Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Howard M. Miller, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
The defendant, John Kantowski, was charged by an information in two counts with the unlawful use of weapons. Both counts were based upon his possession of a revolver. The circuit court of Cook County allowed the defendant's pretrial motion to suppress the introduction into evidence of the revolver, which was seized at the time he was arrested. The appellate court, in a Rule 23 order (73 Ill.2d R. 23), affirmed the order of suppression (104 Ill. App.3d 1204), and we granted the State's petition for leave to appeal.
Officer John Efantis, a Chicago policeman for 12 years, was the only witness at the hearing on the motion to suppress. He testified that at about 9 a.m. on August 26, 1979, he observed the defendant drive his motorcycle at a high speed through a red traffic signal in Chicago. The stoplight was at an intersection the officer was approaching in his marked squad car. The speed of the motorcycle was so great that it left the ground at an incline at the intersection.
The officer turned on his siren and flashing lights and gave chase. When he began to overtake the defendant about four blocks later, the officer had reached a speed of approximately 75 miles per hour. The defendant ran another red light. He then made a right turn about two blocks beyond the signal and stopped. At some point during the chase, a police car driven by Officer Doherty joined in the chase.
The two officers approached the defendant, who remained sitting on his motorcycle, and asked to see his driver's license. The defendant unzipped his leather jacket, apparently to get the license, and when he did so, Officer Efantis saw a knife in the defendant's belt. The knife had a four-inch handle and a six-inch blade. The officer testified that at this point he feared for his safety. He was afraid that the defendant had another weapon. Officer Efantis took the knife from the defendant and ordered him to place his hands on the top of the car. Officer Doherty searched the defendant and found a revolver tucked in his belt near the small of his back. The precise extent of the search is not clear from the officer's testimony, but the defendant has not challenged the State's description of the search as a minimally intrusive search for weapons only.
As stated, the trial court suppressed the revolver which was the basis for the charges against the defendant. The court reasoned that the search was not incident to an arrest, because the officers had not yet placed the defendant under arrest at the time of the search. The State had argued that the search was, nevertheless, justified as a stop and frisk in view of Officer Efantis' fear for his safety. The court rejected that argument, though, because it judged that Officer Efantis had not specified any reasons for his fear for his personal safety.
Before we can reach the search and seizure question, we must consider a procedural objection. The defendant, citing People v. Young (1980), 82 Ill.2d 234, contends that the appeal should be dismissed because the State did not file a certificate to the effect that the suppression of the evidence had substantially impaired its ability to prosecute. This question was not raised by the defendant in the appellate court. The State, in turn, has filed a motion for leave to supplement the record and to file such a certificate of impairment to prosecute.
In Young, this court analyzed Rule 604(a)(1) (73 Ill.2d R. 604(a)(1)), which authorizes appeal by the State in criminal cases from an order or judgment suppressing evidence. The court recognized the necessity to permit the interlocutory review of suppression orders but observed, too, that those appeals should not be allowed where they would unnecessarily prolong the trial process. Balancing the interests of the prosecution, the defendant, and the public, this court held:
"Rule 604(a)(1) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State's ability to prosecute the case. Our intention in requiring this certification is not to formulate a standard by which courts> may determine the appealability of a particular order. As this court noted in [People v. Van De Rostyne (1976), 63 Ill.2d 364], that would indeed be a heavy burden, one which we do not believe justified by the marginal diminution in the number of appeals which we anticipate such a procedure would produce. Instead we rely solely upon the good-faith evaluation by the prosecutor of the impact of the suppression order on his case." (82 Ill.2d 234, 247.)
This court patterned its rule on the requirement in the Criminal Appeals Act (18 U.S.C. § 3731 (1976)), that the United States may appeal a pretrial order suppressing evidence if the United States Attorney certifies to the district court that the appeal is not being taken for delay and the evidence suppressed would be a substantial proof of a material fact in the prosecution.
We allow the State's motion to supplement the record. The appellate court decisions relied upon, in which it was held that the filing of the certificate required by Young is not a jurisdictional requisite, are convincing. (People v. Jones (1981), 102 Ill. App.3d 238; People v. Keath (1981), 101 Ill. App.3d 652; People v. Norris (1981), 101 Ill. App.3d 664.) In those cases, the court pointed to holdings that the certificate required under Rule 604(d) (73 Ill.2d R. 604(d)), that is, a certificate to be filed in the trial court by a defendant's counsel upon a motion to withdraw a guilty plea to the effect that the lawyer has properly consulted with the defendant, may be filed in the reviewing court. (E.g., People v. Hummel (1977), 48 Ill. App.3d 1002.) Too, it was observed that Federal courts> have held that the certification under the Criminal Appeals Act referred to by this court in Young is not jurisdictional. (E.g., United States v. Fleming (8th Cir. 1977), 566 F.2d 623.) As was done in People v. Jones (1981), 102 Ill. App.3d 238, the State is allowed to file the certificate as a supplement to the record.
The search of the defendant, the State asserts, was valid under Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, and Pennsylvania v. Mimms (1977), 434 U.S. 106, 54 L.Ed.2d 331, 98 S.Ct. 330.
In Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, the Supreme Court announced what has come to be known as the "stop and frisk" rule. Under Terry, a police officer may investigate possible criminal behavior by stopping a person where the facts available to the officer, in light of his experience, would reasonably warrant him to believe that a stop was appropriate. In the course of the investigatory stop, the officer may, in the interest of his own protection, conduct a reasonable search for weapons where he has reason to believe that he is dealing with a person who is armed and dangerous. The officer need not be certain that the person is armed. It is sufficient if a reasonably prudent man under the circumstances would be warranted in believing that his safety or the safety of others was in danger. Because the justification for the search is the protection of the officer, the scope of the search must be limited to an intrusion that is designed to discover instruments endangering the officer, such as guns, knives or clubs.
The Supreme Court applied its holding in Terry in the context of a traffic stop in Pennsylvania v. Mimms (1977), 434 U.S. 106, 54 L.Ed.2d 331, 98 S.Ct. 330. In Mimms, Philadelphia police officers stopped an automobile with the object of issuing a traffic summons to the driver because the vehicle had an expired license plate. One of the officers asked the driver to get out of the car and produce his owner's card and operator's license. As the driver did so, the officer noticed a large bulge under the driver's jacket. The officer, fearing that the bulge might be caused by a weapon, frisked the driver and found a revolver in his waistband.
The Supreme Court held that the revolver was properly received in evidence in a prosecution of the driver for carrying a concealed weapon. The stop of the automobile, the court explained, was justified by the traffic violation. It rejected the notion of the State supreme court that the officer had to suspect criminal activity in order to take the precautionary measure of "seizing" the driver by having him step from the car.
The Supreme Court held that once the driver had alighted from the car, and the officer had noticed the bulge, the search of the driver was proper under Terry. "The bulge in the jacket permitted the officer to conclude that [the driver] was armed and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of `reasonable caution' would ...