*1 ILLINOIS, Plaintiff-Appellee, THE PEOPLE OF THE OF STATE v. STEVEN WIPFLER, Defendant-Appellant. 75-121,
Third District Nos. 74-325 cons.
Opinion April 22, filed 1976.
STOUDER, J., dissenting. Goldstein,
Michael Chicago, appellant. of for J. Rudman, Martin Attorney, (Thomas Carey, State’s of Assistant State’s Joliet Attorney, counsel), People. for the Mr. PRESIDING ALLOY of the court: opinion delivered JUSTICE student, Wipfler, Defendant 18-year-old high Steven school convicted of separate two charges and sentenced to concurrent years’ terms of 4 first probation, with the 45 weekends to be spent in Will County We have consolidated the two cases for the Jail. purposes hearing and disposition.
On appeal in this court argues that his confession to the that, crimes was police subsequent to an alternatively, the confession was of his given without valid waiver rights required by constitutional 384 U.S. Miranda v. Arizona 436, 694, 16 L. Ed. 2d S. 86 Ct. 1602.
The burglaries place February, two involved took in the month of in Bolingbrook, 4, 1974, evening February Illinois. an office into, entered, trailer on a construction site was broken and then set on fire. Thereafter, during 16,1974, February the weekend of the home of Jerald Kraushaar was Kraushaar burglarized and several items were taken. reported returned, with his trip incident when he from a out of town family, February youth on talked police subsequently 1974. The neighborhood Wipfler lived in the who told them that would who Steven At something February 8:30 a.m. on know about the breakin. His mother said he was police telephoned defendant at home. school, agreed but down after The go to tell station school. simply Wipfler her ask some they informed wished to questions burglaries. about some first after school where he come station taken on a sort of briefly Johnson, apparently
talked who had Chief chief, in Wipfler youth’s father. image father since the death The Wipfler, something the course of his told him conversation man something wrong, if a he should be a and admit effect Wipfler then was escorted into an office room where he interrogated Mahoney and Kuntz. by detectives The detectives first of his fully informed defendant “Miranda” against right self-incrimination and concerning privilege however, Wipfler, counsel. testified he was not so informed. burglary, Wipfler first about the Kraushaar inquired When asked him if he complicity denied in the incident. the detectives however, subject, test on the defendant said he polygraph would take something knowing not and admitted about the breakin. first, At burglary. Wipfler to the trailer denied questioning then turned it, knowledge finally although but he knew about he had not said *3 At that Mahoney expressed story. Officer disbelief of participated. Mahoney everything. said would tell the truth about point, Wipfler he re-emphasize interrupted carefully him again the from a card and rights. constitutional The detective read it. signed allowed a waiver form before defendant defendant to examine Mahoney that the card told signed Defendant later testified because to, that he not and read waiver, participation the he admitted After defendant had came after minutes an hour burglaries. both This admission home. Later defendant drove car questioning as we have indicated. room, items police, surrendered to several He from his and obtained during by having Kraushaar as been taken subsequently identified Jerald Defendant remained home burglary the of the Kraushaar home. following day. the night but came to station was as evidence suppress and the confession motion items below, but, testimony by the following extensive heard the court proceeded cases trial court, trial motion denied. that in in each case. We note in the conviction of defendant resulted State presented portion by trial evidence each the substantial case In the trailer there Wipfler’s consisted of confession. were Kraushaar case there accomplice also in the shown to have which were items of evidence additional of defendant. possession walked into from the time he appeal that argues on room, arrest. under he was station, interrogation into the at least or there was no warrant illegal because arrest was that the
He contends resulting confession him and that the to arrest probable cause no other illegal him as a fruit of the against in evidence was thus inadmissible pursuant other evidence that statements and It is clear is some unless there as evidence illegal arrest are inadmissible (1963), 371 U.S. States (Wong Sun v. United intervening act of free will warnings that Miranda 441, 407); the fact 471, L. 83 S. Ct. 9 Ed. (Brown taint arrest purge the given necessarily does not were 416, 2254). 95 S. Ct. Even U.S. 45 L. Ed. 2d v. Illinois arrest the however, cause to probable that there was no assuming, from the record initially, we must conclude knowledge more than mere agreed arrest until he to admit not under crimes, probable no as to point there would be about the at which cause to arrest. person, accomplished either taking custody
An is the arrest custody. (People his submission into actual restraint of the 906, 909, 274 Ill. Rev. (1st 1971), 1 Ill. Howlett simply by 5(a).) We conclude Stat. ch. §§102— 107— answer some to the station to acceding police request to a to come conclude that thereby under arrest. We also questions, defendant was not agreeing further to answer automatically become arrested record, Nor, at the station. on the basis questions once he arrived that, began, justified concluding, we be once Detective leaving pleased. prevented defendant was whenever until under arrest that he did not consider defendant truth, already having tell the after defendant announced he would crimes, denying participation. knowledge admitted of both but the issue before decisionson While we are not bound Federal Court case, us, find, a statement the Federal issuesin this pertinent we States, (D.C. F. Cir. 382 2d 158 Appellate Court in Hicks v. United as follows: regarding the nature of an arrest 0 0 but, what thought defendant0 “The test must not be what the *4 crime, thought had man, would have any reasonable innocent he been in shoes.” during leave that he wanted to Wipfler
While defendant not, subjective evidence that could that early questioning, but felt from the clearly find stems significant is not as as the which we conclusion man, felt reasonable, not have testimony as a innocent whole: freedom, any significant way himself under in restrained in his arrest or except voluntarily, on the basis of the record before us. arrest, officer, part
The communication of an intent to on the of an if determining also a factor to be considered in has an there 58, 63, 65, (People Bridges (1st 1970), App. v. Dist. 123Ill. 2d 259N.E.2d 238, 244, 240 People (1st 1966), App. v. Dist. 98Ill. 2d N.E.2d Jackson in expressly explain While the detectives the cause before us did not time, they any at in any to the defendant that he could leave neither his way He was allowed to car suggest say stay. that he had to drive stayed at making police, home after the statement to and home night. evidence, mind,
Absent subjective other than defendant’s state of him place either intended to under arrest when he came to the station or that they leaving attempted restrained when he to do so, we must that the conclude that he was not under given by defendant was not rendered inadmissible alleged illegal arrest. Wipfler argues, alternatively,
Defendant that the State sufficiently apprised rights show that he of his Miranda and then intelligent, voluntary knowing fashion. The waived them very his at Wipfler rights officerstestified that informed outset his rights directing his questioning, they again and that went over his actually printed attention to the waiver form before confession, Wipfler time tell the truth. denied he indicated he would the waiver being rights initially advised of his and claimed he did not read facts, necessarily, was to be form before he This conflict fact and the court’s denial resolved the trial court the trier of that it suppress motion to on this issue indicates resolved (1968),41 Ill. (People v. Haskell favor of the of the detectives 25, 30-31, 430). 241 N.E.2d first, his was custodial argued, Defendant nature, As have warnings. we calling play give the need to observed, nature of the situation already it is that the custodial possible being warnings without might require giving be sufficient to event, it was will assume that enough arrest. In we constitute an silent to remain necessary Wipfler for detectives to inform was so informed. indicates that he to consult counsel. The record rights, was no valid waiver argument, that there bases important various to consider on the asserted failure of the trial court factors, capacity mental background, age, intelligence, such as his by the court. certainly be evaluated must education. These factors 659-660, Ill. (People (4th Baker circumstances, totality of depends on the The issue of voluntariness
405 the the and the nature of including characteristics of defendant 173, 179, v. Simmons (1975), Ill. 2d 326 N.E.2d People questioning. 60 383. specific to such court did not make reference
While the
suppress, we
it must
denying
characteristics
the motion to
believe
intelligence
passing
on
necessarily
age and
have considered defendant’s
separate opportunities
view
The trial court had two
motion.
very
a
stand,
good
been in
and should have
defendant on the witness
to understand
waive
position
ability
defendant
evaluate
this
upon by Wipfler, on
issue
In the cases relied
rights knowledgeably.
ability to
defendant’s
appeal,
ample
question
on
there was
reason
evidence
rights in those cases since there was
understand the defendant’s
intelligence. People
v. Simmons
60 Ill.
(1975),
extremely low
People
v.
N.E.2d 27.
Turner
(1973),
326 N.E.2d
56 Ill. 2d
306
argues that the record shows a “calculated course
Defendant also
designed
which was
to coerce a
part
police
conduct” on the
no merit
in such contention. The
confession from defendant. We see
upon
between Chief
largely
contention is based
the discussion
Johnson
Wipfler just
and defendant
now
before
chief,
should admit
argues that the comment of the
to the effect
wrong,
attempt
if he had
a subtle
to force a
something
done
confession,
only
as it did from
was not
the chief of
coming
one who
simple
a
exhortation
tell the
figure
but also father
the defendant.
circumstances,
enough,
truth is not
unusual
to invalidate
a
absent
Taylor (1974),
v.
69, 76-77,
58
(People
Ill. 2d
subsequent
confession.
317
special position
N.E.2d
Chief
relation to
Since
Johnson
(People
defendant,
to consider.
a further element
certainly
this
would be
765, 771,
We
v.
32 Ill.
Ruegger
(4th
not, however,
coerce
confession
designed to
perceive a scheme
do
comments,
or in
either alone
Chief
arising
out of
Johnson’s
by detectives
employed
interrogation procedures
with the
conjunction
urged
that Chief
emphasizes
Mahoney and Kuntz. Defendant
Johnson
right
him of his
than tell
wrongdoing rather
admit
simply
advice
Chief
attorney.
silent and to obtain
remain
Johnson’s
immediately
Wipfler was
the truth.
to tell
amounted to
admonition
rights through the
of his constitutional
thereafter
advised
of the voluntariness
question
warning given by the detectives.
and its decision
the trial court
was determined
defendant’s confession
it is
reviewing
unless
court
be overturned
on
issue should not
Prim
People
the evidence.
weight
to the manifest
contrary
62, 70,
On the basis record evidence. weight of the contrary manifest of the trial court was judgment County of the Circuit Court Will affirmed.
Affirmed.
STENGEL, J., concurs. STOUDER, Mr. dissenting. JUSTICE with disagree agree result reached in that I majority defendant’s contention to an the majority Neither nor the State seem to position if he was under arrest at
commencement interrogation, then is inadmissible. will deal only here whether beginning was under arrest at interrogation. of his If an in custody, individual is that individual is as a matter of law under arrest. by No authorities the majority support are cited in of then- proposition regarding an interim stage custodial non-arrest. The Criminal meaning taking person Code defines “arrest” “the of a custody.” (Ill. 38, par. Stat. ch. Rev. The also Code 102— provides “an arrest is by by an actual restraint of the (Ill. submission into custody.” par. Rev. Stat. ch. The 107— majority, although they cited the Code’s definition early of arrest in their * * opinion, apparently it is possible overlook later when state that the custodial nature might require of the situation be sufficient giving of warnings being enough without to constitute an arrest.” The majority is referring requirement no doubt the Miranda warnings given an subjected be police interrogation individual while in custody. (Miranda Arizona, 436, 16 384 L. S. Ct. U.S. Ed. 1602.) What I is compelled feel their conclusion an individual can in custody be a degree requirements to sufficient to fall within the yet enough custody being not to constitute under arrest. This to appears attempt me be to rationalize the violation police of rights. defendant’s constitutional minutes, police
After defendant for spoke with the chief about 10 or he sergeant’s was escorted given into the room where he was the Miranda warnings interrogated Mahoney behind closed doors Detectives and Kuntz 45 minutes to an this for about hour. Defendant at the end of period tell truth everything. stated he would about The Miranda warnings time, given were to him a this writing. second time seriously is anyone might waiver form. It inconceivable to me orally warnings contend that he given where individual is the Miranda writing is given warnings not under arrest is but when he these form, under suddenly becomes he signing the waiver coupled is with his in the is the absence to me paramount significance What conduct officers’ distinguish any material facts to record at time the interrogation, which beginning at the toward defendant in the and later was not under testified defendant officers warnings a second the Miranda given defendant was interrogation, when arrest or not he either under told was time. At neither time was defendant It for is hard free to leave. he was free to leave or not under arrest or that developed into suddenly non-arrest me how this custodial comprehend change in circumstances. an arrest without material enlightening. police officersis interrogating the two interrogates usually Officer testified on cross-examination a He stated has arrested in room with the door closed. individuals he prior he knew yet he alsostated suspect a did not consider defendant young men with had been committed the offenses He had been motorcycle. owned a motorcycles and he knew riding burglarized home youth were near the told defendant and another been to have motorcycles supposed time the their field youth had also committed. Defendant and this other trailer. at the time an arson of construction riding motorcycles their for youth This never to the station other called under arrest was not cross-examination Officer Kuntz testified defendant on the fact no one had interrogated opinion and he when was based think told him He stated he would defendant was under arrest. behind a officers being questioned man in room two young arrest, but he under being closed door after informed of his *7 in such a questioned had been could not name one other who really he never manner who was not under arrest. He then admitted redirect was under stopped to consider whether defendant constituting an arrest. booking process stated was the he viewed conclusion defendant clearly supports believe the record Both under arrest at the commencement defendant, toward and in their conduct testimony, particular officers’ the circuit court judgment support conclusion. County Will been reversed. should have