People v. McGowan

• Decision Date: 30 November 1977
• Docket Number: No. 49344,49344
• Parties: , 12 Ill.Dec. 733 The PEOPLE of the State of Illinois, Appellee, v. James J. McGOWAN, Appellant.
• Court: Illinois Supreme Court

Page 537

370 N.E.2d 537

69 Ill.2d 73, 12 Ill.Dec. 733

The PEOPLE of the State of Illinois, Appellee, v. James J. McGOWAN, Appellant.

No. 49344.

Supreme Court of Illinois.

Nov. 30, 1977.

Stephan A. Elman, Peoria, for appellant.

William J. Scott, Atty. Gen., Springfield (Donald B. Mackay and George C. Sorensen, Asst. Attys. Gen., of counsel), for the People.

CLARK, Justice.

The defendant, James J. McGowan, was convicted of one count of unlawful use of a weapon, a Class A misdemeanor (Ill.Rev.Stat.1973, ch. 38, pars. 24-1(a)(4), 24-1(b)), in the circuit court of Peoria County. The Appellate Court, Third District, affirmed (45 Ill.App.3d 61, 3 Ill.Dec. 810, 359 N.E.2d 220), and we granted the defendant's petition for leave to appeal.

The only questions before us in this appeal concern whether the trial court erred in denying the defendant's motions to suppress certain evidence (including the weapon in question). The defendant initially made a pretrial motion to suppress that evidence, then repeated his objection both at trial and in a post-trial motion. He contends that said evidence was obtained in violation of two provisions of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1973, ch. 38, pars. 107-14, 108-1.01) governing the temporary questioning of suspects without arrest, and searches during such questioning. We find that the officers complied with those provisions, and we therefore affirm the defendant's conviction.

The facts adduced at the suppression hearing are not complicated. On Sunday, April 13, 1975, at approximately 12:50 a. m., Peoria police officers George Fulton and Orlando Allen were emerging from the city parking garage on the 1700 block of Southwest Washington Street in Peoria, when Fulton observed two men on the sidewalk. The two appeared to have emerged from an area next to the Hiram Walker building on Washington Street. They both were wearing black clothing (though one of them also wore a green shirt under a black sweater and the other wore a black stocking cap). The men walked across Washington Street, then stopped when asked to do so by Officer Fulton. Fulton identified himself as a police officer, then explained to the men that he was "checking them out" because they were in an area plagued by a high burglary rate. As he spoke, Fulton also began to pat down the defendant's clothing to search for weapons, and discovered a .22-caliber automatic pistol concealed under defendant's belt, which he seized.

Fulton testified that he stopped the men because their black clothing, the hour of night, and his knowledge of the area had led him to conclude that the men either had just committed or were about to commit a burglary. In support of that conclusion, Fulton testified that, although he had received no reports of burglaries in the previous few hours, he knew from having patrolled the area many times that it was a commercial and industrial area which had suffered a number of burglaries. The defendant offered no evidence in rebuttal of Fulton's contention regarding the number of burglaries in the area.

Fulton further stated that it was unusual (though "not highly unusual") to see people in that area at that time of night, with the possible exception of hitchhikers, but that defendant did not appear to have been hitchhiking. Officer Fulton admitted, however, that he was aware that there was a bar (Penn's Tavern), open until 1 a. m., located only two blocks from where he stopped the defendant, and that defendant was headed in the general direction of the bar when stopped.

Fulton testified that he patted down the defendant's clothing for weapons because he suspected defendant to be a burglar, and believed that many burglars carry dangerous weapons.

The only questions before us are (1) whether Fulton had adequate grounds to stop the defendant and (2), if so, whether he had adequate grounds to pat down the defendant's clothing for weapons. The seminal cases on these questions are Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Sibron v. New York (1968), 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917. Illinois has codified the holdings of those two cases in sections 107-14 and 108-1.01 of the Code of Criminal Procedure of 1963. (People v. Lee (1971), 48 Ill.2d 272, 279, 269 N.E.2d 488.) Thus, subsequent decisions of the United States Supreme Court interpreting Terry and Sibron are persuasive in questions arising under our statute. Sections 107-14 and 108-1.01 provide as follows:

"Sec. 107-14. Temporary Questioning without Arrest. 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 reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense as defined in Section 102-15 of this Code, and may demand the name and address of the person and an explanation of his actions. Such detention and temporary questioning will be conducted in the vicinity of where the person was stopped." (Added by act approved Aug. 21, 1968, 1968 Ill.Laws 218, effective Aug. 21, 1968.)

"Sec. 108-1.01. Search During Temporary Questioning. When a peace officer has stopped a person for temporary questioning pursuant to Section 107-14 of this Code and reasonably suspects that he or another is in danger of attack, he may search the person for weapons. If the officer discovers a weapon, he may take it until the completion of the questioning, at which time he shall either return the weapon, if lawfully possessed, or arrest the person so questioned." (Added by act approved Aug. 21, 1968, 1968 Ill.Laws 218, effectiv...