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People v. Kincy

OPINION FILED MAY 10, 1982.

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

v.

MICHAEL KINCY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. CARL F.J. HENNINGER, Judge, presiding.

JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

The defendant, Michael Kincy, appeals from a jury verdict which found him guilty of attempt (murder), aggravated battery and armed violence, and from the resultant sentence of 45 years imprisonment.

On October 21, 1979, Filberto Sanchez was involved in a minor traffic accident with a vehicle driven by Louis Owens. The defendant, Kincy, was a passenger in the Owens' vehicle. Owens, Kincy, Sanchez and two other passengers in the Owens' vehicle, Linda Shelton and Burt Owens, decided to have a few drinks together. Eventually, the group arrived at Mickey's Lounge in Cicero, Illinois. As they were leaving the lounge, Sanchez was robbed at gunpoint. At trial, Sanchez identified the defendant as one of his assailants.

After the robbery, the assailants forced Sanchez into his own automobile and took him for a 40-minute ride into Du Page County. During the ride, Kincy held a gun on Sanchez. After the group arrived at a field in Du Page County, Sanchez was ordered to take off his clothes. While he was doing so, he was hit over the head with the butt of a pistol and rendered unconscious. Sanchez was then repeatedly stabbed and slashed in the abdominal area. Later, in the early hours of the next morning, Sanchez regained consciousness. He was alone, naked, severely injured and without his automobile.

On that same day, October 22, 1979, Kincy and Linda Shelton were arrested as a result of an unrelated incident. During a search of Kincy conducted after his arrest, police officers found a wallet and identification belonging to Sanchez on Kincy's person.

As a result of the Du Page County attack on Sanchez, Kincy was charged with attempt to commit murder (Ill. Rev. Stat. 1979, ch. 38, par. 8-4), two counts of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, pars. 12-4(a) and 12-4(b)(1)), and two counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2).

Kincy filed a pretrial motion to suppress evidence obtained as a result of his arrest. In his motion, Kincy alleged that certain evidence, including the wallet and identification belonging to Sanchez, was suppressible as fruit of an illegal arrest. The motion was denied. After a jury trial, the defendant was found guilty of the charged offenses. The defendant received a 45-year sentence on the armed violence charge.

We first consider defendant's contention that the arrest was not based on probable cause, and, therefore, the trial court erred in denying his motion to suppress. At the hearing on the motion to suppress, Officer Robert Wagge of the Cicero Police Department testified to the following. On October 22, 1979, he received a report of a disturbance involving a man with a gun. When he arrived at the scene of the disturbance, he met Ken Shelton who told the officer that he had been threatened by a white male named "Mike," and that Mike, who was wearing blue jeans and a Levi coat, was with Shelton's wife, Linda. He reported that Mike had held a gun to his head and threatened to shoot him. He stated that his wife and Mike had headed north on 50th Street. The officer headed north and observed Shelton's wife, at the back door of a house at 1217 50th Street, Cicero, two blocks north of the assault. Later, when the officer observed Linda Shelton in the alley at the rear of the house, she was arrested and was returned to the scene of the disturbance. She then told the officer that the gun could be found between two boxes near the garage at 1217 50th Street.

Wagge returned to the 50th Street address. He walked toward the boxes in the backyard. As the officer was looking for the gun, the defendant, a white male wearing blue jeans and a Levi jacket, approached him. The defendant asked the officer what he was doing. The officer told the defendant he was looking for a gun. The officer learned that the defendant's name was Mike. The officer then observed that the defendant was wearing a sheathed hunting knife. Because of the hunting knife, Wagge arrested the defendant for unlawful use of weapons and so advised him. The officer then returned with the defendant to the scene of the disturbance. There Ken Shelton identified the defendant as his assailant. The defendant was transported to the Cicero police station and charged with the unlawful use of a weapon and aggravated assault. At that time, the defendant was searched. The wallet and identification belonging to Filberto Sanchez, the victim in the instant case, were found on the defendant.

The defendant contends that Officer Wagge did not have probable cause to arrest him and, therefore, the trial court erred in denying his motion to suppress the gun, the hunting knife, the wallet and identification of Sanchez, and a 68-page transcript of a confession made by the defendant.

• 1, 2 The defendant's initial assertion is that his arrest for unlawful use of weapons was illegal in that possession of a hunting knife is not a violation of the law. The record does reflect that Officer Wagge advised the defendant that he was under arrest for unlawful use of a weapon. The defendant is also correct that mere possession of a hunting knife is not a crime; however, under section 24-1(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 24-1(2)) knowingly carrying or possessing a dangerous weapon with intent to use the same unlawfully against another constitutes the offense of unlawful use of weapons. Here, the arresting officer was aware that a short time earlier and only a few blocks away, a man, having the same first name and fitting the same general description as the defendant, aimed a gun at a man's head and threatened to kill him. Under the totality of the circumstances in this case, the officer could have reasonably believed that the defendant possessed the hunting knife with the intent to use the same illegally against another, perhaps the officer himself. Therefore, it can be said that the officer did have probable cause to arrest the defendant for unlawful use of weapons.

Moreover, there are other grounds for upholding the denial of the motion to suppress. After hearing Officer Wagge's testimony, the trial court determined that there was probable cause to arrest the defendant for aggravated assault and that the officer's charge of unlawful use of weapons, even if improper, was not determinative of the validity of the arrest.

• 3, 4 The test for determining the validity of the arrest is whether the officer had actual probable cause to arrest the defendant, not whether the officer articulated the correct basis for the arrest. (United States v. Lester (8th Cir. 1981), 647 F.2d 869, 873; United States v. Dunavan (6th Cir. 1973), 485 F.2d 201, 205; United States v. Saunders (5th Cir. 1973), 476 F.2d 5, 7; United States v. Carr (D. Conn. 1978), 445 F. Supp. 1383, 1387, aff'd (2d Cir. 1978), 584 F.2d 612, cert. denied (1979), 440 U.S. 935, 59 L.Ed.2d 494, 99 S.Ct. 1280.) We agree that when an officer makes an arrest which is properly supported by probable cause to arrest for a certain offense neither his subjective reliance on an offense for which there is no probable cause, nor his verbal announcement of the wrong offense vitiates the arrest. (United States v. Saunders (5th Cir. 1973), 476 F.2d 5, 7; see also People v. Moody (1981), 97 Ill. App.3d 758, 766.) Therefore, if there was actual probable cause to arrest the defendant for aggravated assault, the arrest was valid regardless of the officer's stated basis for the arrest.

The defendant contends, however, that the trial court erred, in that insufficient facts were known to the officer to support a finding of probable cause to arrest the defendant for aggravated assault. The defendant asserts that probable cause could not be based merely on the defendant's fitting the very general description given by Shelton. ...


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