APPEAL from the Circuit Court of Tazewell County; the Hon.
JAMES D. HEIPLE, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Following the entry of judgment of conviction against the defendant, Robert S. Deppert, on two counts of the unlawful use of weapons, he was sentenced to a determinate term of imprisonment of five years on one of those counts. In the appeal from his conviction, the defendant raises the issue of whether the trial court erred by denying the defendant's motion to suppress. It is the defendant's contention that the contested evidence was the tainted fruit of a police officer's unlawful stop.
At the hearing on the motion to suppress, the defendant testified that on the evening of September 25 and 26, 1978, the defendant was at the Country Bumpkin until 2 a.m. This establishment was located in Creve Coeur at the bottom of a hill. After leaving the Country Bumpkin, the defendant drove home. Following an argument with his wife, the defendant left at 3 a.m. to return to the Country Bumpkin, which was open until 4 a.m.
The entrance to the Country Bumpkin was on Wesley Road which, in turn, intersected with Route 29. After turning onto Wesley Road, the defendant observed that the Country Bumpkin was closed. He then drove down Wesley Road and over some railroad tracks, turned around in a parking lot, and started back up Wesley Road to get back on to Route 29.
When the defendant was headed back toward Wesley Road, a police officer stopped him. The officer asked defendant if he was having trouble, and the defendant responded that he was not. The officer did not indicate defendant was under arrest or suspected of violating any traffic laws.
The officer had the defendant get out of the car. No consent was given to search or look into defendant's car, but while defendant's hands were positioned on the trunk lid, the officer went into defendant's automobile.
On cross-examination, the defendant indicated that when the officer stopped the defendant their cars were door to door. After the defendant gave the policeman his driver's license, the officer ordered the defendant to place his hands on the dash. The defendant's hands were on the dash before he got out of his car, and the defendant did not reach toward the bottom of his seat or the floorboard.
The State called Randy L. Ragon, a police officer from the Village of Creve Coeur. He had been a police officer for three years, and he testified that on September 26, 1978, at approximately 4:45 a.m., he was on duty, alone, in uniform and in a marked squad car. Ragon was located at the intersection of Wesley Road and Route 29 in the "Pimco" lot. He had been on duty close to six hours and might have made one traffic stop. Ragon was sitting in the lot, out of sight, watching for people who might run the stop sign at the intersection.
At the time, Ragon observed the defendant's vehicle traveling north on Route 29. It was traveling at 10 to 15 miles per hour. The defendant turned left at the intersection onto Wesley Road. This was a 90-degree turn over two oncoming lanes of traffic. The officer added it would be reasonable to drive slow in making such a turn.
The defendant's car slowed down on Wesley Road and was moving at only about five to 10 miles per hour even though the speed limit was 35 miles per hour. The Country Bumpkin was on the same side of Wesley Road that defendant had turned onto. At that time the Country Bumpkin was closed.
Ragon saw the defendant's car go down the road, one-half mile or three-quarters of a mile until it went out of sight. Ragon observed the car for what seemed to be a minute, while it travelled approximately a little more than one-half to three-fourths of a mile, before he decided to follow it.
Ragon lost sight of the car as it went over a hill. Before the hill, there was a short row of old houses, and beyond the hill the neighborhood became a business district, with industries and warehouses. All the businesses were closed, with the exception of the railroad which had a skeleton crew. Officer Ragon further testified that, in the past two weeks, there had been two burglaries in that neighborhood.
Wesley Road was described as about a three-quarters of a block straight stretch from Route 29, then having a 90-degree turn to the left. Then there was a straight-away and a small dip over to the hill. The drop after the hill was straight, and the road was asphalt until after the railroad. It then became gravel.
As the defendant went over the hill and out of sight, Ragon left the lot and followed the defendant to see if the defendant had any problems. As Ragon "topped the hill" he saw the defendant's car on a railroad lot, a very long stretch from the business part of the railroad yard. Ragon observed the defendant's car turn around about mid-way in the lot, approximately one-half block onto the property.
According to Ragon, the railroad yard was private property. It was posted with "No Trespassing" signs in more than one place. He did not know whether the defendant turned around because the defendant had seen his squad car when he topped the hill or whether the defendant turned around on his own. After the defendant turned his vehicle around, he drove out of ...