People v. McGurn

• Decision Date: 18 December 1930
• Docket Number: No. 20379.,20379.
• Citation: 173 N.E. 754,341 Ill. 632
• Parties: PEOPLE v. McGURN.
• Court: Illinois Supreme Court

341 Ill. 632

173 N.E. 754

PEOPLE

v.McGURN.

No. 20379.

Supreme Court of Illinois.

Dec. 18, 1930.

Error to Criminal Court, Cook County; E. T. Frankhauser, Judge.

Jack McGurn was convicted of carrying concealed on or about his person a revolver, and he brings error.

Reversed and remanded.Thomas D. Nash and Michael J. Ahern, both of Chicago, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., James A. Swanson, State's Atty., of Chicago, and James B. Searcy, of Springfield (Edward E. Wilson and Edward C. Dufficy, both of Chicago, of counsel), for the People.

HEARD, J.

Plaintiff in error, Jack McGurn, was indicted, tried, and convicted in the criminal court of Cook county of carrying concealed on or about his person a revolver and was sentenced to imprisonment in the county jail for the term of one year and to pay a fine of $300. He brings the record here for review on writ of error, constitutional questions being involved.

Prior to the commencement of the trial plaintiff in error filed a duly verified petition to suppress evidence, reciting that on February 1, 1930, he was riding in a taxicab on the public streets of Chicago, and while so doing Chicago city police officers, without warrant or process of law, and not having any reasonable grounds for believing that he had committed any criminal offense, and without his having committed a criminal offense in the presence of the police officers, wrongfully arrested him and searched his person, finding thereon a revolver, in violation of the constitutional rights guaranteed him by sections 2, 6, and 10 of article 2 of the Constitution of Illinois, and praying that an order be entered suppressing any and all evidence obtained by the police officers as the result of such unlawful arrest and search and seizure. Upon the trial before the jury substantially the same evidence was heard, over plaintiff in error's objection, as was heard on the hearing of the petition to suppress.

There is no dispute as to the facts. On the morning of February 1, 1930, at about 11:30, two Chicago policemen, Drury and Howe, were riding on the front platform of a street car going north at the intersection of Harrison and Dearborn streets, in Chicago. There was a delay in the traffic and they saw plaintiff in error and one Acardo in a west-bound Checker taxi delayed on Harrison steet at about the center of the crossing. The policemen jumped off the street car, opened the door of the taxi, Drury climbed in, and, as the policemen expressed it, ‘piled on top’ of Acardo. What took place with reference to plaintiff in error is best told in officer Howe's words: ‘I opened the door and jumped in on top of McGurn. I put my arms under his, just about taking physical possession of him. As yet I had not found any weapon on him and I had no positive knowledge that he had one. Before I found a weapon on McGurn after making a search I did not see McGurn commit any violation of law. There was no felony which had, in fact, been committed for the commission of which I had reasonable grounds to suspect McGurn. There was no misdemeanor which had, in fact, been committed for the commission of which I had reasonable grounds to suspect McGurn. I had no warrant or process of law for the arrest or search of McGurn. My partner had none. I did not know if there was any warrant or process of law issued by any court or tribunal in the hands or in the possession of anybody. At the time I opened the cab door and jumped in and seized McGurn and searched him, he was not to my knowledge committing any breach of the peace. He was not doing anything disorderly. He was not making any loud noise or rumpus. He was not creating a riot. I knew McGurn before the morning of February 1, 1930. I had orders from a superior officer to arrest him. The superior officer who told me to arrest McGurn was John Stege, commissioner of detectives. It is a standing order. John Stege did not tell me that he had any warrant or process of law for the arrest of the defendant. He did not tell me anything. I know now that he did not have any process or warrant of law. Stege did not tell me of any felony or misdemeanor that had, in fact, been committed and that he had reasonable grounds to suspect McGurn of having committed it. As I entered the taxicab I hollered to McGurn, ‘Keep your hands away from your pockets,’ and I piled in on top of him and started to search him. I felt around his sides and around his stomach, and he said to me, ‘Don't get excited—don't get excited. You will find it on the right side.’ I then got down under his belt and took a gun from under his belt.' The officer then took plaintiff in error and Acardo to the detective bureau and locked them up. The only evidence of plaintiff in error having a concealed weapon is that derived from the search of his person in the taxi.

It is contended by plaintiff in error that his arrest, search, and the seizure of the revolver were illegal, in violation of his constitutional rights, that the evidence thus obtained was incompetent, and that his petition to suppress the evidence should have been sustained. The guaranty of the Constitution is not against all search and seizure, but against unreasonable search and seizure, and does not extend to an immunity from search and seizure on lawful arrest. Where a crime has, in fact, been committed and an arrest is made by an officer who has reasonable ground for believing the person arrested is implicated in the crime, such officer has a right to search the person arrested without a search warrant, and in such case the right of search and seizure is incidental to the right of arrest. People v. Preston, 341 Ill. 407, 173 N. E. 383;People v. Hord, 329 Ill. 117, 160 N. E. 135. The next question for our determination, therefore, in the pending case, is whether or not plaintiff in error's arrest by Howe was a legal arrest.

Under the common law constables and watchmen were authorized to arrest felons, and persons reasonably suspected of being felons, without a warrant, and as conservators of the peace they also had authority to make arrests without warrants in cases of misdemeanors which involved breaches of the peace committed in the presence of the officers making the arrests and which could not be stopped or redressed except by immediate arrest. 2 R. C. L. 446; North v. People, 139 Ill. 81, 28 N. E. 966;Kindred v. Stitt, 51 Ill. 401. Policemen were unknown to the common law, but they are generally considered as having the same powers as watchmen and constables. Shanley v. Wells, 71 Ill. 78. By section 657 of the Criminal Code (Smith-Hurd Rev. St. 1929, p. 1056), in this state an arrest may be made by an officer or by a private person without warrant for a criminal offense committed or attempted in his presence, and by an officer when a criminal offense has, in fact, been committed and he has reasonable ground for believing that the person to be arrested has committed it. It is the rule in this state where a criminal offense has, in fact, been committed, that an officer has a right to arrest without a warrant where he has reasonable ground for believing that the person to be arrested is implicated in the crime. People v. Swift, 319 Ill. 359, 150 N. E. 263. To justify the officer in making the arrest without a warrant his ground for belief that the person to be arrested is guilty of a crime must be such as would influence the conduct of a prudent and cautious man under the circumstances. Kindred v. Stitt, supra. False imprisonmentis an unlawful violation of the personal liberty of another and consists of confinement or detention without legal authority. Smith-Hurd Rev. St. 1929 (Crim. Code, § 95), § 252. In order to constitute false imprisonment it is not necessary to show that the person guilty thereof used physical violence or laid hands on the person falsely imprisoned or confined him in a jail or prison, but it will be sufficient that if at any place or time he in any manner restrained such person of his liberty or detained him in any manner from going where he wished or prevented him from doing what he desired. Hawk v. Ridgway, 33 Ill. 473;People v. Scalisi, 324 Ill. 131, 154 N. E. 715, 723. In President and Board of Trustees of Town of Odell v. Schroeder, 58 Ill. 353, it is said: ‘When officers assume the power to imprison without authority of law, or without any of the forms or processes usual and necessary to be employed, they become liable for false imprisonment. The liberty of the citizen can not be so far trifled with, that any constable in the land may of his own volition, commit and hold him in custody until it suits his convenience or pleasure to release him.’ In People v. Scalisi, supra, where the right of the police of Chicago to arrest for questioning was sought to be upheld, this court said: ‘When the police squad sought to infringe upon the liberty of plaintiffs in error, and arrest and detain them for questioning, they had no reasonable ground to suspect that either plaintiff in error had been guilty of any crime, and plaintiffs in error were not nightwalkers or vagrants, and hence the attempt to arrest and detain them was unlawful.’

In the pending case, according to the testimony of Howe, when he arrested plaintiff in error, there was no felony which had, in fact, been committed for the commission of which Howe had reasonable grounds to suspect plaintiff in error. There was no misdemeanor which had, in fact, been committed for the commission of which the officer had reasonable grounds to suspect plaintiff in error. There was nothing about the attending circumstances which would lead a reasonable and prudent man to believe that plaintiff in error was, in fact, committing any crime or which would justify the officer in making the arrest. At the time of the arrest plaintiff in error was restrained of his liberty, and detained from going where he wished, without any warrant or sufficient legal authority, and his arrest...