People v. Jones

• Citation: 56 Ill.App.3d 414,14 Ill.Dec. 40,371 N.E.2d 1093
• Decision Date: 28 December 1977
• Docket Number: No. 77-458,77-458
• Parties: , 14 Ill.Dec. 40 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. L. C. JONES, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1093

371 N.E.2d 1093

56 Ill.App.3d 414, 14 Ill.Dec. 40

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. L. C. JONES, Defendant-Appellee.

No. 77-458.

Appellate Court of Illinois, First District, Third Division.

Dec. 28, 1977.

Bernard Carey, State's Atty. of Cook County, Chicago (Laurence J. Bolon, Michael E. Shabat, John J. Rayman Lieberman, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellant.

George Howard, Chicago, for defendant-appellee.

SIMON, Presiding Justice.

The defendant was charged with possession of a sawed-off shotgun. (Ill.Rev.Stat.1975, ch. 38, par. 24-1(a)(7).) The State appeals from an order sustaining the defendant's motion to suppress evidence of the shotgun (Ill.Rev.Stat.1975, ch. 110A, par. 604(a)(1)), contending that the search of his person was proper.

Although the defendant has not filed a brief as appellee, the issue presented can be decided without the aid of an appellee's brief, and, in view of the recent decision of our Supreme Court in McCoy v. Chicago Transit Authority (1977), 69 Ill.2d 280, 13 Ill.Dec. 690, 371 N.E.2d 625, and the need to control violence on the vehicles of the Chicago Transit Authority (CTA), we think this case merits consideration. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 133, 345 N.E.2d 493.

During the hearing on the motion to suppress, the defendant testified he boarded a CTA bus at Roosevelt Road between 4 and 5 a. m. on April 5, 1976, gave the driver a valid bus transfer for his bus fare, and sat near the rear of the bus after the driver stamped and returned the transfer. The defendant disclaimed either having an altercation with anyone on the bus or having a conversation with the driver about the bus transfer. He further testified that approximately 15 minutes later, the driver stopped the bus, got off and returned with two police officers. He denied the police told him he was under arrest, and claimed they arrested him only after they opened his coat, searched him and discovered the weapon, which he admitted was in his possession. The defendant said that he boarded the bus even though it originally was traveling north, in a direction opposite to his home, where he wanted to go, because the weather that morning was cool. He testified that he knew the bus would reach its terminus and turn around for its southbound trip, and boarded it then, rather than stand out in the cold on the corner to wait for its return. He denied that he refused to pay the fare after the bus reached the end of the line. He also stated he had money to pay the driver, but said the driver did not ask him for his transfer or tell him to exit the bus, or inform him the transfer was not valid.

John Palaggi, the bus driver, testified that near 79th Street, the defendant entered the bus and handed him a transfer. Palaggi stated he told the defendant the transfer was invalid but the defendant responded, "Well, that is all right," and walked to the rear of the bus. Palaggi also testified that as he drove toward the northern terminus of his route in downtown Chicago, he unsuccessfully tried to alert police in a passing patrol car by flashing the bus lights.

When the bus reached the northern terminus, Palaggi testified that he went to the back of the bus, woke the defendant and told him to get off the bus. He also informed the defendant that he would have to pay another fare if he wanted to return south. While Palaggi was attempting to use the bus's phone, which did not work, to call for police, the defendant came to the front of the bus and told him, "That ain't going to do you no good." The defendant then returned to his seat at the back of the bus.

Because he was behind schedule, Palaggi then drove his vehicle south on Wabash Avenue. A police squad car which he had alerted by flashing the bus lights then stopped. Palaggi said he informed the officers that he had a disorderly passenger who would not pay his fare or leave the bus. Palaggi pointed to the defendant, who seemed to be asleep, and the police searched him.

The court then questioned Palaggi on his initial failure to remove the defendant from the bus when the defendant presented an invalid transfer, an omission which allowed the defendant to ride downtown. Palaggi replied, "According to the CTA, that is what they want you to do." In response to further interrogation by the court, Palaggi also said that only after the defendant refused to pay his southbound fare did he decide to call the police.

The arresting police officer testified that as he and his partner were driving north on Wabash, they saw Palaggi's CTA bus traveling in the opposite direction with its bright lights flashing to attract attention. The police then stopped. Palaggi also stopped his bus, got out, and told them he could not remove the defendant, who was sleeping and had not paid his fare. The police and Palaggi entered the bus and the driver pointed out the defendant, who apparently was intoxicated. The officers ordered the defendant to stand, and he did so. When the testifying officer conducted a "pat-down" search of the outside of the defendant's outer garments, he felt a hard object which a further search revealed to be a shotgun. The testifying officer then seized the shotgun. His partner's testimony corroborated this version of the incident.

In granting the defendant's motion to suppress the evidence, the trial court did not say it disbelieved the testimony of the bus driver and police officers. Instead, its ruling was predicated primarily on the driver's testimony that the defendant boarded the bus at 79th Street and rode downtown even though his transfer may have been invalid. The court observed that the defendant had not committed a crime because the bus driver had permitted him to ride on that transfer, thus waiving the right to make a complaint about the illegal ride. Because no crime was...