People v. Lee

• Decision Date: 01 April 1971
• Docket Number: Nos. 43086--43088,s. 43086--43088
• Citation: 48 Ill.2d 272,269 N.E.2d 488
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Michel LEE, Jr. et al., Appellants.
• Court: Illinois Supreme Court

Page 488

269 N.E.2d 488

48 Ill.2d 272

The PEOPLE of the State of Illinois, Appellee, v. Michel LEE, Jr. et al., Appellants.

Nos. 43086--43088.

Supreme Court of Illinois.

April 1, 1971.

Rehearing Denied May 26, 1971.

Bruce L. Bower and David E. Garner, Chicago, (Winston, Strawn, Smith & Patterson, Chicago, of counsel), for appellants.

William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Robert A. Novelle and George M. Elsener, Asst. State's Attys., of counsel), for the People.

WARD, Justice.

A judge in the circuit court of Cook County found Michel Lee, Jr., Donald Wade, and L. A. Brown guilty of the unlawful possession of firearms ammunition. (Ill.Rev.Stat.1969, ch. 38, par. 83--2.) Each was sentenced to serve a term of one year in an institution other than a penitentiary. The convictions are challenged upon the grounds that the trial court improperly denied a motion to suppress certain evidence which was the product, it is claimed, of an unlawful search and seizure, that the complaints against the defendants failed to state a crime and that the evidence was insufficient to establish the guilt of the defendants beyond a reasonable doubt. The constitutional questions offered give this court jurisdiction on direct appeal. Ill.Rev.Stat.1969, ch. 110A, par. 603.

On December 9, 1969, Officer Thomas Brennan and his partner Officer Thompson of the Chicago Police Department were informed by a superior officer that it had been reported that gangs in the area they were assigned to patrol were to engage that night in what was described as a 'gang war.' While on duty in their squad car at approximately 9:30 P.M. that evening the officers heard several loud reports which, according to Officer Brennan's testimony, sounded like revolver shots or shotgun discharges. They did not see the incidents. Within two minutes and about two blocks from where the officers heard the discharges they observed the defendants walking on the sidewalk in a group with three other yound men. There was no one else in the vicinity. As the officers approached the group, they observed that four of the men were wearing red tams or berets, which was the type of headgear worn by a group or gang which Officer Brennan believed, he testified, might be involved in the gang war anticipated that evening.

Based on the information received from their superior officer and their own observations, the officer testified, they stopped the six men and first talked with them briefly. The officers then subjected each of the group to what was described at trial as a pat search for the officers' protection. L. A. Brown was the first searched and the officers found he was wearing an empty shoulder holster beneath his outer coat. They also found a shotgun shell in his coat pocket. Officer Brennan testified that the other men were then searched for the purpose of locating the gun which the officers believed was in the possession of one of them. No gun was found but gun shells were discovered in the possession of Wade, Lee and a third man, who did not appeal from his conviction in the circuit court. There was nothing of significance found in the search of the other two men.

The defendants contend that their convictions must be set aside because they rest upon evidence obtained through searches and seizures which violated the fourth amendment of the constitution of the United States and section 6 of article II of the constitution of Illinois, S.H.A. (Ill.Const.art. II, sec. 6.) It is said that when the officers stopped the defendants no probable cause for arrest existed and that, therefore, the searches cannot be justified as having been incidental to a valid arrest. Nor, they continue, can justification for these searches be found in the United States Supreme Court's opinions in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, or Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917. The police, the defendants say, lacked sufficient grounds under Terry for stopping the defendants, and far exceeded here the limited searches authorized in Terry and Sibron. Although the State does not expressly concede the absence of probable cause to arrest, it does not attempt to justify the searches on the basis of a valid arrest. Relying principally on Terry v. Ohio, the police, the State argues, had sufficient facts to conclude reasonably that criminal activity was afoot, as Terry put it, and it was therefore not constitutionally offensive to stop the defendants for purposes of investigation. Too, the State claims the police belief that the defendants may have been armed and dangerous was reasonable, as were the searches conducted.

Considering whether the searches can be justified on the authority of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, we observe that there the Supreme Court said: 'We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.' (392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911.) The justification for a search under the circumstances described in Terry is the protection of the policeman and others nearby. Such a search is subject to the limitations of the fourth amendment's proscription of unreasonable searches and seizures and must, therefore, be 'reasonably related in scope to the justification for (its) initiation.' (Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 910; see also, Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 18 L.Ed.2d 782, 794 (Mr. Justice Fortas, concurring).) Thus, the type of search authorized in Terry is one confined in scope to an intrusion reasonably designed to discover weapons or objects capable of use as weapons. (Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889, 911; Sibron v. New York, 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed.2d 917, 936.) A search with this purpose under Terry, may not be a general search.

Against this background we must examine whether there were adequate grounds to stop the defendants for questioning and for concluding that the defendants and the others in their group may have been armed. Terry says that 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 (I.e., the stop).' (Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906.) Too, the officer's conduct must be assessed against an objective standard: 'Would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate? ' (Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906.) Considering this, we judge that the officers here acted properly in stopping the defendants. Under the circumstances a conclusion by the officers that criminal activity involving the defendants was 'afoot' was not unreasonable. Having been alerted that gang-related violence was expected in their area, the two officers, while on patrol, heard the shotgun blasts or revolver shots. They observed the defendants' group in a matter of minutes and some two blocks from where they heard the gun reports. They were the only persons seen by the officers in the immediate vicinity. Four of the six men wore headgear of the type worn by one of the gangs in the area. Realistically viewed, the situation was one that called for further police investigation. Stopping the defendants and the others in the group for questioning was, we judge, police conduct permitted under Terry. Moreover, in the light of the violent nature of the suspected criminal activity and the other circumstances, the officers were justified in believing that the men they were confronting might be 'armed and presently dangerous.' At this point they were entitled, under Terry, to conduct for their own protection a limited search of the men who had been stopped.

We must next consider whether the nature and scope of the subsequent searches exceeded, as the defendants contend, what was approved in Terry. Officer Brennan testified that for their own protection he and his partner first gave the defendants a pat search. The defendants' argument on appeal is based on their supposition that there was an initial general search of the defendants to uncover the concerned evidence. However, the record doesn't support this supposition by appellate counsel. The record, referring to the testimony of Officer Brennan, shows only the pat search of L. A. Brown to discover the gun holster and the shotgun shell. He then testified that the others, including Lee and Wade, were subjected to pat searches. The trial court, who had heard the evidence, at the hearing on the motion for a new trial said that 'pat searches' had been made.

Neither the direct testimony nor the cross-examination shows specifically that the officer felt the gun holster or shell while patting-down Brown. The officer ultimately did, it appears, reach inside the defendant's outer coat and seize the shotgun shell and the empty shoulder holster. A reasonable reconstruction of the sequence of events would be that Officer Brennan reached within Brown's outer coat only after the holster and shell had...