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People v. Mitchell

OPINION FILED FEBRUARY 13, 1979.

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

v.

RICHARD LEE MITCHELL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN E. SYPE, Judge, presiding.

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

The defendant, Richard Lee Mitchell, was charged with unlawful use of a weapon within 5 years of his release from the penitentiary following a conviction for a felony. (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(b).) After a jury trial the defendant was found guilty and was sentenced to a term of 3 years 4 months to 10 years.

Defendant filed a motion to suppress and at that hearing evidence was offered that on the evening of November 3, 1975, Officer Francis and Officer Lord of the City of Rockford questioned one Gerald Bilodeau on the Jefferson Street bridge in Rockford. Bilodeau was not under arrest at the time of questioning and there was no evidence that he was a professional informer or police agent of any kind. Bilodeau advised the police officers that the defendant was in Jammer's Tap and that he had a gun in his right jacket pocket. Officer Francis knew the defendant was on parole. Bilodeau did not testify at the pretrial hearing or at trial. The defendant's motion to suppress was denied.

At the trial the two officers testified that they went to the Tap in question, found the defendant in the washroom at the urinal and, as he turned around, the officers grabbed him, finding the gun in his right jacket pocket with a "* * * live round in the chamber, the gun was off safety ready to fire." He was immediately arrested and charged with a misdemeanor under the provisions of section 24-1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(1)). Subsequently, on February 2, 1967, he was charged by information with the Class 3 felony under which he was eventually convicted. Defendant appeals, raising five issues which we will discuss in order.

I

• 1, 2 The first issue presented by the defendant is whether the information received from Bilodeau was sufficient to establish probable cause for the arrest of the defendant. Plaintiff argues that because Bilodeau had a prior felony conviction he should be viewed as an "informer" rather than as an ordinary citizen informer and that his reliability as an informer had to be, and was not, established. A similar situation was presented in People v. Carter (1969), 116 Ill. App.2d 62, 65, 253 N.E.2d 490, 491, where information as to an ex-convict carrying a gun was supplied by two prostitutes in custody. Defendant there contended that his motion to suppress should have been granted as the prostitutes were informers who were not shown to be reliable. The court rejected his argument, stating:

"It is not necessary that all information which is given to law enforcement officials be supplied by professional informers. Reliable information may come from any citizen."

Similarly, in People v. Roberta (1933), 352 Ill. 189, 185 N.E. 253, information that the defendant was carrying a gun was given to the police by two prostitutes who were in custody. Defendant was arrested and convicted for carrying a concealed weapon. The court found that the information given by the two girls under arrest supplied the officers with a reasonable belief that the defendant had committed a crime. The court went on to state:

"No general rule applicable to every case has been or probably can be announced as to what facts will constitute justification, in law, for an arrest by an officer without a warrant, other than that such ground of suspicion or belief exists as should influence the conduct of a prudent and cautious man under the circumstances. Each case must be considered upon its own facts." 352 Ill. 189, 193-94, 185 N.E. 253, 254.)

An informative and well-balanced resume of the role of citizen informers in various States is found in People v. Martin (1977), 46 Ill. App.3d 943, 361 N.E.2d 595. Martin shows, and we agree, that the fact that a citizen informer may have had a prior felony conviction does not, of itself, make him unreliable. We find that Bilodeau was not a professional informer but was a citizen informant, and the requirements necessary to establish credibility of a professional informant do not apply. In our opinion the information supplied by Bilodeau was sufficient where the citizen informer was identified and he was an eyewitness to the crime of carrying the concealed weapon. In view of these circumstances we find that the arrest of the armed defendant, whom the officers knew was on parole, was based on probable cause.

II

We turn to the defendant's contention that incarceration for 101 days prior to finding of probable cause at the preliminary hearing violated defendant's fourth amendment rights. Defendant was arrested November 3, 1975, and charged with a misdemeanor the following day. He was before the court three times in December, and on December 29 the cause was set for jury trial on the February jury call. On February 3, 1976, a new information was filed, charging defendant with unlawful use of weapons under section 24-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(b)), a felony. Nine days later a preliminary hearing was had on the felony charge. Defendant concedes that under present Illinois law there is no requirement of a preliminary hearing in misdemeanor cases. Defendant urges that we take the "bull by the horns" and, as a sanction, reverse defendant's conviction. It is presumed that counsel's argument is that we should adopt a rule to provide for a prompt preliminary hearing in misdemeanor cases.

• 3 In People v. Howell (1975), 60 Ill.2d 117, 324 N.E.2d 403, the supreme court was presented with a situation where the defendant was arrested, charged with a felony (armed robbery), and held in jail for 65 days until he was indicted without a preliminary hearing having been held. He was then convicted in a jury trial. The supreme court discussed in detail the provisions of section 7 of article I of the 1970 Illinois Constitution and, while observing that it was deeply concerned about delays in giving a prompt preliminary hearing and the number of cases in which an accused, charged with a felony, was not given a prompt probable-cause determination, nonetheless affirmed the conviction of the defendant. The court further said the time had come to fashion certain sanctions, but refused to do so, stating that:

"We consider this a subject for appropriate legislative action and we strongly urge the General Assembly to consider the prompt implementation of this constitutional ...


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