People v. Basiak

• Decision Date: 16 June 1977
• Docket Number: Nos. 76-401 and 76-402,s. 76-401 and 76-402
• Citation: 8 Ill Dec. 332,365 N.E.2d 570,50 Ill.App.3d 155
• Parties: , 8 Ill.Dec. 332 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Richard BASIAK, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 570

365 N.E.2d 570

50 Ill.App.3d 155, 8 Ill.Dec. 332

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Richard BASIAK, Defendant-Appellee.

Nos. 76-401 and 76-402.

Appellate Court of Illinois, First District, Fourth Division.

June 16, 1977.

Bernard Carey, State's Atty., Cook County, Chicago (Laurence J. Bolon, Iris E. Sholder, Wendy Paul Billington, Asst. State's Attys., of counsel), for plaintiff-appellant.

Glenn E. Gutsche, Chicago, for defendant-appellee.

ROMITI, Justice:

The defendant, Richard Basiak, was charged by two separate complaints with unlawful use of a weapon (Ill.Rev.Stat.1975, ch. 38, par. 24-1(a)(4)), and possession of a firearm without having in his possession a State firearm owner's identification card. (Ill.Rev.Stat.1975, ch. 38, par. 83-2). The trial court sustained defendant's pre-trial motion to suppress the evidence as to both charges. This is an appeal by the State from that order.

The State contends that the evidence was properly obtained through a valid search incident to either a lawful "stop and frisk" or, alternatively, a lawful arrest.

We reverse the judgment of the trial court.

The only testimony at the hearing on the motion to suppress was that of Chicago Police Officer Allen Kieras. He testified as follows: At approximately 2:00 A.M. on April 28, 1975 Officer Kieras and his partner, while on patrol in their marked squad car, approached the intersection of Elm and Dearborn Streets in Chicago. At that time Kieras heard a noise which, in his opinion, based on his four and one-half years as a Chicago policeman, sounded like a single gunshot. The shot appeared to Kieras to have originated from around the corner, on Elm Street. Kieras and his partner drove around the corner and saw the defendant and another man standing by an alley, approximately 100 feet west of Dearborn. This was the location from which Kieras believed the noise had originated. There were no other people and no cars in the area. Except for one restaurant, which was closed, and its garage, the area consisted of vacant lots. The two officers, in uniform, approached the two men with guns drawn and told them to keep their hands out of their pockets and to get against the car. They then made a search of both defendants. Kieras described it as " * * * a search for possible weapons for our own protection." The search of the defendant produced the gun which was the subject of the motion to suppress.

We first consider the State's contention that the search was pursuant to a valid stop and frisk. The constitutional standards for such an action were established in Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. The initial stop may be for the purpose of " * * * investigating possibly criminal behaviour even though there is no probable cause to make an arrest." (Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889.) But to justify this intrusion " * * * the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889.) Once the investigatory stop is made, if the officer reasonably believes that the person with whom he is dealing may be armed and dangerous, he may make " * * * a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889.

An example of what facts have been held sufficient to justify a stop and frisk is found in People v. Lee (1971), 48 Ill.2d 272, 269 N.E.2d 488. There two police officers were informed by a superior officer that it had been reported that there was to be a "gang war" that night in the area to which the officers were assigned. While on duty in their squad car the officers heard what sounded to them like gunshots. About two blocks away, within two minutes, they observed six young men walking on the sidewalk. There was no one else in the area. Four of the men wore headgear worn by a gang which one of the officers testified he thought might be involved in the expected gang trouble. The officers stopped the men, talked with them briefly, then subjected them to a pat search for weapons. As a result of ammunition found in the possession of four of them, those four were convicted of unlawful possession of firearms ammunition. Three defendants appealed, and in affirming their convictions the court found that the officers had acted reasonably, based on the standards set out in Terry, in stopping the men and in making the protective pat searches.

We find Lee to be persuasively in point, and that the similar circumstances of the case at bar would permit a properly limited stop and frisk. Officer Kieras testified that he had heard gunshots before, and that based on four and one- half years as a policeman, he believed that he heard a shot at the time in question. The only people in the area were the defendant and his companion. They were located at the very spot from which Kieras believed shots had emanated. These are specific facts from which Kieras quite reasonably decided that an investigation was warranted. Once the stop was made there was reason for both officers to fear that the men they had stopped might be armed and dangerous since the officers were investigating what they believed to be a gunshot. Kieras testified that they then made a search for weapons.

Defendant concedes that a limited stop and frisk may have been justified under the facts of this case. However, it is his contention that the actions of the police constituted an immediate arrest and general search unsupported by the requisite probable cause.

As factual support for this contention defendant points out that on first approaching the defendant and his companion the police already had their weapons drawn and immediately searched the two men without first questioning them. It is true that in Terry the police officer first identified himself and asked the names of the suspects before searching them. But the court did not isolate those procedures as crucial to a constitutional stop and frisk. Instead it emphasized that further guidelines would evolve from the special facts of future cases. (Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889.) As Justice Harlan stated in his concurring opinion in Sibron v. State of New York (1968), 392 U.S. 40 at 74, 88 S.Ct. 1889 at 1907, 20 L.Ed.2d 917, " * * * the right to frisk is automatic when an officer lawfully stops a person suspected of a crime whose nature creates a substantial likelihood that he is armed * * *." The response to the officer's request for names in Terry was that the defendant "mumbled something," hardly an incriminating statement in itself. But the court in Terry did note that the situation which led the officer to believe that an armed robbery might be planned was sufficient to reasonably cause him to fear that these men might be armed. The facts in the case at bar, where the officers reasonably suspected that one of these two men might have just fired a shot, provide even stronger support for the officers' actions in immediately drawing their guns and searching the two men for weapons. Defendant has cited the Illinois statutory codification of the "stop" portion of Terry, which provides in relevant part that: "A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer...