Appeal from the Circuit Court of Adams County; the Hon. Dennis
K. Cashman, Judge, presiding.
JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:
After jury trial, defendant was convicted of the offenses of residential burglary and burglary (Ill. Rev. Stat. 1983, ch. 38, pars. 19-3, 19-1(a)) and was sentenced to concurrent terms of 10 years' and seven years' imprisonment, respectively. Defendant appeals from the judgment of the circuit court of Adams County. We affirm.
Defendant raises two issues on appeal: (1) whether the police had probable cause to arrest him so the trial court properly denied a motion to quash his arrest and suppress evidence; and (2) whether the trial court abused its discretion in sentencing and punished him for exercising his right to a jury trial by considering its belief that he committed perjury at trial.
We first consider the trial court's ruling on the motion to suppress, referring to the facts as necessary to the disposition. At about 7 p.m., on October 31, 1983, Paul Long parked his truck in the lot at the Travel Lodge Motel and walked toward its restaurant. He passed a 10-speed bike beside a tractor-trailer parked on the lot. On the other side of the trailer he saw a Buick Regal car with a broken window, a rock lying on the ground, and a man in the car going through the glove box. The man stood as he exited the car. Long called police, describing the man as a white male, six feet to six feet two inches tall, weighing about 165 pounds. When police arrived, the man and the 10-speed bike were gone. Quincy police officer Ronald Grant transmitted a description of the suspect as a white male, approximately 170 to 180 pounds, about six feet tall, riding a 10-speed bike. About 20 minutes later he received a call from Quincy auxiliary police officer Roberts and civil defense officer Frank at 10th and Maine.
At the hearing on the motion to suppress on December 27, 1983, officers Roberts and Frank testified they came into contact with defendant because of the car burglary suspect description. The officers said it was very cold that night, and defendant was the only person they saw riding a bicycle. They noted his intoxicated condition. Officer Roberts said that when he approached defendant, who was in a sitting position, he asked defendant to remove a screwdriver visible in his rear pocket and lay it on the planter next to him. Roberts said he did this for self-protection, as the screwdriver could be a weapon.
Officer Grant testified that when called to the scene by the officers, he talked to defendant for 10 minutes or less, and advised him he was extremely intoxicated and could be arrested for riding his bike in the street, referencing Illinois DUI law (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)(2)), or for walking in the street, referencing section 11-1010 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-1010). Grant said defendant had a strong odor of alcoholic beverages on his breath, his balance was poor, and his speech was slurred. Defendant thereafter rode his bicycle on the sidewalk to 11th Street, got off the bike and walked it across the intersection between 10th and 11th streets, and got back on the bike on the other side of the intersection and again rode on the sidewalk. Grant said he was aware at the time that he could have arrested defendant for riding his bike on the sidewalk. Grant drove his squad car down the street, pulled into a drive about half a block in front of defendant, who had crossed 11th Street, and stopped. Defendant rode down the sidewalk and ran into the side of the squad car. Grant then arrested defendant for violation of section 11-1010 of the Code and searched him on the street. The search disclosed a knife, a screwdriver, and the proceeds of a burglary, and led to the instant charges.
The court found probable cause existed at the time of the arrest, stating that when an officer who has probable cause to arrest for an offense mistakenly arrests an individual for another offense, it does not invalidate the lawfulness of a search carried out. The court believed the officer had probable cause to arrest defendant for operating a bicycle while intoxicated under section 11-501(a)(2) of the Code (DUI). The judge said the fact that the officer did not choose to advise defendant he was being arrested for DUI, but for unlawful pedestrian use of a roadway, was not dispositive, as the officer's observation would have been sufficient to charge the specific offense of DUI. The judge found no evidence that defendant was violating the statute cited by the officer, and noted that the law does not say an intoxicated person cannot use a sidewalk, of which a crosswalk is an extension. The court upheld the arrest and search on the basis that probable cause existed for one or more other offenses.
On December 30, 1983, defendant filed a motion to reconsider. On January 5, 1984, the court heard evidence and argument on the motion. Officer Grant testified that prior to arresting defendant under section 11-1010, he had noted that defendant was riding the bike without a headlight. At the time of the arrest, the city ordinance prohibited operation of a bicycle on a sidewalk in the business district, and both the ordinance and the Code required use of a headlight on a bicycle operated at night.
The court affirmed its previous determination that probable cause existed, and found that the officer continued to have probable cause to arrest the defendant for an offense even if different from that articulated.
On appeal defendant argues that he could not, under the law submitted, be guilty of either illegal pedestrian use of the roadway or DUI, that the arresting officer was without probable cause as to either offense, and that his arrest was invalid and the trial court erred in denying his motion to suppress.
• 1 The standards applicable to probable cause determinations are well established and have been stated in People v. Robinson (1976), 62 Ill.2d 273, 276-77, 342 N.E.2d 356, 358:
"There is probable cause [to arrest] when the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. (People v. McCrimmon, 37 Ill.2d 40, 43.) This court observed in People v. Jones, 31 Ill.2d 42, 47, that `* * * reasonable cause means something less than evidence which would result in a conviction, and it is also established that reasonable cause may be founded upon evidence that would not be admissible at trial.'
In considering whether probable cause existed, we stated in People v. Clay, 55 Ill.2d 501, 504-05, `Whether or not probable cause for an arrest exists in a particular case depends upon the totality of the facts and circumstances known to the officers when the arrest was made. [Citations.] In deciding the question of probable cause in a particular case the courts deal with probabilities and are not disposed to be unduly technical. These probabilities are the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. Draper v. United States, 358 U.S. 307, 3 L.Ed.2d 327, 79 S.Ct. 329; People v. Fiorito, 19 Ill.2d 246.' Also it is proper to recognize in judging whether there was probable cause that `[p]olice officers often must act upon a quick appraisal of the data before them, and the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to catch criminals.' People v. Watkins, 19 Ill.2d 11, 19."
In People v. Watkins (1960), 19 Ill.2d 11, 19, 166 N.E.2d 433, 437, the court stated that a search incident to arrest is authorized when reasonably necessary to protect the arresting officer from attack. (See Ill. Rev. Stat. 1983, ch. 38, par. 108-1.) We note the court further remarked that minor traffic offenses do not all, of themselves, raise the kind of inferences which justify ...