APPEAL from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Following a jury trial, the defendant, Eddie James Bishop, was convicted of murder and sentenced to a term of imprisonment of 25 to 50 years. The defendant appeals, contending that physical evidence seized during a search incident to his arrest should have been suppressed and that his sentence was excessive.
It is necessary to set forth the facts of defendant's arrest in some detail since those facts are important in determining whether the search incident to his arrest was proper. The Champaign Police Department received information on February 12, 1976, of defendant's location. An arrest warrant for the defendant had been on file since January 9, 1976, and an indictment had been returned against the defendant on January 27, 1976, charging him with murder. Acting upon that information, nine police officers of the Champaign Police Department assembled outside of defendant's grandfather's house on North Oak Street in Champaign at approximately 5:25 a.m. on February 13, 1976. A search warrant had not been issued for the premises on North Oak Street nor does it appear from the record that there was any attempt by the police to obtain one.
Captain Wilkinson of the Champaign Police Department knocked hard on the back door of the house and shouted for the defendant to come outside. The force of the knock caused the door to open and the officers observed the defendant standing in the archway of the door that divided the kitchen and the living room. The defendant walked toward the officers into the kitchen and was informed that they were police officers and that they had a warrant for his arrest for murder. He was instructed to keep his hands up and he did so. The defendant was searched by the officers, given his shoes, and told to sit down at the kitchen table.
As the defendant was putting on his shoes, Captain Wilkinson stated that he had found something. The item discovered was a .38-caliber revolver which had been found underneath the cushion of a chair in the living room. The chair was a distance of 10 to 12 feet from where the defendant was sitting and was to the left of the doorway between the kitchen and the living room. The chair in which the gun was found was not visible from where the defendant was sitting in the kitchen nor could Captain Wilkinson see the defendant when he found the gun.
At the moment the gun was discovered, two police officers were standing next to the defendant. The police officers had been informed that the defendant was believed to be armed, however the defendant made no movement after he was informed he was under arrest to put the police officers in apprehension of attack. Furthermore, at least two of the nine police officers had their weapons drawn.
The trial court, after hearing the testimony of the police officers and the defendant at the hearing on the motion to suppress, found that the revolver had been taken as an incident of a legal arrest and that it was taken from an area within the defendant's immediate control, both for evidence and for protection of the police officers making the arrest.
A jury trial was held and the gun seized when the defendant was arrested was admitted into evidence. Testimony from a criminalist with the Illinois Bureau of Investigation and a Champaign police officer showed that the bullet removed from the decedent's left thigh had been fired from the gun seized during the defendant's arrest.
Other witnesses at the trial included Michael Exum and Bruce Owens, the two other individuals involved in the murder. Both had pleaded guilty prior to the defendant's trial. Exum received the statutory minimum of 14 years and a maximum of 35 years. Owens was sentenced to a minimum of 14 years and a maximum of 20 years. At the conclusion of the defendant's trial, he was found guilty of murder and was subsequently sentenced to a period of imprisonment of 25 to 50 years.
The defendant argues that the trial court erred in denying the motion to suppress the gun seized during the search incident to his arrest since he maintains that the gun was not in the area "within his immediate control."
1 The basic guidelines for a search incident to arrest have been established by the case of Chimel v. California (1969), 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034, and those guidelines are as follows:
"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area `within his immediate control' construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." 395 U.S. 752, 762-63, 23 L.Ed.2d 685, 694, 89 S.Ct. 2034.
The supreme court did not set forth an exact definition or description of what area constitutes the area "within his immediate control." The court did, however, provide the following limitation on the scope of a search incident to an arrest:
"There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The `adherence to judicial processes' mandated by the ...