People v. Moraca

• Decision Date: 25 May 1984
• Docket Number: No. 83-568,83-568
• Citation: 464 N.E.2d 312,124 Ill.App.3d 561
• Parties: , 79 Ill.Dec. 714 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Giulio L. MORACA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 312

464 N.E.2d 312

124 Ill.App.3d 561, 79 Ill.Dec. 714

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Giulio L. MORACA, Defendant-Appellee.

No. 83-568.

Appellate Court of Illinois Second District.

May 25, 1984.

Robert J. Morrow, State's Atty., Geneva, Phyllis J. Perko, Raymond L. Beck, State Attys. Appellate Service Commission, Elgin, for plaintiff-appellant.

G. Joseph Weller, Deputy State Appellate Defender, Nicholas J. Kritikos, Elgin, for defendant-appellee.

LINDBERG, Justice.

Defendant, Giulio L. Moraca, was charged by information in the circuit court of Kane County with the offense of unlawful possession of more than 30 grams but not more than 500 grams of a substance containing cannabis, and by traffic complaint with the violations of driving with a suspended driver's license and the illegal transportation of alcohol. After hearing testimony and argument on defendant's suppression motion, the trial court ruled on May 20, 1983, that the warrantless search of defendant's car violated the fourth amendment to the Federal Constitution. The State appeals the suppression order, arguing that the information conveyed by the informant's tip was sufficient to warrant a brief investigatory stop. Defendant responds that the tip was conclusory, uncorroborated and standing alone, did not justify the police action here. We affirm.

On February 25, 1983, at about 3 p.m., Detective Brictson of the Elgin Police Department received a phone call from one of the operators at an organization known as Catch A Thief With Citizen's Help (CATCH). According to Brictson, "the CATCH operator takes the call from anonymous sources and then relays that information to the police department, and if there's an arrest made sometimes the individuals who have given this information are paid for the information." In this case, Brictson spoke with the CATCH operator and not directly with the informant.

Brictson testified concerning the substance of the information conveyed to him by the CATCH operator.

"I was informed that a subject by the name of Guilio [sic] Moraca, who drives a blue van with Illinois license plates Young Zebra Charles 625 was in possession of a machine gun which he carried in a black pouch.

"He was also allegedly in possession of cannabis, which he contained in a green bank-type bag. And that this Moraca subject frequented the area of Hickory Street in Elgin and was possibly either suspended or revoked in regards to his driver license status."

At approximately 6:20 p.m. Brictson and his partner, Detective Strickland cruised the area of Hickory Street in Elgin and observed a blue van with license plate number YZC625 parked and unoccupied in a driveway. A license plate check indicated the van was registered to "All Seasons Home and Yard" a lawn care business.

After returning to the police station and enlisting the aid of uniformed Officer Barnes, they returned to Hickory Street and observed at 6:40 p.m. the van being driven away by a male white subject. Neither Brictson nor Strickland recognized the driver. The driver stopped once to drop off a passenger, and then was stopped by Barnes in a marked squad car. Both detectives saw nothing unusual or suspicious about the van at any time prior to the stop and the sole basis for effecting the stop was the information supplied by CATCH. Defendant was not pulled over as a result of any motor vehicle violation.

The driver of the van alighted from the driver's side, leaving the door open, and walked back toward Barnes. Brictson and Strickland had pulled up next to the van. One of the policemen, with his revolver drawn, ordered the van's driver up against the van, instructing him not to move and Barnes frisked him.

Strickland and Brictson went to the van--Strickland from the passenger side and Brictson from the driver's side. Strickland, peering through the window, saw a beer can on the dash, but could not tell if it contained anything. He opened the door, reached in and felt the can which "was cold and had some beer in it." Brictson opened the black, zippered pouch which had been partially protruding from underneath the driver's seat and observed what appeared to be a machine pistol.

Up to this point, no one had asked the driver for his name or identification and the officers did not ask nor did defendant grant his permission to go inside the van. Brictson asked the driver for his name and date of birth, learning that he was Moraca, the defendant. Brictson ran a driver's license check through the communications center and learned that Moraca's driver's license was presently suspended.

Defendant was handcuffed and escorted by Brictson and Barnes to the paddy wagon which had arrived to transport him. Before placing defendant in the wagon, Brictson conducted a second search of his person, whereupon a green bank bag fell from defendant's coat to the pavement. Brictson opened the bag and observed a quantity of what he suspected was cannabis inside. From the trial court's order finding this stop violative of defendant's fourth amendment rights, the State brings this interlocutory appeal.

The State argues that the stop was justified as a result of the rule announced in Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, where the Supreme Court recognized that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." (392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906-07.) In Terry, the Court authorized a brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. (392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 905-06.) Specific and articulable facts and not a hunch must exist to justify a Terry stop. Where the officer justifiably believes that the suspicious individual is armed and is presently dangerous, the officer may conduct a limited protective search for concealed weapons. (392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889, 908.) Though Terry involved the stopping of a pedestrian, the same test is applicable to the stopping of a vehicle. See 3 W. LaFave, Search and Seizure § 9.3, at 33 (1984 Supp.) (citing Mosley v. State (1981), 289 Md. 571, 425 A.2d 1039).

A reviewing court will not reverse the trial court's finding on a motion to suppress unless the finding is manifestly erroneous. (People v. Reynolds (1983), 94 Ill.2d 160, 165, 68 Ill.Dec. 122, 445 N.E.2d 766.) The trial court here specifically found that the only basis for the stop was the information provided by the CATCH organization which was "conclusionary" and that "the information provided to the police did not provide any basis or set out any articulable facts upon which the police could have possibly formed any opinion as to the possible [sic] cause to make any stop of the defendant of of [sic] his vehicle under Terry or any other authority to stop and frisk." These findings should be reversed only if they are manifestly erroneous.

On appeal, the State concedes that the sole basis for its information regarding defendant was from the informant's tip relayed through CATCH. The State principally relies upon two decisions which it argues support reversal of the lower court. In Adams v. Williams (1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, a police officer was approached by an informant who told the officer that an individual seated in a nearby vehicle was carrying narcotics and had a gun tucked into his waist. The officer approached the car, tapped on the window and asked the defendant to open the door. Instead, the defendant opened the window and the officer reached into the car and removed the gun which was tucked into the defendant's waistband. The Supreme Court upheld the stop as conforming with Terry standards.

The State argues Adams is controlling because the Supreme Court found that the tip justified the stop even though the informant had never supplied any tips relating to narcotics and none of his information had resulted in an arrest. Adams, however, is distinguishable from the instant case in several important respects. While the court did reject the defendant's contention that a stop could only be based upon an officer's personal observations and not upon a tip, the court acknowledged that the officer in Adams in addition to the tip also stopped the defendant because he "was sitting alone in a car in a high-crime area at 2:15 in the morning * * *." (407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612, 618.) In contrast to those suspicious circumstances, the officers in the instant case specifically testified that there was nothing unusual about the van or driver prior to the stop.

Another distinguishing factor is that the informer in Adams was known to the officer personally and had provided information in the past. Furthermore, the officer testified that...