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02/22/89 the People of the State of v. Robert Galvin

February 22, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT

v.

ROBERT GALVIN, APPELLEE



SUPREME COURT OF ILLINOIS

535 N.E.2d 837, 127 Ill. 2d 153, 129 Ill. Dec. 72 1989.IL.217

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Will County, the Hon. Bruce Falk, Judge, presiding.

APPELLATE Judges:

JUSTICE CUNNINGHAM delivered the opinion of the court. STAMOS and CALVO, JJ., took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CUNNINGHAM

This appeal concerns the admissibility of evidence obtained during a police "stop and frisk." Defendant, Robert Galvin, was charged with theft and possession of burglary tools. (Ill. Rev. Stat. 1985, ch. 38, pars. 16-1(d)(1), 19-2(a).) Prior to trial, defendant filed a motion to suppress evidence seized pursuant to the search, which was allowed by the circuit court of Will County. The appellate court affirmed, with one Justice Dissenting. (161 Ill. App. 3d 190.) We granted the People's petition for leave to appeal under our Rule 315 (107 Ill. 2d R. 315). We affirm.

FACTS

At the hearing on the motion to suppress, Crest Hill police officer Simenson and defendant testified. According to Officer Simenson, there had been multiple burglaries in the Chaney area, a predominantly white residential area of Crest Hill. The burglaries had taken place from September 9, 1986, to September 14, 1986, and had occurred between 7 and 10 p.m. Because of this, there was a police surveillance being conducted in the Chaney area on September 14. Officer Simenson and Officer Pesavento, both in plain clothes and in an unmarked squad car, and another undercover officer in an unmarked squad car, were participating in the surveillance.

A resident of the Chaney area, known in the record as Mrs. Cerven, had talked to Officer Simenson on the telephone on September 14, 1986, sometime before Officer Simenson went to participate in the surveillance that evening. Mrs. Cerven's home had been burglarized sometime between September 9 and September 14. She had told an anonymous woman this, and the anonymous woman told Mrs. Cerven information which Mrs. Cerven thereafter passed on to Officer Simenson.

Officer Simenson testified that the anonymous woman told Mrs. Cerven that in the early evening hours of September 9, the anonymous woman was sitting in her car near an alley on Center Street, in the Chaney neighborhood, waiting for her husband. A brown Oldsmobile four-door, perhaps a 1974 model, was parked somewhat near her vehicle. It appeared as though no one was inside the Oldsmobile. The anonymous woman saw a black male come into her view from the alley, heading toward the Oldsmobile. According to Officer Simenson, the anonymous woman told Mrs. Cerven that the black male was "apparently hiding something under his coat." Officer Simenson did not remember if the anonymous woman had provided a description of this man to Mrs. Cerven; if there had been a description, it was vague.

This man got into the driver's side of the Oldsmobile, and the anonymous woman then said she saw a black man sit up who had apparently been hiding in the passenger side of the Oldsmobile. The woman found this to be suspicious and wrote down the license plate number and description of the car. There had been a burglary in this area between 7 and 10 p.m. on September 9. Officer Simenson did not know whether the anonymous woman who told Mrs. Cerven of the suspicious car knew of any burglary at the time she observed the suspicious car.

Once Mrs. Cerven told this anonymous woman that Mrs. Cerven's home had been burglarized, the woman told Mrs. Cerven about the suspicious car. Mrs. Cerven then told Officer Simenson over the phone what this woman had told her. Officer Simenson did not know where Mrs. Cerven lived or when her home had been burglarized. Officer Simenson's testimony is the only evidence which appears in the record to indicate that any burglary or burglaries had taken place in the Chaney area.

At approximately 9 p.m. on September 14, 1986, Officer Simenson first saw defendant slowly driving a brown Oldsmobile south on Hickory Street in the Chaney area. When the car reached Stern Street, it began to make what appeared to be a right turn, but then turned left, heading east toward Broadway (Route 53), and parked shortly after this turn on Stern Street. Officer Simenson observed two black males get out of the car, and walk westward on Stern Street to the corner of Stern and Cora, where there was some type of construction work. The two men walked into the backyard of a house which had no lights on. The two men were not seen again until 40 minutes later, when they came out of the backyard and walked eastward back to where the car was parked. The license plate number of this car was the same one which Mrs. Cerven had told Officer Simenson about previously. Officer Simenson had run a license plate search, and had found that the car belonged to Robert Galvin. Officer Simenson knew that defendant had previously been arrested for burglary and theft.

Officer Pesavento told Officer Simenson that during the walk back from Cora Street to where the car was parked on Stern Street, the two men had looked in all directions and had appeared nervous. Officer Pesavento also said that he had seen one of the two men put an "unknown object" into a pocket. It is unclear whether this "unknown object" was placed in a jacket pocket or pants pocket.

Defendant and Percy Unger walked past where the car was parked and went to Transmission Works, a business located on Broadway. Transmission Works was closed. Officer Simenson said the men looked inside several cars. Defendant and Unger then went back to the car and exchanged a "high-five."

Defendant and Unger drove east to Broadway, made a left turn and went north up Broadway one block, then made a left turn, heading west on Ludwig Street. They continued west on Ludwig Street until making a left turn onto Cora Street, heading south. Officer Simenson said the car pulled into the driveway of the same house where defendant and Unger had been previously, located on the corner of Cora and Stern. After idling for several moments, the car backed up and headed north on Cora Street. The car stopped one block north on Cora Street from where they had been in the driveway. Defendant and Unger got out of the car, and Officer Simenson saw the trunk open.

Defendant and Unger were heading into the yard of a house to the east of where they were parked when a marked Crest Hill police squad car pulled up near defendant's car. The driver of the squad car, Sergeant Gudac, had been monitoring the surveillance radio traffic and had mistakenly thought an arrest was about to take place. Sergeant Gudac left the area after Officer Simenson told him to.

Defendant and Unger then got back into their car. They had been out of the car for about two minutes. Defendant drove north on Cora Street, headed east to Broadway Street (Route 53), and then went south on Broadway out of Crest Hill.

One marked Crest Hill squad car, one unmarked squad car with red lights, and Officer Simenson's unmarked squad car with red lights flashing and siren sounding effectuated a stop of defendant and Unger approximately two to three miles south of the Chaney area on Broadway at Marble in Joliet. At the time this stop was made, there had been no statutory violations observed by any officer, nor were there any warrants for arrest or search.

Officer Simenson had his gun drawn when he ordered the driver, defendant, to get out of the car. Defendant immediately complied with the request, offered no resistance, and put his hands on the roof of his car following Officer Simenson's instructions. Officer Simenson testified that when he first approached defendant, defendant had a pair of gloves on his lap. According to the record, this is the first time any gloves were seen by any officer in the possession of either defendant or Unger.

Officer Simenson then patted-down defendant. He testified that he felt something in defendant's right front pants pocket and wanted to investigate further. Officer Simenson did not remember what he thought it was, other than he remembered thinking that it could have been a weapon. Officer Simenson testified that he retrieved a padlock and a rifle ammunition magazine with live ammunition in it. He could not remember which of these items he pulled out of defendant's right front pants pocket first, or if he pulled both objects out at once. At that point, defendant was "technically under arrest" for possession of ammunition.

During this time the other passenger, Percy Unger, had exited the car and was searched by Officer Pesavento. The result of that pat-down search was a pair of gloves removed from Unger's pockets. Officer Simenson was not sure if the gloves were removed from Unger's pants pocket or jacket pocket. No contraband or weapons were found on Unger. Officer Simenson then searched the car for anything that could have had to do with the ammunition that defendant had had on his person. He testified that he found a flat-head screwdriver and a flashlight next to each other on the floorboard nearly under the seat on the driver's side.

When Officer Simenson began the search of the car, defendant was under arrest for possession of ammunition; Unger was not under arrest. After Officer Simenson concluded his search of defendant's car, he placed handcuffs on defendant. It was at this time that defendant was told he was under arrest for possession of ammunition. Officer Simenson placed Unger under arrest for possession of burglary tools, specifically, possession of the screwdriver.

Officer Simenson testified that the offense report made out by him should have stated that defendant was placed under arrest for possession of ammunition, but did not. The offense report charged defendant with theft over $300 and possession of burglary tools. Officer Simenson testified that he did not feel that the gloves or flashlight were burglary tools; only the screwdriver was a burglary tool. The offense report ...


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