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01/28/94 PEOPLE STATE ILLINOIS v. KEITH WALTERS

January 28, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KEITH WALTERS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. Nos. 90-CF-550, 91-CF-2137, 91-CF-2956. Honorable Edward W. Kowal, Judge, Presiding.

Released for Publication March 3, 1994.

McLAREN, Inglis, Geiger

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The defendant, Keith Walters, was charged with the armed robbery of an Amoco service station in Roselle, Illinois. (Ill. Rev. Stat. 1991, ch. 38, par. 18-2(a) (now 720 ILCS 5/18-2(a) (West 1992)).) Walters filed a motion to quash the arrest and suppress evidence which was denied. After a bench trial where the evidence was stipulated, Walters was found guilty of armed robbery. Walters was on probation for separate theft and burglary convictions. At the sentencing hearing, the defense stipulated to petitions to revoke probation on the prior convictions. The court imposed a sentence of 10 years' imprisonment for the armed robbery and concurrent sentences of three and five years' imprisonment on the prior convictions for which probation had been revoked. Walters appealed. The sole issue is whether the motion to quash the arrest and suppress evidence should have been granted. For the following reasons, we affirm.

At the suppression hearing, Officer David Hourigan of the Roselle police testified that on December 19, 1991, at approximately 9:15 p.m., he received a report of an armed robbery at an Amoco service station. The dispatcher reported that the suspect was a white male, 17 to 18 years old, 5 feet 8 to 5 feet 10 inches tall, with a thin build, wearing a blue denim jacket, blue jeans, and a black and orange ski mask. He was carrying a dark colored handgun.

Approximately three minutes after receiving the radio report, Hourigan stopped at a stop sign three to four blocks away from the Amoco station. He noticed an automobile stopped at another stop sign at the intersection. Three males, 17 to 18 years old, occupied the front seat. Hourigan testified that their car did not move for 30 seconds while stopped at the stop sign and the occupants appeared to stare at him. Hourigan decided the individuals matched the description of the suspect because of their denim jackets, apparent ages, and physical size. Although the individuals were seated, he estimated that they were less than six feet tall based on the manner in which they filled the automobile.

Hourigan turned on the emergency lights and aimed his spot light on the automobile. With a public address system, he instructed the driver to turn off the automobile and the occupants to put their hands up. Hourigan radioed for backup. When another sergeant arrived, Hourigan instructed the occupants to exit the vehicle and walk backwards toward him. Hourigan's gun was drawn. Walters exited first, was handcuffed, patted down, and seated in the back of the squad car. The other occupants of the automobile, Michael Beadell, a/k/a Michael Locke, and David Sharinghousen, were handled the same way and were placed in separate squad cars.

Hourigan approached the automobile to ascertain whether there were other persons in the car. He shined a flashlight through the driver's side window and observed a silver pipe containing a green leafy substance on the console which divided the front seats. Hourigan reached in and grabbed the pipe. It smelled like marijuana. While reaching for the pipe, Hourigan observed a wad of money stuffed between the passenger's seat and the console. Hourigan further searched the automobile and found a black and orange ski mask which contained a .22 caliber revolver.

On cross-examination, Hourigan admitted that the dispatcher only gave a description for one suspect and did not give a description for a vehicle involved in the armed robbery. He was not aware of any outstanding warrants and did not observe any traffic violations.

In support of its motion to suppress, the defense argued that Hourigan had no valid reason to stop the automobile and that the defendants were arrested before probable cause existed. The State urged that Hourigan made a valid investigatory stop that he was still conducting when he observed the marijuana, thereby furnishing probable cause to arrest. The motion to suppress was denied.

On June 2, 1992, a stipulated bench trial was held. Sharinghousen's case was severed pursuant to motion by Walters. The defense noted that it would stand on its previous motion to quash and suppress, but would stipulate to the evidence offered by the State. The State indicated that it would call Shirley Elgindy, the gas station clerk, who would testify concerning the circumstances of the robbery. Officer Hourigan and Sergeants Chalupa and Dempsey would recount the details surrounding the arrest, including Walters' statement that Sharinghousen was the man who entered the service station. The court found Walters guilty of armed robbery.

Walters was on probation for separate theft and burglary convictions. At the sentencing hearing, the defense stipulated to petitions to revoke probation on the prior convictions. The court imposed a sentence of 10 years' imprisonment for the armed robbery and concurrent sentences of three and five years' imprisonment on the prior convictions for which probation had been revoked. Walters filed the instant appeal asserting that his conviction of armed robbery must be reversed because the motion to quash the arrest and suppress the evidence should have been granted.

In Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, the Supreme Court recognized that a police officer may briefly stop and detain an individual to investigate the possibility of criminal behavior absent probable cause to arrest. The Terry exception to the probable cause requirement has been codified in ...


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