People v. Conard

572 N.E.2d 1203, 213 Ill. App. 3d 1068, 157 Ill. Dec. 739, 1991 Ill. App. LEXIS 873
CourtAppellate Court of Illinois
DecidedMay 21, 1991
DocketNo. 3—90—0514
StatusPublished
Cited by1 cases

This text of 572 N.E.2d 1203 (People v. Conard) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Conard, 572 N.E.2d 1203, 213 Ill. App. 3d 1068, 157 Ill. Dec. 739, 1991 Ill. App. LEXIS 873 (Ill. Ct. App. 1991).

Opinion

PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The State appeals the granting of a suppression motion in favor of the defendant, Rodney Conard. The sole question on appeal is whether the trial court properly suppressed the evidence. We affirm.

The record shows that the State charged the defendant with residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19—13). The defendant subsequently filed a motion to suppress, alleging that the police had improperly seized a coin purse from his person.

At a hearing on the motion, Officer Robert Fitzgerald testified that he was patrolling Macomb on the afternoon of November 28, 1989. Around 4:47 p.m., he heard a dispatch that a suspicious person had left a residence at 918 West Jefferson Street. The person was described as a 5-foot 10-inch white male, weighing about 170 pounds and wearing faded blue jeans, a tan vest, sunglasses, and a black stocking cap.

The officer proceeded to the neighborhood of the home in question. When he was about two blocks from the home, he saw the defendant walking along the side of the street. The officer described him as being about 5 feet 10 inches weighing 170 to 180 pounds, and wearing faded blue jeans, a dark blue, hooded sweat shirt, a brown jacket, a green baseball cap, and sunglasses. The defendant was walking toward 918 West Jefferson Street.

Fitzgerald testified that he pulled into a driveway about a half block in front of the defendant and waited for him to approach. He then stepped out of his car and began questioning him. The defendant said that he had been in a bar since he left work and was on his way to get something to eat. When the officer said that a person matching his description had been seen leaving a house on West Jefferson Street, the defendant said that he had been looking for a friend at some houses on Jefferson Street. He gave the name of his friend, but the officer could not recall it.

Fitzgerald stated that the defendant complained that he was being harassed. Officer Leo Icenogle then arrived on the scene and joined the discussion. When Fitzgerald asked the defendant his,name, the defendant gave his correct name and birth date, but he could not produce any identification.

Fitzgerald believed that the defendant was acting in a slightly hostile manner, so he frisked him for weapons. He found a pocketknife in his pants pocket and felt two long thin objects and a harder, bulky object in his coat. Fitzgerald was unable to remove them because they had fallen through a hole in a pocket and were stuck in the jacket lining. On Fitzgerald’s instructions, the defendant took them out, revealing them to be two marking pencils and a leather coin purse.

The defendant said that his father had given him the coin purse that morning and that it contained change. Although Fitzgerald did not ask him to, the defendant opened it and showed him its contents. Fitzgerald verified that it contained change and a Red Cross pin.

Fitzgerald further testified that Officer Earl Hedeen arrived, on the scene with Don Smith, the person who had phoned in the report. Hedeen told Fitzgerald that Smith thought the defendant was the man who had been in the home, but he was not certain.

Hedeen took Smith home and returned with Bud Haney, the owner of the home at 918 West Jefferson. Haney said that the coin purse resembled one that was missing from his home and correctly described its contents. At that point, the officers told the defendant he was under arrest.

Officer Icenogle then testified. His testimony was in general agreement with that of Officer Fitzgerald.

Officer Hedeen testified that after hearing the report of the possible break-in, he proceeded to 918 West Jefferson. He walked in through the open back door and made a quick search of the premises. No one appeared to be home; He then went outside and spoke, with Don Smith. Smith told him he had seen someone whom he did' not recognize enter the home. Since Smith thought it could be a relative, he called the home, but there was no answer. Smith then saw the man leave. Smith called out to him, but the man put his head down and quickly walked away.

Smith agreed to accompany Hedeen to view the defendant. When they arrived at the scene of the questioning, Smith said that the defendant looked like the man he had seen, but he was not certain. Hedeen then returned Smith to his home.

The defendant testified that he was wearing, white gloves when Fitzgerald approached him. He cooperated with the officers, although he believed they were harassing him. He also said that after he produced the purse, Fitzgerald opened it.

The trial court found that Fitzgerald had sufficient grounds to stop the defendant. The court further found, however, that Fitzgerald did not have grounds to fear for his safety and therefore should not have frisked the defendant. The court also found that even if a search for weapons were justified, the officer exceeded the scope of the search by asking the defendant to produce the coin purse.

Lastly, the court found that the evidence was not admissible under the inevitable discovery doctrine. The court stated that in order for the doctrine to apply, the evidence had to show that the officers could have lawfully arrested the defendant, based solely on Smith’s identification. The court found that the identification did not provide sufficient grounds for a lawful arrest. Accordingly, it granted the motion to suppress.

On appeal, the State argues that the trial, court erred. It first contends that under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and its progeny, Fitzgerald made a valid search of the defendant. The defendant replies that Fitzgerald lacked sufficient grounds to perform a Terry stop. He further argues that even if Fitzgerald had sufficient grounds, he did not perform a valid search.

Initially, we note that the trial court’s decision should only be-reversed if it was against the manifest weight of the evidence. People v. Hunt (1989), 188 Ill. App. 3d 359, 544 N.E.2d 118.

Turning to the first question of whether Fitzgerald performed a valid Terry stop, we agree with the trial court’s finding that he did: In order to detain the defendant, Fitzgerald must have had a reasonable suspicion, based on objective facts, that the defendant was involved in criminal activity. (Brown v. Texas (1979), 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637.) Based on the information given in the dispatch and the defendant’s appearance, we find that Fitzgerald was justified in stopping the defendant for further investigation.

As for whether Fitzgerald made a valid search, we note that since he performed a Terry stop, he could only make a pat-down search if he had a reasonable belief, based on articulable facts, that his safety was in danger. (People v. Brown (1989), 190 Ill. App. 3d 511, 546 N.E.2d 95

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Bluebook (online)
572 N.E.2d 1203, 213 Ill. App. 3d 1068, 157 Ill. Dec. 739, 1991 Ill. App. LEXIS 873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-conard-illappct-1991.