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People v. Moffitt





Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., Judge, presiding.


On May 2, 1984, defendant, Henry W. Moffitt, was charged by information with unlawful possession of a controlled substance, unlawful use of weapons and obstructing justice. Defendant filed a motion to quash arrest and suppress evidence based on the allegation that the initial stop of his vehicle and his arrest were unlawful because the police officer who stopped him had no reasonable grounds to do so. The motion was heard and denied. Thereafter, a jury trial was held in the circuit court of Lake County, at which defendant was found guilty of all three offenses. Subsequently, defendant was sentenced to six years' imprisonment for unlawful possession of a controlled substance and one year for each of the other offenses to be served concurrently. Defendant was also fined $4,720, the street value of the cocaine involved, under the mandatory fine provision of section 5-9-1.1 of the Unified Code of Corrections. Ill. Rev. Stat. 1983, ch. 38, par. 1005-9-1.1.

On April 26, 1984, Officer Ronald Calandra, of the Highland Park Police, was parked in a squad car at a gas station on Route 41, just north of Route 22. At about 1:45 a.m. he saw a semi-truck and a car drive past him on the four-lane highway, side by side, both traveling north. The car passed the truck and changed lanes without the use of a directional signal. The officer testified that at the time the car made the turn in front of the truck the car was "close." Shortly thereafter, Officer Calandra received a call over his citizen's band radio from the driver of the truck stating that the car which had passed him had cut him off and that he believed the driver to be drunk. The officer activated his emergency lights and stopped the car.

After stopping the car, defendant handed the officer a Wisconsin driver's license which gave the name of Jimmy L. Richardson. A computer check of the license and of the car's Wisconsin registration plates revealed that both were either suspended or revoked. The check also revealed that the plates were registered to another car. At that point defendant was placed under arrest and taken to the Highland Park police station. When defendant was processed, Officer Calandra inventoried various items that were taken from defendant, including $987.76 in cash.

Defendant's car was also taken to the station, where an inventory search was conducted by police officer Gerald Cameron. Cameron testified that during his search of the driver's compartment area he found a blue cloth pouch which he recognized as being a "Crown Royal" liquor pouch. Inside the pouch was a clear glass smoking device, and on the floor a small, clear glass vial was found; both contained white powder residue. In the trunk the officer found a white metal can containing a second blue pouch inside of which were two clear plastic resealable bags with a white powdery substance inside them. The can also contained a portable weighing device, rolling papers, matches and an ID card bearing the name of Henry Wayne Moffitt. It was stipulated that the residue found in the vials and smoking device was cocaine and that the two plastic bags contained a total of 47.17 grams of cocaine. Behind the driver's seat and under the passenger's seat, a .32-caliber semi-automatic hand gun was found, along with several rounds of .32-caliber ammunition.

Defendant was issued three traffic citations for improper lane usage, invalid driver's license, and invalid registration plates. These were issued in the name of Jimmy Lee Richardson. Before placing defendant in a jail cell, a final search of his clothing and body was made, revealing a Veteran's Hospital identification card in defendant's underwear bearing the name of Henry Wayne Moffitt. Upon inquiry, defendant admitted he was Henry Moffitt.

Used car dealer Tyrone Gilbert testified for the defense. He stated that on April 23, 1984, he sold defendant the car in which defendant was apprehended on April 26. He further testified that he had bought the car from a woman that same morning. Although Gilbert stated that he gave defendant ignition and gas tank keys, he said there was no trunk key. He also testified that when he took the car out for a test drive, he saw no vials or weapons inside.

When defendant took the stand he stated, in contradiction to Officer Calandra's testimony, that he told the officer that he had no driver's license. According to defendant, the officer then looked inside the car and found the license with Richardson's name on it. Defendant claimed that the license belonged to someone who had repaired the car for him. Defendant also testified that he told the officer that the license belonged to the owner of the car. Defendant went on to state that although he had noticed the loaded magazine in his car, he had never seen the gun, the vials, weighing device, can, or cocaine before his arrest. He also testified that he did not have the key to the car's trunk and had never purchased one.

The jury found defendant guilty of all three offenses. A timely notice of appeal was filed.

Defendant asks this court to reverse his conviction and remand the case for a new trial at which all the fruits of his allegedly illegal arrest will be suppressed from evidence. Alternatively, he asks that his sentence be reduced or that the sentencing orders be vacated and his cause remanded for a new sentencing hearing. Additionally, he asks that the mittimus be corrected to provide that his sentence be for a term of 364 days or less.

Defendant first contends that an anonymous truck driver's speculative assessment that defendant was drunk did not constitute reasonable grounds for the initial investigative stop by Officer Calandra. Consequently, he claims that both his arrest and the subsequent search of his car were unlawful and that all of the evidence thereby obtained should have been suppressed.

• 1, 2 The standards governing investigatory stops by a police officer are set forth in Terry v. Ohio (1968), 392 U.S. 1, 20-21, 20 L.Ed.2d 889, 905-06, 88 S.Ct. 1868, 1879-80. A police officer in appropriate circumstances and in an appropriate manner may approach an individual for purposes of investigating possible criminal behavior even though there is no probable cause to arrest, provided that the officer's decision is based on specific and articulable facts which, when combined with rational inferences from those facts, reasonably warrant an investigative intrusion. (People v. Vena (1984), 122 Ill. App.3d 154, 160, 460 N.E.2d 886.) While probable cause is necessary to effect a lawful arrest, a police investigatory stop may be made on less certain grounds. (Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868; People v. Walter (1985), 133 Ill. App.3d 550, 479 N.E.2d 12; People v. Jones (1981), 102 Ill. App.3d 246, 429 N.E.2d 1101.) In determining whether a stop is reasonable, an objective standard is used, namely, whether the facts available to the officer warrant a person of reasonable caution to believe that the action taken was appropriate. (People v. Vena (1984), 122 Ill. App.3d 154, 160, 460 N.E.2d 886; People v. Tribett (1981), 98 Ill. App.3d 663, 671, 424 N.E.2d 688.) A mere suspicion or hunch, however, is not sufficient. (People v. Tribett (1981), 98 Ill. App.3d 663, 671, 424 N.E.2d 688; People v. Grice (1980), 87 Ill. App.3d 718, 723, 410 N.E.2d 209.) Because there are no conclusive rules for determining whether an investigatory stop is justified, each case must be adjudicated on its particular facts. People v. DeLisle (1982), 104 Ill. App.3d 297, 299, 432 N.E.2d 954.

On the basis of the particular facts of the present case, we believe that the officer's stop of defendant's car was reasonable and appropriate. The truck driver spoke directly to the officer concerning a vehicle and incident that both had directly witnessed. The identity of the trucker in such a situation was inconsequential. The officer saw a car pass the truck closely without using directional signals. Although the officer testified that this fact alone did not indicate to him that a stop of the car was warranted, the message transmitted by the trucker certainly provided a reason for a person of reasonable caution to verify the possibility that the driver of the car was in fact intoxicated and a threat to his own safety as well as to that of other persons on the highway. In fact, the trial court was of the opinion that under such conditions the officer was not only justified, but obligated to make such an inquiry. In contrast to the circumstances in both People v. Moraca (1984), 124 Ill. App.3d 561, 464 N.E.2d 312, and People v. Schlottman (1976), 37 Ill. App.3d 62, 344 N.E.2d 8, cited by defendant, the police officer in the present case spoke directly to the informant about an incident the officer had himself just observed. His own observation coupled with the trucker's communication provided more than a "bare suspicion" or "hunch" that defendant was in violation of the law.

• 3 Although defendant notes that citizens have the right to travel highways free from unreasonable seizures, they also have the right to expect law enforcement officers to take whatever action is necessary to assure the safety of the highways which in this case warranted the investigation of a possible safety hazard, apart from its criminal aspect. Although defendant contends that Officer Calandra could have responded to the trucker's call by merely following defendant's car for a few miles and observing his manner of driving, we find no authority which obligated him to do so. Whether the officer had probable cause to make an arrest is not at issue. The question, as ...

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