{ "id": 5582937, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DANIEL A. GUNSAULLUS, Defendant-Appellee", "name_abbreviation": "People v. Gunsaullus", "decision_date": "1979-06-05", "docket_number": "No. 78-89", "first_page": "440", "last_page": "445", "citations": [ { "type": "official", "cite": "72 Ill. App. 3d 440" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "11 Ill. App. 3d 421", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2934674 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0421-01" ] }, { "cite": "69 Ill. App. 3d 756", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3241891 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0756-01" ] }, { "cite": "59 Ill. App. 3d 310", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3360090 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0310-01" ] }, { "cite": "68 Ill. 2d 287", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5810481 ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0287-01" ] }, { "cite": "38 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2860743 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/38/0353-01" ] }, { "cite": "61 Ill. App. 3d 15", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3346616 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0015-01" ] }, { "cite": "62 Ill. App. 3d 338", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5619432 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0338-01" ] } ], "analysis": { "cardinality": 607, "char_count": 12095, "ocr_confidence": 0.892, "pagerank": { "raw": 2.640227779791362e-07, "percentile": 0.8230669046728207 }, "sha256": "641c5ab46deece9bbdf437acb41bfbc1c2189a30051a70b606d3de31a26c2f73", "simhash": "1:3928b48ee1d029c3", "word_count": 2001 }, "last_updated": "2023-07-14T14:39:04.921292+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DANIEL A. GUNSAULLUS, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nThe defendant was charged with possession of cannabis (more than 30 but less than 500 grams). The trial court granted the defendant\u2019s suppression motion and the State appeals.\nThe only witnesses at the suppression hearing were the defendant and the arresting officer. The defendant testified that at approximately 9:15 in the evening on May 10, 1977, he and three companions left the defendant\u2019s house, got into the defendant\u2019s car (a Dodge) and then drove out of an alley and onto the road. After traveling about two blocks the defendant was stopped by a Roselle Police Department squad car. The defendant exited from his car and walked back toward the squad car; the officer got out of his car, met the defendant between the two cars, pushed the defendant back to his car, made him put his hands on the car, and searched him. The officer did not merely pat the defendant down, according to the defendant\u2019s testimony, but went into the defendant\u2019s pockets with his hands. The defendant stated that he was wearing a nylon jacket which was unzipped so that the T-shirt and belt buckle area were visible to the officer. The officer found two bags of marijuana behind the defendant\u2019s belt buckle. The defendant described the marijuana as \u201csoft.\u201d\nThe defendant testified, and it is not disputed, that he had recently transferred his license plates to the Dodge automobile; the registration card was introduced into evidence.\nThe arresting officer testified that he was on patrol alone when he observed four persons get into a vehicle and the vehicle pull out of an alley. The officer turned his squad car around and followed the vehicle, calling in a \u201cregistration check.\u201d The officer was informed that the license plates were registered for a 1974 Triumph, a different type of vehicle from the Dodge the plates were on. The officer notified \u201cthe base\u201d that he was going to stop the vehicle. At the suppression hearing, the officer stated that the radio operator then informed him that \u201ca criminal history had been done and one of the Gunsaullus\u2019 was known to carry a gun \u00b0 \u201d After the officer pulled the defendant\u2019s car over, the defendant got out of his car, \u201cturned his backside to the roadway and against the door, and then continued to turn, grasping the door in his left hand and closing it.\u201d The officer observed \u201cwhat appeared to be a bulge\u201d in the front of the defendant\u2019s waistline as the defendant walked toward him \u201ca little faster than normal.\u201d The bulge was four inches high, three inches wide, and protruded 1M to two inches from the defendant\u2019s body. The officer had once found a derringer in a suspect\u2019s pocket, with dimensions similar to the protrusion near the defendant\u2019s waistline, so the officer proceeded to pat the defendant down. The bulge at the defendant\u2019s waist was hard, so the officer removed the object which was causing the bulge, which proved to be two cylinder-like bags of cannabis.\nUnder cross-examination and questioning by the court, certain incongruities in the officer\u2019s testimony were developed. The officer acknowledged that although he testified on direct examination that he was told \u201cone of the Gunsaullus\u2019 was known to carry a gun,\u201d he admitted that at the preliminary hearing he testified that the base informed him that \u201cone of the subjects of that vehicle\u201d was known to carry a firearm. He clarified these responses by stating that he was told that \u201cthe registered owner of the vehicle, which was a Gunsaullus was known to carry a firearm.\u201d Although the gist of these statements is perhaps the same, the defendant argues that they are an element of contradiction in the officer\u2019s testimony. A further incongruity was, in the defendant\u2019s view, presented by the officer\u2019s response to a question by the court, which indicated that the officer only traveled 300 feet before he received an answer to his call for a registration check. This testimony, which is consistent with the defendant\u2019s testimony that he was stopped after traveling only two blocks would indicate an extremely (and defendant asserts in his brief, improbably) rapid response to the officer\u2019s request.\nThe trial judge, unfortunately, made no findings of fact and the record is silent as to his reasons for granting the suppression motion. Of course, the order of the trial court is presumed to be correct, and this court may not substitute its judgment regarding the credibility of witnesses for that of the trial judge, who actually heard their testimony and observed their demeanor. See, e.g., People v. Riggs (1978), 62 Ill. App. 3d 338.\nHowever, trial court orders involving findings of fact are not insulated from appellate review merely because the trial court observed the demeanor of the witnesses. If a trial court abuses its discretion by entering orders which are against the manifest weight of the evidence, or disregards material and uncontradicted testimony of a credible witness on a critical point, a court of review will not hesitate to reverse the trial court\u2019s order. A court of review will not presume that there were aspects of such a witness\u2019s testimony and demeanor not apparent from the cold type of the record which justified the trial court in entirely disregarding the testimony. It is thus the duty of this court to reverse a trial court\u2019s order granting a defendant\u2019s suppression motion where it appears from the record that the trial court\u2019s finding was manifestly erroneous and cannot be sustained on any grounds. See People v. Rasmussen (1978), 61 Ill. App. 3d 15.\nIn this case, if the trial court could have justifiably chosen to disregard the arresting officer\u2019s testimony that he had been informed that the license plates on the defendant\u2019s Dodge were registered to a Triumph, then there would be no question but that the trial court acted correctly in granting the suppression motion. The problem is that there is nothing in the record which would justify such a conclusion. Although the officer\u2019s testimony would indicate an extremely rapid response to the officer\u2019s request for a registration check, this is hardly implausible in our age of computers and instant communications, and in any case, even highly credible witnesses are frequently mistaken regarding estimates of such matters as time and distance. Further, the officer\u2019s testimony that he was informed that the license plates were not registered to the defendant\u2019s Dodge is supported by the defendant\u2019s testimony that he had recently transferred the license plates to the Dodge. The officer\u2019s slightly different versions of the \u201ccriminal history\u201d given to him regarding the owner of the vehicle the plates were registered to (apparently the Triumph) are reconcilable. There is, in short, nothing in the record which would warrant the trial judge in refusing to credit the officer\u2019s testimony.\nInstead, the trial court was bound to find that the officer had been informed and reasonably believed that the license plates were not registered to the car he was following. This belief would, as defendant\u2019s counsel conceded during oral argument, justify the officer\u2019s action in stopping the defendant\u2019s car.\nThe question thus becomes one of whether the trial court could have held that although the investigatory stop of the defendant\u2019s vehicle was valid, the subsequent search of the defendant was not. It is well established that a police officer who has stopped a motor vehicle for a violation is authorized to conduct a search of the driver in order to insure his own safety and to prevent an escape if the circumstances reasonably indicate that the officer may be dealing with a criminal and not just an ordinary traffic offender. (See, e.g., People v. Brown (1967), 38 Ill. 2d 353; People v. Blitz (1977), 68 Ill. 2d 287.) The rule authorizing such searches is based upon painful realism; an officer\u2019s life may be at peril anytime that he stops a motorist and the potential danger is compounded when the officer is alone (a fact which is well illustrated in People v. Fletcher (1978), 59 Ill. App. 3d 310, involving the tragic abduction and murder of Hillside Police Officer Anthony Raymond following a traffic stop). This rule has been incorporated into our Criminal Code which provides that * 0 [w]hen a peace officer has stopped a person for temporary questioning \u201c * e and reasonably suspects that he or another is in danger of attack, he may search the person for weapons.\u201d (Ill. Rev. Stat. 1977, ch. 38, par. 108 \u2014 1.01.) Thus, if uncontroverted testimony of the arresting officer in this case demonstrated that the officer reasonably thought that he might be dealing with more than just a traffic violator, and that he was in danger, a trial court holding that a search was not justified would be manifestly erroneous.\nIn passing upon the question of whether the circumstances warranted a search, courts should act with the hard reality behind the rule allowing such searches clearly in mind. The trial judge, sitting in the ordered security of his courtroom or chambers, should be guarded in substituting his judgment for that of the police officer, who may have been alone, at night, with little time to ponder the constitutional subtleties or legal nuances presented by a rapidly developing situation.\nIn this case, the registration check raised the distinct possibility that the license plates on the defendant\u2019s car, or the car itself, had been stolen, suggesting a serious violation of the law. The stop occurred at night and the officer was alone, while defendant had three companions. The officer\u2019s testimony that the defendant exited his car in an unusual manner, turning with his back to the door, was uncontroverted, as was the officer\u2019s perception that the defendant then began walking toward him \u201ca little faster than normal.\u201d When these facts are coupled with the officer\u2019s observation of a bulge at the defendant\u2019s waistline, of approximately the same dimensions as a derringer that the officer had once taken from a suspect, it becomes evidence that the officer could reasonably have believed that a \u201cpat down\u201d search of the defendant\u2019s person was necessary in order to assure the officer\u2019s safety, even if it is assumed that the officer\u2019s testimony about receiving a \u201ccriminal history\u201d on the owner of the vehicle the plates were registered to (apparently the Triumph) would not have supported a search of the driver of the Dodge. See People v. Lee (1979), 69 Ill. App. 3d 756.\nAlthough the trial judge could therefore not properly have found that a \u201cpat down\u201d search conducted by the arresting officer was unlawful, the suppression order would still be sustainable if the trial judge could have found that the search exceeded the permissible scope of such a search for weapons. (See People v. McCarty (1973), 11 Ill. App. 3d 421.) Although the defendant testified that the cannabis was \u201csoft\u201d and has argued that the officer could not have mistaken it for a weapon, the defendant also testified that the cannabis was behind his front belt buckle, which would unquestionably have felt \u201chard\u201d to the officer\u2019s touch. In fact, any object compressed behind a belt buckle would presumably have felt \u201chard\u201d and the only way for the officer to ascertain whether the object was a weapon or not would have been for him to withdraw it from behind the belt buckle.\nIt is, therefore, our conclusion that the order of the trial court granting the defendant\u2019s motion is not sustainable on any grounds.\nThe order of the circuit court of Du Page County is reversed and the cause is remanded.\nReversed and remanded.\nNASH and LINDBERG, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE RECHENMACHER" } ], "attorneys": [ "J. Michael Fitzsimmons, State\u2019s Attorney, of Wheaton (Michael J. Lightfoot and John A. Wasilewski, Assistant State\u2019s Attorneys, of counsel), for the People.", "Frank Wesolowski, Jr., Public Defender, of Wheaton, and Mary Robinson and Paul Glaser, both of State Appellate Defender\u2019s Office, of Elgin, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DANIEL A. GUNSAULLUS, Defendant-Appellee.\nSecond District\nNo. 78-89\nOpinion filed June 5, 1979.\nJ. Michael Fitzsimmons, State\u2019s Attorney, of Wheaton (Michael J. Lightfoot and John A. Wasilewski, Assistant State\u2019s Attorneys, of counsel), for the People.\nFrank Wesolowski, Jr., Public Defender, of Wheaton, and Mary Robinson and Paul Glaser, both of State Appellate Defender\u2019s Office, of Elgin, for appellee." }, "file_name": "0440-01", "first_page_order": 462, "last_page_order": 467 }