{ "id": 2808589, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSIE BALLENGER, a/k/a Jesse Ballinger, Defendant-Appellant", "name_abbreviation": "People v. Ballenger", "decision_date": "1976-04-19", "docket_number": "No. 61331", "first_page": "30", "last_page": "34", "citations": [ { "type": "official", "cite": "38 Ill. App. 3d 30" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "327 N.E.2d 219", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill. App. 3d 1047", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2867424 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/27/1047-01" ] }, { "cite": "298 N.E.2d 705", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2932686 ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0401-01" ] }, { "cite": "278 N.E.2d 462", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "3 Ill. App. 3d 470", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2835510, 2842910 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0470-01", "/ill-app-3d/3/0470-02" ] }, { "cite": "237 N.E.2d 466", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. 2d 489", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857193 ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0489-01" ] }, { "cite": "280 N.E.2d 557", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill. App. 3d 193", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2917444 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0193-01" ] }, { "cite": "248 N.E.2d 78", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. 2d 457", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2849908 ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0457-01" ] } ], "analysis": { "cardinality": 556, "char_count": 9972, "ocr_confidence": 0.822, "pagerank": { "raw": 4.565170110192638e-08, "percentile": 0.2860355951254301 }, "sha256": "1940a195f8868dcd784eac5524342429061909a498626584f4f9d0ce2aa3697a", "simhash": "1:a8a3330557b2bc03", "word_count": 1624 }, "last_updated": "2023-07-14T15:32:42.628819+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSIE BALLENGER, a/k/a Jesse Ballinger, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE BURKE\ndelivered the opinion of the court:\nDefendant was found guilty at a bench trial of the offense of unlawful use of weapons and sentenced to a term of not less than 2 years and not more than 6 years\u2019 imprisonment. (Ill. Rev. Stat. 1973, ch. 38, par. 24\u2014 1(a)(4).) On appeal, defendant contends that he was arrested and searched without probable cause, and that the State failed to prove all the elements of the enhanced penalty statute. Ill. Rev. Stat. 1973, ch. 38, par. 24 \u2014 1(b).\nAt the outset of the proceedings, defendant offered a motion to quash the arrest and suppress the evidence discovered by a search incident to the arrest. In support of the motion, defendant testified that on January 17,1973, he was arrested in the vicinity of 3223 West Armitage Avenue in Chicago at approximately 8:15 p.m. Defendant stated that prior to his arrest he and a fellow employee named Busby stayed at a tavern located on Armitage Avenue from approximately 5 p.m. to 8 p.m. Busby and the defendant conversed and allegedly consumed only one drink during this time period. Defendant claimed that moments after his departure from the tavern he was arrested by plainclothes police officers. Defendant insisted that he was not intoxicated. A .32-caliber revolver was found by the police in the right pocket of a black leather jacket worn by the defendant.\nOfficer Michael Rogers testified for the State in response to the testimony offered by the defendant in support of his motion to suppress. While patrolling the area in an unmarked police car, Rogers and two other accompanying officers were flagged down by two youths at the corner of Kedzie and Armitage. Rogers stated that he knew the youths well and had seen them almost every evening on his patrol. The youths told the officers that a male Negro, accompanied by a male Caucasian, had been waving a gun in the street. The youths pointed to an area to the rear of the police car on Armitage and said, \u201cThey are down there.\u201d Street and store lights, illuminating the area where the men were located, enabled Rogers to see the two men through the rear window of his automobile. Rogers estimated that the two men were situated approximately 100 feet from the unmarked police car. One of the officers drove the car in reverse to the point where the men were located.\nThe officers found Busby, the Caucasian, lying on the sidewalk. Defendant was standing directly overy Busby with the intent to assist Busby raise himself from the sidewalk. Busby and the defendant wobbled and staggered as they walked exhibiting an intoxicated condition. Both men were arrested. A search of the defendant revealed a .32-caliber revolver containing three live rounds and one spent cartridge. Defendant did not give any statement to the officers at any time.\nAfter considering the foregoing evidence, the trial court denied defendant\u2019s motion to suppress, finding that the police officers\u2019 conduct was proper. It was stipulated that the testimony taken for the disposition of defendant\u2019s motion was to be considered as evidence in the trial. Officer Rogers was recalled to the stand by the State.\nRogers testified that his investigation of police records revealed that defendant had previously served a sentence in the penitentiary for murder. The State then introduced into evidence a certified copy of a conviction statement which attested that one \u201cJesse Ballinger\u201d was found guilty of murder on November 22, 1961, and sentenced to a term of not less than 30 years. The State also introduced into evidence an authenticated police record which documented that \u201cJesse Ballinger\u201d was paroled on April 20, 1970, from his 30-year sentence at the Joliet State Penitentiary. No objection was raised by defendant to the admission of these documents into evidence.\nThe defendant was recalled to the stand at trial. He testified that he mistakenly took another person\u2019s black leather jacket from the tavern\u2019s coat rack upon which several black leather jackets were hanging. Defendant stated that the jacket seemed to be a proper fit even after he had buttoned it. Defendant did not place his hands in the right pocket of the jacket. He claimed that the weight of the revolver in the pocket did not seem unusual since he had placed his leather gloves in the right pocket of the jacket which rightfully belonged to him. On cross-examination defendant stated that he did not realize that the jacket belonged to another person until the search revealed the .32-caliber revolver.\nUpon the facts presented, we find that the arrest of the defendant and the subsequent search were proper. It is well-established that an arrest by a police officer without a warrant is proper if the officer has reasonable grounds for believing that the person to be arrested has committed a crime. (People v. Wright, 42 Ill. 2d 457, 248 N.E.2d 78.) Information provided by ordinary citizens, weighed in the context of surrounding circumstances perceived by the officer through his senses, can be sufficiently reliable to form a good faith belief that the person to be arrested had committed an offense. (People v. Frisco, 4 Ill. App. 3d 193, 280 N.E.2d 557.) It has been held that an officer is not required to consider the prior reliability of the informer if the information is supplied by ordinary citizens and not by professional informers employed by the police. People v. Hester, 39 Ill. 2d 489, 237 N.E.2d 466; People v. Thompson, 3 Ill. App. 3d 470, 278 N.E.2d 462.\nThe police officers in this case were informed about the defendant by youths who were not professional informers. However, the youths knew the plain clothes officers as policemen from the officers\u2019 usual patrol activity in the area. The youths approached the officers with the specific purpose of relating that they saw a male Negro, accompanied by a male Caucasian, wave a revolver in the street. The information received by the officers, therefore, was based upon recent observation by two apparently disinterested witnesses. Moreover, the information was accompanied by a positive identification. The youths directed the officers\u2019 attention to the two men in question by pointing to them standing in the street about 100 feet to the rear of the unmarked police car. The defendant and his companion, once encountered by the officers, were found to be highly intoxicated.\nWe believe that the information received by the officers, weighed with the exigencies of the situation, formed a reasonable ground for the officers\u2019 belief that the defendant had, in fact, brandished a revolver in the street shortly before his arrest. We further find that the search incident to the defendant\u2019s arrest which revealed the .32-caliber revolver was lawful. The search was conducted contemporaneously to a lawful arrest and was confined to the immediate vicinity of the defendant\u2019s person. (People v. Cole, 54 Ill. 2d 401, 298 N.E.2d 705.) The officers were justified in searching the defendant for the purpose of discovering an instrument of the crime, the revolver, and protecting themselves from attack. Ill. Rev. Stat. 1973, ch. 38, par. 108 \u2014 1.\nThe defendant\u2019s second contention is that the State failed to prove all the elements of the enhanced penalty provision which is a part of the Crimin\u00e1l Code section prohibiting the unlawful use of weapons. (Ill. Rev. Stat. 1973, ch. 38, pars. 24 \u2014 1(a) and 24 \u2014 1(b).) Our Criminal Code provides that a person who violates any subsection of section 24 \u2014 1(a) within 5 years of the person\u2019s release from the penitentiary on a felony conviction is guilty of a Class 3 felony. Accordingly, defendant was sentenced to a term of 2 to 6 years.,\nDefendant argues that the State failed to demonstrate that the person named in the indictment for unlawful use of weapons was the same person named in the conviction statement. The indictment spelled the defendant\u2019s name \u201cJessie Ballenger\u201d while the conviction statement spelled the defendant\u2019s name \u201cJesse Ballinger.\u201d The defendant\u2019s contention is totally without merit.\nThe record indicates that the defendant is a convicted felon who was released on parole from prison on April 20, 1970. No objection was voiced by defendant at trial to the admissibility of the conviction statement and the police documents reflecting defendant\u2019s criminal record. Officer Rogers offered corroborating testimony at trial that his personal investigation revealed that the defendant had been convicted for murder. Defendant\u2019s attorney at the hearing in aggravation and mitigation admitted the accuracy of defendant\u2019s criminal record as found in the conviction statement, mentioned the circumstances surrounding the incident which resulted in defendant\u2019s murder conviction, and argued strenuously that defendant had been a model prisoner. Defendant\u2019s argument loses all credibility when his signature is observed on his motion to suppress dated March 27,1974, and on a jury waiver dated May 7,1974. Defendant signed both documents \u201cJesse Ballinger,\u201d the same spelling as reflected on the conviction statement. It has been held that the burden is on the defendant to establish that he was not actually incarcerated. (People v. Johnson, 27 Ill. App. 3d 1047, 327 N.E.2d 219.) However, the record in the present case indicates that the State proved the enhanced penalty allegation of the indictment beyond a reasonable doubt.\nFor these reasons the judgment is affirmed.\nJudgment affirmed.\nGOLDBERG, P. J., and O\u2019CONNOR, J, concur.", "type": "majority", "author": "Mr. JUSTICE BURKE" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Deborah J. Gubin and Matthew J. Beemsterboer, Assistant Public Defenders, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Kevin Sweeney, and Eugene J. Rudnik, Jr., Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSIE BALLENGER, a/k/a Jesse Ballinger, Defendant-Appellant.\nFirst District (1st Division)\nNo. 61331\nOpinion filed April 19, 1976.\nJames J. Doherty, Public Defender, of Chicago (Deborah J. Gubin and Matthew J. Beemsterboer, Assistant Public Defenders, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Kevin Sweeney, and Eugene J. Rudnik, Jr., Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0030-01", "first_page_order": 58, "last_page_order": 62 }