People v. Billings

• Decision Date: 23 August 1977
• Docket Number: No. 62996,62996
• Citation: 9 Ill.Dec. 903,367 N.E.2d 337,52 Ill.App.3d 414
• Parties: , 9 Ill.Dec. 903 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Percy BILLINGS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 337

367 N.E.2d 337

52 Ill.App.3d 414, 9 Ill.Dec. 903

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Percy BILLINGS, Defendant-Appellant.

No. 62996.

Appellate Court of Illinois, First District, Second Division.

Aug. 23, 1977.

James J. Cutrone, Chicago, for defendant-appellant.

Bernard Carey, State's Atty., of Cook County, Chicago, for plaintiff-appellee; Laurence J. Bolon, James S. Veldman, Asst. State's Attys., of counsel.

PUSATERI, Justice:

The defendant, Percy Billings, was charged by complaint with the offenses of unlawful use of weapons (Ill.Rev.Stat.1975, ch. 38, par. 24-1(a)(10) and of possessing a firearm without having in his possession a valid Firearm Owner's Identification Card issued by the State of Illinois (Ill.Rev.Stat.1975, ch. 38, par. 83-2). Following a bench trial, the court discharged the defendant on the charge of unlawful use of weapons, and found him guilty of the offense of possessing a firearm without having in his possession a valid Firearm Owner's Identification Card. The defendant was sentenced to a term of one year's probation, with the first 15 days to be served in the Cook County Jail.

From the entry of the judgment of conviction, the defendant appeals and contends as follows: (1) that the trial court erred in denying defendant's motion to suppress; (2) that defendant was not proven guilty beyond a reasonable doubt; (3) that the trial court considered inadmissible hearsay evidence; and (4) that the trial court was without jurisdiction to try the case in that no judge of the circuit court of Cook County ever gave leave to the State to file the complaint against the defendant.

Prior to trial, the defendant filed a motion to suppress. At the hearing on this motion, Chicago police officer, Ernest Cain, testified that he was in the vicinity of 58th Street, between State and Wabash, at approximately 8:20 p. m. on January 31, 1975, when he had a conversation with a private citizen. The citizen informed him that he had seen the defendant, Percy Billings, putting a gun inside the engine compartment of his, the defendant's car. Officer Cain testified that approximately twenty-five minutes later that evening, at a distance of approximately two blocks from the location that the conversation with the citizen took place, that he, Officer Cain, observed the defendant, found the alleged contraband in the defendant's motor vehicle and placed him under arrest. Officer Cain testified that he did not have either a search or arrest warrant at that time. This was the only evidence submitted on the motion to suppress, and the trial court found probable cause was present, and denied the motion to suppress.

At the trial, Officer Cain testified that when he observed the defendant on the street at the aforementioned time and place, he approached the defendant and told him that he had prior information that a gun was placed in his car, and he asked Mr. Billings if he could look in the engine compartment of his car. The defendant replied, "Go ahead."

Officer Cain testified that he then walked to the defendant's car, opened the hood, looked in the engine compartment, and found a .32 caliber H & R revolver that was loaded with six rounds, in the front fender. He testified that he knew it was the defendant's automobile because the car was driven by the defendant and registered to him on a previous occasion when he had arrested the defendant. The reference to the previous arrest was stricken by the court. Officer Cain then testified that he had seen the defendant in the automobile on prior occasions, and that the defendant, on this night in question, had the keys to the automobile. He concluded his testimony on direct examination by stating that he asked the defendant to produce a Firearm Owner's Identification Card and the defendant did not do so, and that he then placed the defendant under arrest and advised him of his constitutional rights.

On cross-examination, Officer Cain testified that when he first saw the defendant that evening, defendant was approximately one hundred feet from the car, and that he did not see the defendant driving the vehicle that day, but that he had seen him driving the vehicle in the past.

Officer Cain was the only witness for the State, and at the conclusion of his testimony, the State asked that the evidence "stipulated to prior would be received in evidence." Defense counsel objected to the evidence on the grounds of hearsay. At the commencement of the trial, the State asked if there was a stipulation as to the gun, and defense counsel replied "sure, sure."

Defendant did not produce any witnesses, nor did he testify in his own behalf. Subsequent to entering a finding of guilty, the court conducted a hearing in aggravation and mitigation. At that time, the prosecution stated that the defendant was currently on five years probation for armed robbery, but defense counsel stated that the defendant informed him that his probation "was terminated favorably on Wednesday."

Defendant initially contends that the trial court erred in denying his motion to suppress. He argues that the weapon seized was the fruit of a warrantless search conducted without probable cause. In support of this assertion, he cites Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Defendant maintains that the testimony of Officer Cain was too vague to establish how and when he acquired the information leading to the search of the vehicle and further that there was no evidence substantiating the reliability of the informant. In this context, defendant also argues that the information provided by the citizen failed to establish that a crime had been committed.

Section 114-12(b) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1973, ch. 38, par. 114-12(b)) provides in pertinent part that "(t)he judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were unlawful shall be on the defendant." See (People v. Wright (1969), 42 Ill.2d 457, 460, 248 N.E.2d 78.) A defendant who urges the suppression of the legally obtained evidence is required to make a prima facie showing that it was obtained by an illegal search and seizure, and a prima facie showing means that the defendant has the primary responsibility of establishing the factual and legal bases for the motion to suppress. (See People v. Black (1972), 52 Ill.2d 544, 554, 288 N.E.2d 376.) Where the basis for the motion is an allegedly illegal search, it is incumbent upon the defendant in the first instance to establish both components: that there was a search, and that it was illegal. People v. Berg (1977), 67 Ill.2d 65, 7 Ill.Dec. 589, 364 N.E.2d 880.

In reviewing the ruling of the trial court on the motion to suppress, it is our duty to affirm the result reached unless the ruling of the trial court was "manifestly erroneous." People v. Williams (1974), 57 Ill.2d 239, 246, 311 N.E.2d 681 and the cases there cited; People v. Smith, General No. 76-1239, Ill.App., 9 Ill.Dec. 169, 366 N.E.2d 426, filed July 18, 1977, First District.

It has long been held that a valid search of an automobile, not incidental to an arrest, may be made without a warrant. (People v. Georgev (1967), 38 Ill.2d 165, 230 N.E.2d 851; People v. Symmonds (4th Dist. 1974), 18 Ill.App.3d 587, 310 N.E.2d 208). Such a search must be based upon facts justifying a reasonably prudent person in believing that the contents of the automobile offend against the law. Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Chambers v. Maroney (1970), 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564.

In this vein, hearsay information as to statements made by a reliable informant may constitute the basis for probable cause, provided that there are sufficient facts and underlying circumstances to support the informant's conclusions. People v. King (1st Dist. 1973), 12 Ill.App.3d 355, 298 N.E.2d 715; People v. Jones (1967), 38 Ill.2d 427, 431, 231 N.E.2d 580.

Unlike the informant in Aguilar, the private citizen in the case at bar personally observed the defendant place a weapon in the engine compartment of his vehicle. This citizen then approached Officer Cain, who was in the vicinity and informed him of this observation. Approximately 25 minutes after such conversation, the officer observed defendant, who was previously known to him, about a block and a half away from the place where he was approached by the citizen. (See People v. McFadden (1965), 32 Ill.2d 101, 203 N.E.2d 888, where defendant's presence in the same vicinity as reported by informant was found to be a corroborating factor.) At this time, defendant was approximately 100 feet away from his vehicle. The officer further testified that he knew this vehicle belonged to defendant since he had seen him driving it in the past, knew it was registered in his name and that defendant possessed the keys to this vehicle on the date in question. The officer's search also corroborated the citizen's observation, since a weapon was found in the engine compartment.

Moreover, there is long-standing precedent for dispensing with the requirement of prior reliability of the informer when police officers act upon information provided by private citizens. (See People v. Kaprelian (1st Dist. 1972), 6 Ill.App.3d 1066, 286 N.E.2d 613), information supplied by citizen, held sufficiently reliable to justify officers investigation and subsequent search of defendant; (People v. Hoffman (1970), 45 Ill.2d 221, 258 N.E.2d 326), officers acting upon information provided by an unidentified woman, that defendant displayed a vulgarity printed upon his forehead, held sufficient to justify defendant's arrest based upon tip alone.

In addition, it has long been held that a warrantless search can survive constitutional prohibition upon a showing that...