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People v. Curry

OPINION FILED SEPTEMBER 21, 1981.

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

v.

DENISE CURRY, A/K/A DENISE JACKSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT L. MASSEY, Judge, presiding. MR. PRESIDING JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

After a bench trial, defendant Denise Curry was convicted of possession of 30 grams or more of a controlled substance, to wit: heroin (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(a)(1)) and sentenced to four years. The sole issue on appeal is whether the trial court erred in denying defendant's motion to quash her arrest and to suppress evidence seized from her purse after her arrest.

For the reasons stated herein we affirm.

The record reveals that on November 23, 1977, a warrant was issued to search for heroin and narcotic paraphernalia in room 308 of the 50th on the Lake Travel Lodge (hereinafter travel lodge) and on the person of a Denise Curry, also known as Debbie, described as a black female, 5'1", 105 pounds, medium brown complexion between the ages of 25 and 30 years old. The complaint for the search warrant signed by Officer Bernard O'Reilly indicated that the request for the warrant was based on information supplied by a police informant who had provided O'Reilly with information 13 times during the past 2 1/2 years, which resulted in seven pleas of guilty. Narcotics were recovered in each of the 13 instances. The informant stated that he purchased a brown substance that he later determined to be heroin for $20 at room 308 of the travel lodge on the evening of November 23, 1977, from a female that the informant knew as Denise Curry. He noted that two males and one other female also were present in room 308 at the time of his purchase.

The only State witness at the hearing to quash the arrest and suppress evidence was Officer Edward A. Wielosinski, who worked in his off duty hours as a security guard at the travel lodge. He testified that at 10:30 p.m. on November 26, 1977, he met Officer O'Reilly who came to the travel lodge to execute a search warrant which named room 308 and Denise Curry as the subjects of the search. Wielosinski accompanied O'Reilly and other police officers to room 308. Because no one was in the room at this time, Wielosinski used a pass key to gain entrance and remained in the room during the search. During the search which lasted about 30 minutes, the police discovered a .357 magnum revolver. While still in the room, O'Reilly called to determine whether the gun was registered or stolen. While it was not reported stolen, it also was not registered. After the search was completed, the officers removed the gun from the room. No heroin, heroin paraphernalia, or other contraband was discovered. After leaving room 308, the police waited at the premises for Denise Curry until 2 a.m. at which time they left. At this time, Wielosinski was told to call the district station when Denise Curry returned. Wielosinski had the desk clerk plug the door lock of room 308 for nonpayment of rent so that the door could only be opened with a pass key.

Wielosinski further testified that at 3:45 a.m. a woman came to the desk and paid the rent for room 308. She was a pregnant black woman, between 5'7" and 5'9" and weighing in excess of 130 pounds. The desk clerk summoned Wielosinski and informed him that the rent on room 308 had been paid. The record is unclear as to whether the clerk informed him that Miss Curry or Denise Curry had paid the rent. Wielosinski accompanied the woman to room 308 to open the door. He then returned to the lobby and called the district station to report that the person named in a search warrant was now at the travel lodge. Shortly thereafter, the occupant of room 308 telephoned the desk clerk to report that a revolver had been taken from the room. Wielosinski spoke to the defendant and told her that he would come to her room. By this time, the police had arrived pursuant to his call and they accompanied him to defendant's room. Different officers responded to this call than those who earlier had executed the warrant. Defendant began to tell the officers about the gun but was interrupted by Wielosinski who informed her that he was a police officer and that the gun which she had called about was at the 21st Police District. Wielosinski then arrested her for failure to register a firearm within 10 days of its purchase (Chicago Municipal Code 1976, § 11.1-7) and failure to have a City of Chicago firearms registration permit (Chicago Municipal Code 1976, § 11.1-8). Upon being arrested, defendant lunged for her purse and, after a brief struggle, Wielosinski gained control of the purse. Upon searching the purse, he discovered a quantity of heroin in excess of 30 grams.

The record further reveals that defendant was charged with possession of a controlled substance (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(a)(1)) and failure to register a firearm with the City of Chicago (Chicago Municipal Code 1976, § 11.1-7). Following the denial of her motion to quash the arrest and suppress the evidence, defendant pled guilty to possession of less than 30 grams of a controlled substance (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(b)), a lesser offense. However, upon retaining new counsel, she withdrew this plea and the charge for possession of greater than 30 grams of a controlled substance was reinstated. A bench trial was held at which time defendant stipulated to her possession of a substance analyzed as heroin. She was sentenced to a statutory minimum of four years. This appeal follows.

Defendant contends that the trial court erred in denying her motion to quash her arrest and to suppress the evidence seized during the subsequent search. Defendant argues that the heroin seized from her purse during the search following her warrantless arrest for possession of an unregistered firearm should be suppressed because her arrest was without probable cause and was, therefore, unreasonable. See People v. Roebuck (1962), 25 Ill.2d 108, 183 N.E.2d 166; People v. Harshbarger (1974), 24 Ill. App.3d 335, 321 N.E.2d 138.

Defendant urges that her warrantless arrest for possession of an unregistered firearm was unlawful because Officer Wielosinski lacked "reasonable grounds to believe that [defendant] is committing or has committed an offense." (Ill. Rev. Stat. 1975, ch. 38, par. 107-2(c).) In order for a police officer to make a valid warrantless arrest, there must be, first, probable cause to believe that an offense was committed and, second, probable cause to believe that the person arrested committed the offense. (People v. Robinson (1976), 62 Ill.2d 273, 276, 342 N.E.2d 356, 358; People v. McKnight (1977), 55 Ill. App.3d 1052, 1055, 371 N.E.2d 946, 948.) Defendant contends that neither of these two elements was present.

Addressing the first of these two elements, defendant argues that if Officer Wielosinski had sought an arrest warrant for defendant based upon the information which he possessed at the time of her arrest concerning defendant, the premises and the firearm, a magistrate would not have found probable cause that an offense was committed. Defendant places her reliance on the fact that Officer Wielosinski did not have any information concerning when the firearm was purchased, who had a possessory interest in the weapon, who had acquired the weapon, and whether a registration application had been filed with the city. Absent this information, defendant urges that Officer Wielosinski had a mere suspicion that a violation of sections 11.1-7 and 11.1-8 of the Chicago Municipal Code had occurred.

The State contends that the test for probable cause does not require the arresting officer to have the detailed knowledge concerning the firearm as defendant urges. The State argues that a prima facie case that the ordinance has been violated is established by showing that the firearm was not registered. (City of Chicago v. Dowdell (1970), 126 Ill. App.2d 58, 65, 261 N.E.2d 499, 502.) The State urges that the information possessed by Officer Wielosinski was sufficient to establish a prima facie case and, therefore, was sufficient to give him probable cause that a violation of the ordinance had been committed.

• 1 We agree with the State. In Dowdell, this court examined the ordinance at issue in the present case and concluded that evidence which is sufficient to show that a firearm is not registered is sufficient to establish a prima facie case that the ordinance was violated. (126 Ill. App.2d 58, 65, 261 N.E.2d 499, 502.) Based upon the testimony adduced at the hearing on defendant's motion to suppress, we believe that the evidence was sufficient to establish a prima facie case and, therefore, there was probable cause to believe that a violation of the ordinance had occurred. Spinelli v. United States (1969), 393 U.S. 410, 419, 21 L.Ed.2d 637, 645, 89 S.Ct. 584, 590; People v. Robinson (1976), 62 Ill.2d 273, 276, 342 N.E.2d at 358; People v. McKnight (1977), 55 Ill. App.3d 1052, 1055, 372 N.E.2d 946, 948.

Defendant next argues that there was no probable cause to believe that defendant committed the offense of possession of an unregistered firearm. Defendant contends that her arrest was unlawful because the height, weight and pregnancy of defendant did not comport with the description of the "Denise Curry" named in the search warrant. In support of her position, defendant relies upon People v. Staes (1968), 92 Ill. App.2d 156, 235 N.E.2d 882, for the proposition that the description of the person to be searched pursuant to a search warrant must be sufficiently particular so that there is no doubt and no discretion left to the executing officer. Defendant further argues that particularized identification is necessary to avoid any unreasonable or unauthorized invasion of another's privacy and to insure that a warrant does not become an illegal general warrant. (92 Ill. App.2d 156, 159-60, 235 N.E.2d 882, 884-85.) As additional support for her position, defendant cites Ybarra v. Illinois (1979), 444 U.S. 85, 62 L.Ed. 238, 100 S.Ct. 338; People v. Creach (1980), 79 Ill.2d 96, 402 N.E.2d 228, cert. denied (1980), 449 U.S. 1010, 66 L.Ed.2d 467, 101 S.Ct. 564; People v. Gabbard (1979), 78 Ill.2d 88, 398 N.E.2d 574; and United States v. Jones (5th Cir. 1980), 619 F.2d 494.

Defendant also claims that the State failed to establish her connection with the firearm removed from the room at the travel lodge. She asserts that she never acknowledged possession or ownership of the gun; that she was never seen in the room with the weapon; and that there was no evidence which established that the room was registered to her. Defendant claims that her reporting of the weapon's disappearance to the desk is no different than a house guest reporting the disappearance of an appliance to the owner. Defendant argues that the State has shown, at most, that she had mere knowledge of the gun's existence. Defendant urges that her mere presence in the travel lodge room was not sufficient to permit the court to infer that she owned or possessed a firearm. See Ybarra v. Illinois; United States v. Romano (1965), 382 U.S. 136, 15 L.Ed.2d 210, 86 S.Ct. 279.

The State disputes the importance that defendant places upon the description of "Denise Curry" in the search warrant. Rather, the State contends that there were sufficient similarities in the description and location of defendant to sustain the trial court's finding that there was probable cause to arrest defendant for possession of an unregistered firearm. The State urges that the action of Officer Wielosinski in arresting defendant must be examined in light of the existing facts and circumstances. The State argues that the trial court found that it was reasonable for Wielosinski to assume that defendant was the person named in the warrant and, therefore, probable cause existed to arrest her. The State contends that the finding of probable cause ...


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