*1 ILLINOIS, Plaintiff-Appellee, v. OF OF THE STATE THE PEOPLE GABBARD, Defendant-Appellant. DANNY RAY District No. Fourth 26, 1979. Opinion January filed MILLS, J., dissenting. Munoz, Appellate of Defender’s Richard Wilson and Karen both State J.
Office, Springfield, appellant. of (Robert Perry C. Joseph Attorney, Cavanagh, C. State’s Commission, Gary Anderson, Attorneys Appellate Service both of State’s J. counsel), People. for the Mr. the court: GREEN delivered JUSTICE County, jury After the circuit and armed Danny burglary convicted Ray Gabbard was robbery and a term 20 years’ imprisonment sentenced to to 40 Upon armed conviction. he asserts that the trial court in denying erred pretrial motions to arrest and seized, custody, statements made and certain identifications agree made of him. We of the relief requested some and, motions granted those should have been accordingly, reverse remand for a new trial.
The evidence at trial of the robbery occurrence of armed was not in dispute and need related in evening not be detail. On the of March 1977, two masked man Springfield men and one unmasked entered the of Leroy along home and Mary Cummings gunpoint, and at held them Mrs. Cummings’ bay taking son Prillaman at while items John trial, substantial value At from them. all three victims identified defendant as the Leroy unmasked Cummings bandit. Prillaman had also pretrial identified defendant in lineup.
Defendant’s various motions his premised upon to stopped by contention he had been impermissibly and searched him, and that custody by the items taken from given him, and identification of him improper police made were all fruits of that conduct.
At the hearing suppress, on the motion to Illinois State Policeman Acup 29,1977, Earl April testified that on U.S. 66 driving he was south on Lincoln, Illinois, near the northwest he saw defendant comer when walking south right Acup stopped on the shoulder of the behind the road. defendant, car, turned, opened who back squad came the door on, got trooper put in. The lights had not or told the defendant siren car, Acup to come nor did he motion back car. as inquired to where Gabbard was going replied going After Springfield Springfield. he had come from identification, name, asking defendant’s the officer asked for whereupon Gabbard had his on opened printed checkbook that name checks. Acup Officer testified that he could see Illinois driver’s sticking license corner of the He asked from a checkbook. whether identification, not the defendant other to which replied, Gabbard “No,” immediately and put the checkbook back in his The officer bag. him, and put told defendant to head forward and his hands behind placed drew his Acup weapon and handcuffs on the defendant. Officer Acup took the back checkbook out of defendant’s found both jail. and a Illinois Missouri driver’s license. Defendant was then taken to law Trooper Acup violating any testified that defendant was not him, pulled up policy when he of the Illinois behind that was everybody walking along public State Police to check out found they (Defendant testifiedthat Officer highway doing. to find out what Acup him and for him to come back to the pulled up behind motioned car, him weapon in. the officer had his telling get He also said that halfway holster.) cocked and out of its stipulated Prillaman’s Missouri parties hearing at the John cards, card, license, security college a car
driver’s social identification card, having been taken by rental and other items testified to Prillaman as trial, from him at evidence at were taken and admitted into his bag. They stipulated from defendant’s checkbook or also that a gun bag. admitted taken into evidence had been parties agree time the defendant was arrested gun drew his argues handcuffs on the defendant. Defendant merely rights by officer had defendant’s violated questioning him and asking for identification and that this conduct invalidated subsequent search and seizure. We need not decide this because conclude that the itself was without arrest cause and thus the subsequent invalidated search and seizure.
To support heavily testimony the arrest the State relies that six prior Acup Officer had seen a which bulletin indicated that an escaped Federal prisoner might be 55 or Peoria on Interstate Road north of Springfield. converges Peoria Road into Interstate north person and a going northerly 55 would pass on Interstate escapee male, Lincoln. The in height described as a white 5'9" *3 weighing arm, 150 pounds, with scars left ring finger on his and left hair, possessing eyes wearing jeans green army blue and brown blue a fatigue jacket, backpack. and carrying explained a The officer that police are constantly furnished with of this persons information nature about wanted for crime. report When if he the escaped person asked had on his defendant, mind when he his car the stopped the officer testified, always “You your Testimony that something have like on mind.” indicated that the defendant was a male white about 6' or 6T" height, and carried a mask gas army but was wearing jacket. an No showing was made as to whether he scars. had
The State maintains this coupled that evidence with the officer’s testimony that the coming defendant stated that was both going he to and from Springfield testimony and the officer’s that a the defendant had driver’s in his license checkbook did not show it for identification was a sufficient basis for the court’s finding probable trial cause. The State 463, cites the case Lewis Ill. (1968), App. 2d There, the stopped accused was officers who were investigating pattern burglaries a neighborhood. a crime-ridden Upon identification, request for gave the accused the officers unemployment compensation card one it having name and a on social security card with a upon different name it. The told the accused officers card. The officersthen security name was that shown on the social for first propriety the accused. of the arrest was raised the arrested The time on indicated that and ruled to be waived. state that the case the accused but did not differed from cases cited point waived. upheld arrest would have been had not been knowledge In a person to arrest without a warrant and without order have that a been issued officermust person, warrant has has person committing grounds “reasonable believe that the 38, 2(c).) (Ill. par. Stat. ch. committed offense.” Rev. 107— wearing escapee and defendant was 3 or 4 inches taller than the clothing. 30 miles from where somewhat different He some Although the officersaw escapee had to be 6 earlier. been believed showing that the officer no was made defendant’s hands before ring gave finger. though looked for a scar on left Even coming that was suspicious when he stated both answer inferred that might the officer going Springfield although belong to that did not possession had in his a driver’s license name, we find him true or did not want the officer know for the officer to have insufficient as a matter of law We escapee. was the grounds reasonable to believe that of reasonable a matter of law to be basis also find insufficient as committing that defendant was grounds for officerto have believed had committed other crime. has
Although both court original theory on the that the officer’s argument the thrust of his cause for probable the issue of questioning improper, recognize arresting been raised in both courts. We arrest has difficult, quick probabilities decisions based must make be cannot but arrests 356), 342 N.E.2d (1976), Robinson Ill. App. suspicions. (People Attaway made mere the trial 448.) finding rule the 354 N.E.2d We weight contrary to the manifest the arrest to be cause existed for suppress the evidence the arrest and The motion to evidence. and remand this reason we reverse been allowed. For seized should have for new conducted, must any subsequent trial be order denial of motion
pass upon the trial court’s *4 identification. that defendant hearing showed suppression
The evidence at the arrest, then, of his in the afternoon County jail and Logan taken first to the investigator police A State County jail. to the Sangamon transferred 9 a.m. County jail at Logan at that he first talked defendant testified questions him some rights and then asked him of Miranda and advised
949 robbery not answer. Cummings’ about which defendant did Sedlak that he Detective Sangamon County Detective testified Dalby day interviewed at p.m. defendant about 2:45 his Miranda County jail rights. Defendant also advised defendant of They willingness lawyer. indicated a to talk defendant without a showed a composite drawing Cummings’ of a in the and the suspect defendant many admitted that he had characteristics similar to those of suspect drawing.
Testimony presented being lineup was further that after told that conducted, would be can this matter defendant told the “I clear up, but given my testimony.” some consideration must be Defendant then pending stated that he wanted charges lenient treatment for various him. against lineup Defendant was then that he had taken to told picked been during lineup. Defendant then made several of the statements admitted at day trial. The next further questioning Miranda defendant place took after rights explained were further himto and he made further statements which later at were also admitted
Not all State’s evidence which would not been obtained but for suppressed. Wong an illegal arrest of a Sun required be United States (1963), 471, 441, 407, L. U.S. Ed. 83 S. Ct. cause, defendant was arrested without his own released on recognizance, and, later, several returned on his own volition to station confessed. The confession was ruled to be admissible. hand, Brown Illinois
On 590, 45 the other (1975), 422 U.S. L. Ed. 416, 2254, S. 2d Ct. inculpatory statements made illegally arrested station, to officers at a with the first statement being made less than two hours after the were ruled inadmissible as violative the fourth The Supreme amendment. Illinois Court had approved the admission into evidence of statements on the basis that Miranda the giving of warnings broken the chain between giving unlawful arrest and the statements Brown voluntary. 312, rendered them 356.) Brown The United Supreme opinion States Court explained that the fifth rights amendment of the defendant protected by Miranda warnings only aspect one of the constitutional permissibility admitting the defendant’s statements into evidence. effect on fourth rights amendment admitting also required consideration. concluded that whether statements must suppressed depended, be in addition to their voluntariness, statement, upon (1) span the time between arrest and the (2) intervening circumstances, (3) “the purpose flagrancy 427, official (422 misconduct” 45 L. 95 S. Ed. Ct. 2254, 2262). The court noted purpose appeared that the of Brown’s arrest
950 confess. He was by police converged upon
to be to coerce night. showing admissibility in his at of was stated to be home The burden prosecution. the to Brown Henderson this Subsequent court decided There, accused, being 32 Ill. after taken App. 3d 337 N.E.2d who, was fingerprinted, station and confronted Miranda warnings, because giving urged after the defendant confess from the the fingerprints burglary matched those taken scene of charged. Early This 9 the p.m. morning, which he was occurred at next We affirmed the after the the accused confessed. about hours convictions, though the subsequent holding propriety the of even uncertain, the of Miranda warnings, the 9- giving accused’s arrest was the confession, flagrancy any time arrest the of span hour between lack arrest, and, intervening that the importantly, most factor improper matched, fingerprints were combined confession had been made after may though original arrest have make the evidence admissible even probable cause. been without (1) presented case before us evidence (2) transpired at after the
Miranda warnings given, least hours admissions, (3) making even mentioned arrest before (4) plea bargain, and by offering to initiated his admission testimony on the flagrant. defendant’s Although was not unlawful arrest with the somewhat at variance suppress the statements was motions to evidence, though it. Even required accept the court was not recited improper, motion to arrest was
denied. lineup the arrest was invalid dispute
The State does not evidence, Suppression lineup suppressed. should be however, prevent not in-court identification would that the identification has can show prosecution if the the witnesses (1975), 29 Ill. Hornal App. base. independent proper in the pass did 225.) The prior stated, and sentence the convictions previously
As the circuit court is and the case remanded reversed the views consistentiy with conducted County a new trial for herein. expressed and remanded.
Reversed
CRAVEN, J., concurs. MILLS, dissenting:
Mr. JUSTICE
A valid arrest. most majority, but we
I with the law cited quarrel not the factual applying law to assuredly part ways when comes to backdrop of this case.
Here, policy highway, on a walking Gabbard was alone walking everyone who found investigate of the Illinois State Police is to time this nature. At along public thoroughfare circulated out of both apprehension, dispatch there existed a Federal Headquarters Pontiac State Police District just Peoria Road north of prisoner-escapee, who was believed to be on Springfield, Springfield. on 1-55 north Now —with these elements Gabbard, *6 Trooper says going he’s to Acup investigates who mind — that just Springfield says that he had from and come is only he When the checkbook identification had was a checkbook. in opened trooper, Acup and shown to the sees an Illinois driver’s license Acup the corner of the checkbook. then asks Gabbard has further “No,” says, up puts identification. The defendant folds the checkbook and back into the that he is He is arrest. carrying. then under I find in probable majority bogged cause. The has become down a hair, scars, height, jacket, morass of weight, eyes, pants, what he details — carrying, was etc. The fact still remains there was a common similarity between in description dispatch broadcasted and the general appearance justify of the And I throwing defendant. cannot an arrest simply may because the a scar not have looked for ring finger left subject.
There are innumerable where time and instances insufficient opportunity inventory, afforded and stop officers to take or checklist, consult a study compare, ascertain if there is exactness in all description. require of the minutiae of a And such action officers would do severe violence to common law enforcement People Robinson 273, 276-77, 342 sense. In 82 Ill. 2d Court said: Supreme the Illinois existed,
“In considering probable in whether cause we stated People Clay, 501, 504-05, probable Ill. 2d ‘Whether or not cause for an arrest particular depends upon exists case totality of the facts and circumstances the officers when known to the arrest was made. In deciding [Citations.] deal in a case courts probable particular cause These unduly disposed to be technical. probabilities and are not practical considerations probabilities are factual technicians, men, act. legal everyday life on which reasonable States, 307, 3 327, 79 329; Draper v. United L. S. Ct. Ed. Fiorito, People v. 19 Ill. 2d 246.’ Also it is proper recognize judging ‘[pjolice whether there was cause that probable officers them, often must quick appraisal act data before judged reasonableness of their conduct must be on the basis their responsibility prevent crime and criminals.’ to catch Watkins, 19.” And as judge the trial in this case —when he found observed recognize cause denied the motion quash suppress must —we ° * that when they do not have time field to review all the search have to They cases reasonable and seizure. pits.” work the so-called short, here, considering I totality the circumstances believe: crime;
that there was probable cause that Gabbard had committed denied; the motion to properly that Gabbard trial; years’ convicted after a fair to 20-40 he was sentenced now; imprisonment; right serving should be that sentence should be affirmed. I dissent. ILLINOIS,
THE PEOPLE OF THE STATE Plaintiff-Appellee, OF v. RONALD SMITH, L. Defendant-Appellant.
Fifth District No. 77-201 Opinion Rehearing January filed November denied 1978 .