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10/09/87 the People of the State of v. Robert Galvin

October 9, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

ROBERT GALVIN, DEFENDANT-APPELLEE

THE DEFENDANT, ROBERT GALVIN, WAS CHARGED WITH THEFT AND POSSESSION OF BURGLARY TOOLS. (ILL. RE

v.

STAT. 1985, CH. 38, PARS. 16-1(D)(1), 19-2(A).) THE TRIAL COURT GRANTED THE DEFENDANT'S MOTION TO SUPPRESS ALL ITEMS SEIZED PURSUANT TO A SEARCH. THE STATE APPEALS. WE AFFIRM.



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

514 N.E.2d 260, 161 Ill. App. 3d 190, 112 Ill. Dec. 794

Appeal from the Circuit Court of Will County; the Hon. Bruce Falk, Judge, presiding. 1987.IL.1523

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. SCOTT, J., concurs. JUSTICE HEIPLE, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

Initially, we note that the defendant-appellee failed to file a brief. We, nevertheless, choose to decide the merits of the appeal, as the record is simple and the claimed error can be easily decided without an appellee's brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

While patrolling the predominately suburban Chaney area for burglary suspects on September 14, 1986, Crest Hill police officer Timothy Simenson saw the defendant transporting another male passenger. Officer Simenson followed but lost sight of the defendant after the defendant parked his vehicle and disappeared into a dark yard for approximately 40 minutes. The empty-handed defendant reappeared and later briefly returned to that location. The defendant also stopped and peered into vehicles at "Transmission Werks." The defendant explained, at the hearing on the motion to suppress, that he was simply checking the hours of business.

Officer Simenson had no warrant to arrest the defendant or search his vehicle. The defendant neither violated any laws nor possessed fruits of a crime during the surveillance period. Nevertheless, Officer Simenson stopped the defendant to investigate his activities in the area that evening and on the night of a prior burglary five days earlier. Four police vehicles surrounded the defendant's automobile and three officers, with guns drawn, ordered him and his passenger to exit. Even though neither individual resisted nor threatened the officers, they were frisked without their consent. Officer Simenson felt an object he suspected was a weapon, but found only an ammunition clip and a padlock. He then detained the defendant for unlawful possession of ammunition and proceeded to a nonconsensual search of the defendant's vehicle, which produced a screwdriver and a flashlight. No charges for the possession of ammunition were ever filed.

In support of its argument on appeal that the court erroneously suppressed the evidence seized, the State contends that pursuant to a valid Terry stop, the officer justifiably searched the defendant burglary suspect. We disagree.

The Illinois Code of Criminal Procedure of 1963 provides that a peace officer may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that a person is committing, is about to commit, or has committed an offense as defined by the Code. (Ill. Rev. Stat. 1985, ch. 38, par. 107-14.) The statute is predicated upon the principles in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and People v. Lee (1971), 48 Ill. 2d 272, 269 N.E.2d 488 (legislative intent was to codify Terry).

In the instant case, while patrolling the Chaney area Officer Simenson spotted the defendant, who was also suspected of other criminal activity and had been in the area on the night of a prior burglary. After the officer observed the defendant visit a dark house and a closed business, he stopped the defendant for questioning. We find that Officer Simenson reasonably suspected that the defendant's unusual conduct could be indicative of past or prospective criminal activity. Consequently, Simenson appropriately detained the defendant for temporary questioning. See People v. Paskins (1987), 154 Ill. App. 3d 417, 506 N.E.2d 1037.

A separate issue is whether the officer was justified in searching the defendant properly stopped for questioning under Terry. It is clear that the mere fact that a person has been properly stopped pursuant to Terry is not a per se justification for a search. Rather, the Illinois Code of Criminal Procedure permits an officer to search the person for weapons only if he or she "reasonably suspects that he or she or another is in danger of attack." (Ill. Rev. Stat. 1985, ch. 38, par. 108-1.01.) An intrusive pat down for weapons is only justified if an officer reasonably feels threatened because a suspect is legitimately presumed armed and dangerous. People v. Smithers (1980), 83 Ill. 2d 430, 415 N.E.2d 327.

In the instant case the defendant immediately stopped and exited his vehicle as requested by three police officers with drawn guns. Instead of being interrogated, the defendant was ordered to stand against his vehicle for a pat-down search. The officers admitted neither feeling threatened nor believing that the defendant was armed and dangerous. The cooperative defendant did not attempt to escape. Nevertheless, Officer Simenson searched the defendant and, upon finding an unidentified bulge, invaded the defendant's pocket and thereafter his vehicle.

Searches pursuant to the statute at issue have been found improper in a variety of instances, some where the circumstances were far more exigent than the instant case. (See, e.g., People v. Byrd (1977), 47 Ill. App. 3d 804, 365 N.E.2d 443.) Although the factual patterns of the cases falling under the instant statute are too diverse to permit generalizations, the courts in this State have often forbidden the subject police ...


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