motion to suppress the arrest. Specifically, the defendant contends that there was no specific and articulable facts to justify the officer's original detention of defendant, as mandated by the court in Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868. The court there emphasized that the stop itself must be justified by "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Terry v. Ohio, 392 U.S. 1, 21, 20 L.Ed.2d 889, 906, 88 S.Ct. 1868.) The objective determination to be made is whether * * * "the facts available to the officer at the moment of seizure * * * `warrant a man of reasonable caution in the belief' that the action taken was appropriate." Terry v. Ohio, 392 U.S. 1, 21-22, 20 L.Ed.2d 889, 906, 88 S.Ct. 1868.

In our State the rule in Terry has been codified in section 107-14 of the Code of Criminal Procedures (Ill. Rev. Stat. 1975, ch. 38, par. 107-14), which 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."

Specifically, defendant contends that the police officer's observation of him running across the street "clutching" a portable radio was insufficient to show that he "[was] committing, [was] about to commit or [had] committed a crime." Ill. Rev. Stat. 1975, ch. 38, par. 107-14.

The State contends that the defendant's running across the street in a high crime area with a tape player clutched to his chest coupled with the fact that he refused to stop upon the officer's request, was sufficient to give rise to an inference that a crime had been or was being committed. The State further contends that these facts and circumstances satisfied the above standard justifying the officer's temporary detention of the defendant for questioning.

The State's position is in accord with recent Illinois decisions and past precedent. In People v. Lee (1971), 48 Ill.2d 272, 269 N.E.2d 488, the Illinois Supreme Court held that the statutory provision (Ill. Rev. Stat. 1975, ch. 38, par. 107-14) was intended to codify the holdings of Terry v. Ohio, 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, ...

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