Mr. JUSTICE BURMAN
delivered the opinion of the court:
The defendant, Commodore Tilden, was charged in a complaint with committing the offense of unlawful use of weapons in that on or about October 10, 1971, he “knowingly carried concealed on or about his person, or in a vehicle, a gun, to wit: one .22 Cal. Luger automatic pistol,” in violation of section 24 — 1(a)(4) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a) (4).
Prior to trial the defense attorney moved to suppress evidence. A hearing was held on the motion and evidence heard. Raymond Krakausky, the arresting police officer who was called as a witness for defendant, testified that on October 10, 1971, he observed a 1960 green Oldsmobile going south on Prairie Avenue from 43rd Street in Chicago being driven by the defendant. One other person was in the car with the defendant. The officer noticed that the vehicle “had no headlights or tailiights” so he stopped it. The' defendant got out of the car. He asked him for his driver’s license and the defendant gave it to him. He questioned the defendant about the violation and the defendant told him he had just left a tavern and forget to put the lights on. During the course of the investigation the officer observed an empty holster on the right side of the defendant’s pants. He thereupon first searched the defendant, then went to the automobile, the front door of which had remained open, and looked under the front seat. On cross-examination by the assistant State’s Attorney the officer said he observed the holster on the person of defendant, not as a result of any search, but because it was in plain view.
Commodore Tilden, the defendant, testified that the officer stopped him and upon request he gave him his drivers license. The drivers license was in his top coat pocket, which he said was buttoned. He denied having a holster on his person. He said that after the officer questioned him the officer proceeded to search the car. On cross-examination he denied that a holster shown to him was his and that the officer found it on his person.
The motion to suppress the evidence was denied. The case then proceeded to trial after the defendant entered a plea of not guilty and waived a jury. It was stipulated that Officer Krakausky’s testimony on the motion to suppress would be the same as on trial. The officer then further testified that when he looked under the front seat on the driver’s side he found a loaded gun, which he identified as State’s Exhibit Number One. He said a female was sitting on the passenger side of the front seat in the car. After he found the gun he advised the defendant of his constitutional rights. On cross-examination he stated that the defendant never admitted owning the gun, and that the female passenger never admitted owning it either.
The defense counsel moved for a directed finding of not guilty at the close of the evidence and it was denied. The court then entered a finding of guilty as charged and sentenced the defendant to 6 months in the House of Corrections.
It is argued in this appeal that (1) the defendant’s motion to suppress should have been sustained since there was no showing that the stopping of his auto was lawful, nor any showing that the subsequent search of his auto was justified and (2) the evidence is insufficient to establish the defendant’s guilt beyond a reasonable doubt.
It is most strenuously argued regarding the alleged error in the court’s denial of the motion to suppress that the State offered no evidence to establish that die arrest (which is how defendant categorizes the initial traffic stop) of the defendant was lawful, and that therefore any information or evidence obtained as a result of it should have been excluded from evidence. (Wong Sun v. United States, 371 U.S. 471.) This is premised on the assertion that the State failed to show that the officer had, in fact, stopped the defendant’s auto because of the commission of a traffic violation, since no evidence was proffered to establish that driving without lights at night violated any State statute or municipal ordinance, or that the stop was actually made at night.
We acknowledge the State’s burden to go forward with evidence to show reasonable grounds for the initial seizure once the defendant had made a prima facie case that the seizure was unlawful. (People v. Cassell, 101 Ill.App.2d 279, 243 N.E.2d 363; People v. Ezell, 61 Ill.App.2d 326, 210 N.E.2d 331 (abstract opinion).) But here that was not done. The only two witnesses at the hearing on the motion to suppress were the police officer and the defendant. The officer testified, upon questioning by defense counsel, that he stopped the defendant’s car for having no lights. He stated that after taking the defendant’s driver’s license, he began questioning him about the “violation,” which we can only interpret as meaning driving without lights at a time when they were required by law. The officer then said the defendant told him “he just left a tavern and he forgot to put the lights on.” This admission by the defendant was never controverted, at the hearing or at trial. After the officer’s testimony, defense counsel argued only the invalidity of the search based on the mere alleged presence of a gun holster, and concluded by stating, “[a]s to the violation of not having lights, that is a very minor traffic charge.” The defendant’s testimony at the hearing, which immediately followed, in no way touched upon the validity of the initial traffic stop, but was concerned only with events subsequent to the stop.
Based on this record, we hold that the defendant failed to make out a prima facie case that the stop was unreasonable, and that the officer’s testimony was clearly sufficient to establish a proper purpose for the stop and to support a denial of the motion to suppress. Indeed, a fair reading of the record would indicate that the defendant never raised the issue of the validity of the initial stop at the hearing, and has waived any right to have it reviewed on appeal.
People v. Ezell, 61 Ill.App.2d 326, 210 N.E.2d 331, and People v. Cassell, 101 Ill.App.2d 279, 243 N.E.2d 363, cited by the defendant, are manifestly not in point. In both of these cases the denial of a motion to suppress was held to be error. But in Ezell the testimony of the defendant was the only evidence adduced at the hearing on the motion. It showed without contradiction that at the time of the defendant’s arrest he was doing nothing more than walking on a public street, and that when the police officer commented to him that he had heard the defendant was doing wrong, the defendant denied it to him. A subsequent search was held improper, since the defendant had made out a prima facie case that the arrest was unlawful and the State offered no evidence to contradict it. Likewise, in Cassell, the defendant’s testimony was. the sole evidence submitted on the motion to suppress, and it established that he was doing nothing unusual at the time of his arrest.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. JUSTICE BURMAN
delivered the opinion of the court:
The defendant, Commodore Tilden, was charged in a complaint with committing the offense of unlawful use of weapons in that on or about October 10, 1971, he “knowingly carried concealed on or about his person, or in a vehicle, a gun, to wit: one .22 Cal. Luger automatic pistol,” in violation of section 24 — 1(a)(4) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a) (4).
Prior to trial the defense attorney moved to suppress evidence. A hearing was held on the motion and evidence heard. Raymond Krakausky, the arresting police officer who was called as a witness for defendant, testified that on October 10, 1971, he observed a 1960 green Oldsmobile going south on Prairie Avenue from 43rd Street in Chicago being driven by the defendant. One other person was in the car with the defendant. The officer noticed that the vehicle “had no headlights or tailiights” so he stopped it. The' defendant got out of the car. He asked him for his driver’s license and the defendant gave it to him. He questioned the defendant about the violation and the defendant told him he had just left a tavern and forget to put the lights on. During the course of the investigation the officer observed an empty holster on the right side of the defendant’s pants. He thereupon first searched the defendant, then went to the automobile, the front door of which had remained open, and looked under the front seat. On cross-examination by the assistant State’s Attorney the officer said he observed the holster on the person of defendant, not as a result of any search, but because it was in plain view.
Commodore Tilden, the defendant, testified that the officer stopped him and upon request he gave him his drivers license. The drivers license was in his top coat pocket, which he said was buttoned. He denied having a holster on his person. He said that after the officer questioned him the officer proceeded to search the car. On cross-examination he denied that a holster shown to him was his and that the officer found it on his person.
The motion to suppress the evidence was denied. The case then proceeded to trial after the defendant entered a plea of not guilty and waived a jury. It was stipulated that Officer Krakausky’s testimony on the motion to suppress would be the same as on trial. The officer then further testified that when he looked under the front seat on the driver’s side he found a loaded gun, which he identified as State’s Exhibit Number One. He said a female was sitting on the passenger side of the front seat in the car. After he found the gun he advised the defendant of his constitutional rights. On cross-examination he stated that the defendant never admitted owning the gun, and that the female passenger never admitted owning it either.
The defense counsel moved for a directed finding of not guilty at the close of the evidence and it was denied. The court then entered a finding of guilty as charged and sentenced the defendant to 6 months in the House of Corrections.
It is argued in this appeal that (1) the defendant’s motion to suppress should have been sustained since there was no showing that the stopping of his auto was lawful, nor any showing that the subsequent search of his auto was justified and (2) the evidence is insufficient to establish the defendant’s guilt beyond a reasonable doubt.
It is most strenuously argued regarding the alleged error in the court’s denial of the motion to suppress that the State offered no evidence to establish that die arrest (which is how defendant categorizes the initial traffic stop) of the defendant was lawful, and that therefore any information or evidence obtained as a result of it should have been excluded from evidence. (Wong Sun v. United States, 371 U.S. 471.) This is premised on the assertion that the State failed to show that the officer had, in fact, stopped the defendant’s auto because of the commission of a traffic violation, since no evidence was proffered to establish that driving without lights at night violated any State statute or municipal ordinance, or that the stop was actually made at night.
We acknowledge the State’s burden to go forward with evidence to show reasonable grounds for the initial seizure once the defendant had made a prima facie case that the seizure was unlawful. (People v. Cassell, 101 Ill.App.2d 279, 243 N.E.2d 363; People v. Ezell, 61 Ill.App.2d 326, 210 N.E.2d 331 (abstract opinion).) But here that was not done. The only two witnesses at the hearing on the motion to suppress were the police officer and the defendant. The officer testified, upon questioning by defense counsel, that he stopped the defendant’s car for having no lights. He stated that after taking the defendant’s driver’s license, he began questioning him about the “violation,” which we can only interpret as meaning driving without lights at a time when they were required by law. The officer then said the defendant told him “he just left a tavern and he forgot to put the lights on.” This admission by the defendant was never controverted, at the hearing or at trial. After the officer’s testimony, defense counsel argued only the invalidity of the search based on the mere alleged presence of a gun holster, and concluded by stating, “[a]s to the violation of not having lights, that is a very minor traffic charge.” The defendant’s testimony at the hearing, which immediately followed, in no way touched upon the validity of the initial traffic stop, but was concerned only with events subsequent to the stop.
Based on this record, we hold that the defendant failed to make out a prima facie case that the stop was unreasonable, and that the officer’s testimony was clearly sufficient to establish a proper purpose for the stop and to support a denial of the motion to suppress. Indeed, a fair reading of the record would indicate that the defendant never raised the issue of the validity of the initial stop at the hearing, and has waived any right to have it reviewed on appeal.
People v. Ezell, 61 Ill.App.2d 326, 210 N.E.2d 331, and People v. Cassell, 101 Ill.App.2d 279, 243 N.E.2d 363, cited by the defendant, are manifestly not in point. In both of these cases the denial of a motion to suppress was held to be error. But in Ezell the testimony of the defendant was the only evidence adduced at the hearing on the motion. It showed without contradiction that at the time of the defendant’s arrest he was doing nothing more than walking on a public street, and that when the police officer commented to him that he had heard the defendant was doing wrong, the defendant denied it to him. A subsequent search was held improper, since the defendant had made out a prima facie case that the arrest was unlawful and the State offered no evidence to contradict it. Likewise, in Cassell, the defendant’s testimony was. the sole evidence submitted on the motion to suppress, and it established that he was doing nothing unusual at the time of his arrest. In the case at bar the police officer’s testimony clearly articulated a legitimate purpose for the initial stop, i.e., because the defendant was driving without lights, and this, together with the other testimony and absent any evidence that for some reason such a stop was unjustified, sufficiently established its validity.
Having determined that the initial traffic stop was justified, the defendant’s argument on appeal that the officers observation of the empty gun holster was made while he was unlawfully detaining the defendant, and that therefore it could not provide a basis for a subsequent search and seizure, loses its basic premise. The defendant further urges, however, that the mere “presence of an empty holster * * * could give rise to no more than a suspicion that somewhere, sometime, Defendant may have carried or inserted a gun in it,” that “[i]t did not qualify as probable cause that Defendant was violating the law by carrying a gun in his automobile,” and therefore that the search precipitated by an observation of the holster was unreasonable because it was not incident to a valid arrest.
We first note, as the defendant correctly implies, that the initial stop alone was not necessarily grounds to conduct a search of his person and car, since a mere traffic violation was involved. (But cf. United States v. Robinson, 414 U.S. 218; Gustafson v. Florida, 414 U.S. 260.) But the ultimate search was not based only on the traffic stop. After the stop, and while the officer was questioning the defendant regarding the traffic offense, he noticed a gun holster on the defendant’s person. He testified that the holster was in “plain view,” and not the result of an intrusion which deprived the defendant of any justifiable expectation of privacy. It could thus legitimately provide a basis for further investigation or arrest. As explained in Coolidge v. New Hampshire, 403 U.S. 443, 466, “the police officer * * * had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused.” At that time the officer here conducted a search of the defendant’s person and “went to his automobile [the door of which was open] and * * * looked under the front seat,” and there the logical counterpart to an empty holster, a loaded handgun was found.
The question then is whether, at the time the holster was observed, the officer had a right to conduct the search made. The defendant apparently finds justification for this warrantless search only as one incident to arrest (see Chimel v. California, 395 U.S. 752), and he therefore questions whether probable cause existed for an arrest for other than the traffic offense at that time. He does not raise as an issue whether an arrest had actually been made at the time the search was conducted.
There is some difficulty in accepting the formula posited by the defendant as the only means of justifying the officer’s actions here. A traffic stop was made. The defendant alighted from the car, and while being questioned by the officer, the gun holster was seen on his person. It was empty. Another person was seated in the front seat of the car. The car door was open. An empty holster cannot reasonably be considered a typical and innocuous item of wearing apparel. Surely it seems that for the officer not to pursue some type of inquiry would make him remiss, if not foolhardy. Various United States Supreme Court decisions have underscored the importance that the believed presence of a weapon might have in affecting more proscriptive concepts of warrantless search and seizure, especially where an auto is involved (Cady v. Dombrowski, 413 U.S. 433), and even where a “full-blown arrest” has not been effected (Terry v. Ohio, 392 U.S. 1; Adams v. Williams, 407 U.S. 143). Others have applied a less restrictive rationale for a search incident to arrest in the context of a custodial traffic arrest, at least in regard to the person of the arrestee. (United States v. Robinson, 414 U.S. 218; Gustafson v. Florida, 414 U.S. 260.) The penumbra of these decisions might well justify a police officer’s limited inspection of the person and the area immediately accessible to the person under the peculiar circumstances presented here, even without a prior formal arrest for carrying a concealed weapon. Indeed, some Illinois decisions have justified a search of a driver and his vehicle incident to a traffic arrest, where the circumstances reasonably indicate that the police may be dealing not with the ordinary traffic offender, but with a criminal, in order to insure the safety of the police officers and to prevent an escape of the “might-be” criminal. People v. Brown, 38 Ill.2d 353, 231 N.E.2d 577; People v. Thomas, 31 Ill.2d 212, 201 N.E.2d 413.
Furthermore, the rationale for limiting a search incident to a mere traffic arrest has been the usual absence in that circumstance of (1) any evidence or fruits of the crime which must be seized to prevent their concealment or destruction, and (2) any weapons the arrestee might seek to use to resist arrest or effect his escape, the two traditional purposes for allowing a warrantless search incident to an arrest for a more serious offense. (See Chimel v. California, 395 U.S. 752, 762-63. See also State v. Curtis, 290 Minn. 429, 190 N.W.2d 631; State v. O’Neal, 251 Ore. 163, 444 P.2d 951; cited by Marshall, J., dissenting in United States v. Robinson, 414 U.S. 218, 245, 246.) Here, if a traffic arrest was made, and it appears that one was justified, the second of these traditional purposes would seem to clearly justify a warrantless search by the officer to protect himself once he saw the empty holster. And the search could properly encompass the area within the arrestee’s immediate control (Chimel v. California, 395 U.S. 752, 763), which appears to have included here the place where the gun was found.
Finally, even if we limit ourselves to the more constrictive framework presented by the defendant for justifying the search, i.e., finding probable cause for the weapons arrest as the sine qua non to its validity, we hold the search proper. It is well settled that what constitutes reasonable grounds on which probable cause is based depends on the surrounding facts and circumstances of each individual case. (People v. Mills, 98 Ill.App.2d 248, 240 N.E.2d 302.) And as stated in People v. Jones, 31 Ill.2d 42, 47, 198 N.E.2d 821, 823-24:
“[Ejxistence of reasonable cause which will justify an arrest without a warrant depends upon ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ (Brinegar v. United States, 338 U.S. 160, 175 * * *.) [And] * * # it has been observed that police officers ‘often must act upon a quick appraisal of the data before them, and the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to catch criminals.’ People v. Watkins, 19 Ill.2d 11, 19.”
We feel the record adequately establishes that this standard was met. The peculiar and exigent circumstances presented to the officer, which we have adequately discussed above, were sufficient basis for him to effect an arrest and make the search.
The defendant also contends that he was not guilty beyond a reasonable doubt. It is asserted that there was no evidence that the gun was not the property nor in the possession of the woman who was a passenger in the car. Nor, it is contended, was there any showing that the defendant had knowledge of the gun’s presence or that it was accessible to him. This argument requires no extended analysis on our part. While we agree that knowledge that the gun was in the car is essential to establish a crime (People v. Liss, 406 Ill. 419, 94 N.E.2d 320), scienter may and must often be proved by circumstantial evidence (People v. McKnight, 39 Ill.2d 577, 237 N.E.2d 488.) The gun was found, according to the officer’s testimony, under the driver’s seat. (See People v. Zazzetti, 6 Ill.App.3d 858, 286 N.E.2d 745.) The defendant was the driver, and he was wearing a holster. There was no evidence connecting the woman passenger to the gun in any way. We feel these facts sufficiently indicate not only scienter, but also that the weapon was immediately accessible to him (Ill. Rev. Stat. 1973, ch. .38, par. 24 — 2(b) (4)), and under his immediate and exclusive control. We have examined the cases cited by the defendant and find they do not compel a different conclusion.
Finally, the fact that the officer could not remember if the defendant was wearing a top coat, whereas the defendant testified that he was, and that he reached into his top coat pocket to get his driver’s license for the officer, does not as a matter of law create reasonable doubt that the officer observed a holster on the defendant’s person. There was sufficient testimony by the officer, if believed, to establish that the holster was in plain view, and the credibility of the witnesses is properly in the domain of the trier of fact. (People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182.)
For these reasons the judgment is affirmed.
Affirmed.
ADESKO, P. J., concurs.