APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
544 N.E.2d 1008, 188 Ill. App. 3d 488, 136 Ill. Dec. 233 1989.IL.1376
Appeal from the Circuit Court of Cook County; the Hon. Matthew J. Moran, Judge, presiding.
PRESIDING JUSTICE MANNING delivered the opinion of the court. O'CONNOR, J., concurs. JUSTICE QUINLAN, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING
Defendant, William Murray, was charged by information with unlawful use of a weapon by a felon. (Ill. Rev. Stat. 1987, ch. 38, par. 24-1.1.) He filed a motion to quash his arrest and to suppress evidence which was denied after an evidentiary hearing. Following a bench trial, he was convicted as charged and sentenced to a term of two years' probation with 15 weekends of incarceration at the Cook County Department of Corrections. On appeal, he contends that the trial court erroneously denied his motion to quash arrest and to suppress evidence and that the evidence was insufficient to establish his guilt beyond a reasonable doubt.
During the evidentiary hearing on the motion, defendant testified that at 10 a.m. on October 4, 1986, he was sitting in the driver's seat of his automobile, which was parked northbound on the frontage road adjacent to the Calumet Expressway near 104th and Doty Road in Chicago. Defendant, who was en route to his son's funeral, had stopped to regain his composure. He then observed a police car proceed southbound on the expressway, exit, emerge onto the road and park behind the vehicle defendant occupied. Officers James Flaherty and Charles Brown then walked from their squad car to defendant's legally parked vehicle and told him to step from his car. Defendant exited his vehicle, closed the door and upon request surrendered his license. Neither officer showed defendant a warrant. While one officer examined defendant's license, the other one opened the car door and stated "Can you stand a search" to which defendant replied "[y]es." Defendant told him that he could not search his car. The officer stated, "Oh yes -- want to bet?" The officer then searched the vehicle and claimed that he had found a gun on the floor in front of the driver's seat. Defendant further testified that he had not seen a weapon in the car, nor was he aware that one was there.
Officer Charles Brown testified that at 11:30 a.m. on October 4, 1986, he and his partner, Officer James Flaherty, became concerned when they observed defendant asleep behind the steering wheel of a Ford automobile parked near the roadside. They approached defendant's vehicle and knocked on the window to awaken him. When he awakened they asked him for his license. He then exited his car and tendered his license to Officer Flaherty. Officer Brown, who was standing to the side of the door and at the front of the windshield, looked into the car after defendant alighted, observed a handgun on the floor, and alerted his partner. Officer Brown then arrested defendant while Officer Flaherty seized the loaded weapon.
During the trial Officer Brown added that defendant appeared to be asleep but in "some distress" when the police first observed him. He also stated that only Officer Flaherty knocked on the window to awaken defendant, and that the policemen also asked defendant to exit the vehicle and to produce his identification. Officer Brown further testified that from his position "at the front of the [defendant's] car," he observed the weapon "on the floor in the front seat, the driver's seat, approximately six inches from the driver's seat." Officer Brown immediately informed his partner of the weapon. The policemen seized the gun, arrested defendant and transported him to the station.
Jerome McDonald and Lucille Green testified for defendant. At the commencement of McDonald's testimony a stipulation was entered that he was the owner of the handgun recovered from the vehicle in which defendant was arrested. McDonald added that shortly before the trial he learned that the weapon had been taken from his former residence.
Green testified that she was defendant's mother and the owner of the vehicle from which the weapon was recovered. Green added that she, defendant and his son were the only persons who drove her car. She added that on September 29, 1986, defendant's son died from gunshot wounds and that his funeral had been scheduled for October 4, 1986. Prior to his death he had been "in trouble" with the law.
Defendant testified that on October 4, 1986, he was driving to his son's funeral when he parked northbound on the road adjacent to the Calumet Expressway near 104th and Doty Road to regain his composure. He then sat in a semi-reclining position and observed a squad car proceed southbound on the expressway, exit, enter onto the road and park behind his vehicle. When the policemen emerged from their vehicle, Officer Brown walked to the passenger side, and Officer Flaherty approached the driver's side of defendant's car. They ordered him to step from his car. He complied and closed the door.
While Officer Flaherty examined defendant's driver's license, Officer Brown pushed defendant aside, opened the door, "got down on one knee, pulled a floor mat out of the car," and stated, "See what I found." He then "showed something" to Officer Flaherty. The policemen transported defendant to the station, where they showed him a handgun and informed him that it had been found in his car. Defendant further testified that he did not use nor had he discussed the use of controlled substances with the police officers. Defendant also stated that he had not used the automobile for "sometime" before his arrest.
Officer James Flaherty testified that he was proceeding north-bound when he observed defendant "slumped over" the steering wheel of a parked car near 104th and Doty Road. Officers Flaherty and Brown then stopped to determine defendant's condition. They awakened him by knocking on the window, and then Officer Flaherty asked for his driver's license. Flaherty could not remember if defendant had been asked to exit his car. Nevertheless, after defendant stepped from his car, Officer Brown observed the handgun on the floor. Officer Flaherty did not see the weapon until his partner removed it from defendant's vehicle. The officers arrested defendant and drove his car to the station where they searched it. According to Officer Flaherty, although defendant had no controlled substances in his possession, defendant volunteered that his ...