People v. Trice

• Court: Appellate Court of Illinois
• Writing for the Court: STENGEL; BARRY, P. J., and ALLOY
• Citation: People v. Trice, 372 N.E.2d 699, 56 Ill.App.3d 849, 14 Ill.Dec. 503 (Ill. App. 1978)
• Decision Date: 03 February 1978
• Docket Number: No. 77-236,77-236
• Parties: , 14 Ill.Dec. 503 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. James TRICE and Chuck E. Cohen, Defendants-Appellees.

Page 699

372 N.E.2d 699

56 Ill.App.3d 849, 14 Ill.Dec. 503

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. James TRICE and Chuck E. Cohen, Defendants-Appellees.

No. 77-236.

Appellate Court of Illinois, Third District.

Feb. 3, 1978.

John X. Breslin, James E. Hinterlong, State's Attys. App. Service Commission, Ottawa, Michael M. Mihm, State's Atty., Peoria County, Peoria, for plaintiff-appellant.

STENGEL, Justice:

Defendants James Trice and Chuck E. Cohen were charged with unlawful possession of a controlled substance, namely, possession of more than 30 grams of heroin. The trial court sustained the defendants' pretrial motion to suppress the evidence of heroin found in the coat pocket of their companion, Peggy Paine, on the evening of their arrest. This is an appeal by the State from that order. The appellees, after proper notice, have failed to respond or file a brief.

The State contends first that the temporary detention of defendants and Peggy Paine for questioning was legitimate and lawful under the stop and frisk provision of the Criminal Code (Ill.Rev.Stat.1975, ch. 38, par. 107-14 and 108-1.01), and second, that the search during the temporary questioning was proper and lawful under section 108-1.01 of the Criminal Code. Illinois Revised Statutes 1975, ch. 38, par. 108-1.01 provides as follows:

"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."

The search and seizure complained of were made on October 3, 1975, by police officers who had no warrants for either a search or for an arrest. Acting on information from an undisclosed informant, the officers waited in the parking area of an apartment building for Trice and Paine from 6 p. m. until their arrival about 11:35 p. m. The informant had said that defendant Trice and Paine would be arriving from Chicago with a quantity of heroin and would be going to Paine's apartment. The informant further told the police that they would arrive about 10:45 or 11:00 p. m. in a Cadillac. Trice and Paine, together with defendant Cohen, did arrive about 11:35 p. m. in a car, but the evidence does not disclose its make or model. The informant further told police that he dealt in heroin and was supposed to get some of the supply being brought in that night. The informant was known to the police and had been convicted of possession of heroin, a felony, but had never previously supplied information that had resulted in arrests and convictions. The State admits in its brief, "The reliability of the informant in the instant case was not established previous to his informing in the instant situation, nor was his information independently corroborated by other information discovered by the police prior to the stop of the defendants and Paine."

There were six or seven officers, all in plain clothes, present when defendants and Paine arrived. As the three were walking to the apartment, they were stopped and searched. The only witnesses testifying at the hearing on the defendants' motions were two of those officers who testified that there was nothing unusual about defendants and Paine as they walked along or when they were stopped. The purpose in approaching the defendants and Paine was to investigate the possible possession of heroin, and Paine was searched for weapons pursuant to the order of a superior officer. The officer who searched Paine's coat testified that he seized the coat, which she was carrying over her arm, to check for weapons and that he put his hand in one pocket but found it empty. He then put his hand in the other pocket and did not feel anything that felt like a weapon but did feel plastic bags with a soft substance in them. He then removed those items even though they did not feel like a weapon. After the bags were seized, all three persons were arrested and charged with possession of a controlled substance. Both officers testified there would have not been an arrest if the heroin had not been found.

It is obvious that this was not a search incidental to arrest since the arrest followed the search.

We recognize that the statutes concerned were enacted in the legislative session following the decision in Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Considering whether the search can be justified on the authority of Terry, 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. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 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. at 29, 88 S.Ct. at 1884, 20 L.Ed.2d at 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...