Did thе policeman’s detention of appellant constitute a legal arrest? If not, did its illegality taint the camera, a stolen item which served as the basis for a burglary charge, and was found during a search with permission, of thе appellant’s backpack? Did the illegality of the original detention make inadmissible appellant’s subsequent incriminating admissions made after Miranda warnings? These are the questions presented in this appeal from a burglary conviction.
Here is what happened:
While on routine patrol, Officer Mills received a radio message from another patrol car that two suspects, who appeared to be young hitchhikers, were acting in a suspicious manner in that they appeared nervous when they spotted the patrol car. Mills drove to the area and saw the two young men on the sidewalk adjacent to a motel known to be a stopping placе for runaways, vagrants, and fugitives. "When they saw me they acted nervous again and one of them looked very young.” As the two were walking away the officer stopped them and inquired as to identification documents. Although aрpellant had the necessary identification the 17-year-old companion had none. "I told them at that time that I wanted to run a check *122 on both of them, I wanted to run an NCIC on Mr. Hill.” (The initials refer to the National Crime Informаtion Center). "I told them I was going to have to take Mr. Stip down to headquarters . . . the young one, and call his parents, see if they knew where he was. And, Mr. Hill, I told him I wanted to take him down and run the NCIC check, and if he wanted to go — if they both wаnted to get in and go, take them together, and if everything turned up O.K., they could leave together, and that agreed with both of them.”
At police headquarters the NCIC report indicated that an individual bearing the same name as appellant was wanted elsewhere. Upon examination of his physical characteristics it was apparent that appellant was not the same person described on the computer.
Both were then escorted to a back room so that the youngster’s parents could be called. Officer Mills continued to question them and then asked if he could examine their luggage. They consented. In his search of appellant’s backpack the policeman discovered a Keystone Everflash camera in its original box. As this matched the description of a camera taken in a burglary on the previous day, the officеr informed appellant that he was under arrest for burglary.
Until this point in time Officer Mills testified there had been no detention, that appellant voluntarily accompanied him to police headquarters and that appellant could have departed therefrom at any time he wished to do so.
After Miranda warnings had been given by Officer Mills and, later, after a couple of hours in a jail cell, the questioning was continued by a detective who also provided the prefatory Miranda warnings. During the latter interrogation appellant gave an inculpatory statement which he later signed. Afterwards appellant accompanied the detective in his patrol car to a trash can at a service station wheré he had discarded a pistol mentioned in his statement. Held:
1. Prior to trial appellant moved to suppress both the physical evidence taken from him and also the statements made by him. The motion was denied. The basis of the motion was that when Officer Mills stopped him on the *123 street it constituted an illegal arrest, and that the search with permission at the police station was thereby unlawful. The state, in turn, contends that appellant was not arrested until after discovery of the camera.
The situation here is similar to that in
Holtzendorf v. State,
"[T]o justify a warrantless intrusion of this nature, the state must be able to point tо specific and articulable facts, which, together with rational inferences drawn therefrom, reasonably warrant the intrusion.”
Brisbane v. State,
"It must be recognized that whenever a police officer
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accosts an individual and restrains his freedom to walk away, he has 'seized’ that person.” Terry v. Ohio,
2. Was there a search оf the appellant? If so, was it legal? The state asserts that appellant gave Officer Mills permission to look through his backpack.
In Raif v. State,
3. In order for the search to have been valid the arrest must have been legal.
Johnson v. State,
The motion to suрpress the evidence seized during the unlawful search should have been granted, and it was error to.admit it into evidence. "The obtaining of the evidence was tainted by the illegal arrest.”
Kelly v. State,
4. Similarly, the defendant’s statements to thе police and the pistol should have been suppressed as evidence. Although a Jackson-Denno hearing was held prior to commencement of the trial upon the indictment to determine voluntariness of the statements, this does not of itself dispose of the issue. The trial court had already erroneously ruled that the arrest and subsequent search were lawful.
Brewer v. State,
In LaRue v. State,
That appellant was given his Miranda rights before he made the statements is again not dispositive. Justice Blackmun dealt with this issue in the 1975 decision of Brown v. Illinois,
Brown held that each case is tо be judged individually on its facts, the burden being on the prosecution to show the admissibility of such statements. Review of the transcripts and record in the case sub judice shows that the state was unable to carry its burden of showing that the stаtements were not tainted by the primary illegality. They were made shortly after an illegal arrest and illegal detention during which an unlawful search revealed what appeared to be stolen goods. As in
LaRue v. State,
Judgment reversed.