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07/26/89 the People of the State of v. Peter Assenato

July 26, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PETER ASSENATO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

542 N.E.2d 457, 186 Ill. App. 3d 331, 134 Ill. Dec. 278 1989.IL.1150

Appeal from the Circuit Court of Du Page County; the Hon. Edward W. Kowal, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. DUNN and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

After trial by jury defendant, Peter Assenato, was found guilty of unlawful possession of a controlled substance, armed violence and unlawful use of weapons by a felon, and was sentenced to 10 years' imprisonment. He appeals, contending that (1) there was no probable cause to effectuate the traffic stop of his vehicle; (2) the stop for a traffic violation was merely a pretext to search for evidence; (3) the seizure and search of defendant after the stop was unconstitutional; (4) improper and prejudicial implications that defendant had committed other crimes were made in trial; and (5) the State's closing argument was prejudicial.

On December 17, 1986, at approximately 8:15 p.m., Detective Nurczyk of the Lombard police department arrived at defendant's suspected residence in Winfield, Illinois, to conduct a surveillance of the home. Although Winfield is outside of the boundaries of Nurczyk's police officer jurisdiction, defendant was a suspect in a homicide which had occurred in Lombard six weeks earlier, and the Lombard police were seeking to locate and question him. Lombard police officers, at the direction of Detective Cuny, had conducted surveillance of defendant's home during the six-week period.

Shortly after Nurczyk began the surveillance, two persons left the home and drove away in a small Pontiac. Nurczyk followed in an unmarked car and determined that the vehicle did not have a rear license plate. It was subsequently established that the vehicle had a four- by five-inch-license-applied-for form displayed on the back window, but Nurczyk stated he did not notice it at that time. Nurczyk continued to follow the vehicle and, by police radio, notified Cuny of the absence of a rear license plate. The decision was made to stop the vehicle and speak with the occupants. As defendant's car was outside of the Lombard village limits, it was necessary for Nurczyk to seek the assistance of police officers who had jurisdiction in the area. Du Page County Sheriff's Deputy Kundrot overheard this conversation while monitoring radio transmissions and met Cuny. Cuny told Kundrot that the car Nurczyk was following did not have registration plates and that the situation involved a murder investigation.

Officer Kundrot stopped the vehicle defendant was driving, Cuny pulled up behind Kundrot's marked squad car, and Nurczyk also stopped. Both Officer Kundrot and Cuny observed that the vehicle had no rear license plate, and both testified that the driver appeared to be handing something to the passenger. Defendant exited the driver's door of the vehicle and walked to the rear, where he was met by Kundrot and Cuny. Cuny recognized defendant from a booking photo and patted down the outside of defendant's coat. Officer Kundrot asked defendant for his driver's license, which he was unable to produce. Kundrot walked to the front of the vehicle to check the VIN number and noticed that defendant's passenger, Angela Cassaccio, was still in the passenger seat of the car and was manipulating an object in her waistband. Kundrot informed Cuny, and they went to the front of the car, leaving defendant with Nurczyk. Kundrot ordered Cassaccio to get out of the car, but she refused to open the coat she was holding shut with her hands in her pockets. When Cassaccio turned her back on Cuny and reached toward her waistband with one hand, Cuny turned her around and saw she was holding a revolver. She was handcuffed and taken into custody.

Defendant was then arrested and searched, and Cuny recovered $1,545.00, a clam-shaped container, a vial, and a spoon from defendant's person. It was later determined that the vial contained .016 grams of a substance containing cocaine and the clam-shaped container had in it .07 grams of a substance containing cocaine.

Defendant was initially charged with possession of a controlled substance with intent to deliver and armed violence. He was subsequently indicted for those offenses and for possession of a controlled substance, unlawful use of weapons by a felon, and armed violence based on possession of a controlled substance.

Prior to trial, defendant filed a motion to quash arrest and suppress evidence which was denied. The fact that defendant was a suspect in a homicide was not introduced at trial, although the State did adduce the fact that officers wanted to question him on an unrelated matter and had been following him prior to the traffic stop. The jury returned verdicts of not guilty on the charges of possession of a controlled substance with intent to deliver and armed violence based on possession of a controlled substance with the intent to deliver, and found defendant guilty of possession of a controlled substance, armed violence based on possession of a controlled substance and unlawful use of weapons by a felon, for which concurrent sentences of imprisonment were imposed.

Defendant contends first that there was no probable cause to justify the initial stop of his vehicle. There are no conclusive rules for determining whether an investigatory stop is justified and each case must be adjudicated on its own facts. (People v. Moffitt (1985), 138 Ill. App. 3d 106, 112, 485 N.E.2d 513.) The investigating officers testified that they stopped the car driven by defendant because it did not have a rear license plate and was thus in violation of the Illinois Vehicle Code. (See Ill. Rev. Stat. 1987, ch. 95 1/2, par. 3-701.) This fact provided the officers with justification for stopping defendant. (See People v. Tylkowski (1988), 171 Ill. App. 3d 93, 98, 524 N.E.2d 1112.) Although a license-applied-for sticker would be sufficient to operate the vehicle, the stop was at night and both Nurczyk and Officer Kundrot testified that they did not see the license-applied-for sticker until defendant's vehicle had been stopped and defendant was outside the vehicle.

Defendant argues that the officers' claim that they did not see defendant's license-applied-for sticker is irrelevant to an objective inquiry into this matter. However, the test is not what the officers objectively should have seen; the test is whether, viewed objectively, the totality of the facts and circumstances known to the officer at the time of the stop would warrant a reasonable and prudent person to believe a crime had been committed. (People v. Montgomery (1986), 112 Ill. 2d 517, 525, 494 N.E.2d 475.) In this case, the officers had evidence that defendant's ...


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