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05/13/88 the People of the State of v. Timothy Cleaves

May 13, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TIMOTHY CLEAVES, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

523 N.E.2d 720, 169 Ill. App. 3d 252, 119 Ill. Dec. 964 1988.IL.747

Appeal from the Circuit Court of Alexander County; the Hon. Stephen Spomer, Judge, presiding.

APPELLATE Judges:

JUSTICE CALVO delivered the opinion of the court. LEWIS, J., concurs. JUSTICE KARNS, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CALVO

At the suppression hearing, police Officer Scott Walston testified that between 5:30 a.m. and 5:40 a.m. on August 10, 1986, Officers Thomas and Shafer advised him that they had observed the defendant wearing blue jeans and a dark-colored shirt and riding a bicycle at about 4:30 a.m. approximately one block from Khourie Brothers Store in Cairo, Illinois. At 5:43 a.m., Walston received a call that a burglary had taken place at Khourie Brothers. Walston was not given any description of the alleged burglar. Walston testified that he knew defendant was on parole for a prior burglary. When he received the call about the Khourie Brothers burglary, Walston proceeded in an unmarked car in the direction where defendant had been spotted by Thomas and Shafer. Walston stopped defendant. Defendant was carrying something large and bulky in his lap. It was dark and raining at that time and Walston testified that he could not identify the object. Defendant did not have his shirt on; the shirt was covering the object on his lap. Walston asked defendant what was under the shirt, and defendant said that nothing was under it. Walston then raised up the shirt and saw an assortment of hats, one of which had a price tag attached to it. Walston then placed defendant under arrest at approximately 5:48 a.m. The trial court found that Walston had probable cause to stop and search defendant and thus denied defendant's motion to suppress the evidence. Fred Khourie, an employee of the store, testified at trial that the hats recovered from defendant were taken from the store on the morning of the burglary.

The State initially argues that Walston had probable cause to make a warrantless arrest of defendant prior to the search. Because Walston could have properly made a warrantless arrest, the State contends that he also was entitled to make a full search of defendant. The State is correct that a police officer can make a lawful warrantless arrest of a person, if the officer has probable cause to make the arrest. (People v. Johnson (1970), 45 Ill. 2d 283, 288, 259 N.E.2d 57, 60.) The State is also correct that the scope of a search incident to an arrest extends to the area within defendant's immediate control (People v. Braden (1966), 34 Ill. 2d 516, 519, 216 N.E.2d 808, 810) and is not limited to the purpose of searching for weapons. (People v. Hayes (1973), 55 Ill. 2d 78, 81, 302 N.E.2d 37, 39.) Probable cause to arrest exists if "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. Creach (1980), 79 Ill. 2d 96, 101, 402 N.E.2d 228, 230, quoting People v. Robinson (1976), 62 Ill. 2d 273, 276, 342 N.E.2d 356, 358.) Probable cause must be determined by considering the totality of the evidence and circumstances. (People v. Moody (1983), 94 Ill. 2d 1, 8, 445 N.E.2d 275, 278.) Moreover, probable cause to arrest must have existed prior to the search, because it is the validity of the arrest that makes the search proper. Thus, if Walston had probable cause to arrest defendant prior to the search, the search would be valid even though Walston actually arrested defendant shortly after the search. People v. Jones (1977), 56 Ill. App. 3d 414, 417, 371 N.E.2d 1093, 1096.

Considering the evidence as a whole, we do not believe Walston had probable cause to arrest defendant prior to the search. Therefore, Walston did not have authority to conduct a full search of defendant incident to the arrest. The only facts connecting defendant to the crime prior to Walston's search were that defendant was in the vicinity of the burglary at the time it occurred, that Walston knew defendant was on parole for a prior burglary, and that defendant was evasive when Walston questioned him about the bundle. Walston had no description of the burglar, and he had no other circumstantial evidence to tie defendant to the burglary. Contrary to the State's contention, Moody is distinguishable from the case at bar. In Moody, the police found blood on a shattered display case at the scene of the burglary. The defendant was found at a hospital a couple miles from the scene of the burglary and was undergoing treatment for a deep laceration to his leg. (Moody, 94 Ill. 2d at 4, 445 N.E.2d at 276.) During questioning at the hospital, defendant said he was assaulted at a nearby tavern, but there were not any reports of a disturbance at the tavern. (Moody, 94 Ill. 2d at 8, 445 N.E.2d at 278.) The court held that probable cause existed for the officers to arrest defendant at the hospital. (Moody, 94 Ill. 2d at 9, 445 N.E.2d at 279.) The blood found at the scene and defendant's laceration, along with the other circumstances in Moody, provided much more of a connection between defendant and the crime than in the case at bar. Consequently, because Walston did not have probable cause to arrest prior to finding the hats, he did not have authority to conduct a full search of defendant.

Even if a police officer does not have probable cause to arrest and cannot conduct a full search of an individual, the officer may "stop and frisk" that individual if certain conditions are met. Illinois law provides that a police officer

"may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense . . . and may demand the name and address of the person and an explanation of his actions." (Ill. Rev. Stat. 1985, ch. 38, par. 107-14.)

In addition, a police officer may search the person for weapons if the officer "reasonably suspects that he or another is in danger of attack." (Ill. Rev. Stat. 1985, ch. 38, par. 108-1.01.) These Illinois laws codified the holdings in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889. (People v. McGowan (1977), 69 Ill. 2d 73, 76-77, 370 N.E.2d 537, 539.) Thus, even though a police officer has reason to stop an individual, the officer may only conduct a search if the officer has reason to believe that the individual is armed and dangerous. (People v. Smithers (1980), 83 Ill. 2d 430, 434, 415 N.E.2d 327, 330.) The officer "need only have the reasonable belief that either his safety, or that of others, is in danger"; his belief is not Judged by the probable cause test. (Smithers, 83 Ill. 2d at 435, 415 N.E.2d at 330.) Once these conditions are met, the police officer may only conduct a search "limited to the minimum necessary to discover objects capable of use as weapons." People v. Kantowski (1983), 98 Ill. 2d 75, 80, 455 N.E.2d 1379, 1381; People v. Lawson (1978), 61 Ill. App. 3d 133, 136, 377 N.E.2d 1280, 1282.

Defendant argues that the scope of the search of defendant exceeded the minimum necessary to discover weapons, and therefore the evidence -- that is, the hats -- should have been suppressed. (Terry, 392 U.S. at 29, 20 L. Ed. 2d at 910, 88 S. Ct. at 1884.) Defendant asserts that Terry only allows a "pat-down" for weapons in any clothing worn by the suspect. Because Walston looked under clothing the defendant was holding, defendant contends that the search exceeded the bounds of Terry. Terry, however, does not so limit the search. All Terry requires is that the search be limited only to what is necessary to discover weapons. Terry, 392 U.S. at 29, 20 L. Ed. at 910-11, 88 S. Ct. at 1884.

In People v. Wilson (1986), 141 Ill. App. 3d 156, 160, 490 N.E.2d 701, 704, the court held that a police officer's search of defendant's duffel bag for weapons was proper under Terry. Defendant had dropped the duffel bag, but it was within his immediate grasp. The court stated that

"[to] hold otherwise would subject [the] officers to the possible danger that upon having the duffel bag returned to [the defendant] by the officers when no evidence of a weapon was found on his person, defendant would then produce the weapon from the duffel bag and fire ...


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