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People v. Gray

OPINION FILED MAY 5, 1981.

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

v.

KEVIN GRAY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. ROBERT E. MANNING, Judge, presiding.

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

This appeal was brought by the defendant, Kevin Gray, from a conviction for unlawful possession of a controlled substance. Three issues are presented for review: (1) whether there was sufficient probable cause for defendant's arrest; (2) whether defendant was denied effective assistance of counsel; (3) that in the event the defendant's conviction is affirmed, whether defendant's fine must be reduced so as to reflect a $5-a-day credit for pretrial jail time.

With respect to defendant's first issue raised on appeal, defendant contends that probable cause did not exist for his arrest and if the arrest was unlawful, the cocaine found on his person should have been suppressed.

The facts which led to the defendant's arrest are as follows: Officer Whitledge, the arresting officer, testified that on February 15, 1979, he received a radio message to go to the 3000 block of Trewyn Street, Peoria, Illinois, to investigate an accident. When he arrived there he was met by a Mr. Mayberry, who told Officer Whitledge that his neighbor (the defendant) had backed into his car about 20 minutes before the officer arrived. Mr. Mayberry informed Officer Whitledge that he did not see the accident, but had been told by a Mr. Evans, a visitor in the home of another neighbor, what had occurred. Officer Whitledge then asked Mr. Mayberry to go to the neighbor's door and ask the neighbor to step outside to fill out the required accident report.

After the conversation with Mr. Mayberry, Officer Whitledge walked over to the defendant's truck and looked inside. He observed two open beer bottles in plain view. When he smelled the bottles, they smelled like beer. Officer Whitledge also checked the license plate of the truck and it was registered to the defendant.

Mrs. Gray then came outside in response to Mr. Mayberry's summons. Officer Whitledge told her that he had reason to believe that her husband's truck had backed ino a neighbor's car. Mrs. Gray said words to the effect, "He probably did, we are not disputing that fact." She also told the officer that her husband had arrived home approximately 20 minutes before the officer had arrived. Mrs. Gray went into her residence a total of three times to obtain information necessary for the officer to complete the traffic report. Mrs. Gray furnished Officer Whitledge with her husband's driving permit. Officer Whitledge noted that her husband, the defendant, was only allowed to drive during certain hours and that the permit was not in effect at the time of the accident. When the defendant finally came outside and spoke to Officer Whitledge in a slurred voice, Officer Whitledge arrested him for driving without a valid license and for illegal transportation of open liquor. Officer Whitledge patted him down for a weapon, handcuffed him, and placed him in the rear of Whitledge's squad car.

Mrs. Gray, the defendant's wife, testified in his behalf at the hearing on the motion to suppress evidence. She stated that she told Officer Whitledge that she was not driving the truck. When Officer Whitledge asked her if her husband had hit the neighbor's car, she showed Officer Whitledge the tire tracks and ice where the truck had been stuck. She also told the officer that they might have hit the truck, but she did not know since she had been inside and did not see the accident. Mrs. Gray admitted on cross-examination that she told Officer Whitledge that her husband had arrived home in the truck approximately 20 minutes before Officer Whitledge arrived. She also agreed that she gave Officer Whitledge her husband's driving permit which showed the hours during which he was allowed to drive.

• 1 We believe upon review of the totality of the circumstances that Officer Whitledge had probable cause to arrest the defendant for driving with a revoked license. Mr. Mayberry told Officer Whitledge that the neighbor backed into his car about 20 minutes earlier. Although he did not state the defendant's name, Mr. Mayberry went to the defendant's door when the officer asked him to contact the neighbor. The truck which struck the neighbor's car was parked in the defendant's driveway and was registered to the defendant. The defendant's wife told Officer Whitledge that she was not driving the truck and that her husband arrived home in the truck 20 minutes earlier. She also showed Officer Whitledge her husband's permit to drive, and the officer ascertained that it was not valid at the time of the incident. Based on the information that he received from Mr. Mayberry, the information that he received from the defendant's wife, and the information he received regarding the truck's registration to the defendant, Officer Whitledge properly arrested the defendant for driving with a revoked driver's license.

Officer Whitledge also had probable cause to arrest the defendant for illegal transportation of open liquor. People v. Zeller (1977), 51 Ill. App.3d 935, 367 N.E.2d 488, is analogous to the instant case. In Zeller, the police officer observed a can of beer and a puddle in the front part of a car. The officer did not detect the odor of alcohol. No alcohol was found in the back seat of the car. The defendant, who was a passenger in the rear seat of the car, was arrested for illegal transportation of open liquor. On appeal, he contended that his arrest was improper because the liquor was in the front of the car and the evidence was insufficient to support his conviction. This court pointed out that the offense of transporting open liquor applies to passengers as well as drivers. This court held that there was probable cause to arrest the rear passenger defendant since "the test of probable cause for arrest is not whether the officer reasonably believes there is a likelihood of ultimate conviction." People v. Zeller (1977), 51 Ill. App.3d 935, 938, 367 N.E.2d 488, 491.

Similarly, in the case at bar, the test for probable cause is not whether the defendant would have been convicted. The officer testified that he observed two open beer bottles that smelled of alcohol. Although the officer did not testify that liquid remained in the bottles, he was not asked if it did. Since the only issue is probable cause and not ultimate conviction, this testimony was clearly sufficient to support a finding of probable cause at the hearing on the motion to suppress evidence.

The trial court properly denied the defendant's motion to suppress evidence based on the testimony presented at the suppression hearing.

It is an accepted rule of law that a trial court's findings of fact, in connection with a motion to suppress evidence, should not be disturbed on appeal unless they are manifestly erroneous. The test to determine whether probable cause exists is if the known facts would justify a reasonable, prudent person in believing that a crime was committed and that the person to be arrested committed the offense. (People v. Ruffolo (1978), 64 Ill. App.3d 151, 380 N.E.2d 1204; People v. Thornton (1977), 47 Ill. App.3d 604, 365 N.E.2d 6.) In deciding whether probable cause existed based on those facts the courts> are not disposed to be unduly technical, and their determination is made based on the factual and practical considerations of everyday life on which reasonable men, not legal technicians act. People v. Clay (1973), 55 Ill.2d 501, 304 N.E.2d 280; People v. Coleman (1977), 50 Ill. App.3d 1053, 364 N.E.2d 742; People v. Coleman (1978), 63 Ill. App.3d 814, 380 N.E.2d 829.

• 2 With respect to defendant's second issue raised on appeal, i.e., that he was denied effective assistance of counsel due to the fact that his privately retained attorney failed to include in his motion to suppress the issue whether the police had the authority to open a packet of narcotics taken from the defendant's pocket, we note the following factual backdrop.

Officer Bonacum was detailed to watch the defendant while Officer Whitledge completed the accident report. Officer Bonacum testified that she observed the defendant in the back of the squad car. The defendant's hands were handcuffed behind him. She observed him straighten out his legs so that he was almost in a standing position and reach toward his rear pocket. Officer Bonacum informed Officer Whitledge of ...


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