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06/18/87 the People of the State of v. George W. Cunitz

June 18, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GEORGE W. CUNITZ, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

510 N.E.2d 471, 157 Ill. App. 3d 519, 109 Ill. Dec. 603 1987.IL.842

Appeal from the Circuit Court of Franklin County; the Hon. Loren P. Lewis, Judge, presiding.

APPELLATE Judges:

JUSTICE KASSERMAN delivered the opinion of the court. KARNS, P.J., and HARRISON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Defendant George W. Cunitz was indicted by a grand jury in Franklin County on January 30, 1984, for armed robbery and unlawful use of weapons. Prior to trial, defendant filed a motion to suppress evidence which was denied on June 16, 1984. A jury subsequently found defendant guilty of both offenses on October 22, 1985, but judgment was not entered on the unlawful use of weapons charge. Following a hearing on defendant's post-trial motion on June 7 and July 10, 1985, defendant was sentenced on August 21, 1985, to serve 18 years for armed robbery. Defendant thereafter perfected the instant appeal.

Defendant's first contention on appeal is that the trial court improperly denied his motion to suppress evidence. Defendant contends that his arrest and the arrest of his companion, William Hungate, was merely a pretext for an otherwise illegal search. Defendant's attorney filed a motion to suppress evidence illegally seized when defendant was arrested on January 19, 1984, alleging that the search of a truck was not incident to a lawful arrest, was not executed pursuant to a warrant, and was not done with defendant's consent. At the hearing on defendant's motion to suppress, testimony was given regarding the armed robbery of the West Frankfort Huck's convenience store and the investigation which followed, ultimately culminating in the arrest of defendant and William Hungate.

Charles Broy, the chief of police for the West Frankfort police department, testified that he was conducting surveillance of a house in West Frankfort in the early morning hours of January 19, 1984. The temperature was 10 below zero and there was no traffic on the roads. With the exception of an older black step-side pickup that he saw around 2:30 a.m., the only other vehicles Broy saw that morning were other police vehicles. At approximately 2:45 a.m. he heard over the radio that the West Frankfort Huck's had been robbed.

Tom Mandrell, a West Frankfort police officer, testified that he was on duty January 19, 1984, when at 2:44 a.m. he received a call from his dispatcher informing him that the West Frankfort Huck's had been robbed. Mandrell proceeded to Huck's and received a description of the robber from Patricia Clark, the employee on duty. Clark described the robber as being approximately 6 feet 2 inches tall, having a slim build, and wearing a blue windbreaker, a pair of brown suede gloves, a dark baseball cap and a dark nylon stocking over his face. Ms. Clark told Mandrell that the robber stuck his hand in his pocket indicating that he had a gun. The robber left the store on foot. Mandrell conveyed the description of the robber to other law enforcement units over the radio.

Dan Owens, a Benton police officer, heard about the Huck's robbery over his radio and went to the south edge of Benton to monitor any traffic coming up Route 37 from West Frankfort. Owens testified that there was "hardly any traffic at all out" that night. Owens saw an older model black pickup truck bearing Montana license plates come into Benton from West Frankfort. Owens ran a routine check on the license plates of the truck which revealed nothing "other than the truck was not stolen and it was a valid plate." Owens subsequently went to the police department, called the West Frankfort police department and talked with them about the truck. Charles Broy, the chief of police for West Frankfort, told Owens that he had seen a vehicle fitting the description of the truck just prior to the robbery. Broy described the truck he had seen as an old black step-side pickup. Broy told Owens he was coming to Benton to try to get a look at the truck.

Owens started to look for the truck but could not immediately locate it. He called West City police officer Gary Hall and enlisted his aid in locating the pickup. Within a few minutes, Hall had found the pickup parked outside the Plaza Restaurant near Interstate 57. Owens proceeded to that location. Broy, accompanied by three other West Frankfort officers, subsequently arrived and confirmed that the pickup was the same one he had seen in West Frankfort.

The four West Frankfort officers, dressed in street clothes, entered the restaurant and observed defendant and another man, later identified as William Hungate, eating breakfast. Hungate was wearing a black baseball-type cap with "Jack Daniels" on the front. Defendant fit the description of the robber which Broy had previously received -- about 6 feet 2 inches tall, slim build. When defendant and Hungate left the restaurant, so did the officers.

Defendant and Hungate got into the black Ford pickup and drove toward the Benton square followed by Officer Owens. On several occasions, Owens and Broy observed the pickup weave into a lane restricted to left turns only. Owens described one such maneuver as "pretty radical." Owens stopped the truck just east of the Benton police department. As Owens got out of the car, the West Frankfort police officers pulled up behind him. Owens went to the driver's side of the pickup and asked the driver, William Hungate, to step out. Owens noticed the odor of alcohol as the driver opened the door and saw an open can of Busch beer on the floorboard. Owens began searching for further evidence of alcohol. As he searched, the West Frankfort officers approached the truck and Owens asked them to assist him. Charles Broy went to the passenger side of the truck, where defendant was seated. Owens asked defendant to get out of the truck and as he did so Owens heard a noise similar to a can's being dislodged. Broy found a beer can between the door and the seat. Owens then observed a wrinkled blue nylon garment and gloves lying in the truck. Broy picked up the garment (a windbreaker), and a nylon stocking with two holes cut in it fell to the floorboard.

Hungate and defendant were placed under arrest and, due to the severe cold weather, were taken to the police department, which was across the street. Owens stayed with the vehicle and called a wrecker. As the wrecker hooked up the truck, Owens searched through the truck for personal items of value to the two men arrested. Owens found an open container of ...


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