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12/03/87 the People of the State of v. Leonard Bowen Et Al.

December 3, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

LEONARD BOWEN ET AL., DEFENDANTS-APPELLEES -- THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

LEONARD BOWEN, DEFENDANT-APPELLEE



Before proceeding to examine the issues raised by the State on appeal, we note that the State has apparently abandoned the argument advanced in Williamson County that Judge Watt's suppression of the ammunition and defendant's alleged statements went beyond the issue before him and thus was not binding on the circuit court of Williamson County. The State does not argue this point nor does it cite cases to support the position it took in Williamson County. The contention advanced below is therefore waived on appeal. People v. Mackins (1974), 17 Ill. App. 3d 24, 308 N.E.2d 92; 107 Ill. 2d R. 341(e)(7).

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

517 N.E.2d 608, 164 Ill. App. 3d 164, 115 Ill. Dec. 197 1987.IL.1776

Appeal from the Circuit Courts of Jackson County and Williamson County; the Hon. David Watt and the Hon. Snyder Howell, Judges, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The State appeals from judgments of the circuit courts of Jackson County and Williamson County granting defendant Leonard Bowen's motions to suppress evidence. Because the causes are factually related, they have been consolidated for review.

A hearing was held on defendant's motion to suppress in Jackson County on May 9, 1986. The following testimony was presented.

Officer Dwight Stearns of the Carbondale police department testified that he and Officer Buddy Murphy were eastbound on Walnut Street in Carbondale on the evening of February 5, 1986, when they noticed a black truck traveling eastbound in front of them with no rear license plate light in violation of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 12-201(c)). The officers followed the truck five city blocks before they stopped it. Stearns said, prior to stopping it, they had received information that the truck was registered to Bernard Bowen and his sister, Rosetta. Officer Stearns said he had previously arrested Bernard Bowen for aggravated assault and unlawful use of weapons. He knew at the time of the traffic stop that Bernard Bowen was dead. Stearns did not know who was driving the truck when they decided to stop it.

The officers activated their rotating flashing lights and, as the truck pulled over to the side of the road, Officer Murphy pulled in behind it. Officer Stearns got out of the squad car and walked to the driver's side of the truck. The driver, defendant, was already out of the truck when Stearns approached. Murphy stayed in the squad car, calling in the stop. After he had finished, he got out to assist Stearns.

Stearns did not know defendant; however, he said he recognized defendant's name when defendant produced his driver's license. Stearns stated he had previously received information from two other police officers, Detective Corey and Agent Mick, that defendant had inherited his brother Bernard's cocaine business and, trafficking in cocaine being a dangerous venture, Corey and Mick thought there was a "good chance" that defendant might be armed. Because Bernard Bowen had been charged criminally in the past, Stearns thought defendant Leonard Bowen might be armed. To Stearns' knowledge, defendant had never been arrested before.

When Stearns saw the name on defendant's driver's license, he informed defendant that he had been stopped for a traffic violation and, before Stearns completed his "investigation," he would search defendant and the vehicle for weapons. Stearns searched defendant while Officer Murphy searched defendant's passenger, Winston McCurdy. Both defendant and McCurdy had already gotten out of the vehicle.

After Stearns searched defendant, who did not attempt to flee and on whom Stearns found nothing, Stearns searched the interior of the truck. In a closed console in the middle of the front seat, Stearns found a small plastic bag containing green plant material Stearns believed to be cannabis. Stearns informed defendant he was under arrest for possession of cannabis. Murphy informed McCurdy that he too was under arrest.

Stearns returned to the truck to continue searching and, on this occasion, found three .357 caliber bullets and one .38 caliber bullet. Stearns had the truck towed and had Winston McCurdy transported to the police station by another patrolman. Stearns and Murphy took defendant in their car.

On direct examination, Stearns testified that, en route to the station, he asked defendant about the ammunition he had found. Defendant responded that his brother had recently been killed and he kept a gun around the house for protection. Stearns then asked defendant if the gun was at his house and defendant replied that it was. Stearns did not give defendant Miranda warnings prior to the conversation.

On cross-examination, Stearns said defendant initiated the conversation. According to Stearns, defendant asked why the officers had searched the truck and what they were looking for. Stearns said he told defendant that they were checking for weapons while they conducted their traffic investigation. Stearns said defendant responded, "I don't carry a gun in the truck; I keep it at my house."

On redirect, defense counsel confronted Stearns with his police report wherein Stearns stated that he, not defendant, initiated the conversation by asking defendant about the ammunition he had found in the truck. Stearns admitted that the report made no mention of defendant's asking questions. Stearns had previously testified that the report was a complete account of the events of February 5.

Defendant Leonard Bowen testified that the vehicle he had been driving belonged to his sister, Rosetta Bowen. He had permission to drive the vehicle on the night in question.

Officer Buddy Murphy testified that on February 5, 1986, at approximately 9:36 p.m., he and Officer Stearns were at the intersection of Wall and Walnut in Carbondale when they saw a black Dodge Ramcharger eastbound on Walnut with an equipment violation. They stopped the truck near the University Mall.

Upon stopping the vehicle, Murphy radioed pertinent information in to the radio operator. The operator gave Murphy the vehicle's registered owners' names and stated that, if Leonard Bowen was driving, his license was suspended. Murphy was on the radio as Stearns approached ...


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