APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
SULSKI, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Following a trial without a jury in the circuit court of Cook County, the defendant, Clarence Roberts, Jr., was found guilty of the attempt (murder), aggravated battery and armed robbery of Michael O'Sullivan. He was sentenced to 20 years' imprisonment. The defendant contends on appeal that the trial court erred in denying his motion to quash his arrest and to suppress evidence of a gun as well as all evidence which flowed from the seizure of the gun. The gun was seized during the investigation of a burglary unrelated to the offenses charged.
At a hearing on the motion, Chicago police officer Michael Cronin testified that on April 9, 1977, he spoke with Rosetta Dawson regarding a burglary which occurred at approximately 9:30 that evening. Dawson reported that her nephew and four other men burglarized her apartment, taking money, several items of men's clothing and a gun. She gave a full description of her nephew but described the others only as black men in their "low twenties." Dawson also indicated that the men "hung around" the Westlane Hotel located a few blocks away from her apartment.
At approximately 4 a.m. on April 10, 1977, Cronin was engaged in a narcotics investigation in front of the Westlane Hotel. His partner was not present at the time, and Cronin was not in uniform. His handcuffs were in the car. Cronin was talking with a man named Earl Williams when he saw the defendant and another man walking toward the hotel entrance. The defendant was carrying a three-piece suit, a long-sleeved dress shirt and a coat on a hanger draped over his shoulder. His companion was carrying a plastic shopping bag. Both men were black and appeared to be between 20 and 30 years old.
Cronin identified himself as a police officer, drew his gun and ordered the two men to halt. He then conducted a pat-down search and found a gun in the defendant's pocket. He placed the men under arrest and told them that there had been a burglary earlier and that he believed they could be the offenders.
The defendant testified that he and a companion were walking to the defendant's residence in the Westlane Hotel when they were stopped by a plainclothes police officer. The defendant was carrying men's clothing "out in the open" on a hanger. The officer identified himself as a policeman, drew his gun and ordered the men to halt. They stopped immediately and did not attempt to flee or change direction. The defendant had both hands visible. With his gun drawn, the officer searched their pockets and retrieved a gun from the defendant's pocket. He then informed the defendant that he was under arrest.
The gun seized from the defendant was tested at the crime laboratory. It was matched with a bullet that had been removed from the body of Michael O'Sullivan. O'Sullivan had been shot during a robbery at his carwash on April 7, 1977. As a result of the laboratory test, O'Sullivan was shown a photograph of the defendant. He identified the defendant as his assailant.
Prior to trial, the defendant made a motion to quash his arrest and to suppress the evidence obtained as a result of the warrantless arrest and search. The motion was denied. A stipulated bench trial followed, during which it was stipulated that the evidence would establish the gun taken from the defendant was the same gun used in the robbery. It was further stipulated that prior to performing the test on the defendant's gun, the police had no evidence connecting the defendant to the robbery. Michael O'Sullivan and Alan Spraggniss, an employee of the carwash, testified at trial. They both identified the defendant as the man who committed the robbery and shot O'Sullivan.
The defendant characterizes the action taken by Officer Cronin as a warrantless arrest without probable cause. The State contends that it was a reasonable investigatory stop pursuant to the Illinois "stop and frisk" statutes. (Ill. Rev. Stat. 1979, ch. 38, pars. 107-14, 108-1.01.) These statutes provide as follows:
"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 * * * 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." (Ill. Rev. Stat. 1979, ch. 38, par. 107-14.)
"When a police officer has stopped a person for temporary questioning pursuant to Section 107-14 of this Code and reasonably suspects that he or another is in danger of attack, he may search the person for weapons." (Ill. Rev. Stat. 1979, ch. 38, par. 108-1.01.)
Because the police may make an investigatory stop on less information than is necessary to constitute probable cause to arrest, it is important to properly categorize Officer Cronin's action in the case at bar.
The defendant first contends that Cronin's conduct amounted to a full arrest rather than an investigatory stop because by drawing his gun, the officer "brought the defendant immediately and completely within his control through continuous and actual restraint on liberty of movement." The defendant cites no authority for the proposition that a stop made by a police officer with his gun drawn automatically constitutes an arrest.
• 1 A stop, like an arrest, is considered a seizure for purposes of fourth amendment applicability. (Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868.) Under the Illinois "stop and frisk" statutes an officer is allowed to briefly detain a person for the purpose of investigating possible criminal activity. During the period of the investigation, the person's freedom of movement is restricted. He is no more free to leave than if he were placed under a full arrest. The difference between an arrest and a stop lies not in the initial restraint on movement, but rather in the length of time the person may be detained and the scope of investigation which may follow the initial encounter. For example, when an officer makes an arrest, he may take the arrestee into custody, conduct a full search of his person and the area within his immediate control, and transport him to the police station. When he makes a stop, he may detain the person only for a reasonable period of time and may conduct a limited search for ...