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10/26/89 the People of the State of v. David Starks

October 26, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DAVID STARKS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

546 N.E.2d 71, 190 Ill. App. 3d 503, 137 Ill. Dec. 447 1989.IL.1693

Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. INGLIS and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

Defendant, David Starks, was charged by indictment with two counts of attempted murder (Ill. Rev. Stat. 1985, ch. 38, par. 8-4) and one count each of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a)) and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4). Following a jury trial, he was acquitted of one count of attempted murder and convicted of all remaining counts. He was sentenced to concurrent terms of 12 years for the attempted murder and armed robbery convictions and five years for the aggravated-battery conviction. We affirm.

Carol Flynn was working in the kitchen of her home on May 2, 1987. Four or five times throughout that morning, she looked out her window to see a man walking back and forth in the church parking lot behind her home. Later, Flynn left her house through the back door, carrying a garbage bag and her purse, which contained approximately $285 in cash. As Flynn approached her garbage can, the man that she had seen in the church parking lot walked up next to her, showed her a gun, and demanded her purse. Flynn refused. A struggle for the purse ensued. After the man succeeded in winning possession of the purse, he fired two shots, neither of which struck Flynn.

The gunman fled on foot, pursued by Flynn, who was screaming for help. The man dropped his gun, and when he paused to pick it up, he was caught by Flynn. The man punched Flynn in the mouth and fired one shot in the air before he ran off in an easterly direction.

Flynn then notified the police of the occurrence. Sergeant Perkins of the Aurora police department arrived at the scene and was given a description of the assailant via radio dispatch: black male, 5 feet 11 inches, 160 pounds, wearing gray jacket and slacks and black and white shoes. The assailant also wore one black glove with the fingers cut off.

Sergeant Perkins proceeded east and parked his police vehicle near an apartment building approximately two blocks east of the scene. This building had been the location of much criminal activity in the past. As Perkins waited in his vehicle, he saw a car containing four black men about to leave the building's parking lot. Perkins noticed that the front seat passenger was of the approximate height and weight of the suspect. Perkins made eye contact with the passenger, who then slid down in his seat until only the top of his head was visible. After the car pulled away, Sergeant Perkins followed it and requested back-up units.

A few blocks away, Sergeant Perkins pulled over the suspect vehicle. He then requested the driver to approach the squad car and patted the man down for weapons. By this time, Officers Krueger and Kenner had arrived. These officers had received a radio broadcast from Sergeant Perkins to the effect that he had stopped a vehicle containing a person who matched the description of the armed robber. Officer Kenner approached the stopped vehicle on the passenger side and noticed that the front seat passenger, David Starks, was wearing gray slacks. Officer Kenner drew her gun and ordered Starks out of the car. Starks was patted down and handcuffed. Eventually, all four men in the car were cuffed. A search of the car unearthed one fingerless black glove and a .22 caliber semiautomatic pistol. A later search of defendant at the police station revealed $288.59 in cash.

Mrs. Flynn was brought to the scene of the traffic stop in a squad car. She there identified Starks as her assailant. Starks was then transported via paddy wagon to the scene of the struggle over the pistol. There, James Barber, who had witnessed the action from his apartment, also identified Starks as the assailant.

Defendant first contends that he was arrested without probable cause and that, consequently, the evidence seized as a result of that arrest should have been suppressed. Defendant argues that Sergeant Perkins was not justified in conducting the initial traffic stop. Continuing, defendant maintains that Officer Kenner did not have probable cause to arrest him after the traffic stop.

The governing principles of an investigatory stop are well established. In appropriate circumstances, and in an appropriate manner, a police officer may approach an individual for purposes of investigating possible criminal behavior even without probable cause for arrest, provided that the officer's decision to stop is based on specific and articulable facts which, when taken with rational inferences from those facts, reasonably warrant the investigative intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20-21, 20 L. Ed. 2d 889, 905-06, 88 S. Ct. 1868, 1879-80; People v. Vena (1984), 122 Ill. App. 3d 154, 160.) The reasonableness of a stop is dependent upon whether the facts available to the officer warrant a person of reasonable caution to believe that the action taken was ...


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