*1
As a result of the struggle,
the victim sustained cuts and
laundromat.
hand, head, hip, and
to her
back. We also note
judge
that the same
bruises
presided
hearing.
at both the trial and the sentence
He
thus able
observe the demeanor of defendant and to assess
credibility.
Such
factors are relevant
to sentencing and can more properly be considered
by the trial court than by the reviewing
(People
court.
v. Bolyard, 61 Ill.
Our review of the record
proper
shows a
exercise of
discretion
the court in imposing sentence;
not,
we should
therefore, disturb that sentence in this appeal. People v.
Taylor,
417,
Affirmed.
KARNS, J.,P. and EBERSPACHER, J., concur. THE PEOPLE OF ILLINOIS, THE STATE OF Plaintiff-Appellant, v. BLITZ,
RICHARD EUGENE Defendant-Appellee. Fifth District No. 75-155 Opinion April filed *2 dissenting. J., JONES, Lantz, (Bruce Raymond F. Attorney, D. Irish and of Chester State’s
Herbert J. Association, counsel), Attorneys for the Jr., Illinois State’s of Buckley, both of People. Sullivan, Appellate Defender’s State F. both of Hurley P. and Thomas
Stephen Student, Ozella, appellee. for Vernon, Law Office, Mt. of John of the court: opinion delivered the EBERSPACHER Mr. JUSTICE (Ill. Rule 604 State, Supreme Court by pursuant to appeal This is an the circuit entered 110A, from an order 604), Stat. ch. par. Rev. by the seized County evidence Randolph suppressing court of Blitz, ostensibly, for a defendant, stopped, was Eugene Richard after the traffic offense. charged by
The defendant was information with the unlawful possession of in cannabis that he possessed more than 30 grams less grams 4(d) than 500 in of substance violation of section controlled 56%,704(d)). (Ill. Rev. Stat. ch. the Cannabis Control Act physical him suppress against on the defendant moved to grounds of unlawful and seizure. hearing conducted, After a was the trial granted the defendants motion suppress. appeal This followed.
The principle witnesses at suppression hearing were the defendant Beam, and Kenneth a deputy sheriff of Randolph County. Beam had stopped driving night was February the defendant who a car on searched the and other officers testified that he in SteeleviUe.Beam of this car. cannabis in the trunk defendant’s car and found Kraft, Percy, George had the of a that he residence Beam testified According dinring evening February under surveillance drugs that traffic in Beam, “tip” office had received the sheriff’s identity know the Beam did not at Kraft’s house. taking place told who the sheriff’soffice not remember “tip” source of the and could alleged drug dealing him Kraft’s. about the he observed a number during night Beam stated Then, in a then the Kraft house. up individuals to and enter drive depart. At time, relatively period of these same individuals short Kraft’s and then go saw men from the Blitz auto to point, one two trunk. they put bag return to their car where Blitz it left Kraft’s.When reached Beam auto when followed the SteeleviUe, puUed the Blitz car described the defendant over. Beam being squad to the car. Beam nervous because hurried over defendant, having driving, that he was informed the who minutes, three other inoperative plate light. Within a few policemen arrived at the to a call for assistance response scene Beam. police, the car the interior were searched the trunk of the car. FinaUy,
of the car was searched. searched *3 his The that trunk without police defendant testified the the searched admitted, however, permission. protest was He that did not because he frightened by “shotgun gave the me.” stated that the defendant on Beam him permission According police testimony, paper to search car. a the to trunk, bag plastic bags was found the which contained two of cannabis. granting lower a to The court entered written order defendant’s motion suppress. court that did have reasonable The found Officer Beam not justified the to search the trunk of defendant’s nor was search cause Furthermore, arresting personal safety the officers. on account of the defendant’s to questioned the the voluntariness of consent lower by armed given the that was surrounded four the trunk search fact brandishing shotgun. of whom a policemen, one was first, appeal; State by are two on whether There issues raised together source with certain unverified information from an unidentified gave the by “suspicious circumstances” observed car; secondly, probable to the trunk of defendant’s cause car was a valid search incidental whether the search the defendant’s issue traffic violation. collateral the arrest a minor defendant, State, ignored by the is whether the by raised voluntary. if the search and such consent was defendant consented to argues Addressing first of these issues the State that “corroborative” 23,1975, deputy February sheriff together observations of Beam officers, operated earlier observations of his fellow cure whatever deficiency existed reference to the of the State’s reliability disagree. unidentified informant. We legality
While the warrantless searches of differs automobiles States, stationary (Carroll from searches of structures 267 U.S. 132, 69 543, 45 Brinegar L. Ed. S. Ct. v. United “ L. 1302), 69 S. Ct. still police must have reasonable or probable they instrumentality cause’ to that will find a believe of crime pertaining evidence their begin crime before warrantless (Dyke Co., 216, 221, Taylor Implement search.” Mfg. U.S. 538, 543, 1472, 1475.) Ed. 2d 88 S. Ct. record before us does The not contain evidence that sheriff Beam had probable reasonable or cause pertaining to believe evidence ato crime would be found in shows, defendant’s vehicle. As far the record Beam Officer conducted the search of the defendant’s he suspected vehicle because that there might illegal however, be substances such by related Beam are insufficient to probable constitute cause.
The trial court properly regarding found informant’s information drug traffic at Kraft residence was unreliable. trial finding court’s was proffered based on the fact that the no regarding State identity past reliability. informant’s or his was Nor this defect cured Beam, personal observations of deputy sheriff even we include the earlier observations of allegedly other which were related to Beam. most,
At Beam his a large was advised fellow officers that persons number of frequenting had been Kraft’s residence. His own seeing observations were limited to two individuals from defendant’s depart Upon enter the Kraft about 10 residence after minutes. departing placed in the trunk bag these individuals of defendant’s car. Blitz, Beam recognized one of the of this car to be Michael shown, however, It brother. was not that Michael Blitz was following known be traffic. drug associated with the defendant’s car Beam observed plate light defendant’s license plate illuminated and that the license hitch. obscured trailer unmarked continued to follow the defendant’s car police car. *4 Beam noticed that each time he used his radio or of the one more in defendant’s car turned around and at him. When occupants looked of his finally stopped jumped the defendant’s the defendant out car and back to Beam’s vehicle. Beam characterized the hurried “acting defendant as nervous manner.” Beam observed a citizen’s when thought he heard which he band radio defendant’s occupants all of the requesting vehicle. approached defendant’s of Michael out, person found on searched. knife was get to each was find these the scene. We attempted to flee Blitz. None of the insufficient facts, collectively, or individually whether considered reasonable or requisite suspicions Beam’s elevate sheriff of defendant’s necessary a warrantless search probable justify cause the minor traffic offense to a crime unrelated to pertaining for evidence was, ostensibly, stopped. for which the defendant car was of defendant’s raised is whether the search The next issue that it was trial court concluded incident to an arrest. The valid search Hendrix, 3d App. 25 Ill. not, holding that the case analysis set forth agree legal with the N.E.2d controlled. We instant case. applicability and its to the Hendrix review is whether presented The final issue voluntary. and if such consent consented to the search question of whether employed The test to be to determine of duress or product “voluntary” consent to a search was fact or was from coercion, fact to be determined express implied, “is a or Bustamonte, 412 (Schneckloth v. totality all circumstances.” trial 218, 227, 854, 863, 2041, 2048.)Since the U.S. 36 L. Ed. 2d 93 S. Ct. a time when he given at court found that defendant’s “bare” consent officers, covering of whom was presence “was in the of four one himself he shotgun him with a and in the words of the defendant loaded and such condition” extremely apprehensive was in an nervous and Harris, 282, 215 finding clearly (see is not unreasonable 214, 215), N.E.2d agree we with the trial court’s conclusion that the consent, In given, voluntarily given. was not the words of Home, 249, 254, 252 the court in v. Clark 114Ill. App. Memorial 546, 549, was, atmosphere purported “The consent whole best, one of resignation police authority.” submission or given we are not reaching our conclusion that no valid consent was fact that the defendant unmindful of trial court’s consideration request by rights” right “his of his to refuse was neither advised of Supreme United States trunk of his car. While the to search the consent need not be right to refuse knowledge Court has stated that non of an effective qua “as the sine government established consent,” (Schneckloth into account.” it “is one factor to be taken 862, 93 Bustamonte, Ct. It is S. atmosphere conjunction clear that when this factor considered “consent,” that gave allegedly prevailing at the time the voluntary. such consent was not
424 Randolph circuit court of
Accordingly, the order entered is from police seized County suppressing affirmed.
Affirmed. MORAN, J.,
G. concurs. J. JONES, dissenting:
Mr. JUSTICE apply not to several cases or chosen majority has either overlooked suppress in that the clearly indicate motion supreme court which of our I dissent. Accordingly, respectfully denied. should have been question 45, 225, supreme court Wiseman, Ill. 2d v. 59 In 319 and search of an automobile that a distinction between out pointed recognized, citing Carroll v. has been dwelling long a house the search of States, 132, 543, 280, S. Ct. Chambers v. 69 45 267 U.S. 419, 42, L. S. Ct. 26 Ed. 90 Maroney, 881, 364, 11 L.Ed. S. Ct. v. 376U.S. In Preston United must meet the test of supreme held searches of motorcars under the fourth amendment before evidence obtained reasonableness of such searches is admissible and said common sense dictates a result readily concerning things searches of motorcars other questions identically be moved cannot treated with searches of fixed structures like houses. 263-64, Palmer, 261, v. Ill. 2d
In 62 from quoting Brown, 353, Ill. 2d Supreme 38 the Illinois Court stated: “ ‘It has long been established that the safeguards constitutional constitution,
contained 6 in section of II article of the Illinois constitution, the fourth amendment to States the United do not prohibit warrant, all searches made only without a but those which unreasonable, are and that the determinations of reasonableness of any given depend must upon the facts in particular (United Rabinowitz, situation. 56, States 339U.S. People Watkins, L. Ed. Ill. 2d In we Watkins held that a search incident to is it an arrest when is authorized reasonably necessary protect attack, arresting officersfrom from prevent prisoner or to fruits of escaping, discover the plates crime. We went on to state license that the total absence of reasonably on a car a serious of the law suggest could violation justify which a search. Thomas,
In People v. 31Ill. 2d we held that circumstances reasonably may dealing, that the be an indicate violator, criminal, ordinary then a search of the traffic safety his vehicle is authorized order to insure the driver and escape.’ 38 Ill. 2d 355.” prevent officers and to Were guidelines we to of the above cases to the apply here, is suppress there but that the motion to would be no denied. case, People v. McKnight,
Another 237 N.E.2d its facts with the case under consideration. practically identical McKnight violation, light the car was for a mere traffic no over plate, suspicious there were movements of the defendant him, police spotlight belong when turned on the car did not defendant, and, all,” important “most companion armed. give These the court found sufficient to factors *6 they reasonable cause to believe that dealing ordinary were not traffic offenders and a warrantless search of the car which disclosed weapons was sustained.
Aligning the facts this McKnight: deputy case with Beam followed away defendant from the Kraft at night, house defendant for having not light illuminated his plate, stop over after the jumped defendant out of his car and back hurried Beam’s car get before Beam could out of his appeared “shaky,” upon a brother, search of defendant and his the brother was found to be armed with a hunting knife.
At this point fully justified the officerswere in believing they that were dealing with something more than a mere traffic conducting violator and search of defendant’s automobile for fruits and instrumentalities of crime. People v. McKnight; People v. Thomas.
Although parallel McKnight provide probable would sufficeto cause, is there much more evidence that could be furnish used to probable cause in this case. department keeping The sheriff’s had been the house of George Kraft under surveillance for about a week and deputy Beam was but night one of the officers involved. On question Beam was on duty deputies surveillance at the house. Other told him that a reliable source had drugs being advised them that were sold that particular previous night deputies house. The one of the duty surveillance advised Beam they shipment that had information that a drugs coming in. post Beam remained at his for 15 or 20 about during minutes up which time he six cars noticed four to drive and leave after 5 or 10 (the minutes. Beam Blitz noticed a man named Michael house, defendant’s brother) get go out of a into the about 5 leave minutes later and put bag a brown trunk car. of the Beam noticed that each time he used his radio to call for assistance the car he was in an following although would turn around and look he was unmarked car at the time. When Beam walked to defendant’s 426
noticed that an eight-channel radio was in the back seat and he heard the defendant’s change upon brother his channel approach. monitor the technology use of electronic to fourth new dimension adds a by deputy radio calls warrantless search the rationale
amendment It makes reasonableness. Maroney, v. and Chambers v. United automobiles of Carroll compelling. Preston v. States even more and disclosed to they were view of fácts and circumstances duty had have been derelict would by deputy discovered Beam he marshalling of the here. stop he not made the and search the case well places the search surrounding facts and circumstances under the permitted seizure within the limits of reasonable search limits as those of Illinois the State constitutions of the United States and jurisdictions. both have been courts of supreme defined People v. in this are case sustain the search Additional cases would 311, Holloman, Ill. 2d 766; 46 230, People v. Wolf, 60 Ill. 2d 326 N.E.2d 577; 353, People v. 7; N.E.2d Brown, 263 2d 231 People N.E.2d v. 38 Ill. Davis, Jones, 33 Ill. 2d 427, 580; People 38 v. Ill. 2d 231 N.E.2d 505; 323 N.E.2d Hendrix, App. N.E.2d 25 Ill. Babic, N.E.2d 24. App. directly deal with the which Notwithstanding large of cases number question, conclusion. for their majority one case cited comparisons analogies Neither or make attempt do to draw cases, striking despite here with the facts of the decided observe, too, majority similarity McKnight. I App. Jefferies, Ill. participated panel that decided of an automobile the warrantless upheld *7 than those compelling under considerably circumstances less here.