*1 (No. 52385. ILLINOIS,
THE PEOPLE OF THE STATE OF Appellee, al., et BEAN Appellants. JIMMY Opinion February filed *2 SIMON, J., part. took no UNDERWOOD, JJ., and and concurring
RYAN dis- senting in part. Ltd.,
Brown, Goodman and of Chicago Carper, (J. Goodman, Chris of Bean. Jimmy counsel), appellant Defender, Public of Doherty, (James Chicago James J. Rhodes, L. Defender, Assistant Public of counsel), and Frank appellants Byrd Byrd. Jessie Fahner, General, of and Tyrone Attorney Springfield, Bernard State’s Carey, of B. Attorney, Chicago (Marcia Orr, Graf, S. Mark and A. Assistant State’s Cherry, Joan Noel, and Melbourne A. and Mark L. Attorneys, Jr., Rotert, General, Assistant of Attorneys Chicago, for the counsel), People.
MR. MORAN delivered opinion JUSTICE court:
Defendants, Bean, and Frank Jimmy Byrd Byrd, Jessie indictment armed with two counts of charged by The circuit court of Cook robbery. County quashed arrest and statements and suppressed the arrest and quashed identification evi suppressed dence of and Frank Byrd. appeal, appel Upon late court reversed and remanded both causes. 73 Ill. App. 3d 918. that their arrests violated
All three defendants contend their the fourth amendment rights guaranteed by United Constitution. Defendant Bean States argues (1) the circum- cause and arrest was without (2) the arrest in his stances required assert that warrant. Defendants (1) a direct result invalid, occurred as arrest having event, circum- arrest, and of Bean’s any (2) a warrant. stances own required men, sawed-off 1975, two armed with On March took store and entered a cleaning shotgun pistol, 6, the March investi- records. On money phonograph officer, Lahm, Lucinda Thomas telephoned gating number name, address and whose telephone Birmingham, 5 incident. of the March police report appeared while she was Officer Lahm that Ms. told Birmingham out men come across the street she observed two standing were outside. other men who cleaners two join told Lahm all four run from the scene. She She then saw *3 the cleaners was who had been outside that one of men to Bean, she had gone with whom Jimmy previously was 17 or 18 told Lahm that Bean school. She further Keeler and that he in the old and lived vicinity years Streets Chicago. Gladys (4200 West) conversation, checked to this Lahm Subsequent that a file and discovered Jimmy police alphabetic 1974 and Oak Park had been arrested police by June then Lahm address as West Gladys. his 4211 and West Gladys schools in 4211 vicinity visited Burén to school at Van a Bean went learned that West and had listed his address and Keeler Streets Street. Gladys a.m., and
On March at Lahm approximately Korte two other Officer policemen accompanied at West warrant. arrived without Gladys of the residence officers to the rear went accompanying door and the front Korte while Lahm approached defendant, testified Mrs. knocked. The mother of her door the officers showed that when she opened said, officers, want to see “Police badges Mrs. Bean then asked them into vestibule Jimmy.” area; inside; to while once she the officers wait requested she left this to robe. The officers with put complied return, her stated officers request. Upon again they wanted to see defendant. Mrs. Bean asked them to again she wait while went defendant. this Korte At get point, went her his with drawn. Mrs. Bean also testified past gun the officers went into defendant’s bedroom and told him to dressed. get
Officer testified that while were in the the defendant from bedroom. Lahm emerged stated that he walked as far as the bedroom but doorway, bedroom, did not enter he could not recall although whether Korte entered. Lahm informed defendant he was under arrest and then searched him for There- weapons. after, defendant was taken to the car where he was advised of his constitutional rights.
Lahm further testified that five after minutes the defendant made an oral statement concerning This statement robbery. the same as substantially a written statement later made at the station. The statements indicated that Frank and Byrd partici in the pated with him. robbery defendant’s Following oral statement the four police, officers and defend ant West proceeded Buren, Van where defendants Frank and arrested. Later that day, took in a were identified as lineup being in the armed participants robbery.
The trial court allowed Bean’s motion to arrest on the basis that no cause existed. One *4 later, week the trial court entered an order to suppress both of Bean’s statements as fruits of the arrest. illegal
The the court continued the as to voluntariness hearing a 27, the statements. trial allowed On October the court to the and a to motion arrests motion sup- the identification evidence. This action was founded press on the that arrest of Bean led to the ground arrest and identification court Byrds. appellate causes, reversed and remanded both that noting case, had cause to arrest In Bean’s Bean. probable a court directed the trial court conduct to appellate on the of his statements. voluntariness hearing in-custody With court Frank Byrd, respect a directed on the of their arrests. circumstances hearing Defendants now decision. appeal We first consider defendant Bean’s contention cause did not exist his arrest. He probable argues Lahm’s conversation with who identi- telephone person fied herself as Lucinda Birmingham, eyewitness crime, failed to information provide trustworthy upon cause could be based. as a name witness
Birmingham’s appeared her, called she identi When Lahm original police report. who as one of the men fied herself and identified Bean three fled with the other outside the cleaners and waited she attended school with She told Lahm men. The infor address of his home. an gave approximate residence was verified by school and to Bean’s mation an records. As ordinary files school search awas that she indicates no evidence citizen record (the as an as well eyewitness professional informant), paid, offense, officer upon relying justified v. information. (1970), Birmingham’s (People Hoffman Ill. 225-26; v. Hester 2d 221, People Ill. (1968), 2d interview did not Although personaUy 513-14.) has conversation this court held that Birmingham, phone cause to can be basis estabhshing probable 232, 236; v. Ill. People Parks 2d (1971), (People
69 370, the facts and 41 Ill. Under Lucus 2d 375.) (1968), stated, cause conclude that probable law at the time he arrested defendant Bean. cause, ascertained existence
Having probable a warrant we must determine if arrest of Bean without under the fourth violated his rights contends, v. York New amendment. under Payton 639, 573, 445 63 L. Ed. 100 Ct. U.S. S. (1980), 2d 1371, if is an arrest even cause probable present, be a warrant cannot made in without person’s dwelling In how- in the absence of circumstances. exigent Payton, ever, its Court excluded from specifically Supreme U.S. entries consent. consideration accompanied by (445 1371, 583, 639, 649, 573, Ed. 100 S. Ct. 63 L. 2d offi- case, contends the In the instant State 1378.) with consent. cers’ made entry is desired an arrest warrant We generally agree is an individual’s protected. means right privacy by (Pa 573, 445 U.S. v. New York (1980), yton 1381-82; 1371, 590, 639, 653, 63 L. 100 S. Ct. Ed. 2d 453, 451, v. 335 U.S. McDonald United States (1948), However, 191, when 153, 157, Ed. Ct. L. 69 S. 192.) 93 and an one’s residence consent is enter voluntary cause, the based on arrest is effected suspect’s violated, are not even under the fourth amendment rights The standard in the absence of circumstances. exigent in variety consent Court valid by applied Supreme is is whether that consent voluntarily of circumstances 218, v. U.S. Bustamonte 412 given. (Schneckloth (1973), 2058-59; 248-49, 854, 875, 2041, Ed. 93 Ct. 36 L. S. 2d 548, 543, v. U.S. Carolina 391 North Bumper (1968), 802, 797, 1788, 1791. L. Ed. 88 S. See Ct. 2d 20 Johnson 436, 10, 13, Ed. v. 333 L. United States U.S. 92 (1948), is 440, 367, a warrantless entry S. Ct. When 68 368-69.) not be consent, that consent need by voluntary justified defendant; from a third it obtained may party given by 70
who has control over United v. States premises. Matlock 164, 171, 415 242, U.S. 39 L. Ed. (1974), 2d 249-50, 988, 993; 94 S. Ct. People (1978), Heflin 525, Ill. 2d
Here, unlike that was in no entry, Payton, way forceable. used Payton, crowbars to break (In down the York, door and in Riddick v. New decided with defendant’s Payton, son door, answered the three-year-old 573, 583, entered. whereupon 445 U.S. 639, L. Ed. 649, 1371, 2d S. Ct. Nor was the 1378.) obtained entry means of deception. Compare Bumper v. North Carolina 543, U.S. L. Ed. (1968), 2d *6 S. Ct. obtained from defendant’s (consent grand- mother, the home, owner of the after claimed policeman had a warrant, search police the existence of which was not shown). to Mrs. Bean’s
According own the testimony, upon officers themselves to see identifying asking Bean, Mrs. Bean invited them to come inside the apart- ment. The officers then waited until Mrs. Bean returned with her robe. The of all established testimony parties that Mrs. Bean invited the officers into the voluntarily After she returned, and then apartment. started to leave to defendant, the Korte went her get with his drawn. past gun Whether Bean found was inside or outside his bedroom is not When officers are controlling. consent to enter an to arrest a who was involved in an suspect armed should not be robbery, to wait required person them or (who might approach armed) arrest, We hold that possibly attempt Bean’s escape. based on cause and to enter with consent was apartment, legal.
Defendants and Frank contend that their Byrd Jessie arrests occurred as a result of Bean’s oral statement only obtained after his arrest. illegal Consequently, they argue, their arrests and identifications also as were the fruits of Bean’s arrest. held Bean’s arrest to be Having this contention fail. must legal,
The also that the surround- circumstances Byrds argue own violated their fourth amendment ing theAt on motions to their arrests and rights. hearing identifications, State and suppress Byrds as to the facts: at the stipulated following point (1) arrest, Bean’s had not focused police investigation yet on the arrest, within Byrds, minutes of Bean’s he made (2) an oral statement with naming Byrds participants in the him armed this statement robbery, (3) acting upon then traveled to West Van Burén and there police made arrests of at approxi- a.m., mately identified in a line- (4) record, however, does not indicate if the up day. home, above arrests were in the if the Byrds’ entered the or if the did enter the building, Byrds’ home, whether such consent. Like the entry with court, we are unable to appellate determine from record the circumstances
We with the court that agree these causes appellate must be remanded to the trial court for further hearings as to the voluntariness of Bean’s statements and the cir- cumstances the arrests and identifications of and Frank Byrd.
For stated, the reasons judgment *7 court is affirmed.
Judgment affirmed. MR. SIMON took no in the considera- part JUSTICE tion or decision of this case. dis- in RYAN, concurring part
MR. JUSTICE in senting part: relates to as it insofar
I in majority concur opinion of from that I dissent but the defendant Jimmy of the case remands of colleagues my opinion for a determina- trial court the circumstances tion of of illegality
The burden was on Byrds prove court, our relied, court and in in the trial their arrest. They that Bean’s arrested and Bean was the fact that illegally cause not statement could supply probable of this contention arrest. The warrantless opinion disposes arrest was that Bean’s legal. finding there be for other reason may holding Whatever on them to the burden was arrest of the Byrds illegal, of such a determination establish facts support are states court. The trial my colleagues opinion the circumstances to determine from the record unable me, this arrest. To says arrested and not have they illegally Byrds proved I can not sustained their burden thus have proof. to do another see no reason them opportunity giving I would therefore reverse holding so. to the trial as to the and remand their cause
court for trial on the court question guilt. con-
MR. UNDERWOOD in this joins partial JUSTICE dissent. currence partial
(No. 52759. ILLINOIS, Appellee, THE STATE OF OF THE PEOPLE FRITZ, v. LARRY Appellant. February
Opinion filed