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04/28/89 the People of the State of v. Myron L. Barber

April 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MYRON L. BARBER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

537 N.E.2d 1171, 181 Ill. App. 3d 749, 130 Ill. Dec. 842 1989.IL.636

Appeal from the Circuit Court of Sangamon County; the Hon. Raymond L. Terrell, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. LUND and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

After a bench trial, defendant was convicted of unlawful use of weapons by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24-1.1(a)) and, subsequently, was sentenced to three years' imprisonment (Ill. Rev. Stat. 1987, ch. 38, pars. 24-1.1(d), 1005-8-1(a)(6)). Defendant appeals arguing the trial court erred in denying his motion to suppress.

We affirm.

The motion alleged the police without probable cause or consent searched defendant's clothing and as a result arrested him. On January 11, 1988, police officers were dispatched to a residence in Springfield. Several persons had called the police reporting people on the porch had been firing a weapon and had reentered the house. At the suppression hearing, defendant testified that he had been visiting the house on January 11, 1988. The house belonged to Karen Eubanks. The police arrived at about 4:05 p.m., talked to Eubanks, then searched defendant. Prior to the search, he was sitting at a coffee table in the living room eating chicken. The police did not have a warrant for his arrest; however, after discovering an ammunition clip loaded with .45 caliber ammunition in his pocket, the police arrested him.

On cross-examination, defendant stated he was standing by the door when the police arrived. He listened to the police questioning Eubanks. He sat down when police officers walked in. Eubanks did not give police permission to search the house. As a police officer started to talk to him, he stood up. The ammunition clip was two inches wide and four inches long.

Springfield police officer Randy Wilson stated that he knocked on the front door and received permission to enter. He saw defendant seated at the dining room table, eating chicken. He also saw David Williams and Bessie Davis. All denied any knowledge of shots being fired from the residence. Defendant stated his name was Calvin Gino. Officer Edward Flesch, who was on the front porch, told the officers inside the house that he had found two .45 caliber shell casings on the porch. During questioning, defendant stood up and started to walk away from Wilson, who noticed a bulge in defendant's right rear pocket. Wilson was concerned about his safety and decided to search defendant.

Wilson stated no one was arrested prior to the search, he did not have a warrant for defendant's arrest, did not know the shell casings came from defendant personally, and suspected the presence of a weapon in the house but had no actual knowledge that one was there. He learned after the search that defendant had given him a false name. Wilson admitted his police report did not mention the bulge in defendant's pocket.

Other police officers, who were present, corroborated Wilson's testimony. The trial court denied the motion to suppress the ammunition clip.

The police officers' trial testimonies were consistent with their testimonies at the suppression hearing. Additionally, Wilson testified defendant stated Eubanks fired a .45 caliber automatic at a tire on the Williams vehicle. Defendant denied firing the weapon. Defendant had placed the ...


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