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SEARCH AND SEIZURE/ MOTION TO SUPPRESS

INEFFECIVE ASSISTANCE OF COUNSEL (click link)

People v. Ledesma, No. 93628 (June 19, 2003) Appeal, 4th Dist. Appellate
court affirmed. Illinois Supreme Court.

Police could properly stop defendant’s vehicle after anonymous 911
tipster reported that they had inadvertently overheard cellular
telephone conversation over police scanner that an illegal drug
transaction was to occur at specific location involving described
vehicle and police subsequently observed the described vehicle at
location without violating Eavesdropping Act. Further, defendant gave
valid consent to search which he never withdrew. Therefore motion to
suppress was properly denied.

People v. Gonzalez, No. 92305 (April 17, 2003) SEARCH AND SEIZURE
Appeal, 2nd Dist. Appellate court reversed.
Police officer did not violate defendant, passenger's, right to be free
of unreasonable search and seizure, by asking to see identification
during routine traffic stop of driver for failure to display front
license plate. (FITZGERALD) THOMAS, GARMAN, special concurrence

1st Dist. People v. BUNCH, No. 1-00-1910, (No. 1-00-3245 3rd. Div.
(JUSTICE WOLFSON) Reverse trial court's order denying the defendant's
motion to suppress. February 13, 2002

The defendant was a passenger. While in the car he did and said nothing
that would create the suspicion he was engaging in criminal activity or
was a threat to the officer. The driver of the car had been secured and
handcuffed. It was then that the officer ordered the defendant out of
the car and instructed him to walk to the rear of it. It was after those
questions were asked that the defendant asked his own question, in the
process opening his mouth and exposing the plastic bag. The arrest and
order to spit out followed.

Defendant contends the stop was illegal because the officer was mistaken
about the vehicle's brake lights not working. Generally, a short
investigatory stop for a minor traffic violation is considered an
exception to the warrant requirement under Terry v. Ohio. To comport
with the requirements of the fourth amendment, Terry stops are
permissible only if there is "a reasonable suspicion based on specific
and articulable facts that the person has committed, or is about to
commit, a crime." People v. Brownlee, 186 Ill. 2d 501, 518, 713 N.E.2d
556 (1999). A Terry stop is reasonable only if it was (1) justified at
its inception and (2) reasonably related in scope to the circumstances
that justified the detention in the first place. Brownlee, 186 Ill. 2d
at 518-19.

An officer has a right and a duty to stop an automobile without brake
lights. The officer, however, did not have a lawful basis to ask the
defendant for identification;a police officer has to have some lawful
authority to ask a defendant for identification. In this case, the
officer did more than ask for identification. He ordered the defendant
out of the car and to the rear of it because he was "curious." The
defendant submitted. The defendant was detained at that point
without lawful authority. Curiosity is not a good reason to detain.
Everything that flowed directly from that unlawful detention must be
suppressed. See Brownlee, 186 Ill. 2d at 518-19.

There is another reason to sustain the defendant's motion to suppress.
When Lukensmeyer saw the plastic bag in the defendant's mouth he
arrested the defendant. It was not a Terry search. It was a probable
cause arrest. The officer testified he made the arrest because "I had my
suspicions that it was heroin or cocaine, one or the other." Suspicions,
no matter how reasonable, do not add up to probable cause to arrest. See
Alabama v. White, 496 U.S. 325, 330, 110 L. Ed.2d 301, 309, 110 S.Ct.
2412, 2416 (1990). See also People v. Kidd, 175 Ill. 2d 1, 22, 675
N.E.2d 910 (1996) (Mere suspicion is not adequate to establish probable
cause.).

People v. Thomas, No.90216, Illinois Supreme Court (September 20, 2001) Appeal, 5th Dist. Appellate court affirmed, trial court reversed. (FREEMAN)

At approximately 11:30 p.m. on June 20, 1998, defendant was riding his
bicycle on Tenth Street near Bell or Herbert Avenue in Mt. Vernon. He
rode past Mt. Vernon police officer Farrin Melton, who was completing
the issuance of a traffic ticket. Officer Melton noticed that defendant
was holding a police scanner that permits a listener to monitor police
radio transmissions.

Officer Melton had previously arrested defendant for drug offenses.
Officer Melton had recently learned of defendant's release from prison.
Also, Melton had heard of a confidential informant's tip that defendant
was using his bicycle to deliver illegal drugs, most often in the
evening.

Based on this knowledge and defendant's possession of a police scanner,
Officer Melton drove after defendant to speak with him "about his
activities." Upon finding defendant, Officer Melton radioed Officer
Steven Burtnett and announced his intention to stop defendant and
conduct a "field interview." Defendant heard the communication on the
police scanner. Officer Melton overtook and passed defendant; he did not
activate his emergency lights or instruct defendant to stop. Officer
Melton positioned his squad car across defendant's path. Defendant
abruptly turned into an alleyway and departed the area at an accelerated
pace. Since Officer Melton was still behind the wheel of his car, he had
no opportunity to verbally compel a stop.

At that point, Officer Burtnett was following Officer Melton and saw
defendant's evasion. He was first to pursue defendant down the alley.
Officer Burtnett overtook defendant, pulled his squad car alongside,
lowered a window and directed defendant to stop. Defendant asked Officer
Burtnett what he wanted. Before Officer Burtnett could answer, defendant
changed direction and accelerated.

Officer Burtnett activated his emergency lights and, joined by Officer
Melton, gave chase. Defendant eventually abandoned his bicycle and fled
into a field. Officer Melton exited his squad car and pursued defendant
on foot. The officer announced his office and ordered defendant to stop.
Defendant became tangled in high grass, enabling Officer Melton to
capture and arrest him for obstructing a police officer. Officer Melton
conducted a "pat-down" search to determine if defendant was carrying a
weapon. He recovered from defendant's pants pocket what appeared to be
three rocks of crack cocaine. Officer Melton conceded that it was not
illegal for defendant to possess a police scanner and admitted that he
had no information that defendant was carrying illegal drugs on the
night in question. The appellate court reversed the circuit's court
suppression order. The court held that defendant's flight corrected
Officer Melton's ungrounded suspicion, upon which he based his initial,
unwarranted attempt to stop defendant. 315 Ill. App. 3d at 858.
Defendant appealed.

HELD: Trial court erred when it ordered evidence seized in warrantless
"pat down" of defendant's person suppressed. Although police officer
attempted to conduct impermissible "field investigation" of defendant by
blocking defendant's path on bicycle with police car, defendant gave
officer justification for pursuit and investigatory stop by his headlong
flight. The defendant's response to Officer Melton's unsuccessful effort
escalated into headlong flight, a consummate act of evasion. It credited
other information that Officer Melton possessed and gave rise to an
articulable suspicion that criminal activity was afoot. Therefore, the
defendant's ultimate stop and detention was legal and proper.

A person must submit to a show of authority before that show of
authority can constitute a seizure. Here, the defendant was not seized
by the Offficer's attempted roadblock because he refused to halt and,
instead, chose to run. He was seized only when physical force was
applied after he was caught.

-1st Dist. People v. Juarbe No. 1-98-3963, 1-98-3964, cons. (January 12,
2001) 5th div. (QUINN) Affirmed. (Controlled Substances)

Under Terry, an officer's investigative detention is reasonable: (1)
"whether the officer's action was justified at its inception" and (2)
"whether it was reasonably related in scope to the circumstances which
justified the interference in the first place." Terry, 392 U.S. at
19-20, L. Ed.2d at 905, 88 S. Ct. at 1879. Stopping an automobile for a
minor traffic violation does not, by itself, justify a search of the
vehicle unless the officer reasonably believes he is confronting a
situation more serious than a routine traffic violation. People v.
Penny, 188 Ill. App. 3d 499, 502, 544 N.E.2d 1015 (1989).

In the instant case,the court held that Officer Keag reasonably believed
that he was confronted with asituation in which defendants were
committing a more serious crime than a routine traffic violation. Keag's
belief was based on his knowledge of the Zepeda organization after
conducting surveillance of the "stash house" at 22 Acera Drive over 100
times. In addition, Keag observed defendant Juarbe clutching a white
paper bag while exiting the apartment with Soto. This information was
supplemented by knowledge that a signed federal search warrant
authorizing a search for narcotics had been issued for this apartment.
Therefore, based on this information, it was reasonable for Keag to ask
defendant Juarbe if there were any drugs or weapons in the vehicle.
Extending search to narcotics dogs was not unreasonable considering
substantial knowledge officers had about defendant's presence at "stash
house".Although probable cause requires more than mere suspicion, it
does not require the arresting officers to have in their hands
sufficient evidence to convict the defendant. People v. Moody, 94 Ill.
2d 1, 445 N.E.2d 275 (1983). The expertise and experience of the officer
are to be taken into account as well. People v. Stamps, 108 Ill. App. 3d
280, 438 N.E.2d 1282 (1982).

To establish that a Possessory offense had taken place, the State would
have had to present evidence tending to show that defendant knew of the
presence of the contraband and that it was in his immediate and
exclusive possession. People v. Denton, 264 Ill. App. 3d 793, 798, 637
N.E.2d 1066 (1994); People v. Mason, 213 Ill. App. 3d 163, 167, 571
N.E.2d 1127 (1991). Where two or more people share immediate and
exclusive control or share the intention and power to exercise control,
there arises a situation of joint possession. Denton, 264 Ill. App. 3d
at 798. Even where there is no physical possession, constructive
possession may exist where there is an intent and capacity to maintain
control and dominion over the contraband, and this may be proved by
showing that the defendant controlled the premises where it was found.
Mason, 213 Ill. App. 3d at 167.Here, both driver and passenger were
properly found guilty of possession.

The contraband was in a hidden compartment in the armrests of the
vehicle owned by defendant Juarbe, which were immediately accessible to
Soto, who was in the vehicle from the time they left the apartment
together until the arrest. The trial judge personally observed the
hidden compartments open and close and noted for the record that they
made a distinct grinding noise as they opened and closed. Thus, it would
be reasonable to conclude that Soto was aware of the narcotics in the
vehicle.

People v. Love 318 Ill. App. 3d 534. Opinion by FITZGERALD, J. (April 18, 2002)

In 1999, Chicago police were conducting narcotics surveillance at 5723
West Washington Street when they saw a pedestrian approach a man on a
bicycle and give him currency. The pedestrian was then directed toward a
woman, this defendant, who removed something from her mouth and handed
it to the pedestrian.

Police approached the defendant and asked her name, but she was unable
to speak clearly. She was then asked to spit out what was in her mouth,
which she did. It was small plastic bags bound together with tape. In
the subsequent Cook County criminal proceeding, the parties later
stipulated that this was cocaine.

After an unsuccessful motion to suppress, the defendant was convicted in
a bench trial of possession of a controlled substance with intent to
deliver. On appeal, she challenged the denial of her motion to suppress.
In this decision, the Illinois Supreme Court held that, pursuant to the
established law of stop and frisk, police were entitled to ask the
defendant her name. When she was unable to speak clearly, their
reasonable suspicion that she was selling drugs ripened into probable
cause to arrest, and their directive to her to spit out what was in her
mouth was valid as a search incident to a lawful arrest. The circuit
court acted properly in denying the motion to suppress, and the
defendant's conviction stands.

People v. Love No. 1-00-1039 (December 15, 2000) 6th div. (O'BRIEN) Reversed. No "Spit Search" under Terry.

Illinois has codified a Terry stop in section 107-14 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/107-14 (West 1992)). Section
107-14 states: "A peace officer, after having identified himself as a
peace officer, may stop any person in a public place for a reasonable
period of time when the officer reasonably infers from the circumstances
that the person is committing, is about to commit or has committed an
offense as defined in Section 102-15 of this Code, and may demand the
name and address of the person and an explanation of his actions. Such
detention and temporary questioning will be conducted in the vicinity of
where the person was stopped." 725 ILCS 5/107-14 (West 1992).

The court employs an objective standard to determine whether the stop is
reasonable: Would a person of reasonable caution believe the action
taken was proper knowing the facts available at the time of the stop?
People v. Rivera, 272 Ill. App. 3d 502, 504-05 (1995).

Officer Olson knew the following specific, articulable facts when he
stopped defendant: (1) that at 1:50 a.m., a pedestrian handed money to a
bicyclist in the general vicinity of defendant; (2) the bicyclist
directed the pedestrian toward defendant; and (3) defendant then took an
item out of her mouth and handed it to the pedestrian. Officer Olson
could rationally infer from those facts that the pedestrian gave money
to the bicyclist in exchange for the item in defendant's mouth. Although

Officer Olson testified that from his vantage point he could not
identify the item that defendant gave to the pedestrian, the officer
could rationally infer that the item was not a legal substance such as
food, gum, breath mints, cough drops, chewing tobacco, etc., as such
items are generally not sold or otherwise exchanged after placement in
one's mouth. Rather, the rational inference is that the item was an
illegal substance, most likely drugs, which can be sold in very small
packages. The time of day that the event occurred (1:50 a.m.) further
supports the officer's rational inference that defendant was engaged in
criminal behavior. Accordingly, Officer Olson had sufficient grounds to
make a Terry stop.

Next, defendant argues that the circuit court erred in finding that
Officer Olson engaged in a proper Terry search when he told defendant to
spit out what she had in her mouth. Defendant argues that the search was
improper because the officer did not reasonably fear that he or another
was in danger of attack. See People v. Morales, 221 Ill. App. 3d 13, 17
(1991); 725 ILCS 5/108-1.01 (West 1992) (a police officer may conduct a
Terry search only if he has reason to believe that he is dealing with an
armed and dangerous individual and that either his safety, or the safety
of others, is in danger.)

In the present case, the officer went beyond the scope of Terry and
section 107-14 when he ordered defendant to spit out what was in her
mouth so as to compel a response to his questions. Accordingly, the
circuit court erred in denying defendant's motion to suppress.

ANONYMOUS TIP

1st Dist. People v. Armstrong No. 1-98-4278 (December 29, 2000) 2nd div. (COUSINS) Reversed in part.

Trial court's decision denying motion to quash arrest and suppress
evidence is against the manifest weight of the evidence. Defendant was
placed in a custodial detention based on anonymous tip, which was
insufficient to provide probable cause. Further, the provisions of
5-5-3.2(b)(2) of Criminal code are unconstitutional in that they allow
for extended term based on findings of court and not jury in violation
of Apprendi rule. Therefore, extended term sentence for murder is also
error.

Here, Officer Bankston only knew the details of how the victim died,
where he died, and the name given to her by one anonymous phone call.
The information given to her in that anonymous call had no indicia of
reliability. The fact that a "white guy" had been burned and beaten was
readily available to members of the public. An uncorroborated tip by an
informer whose identity and reliability are both unknown does not
constitute probable cause to make an arrest. People v. Parren, 24 Ill.
2d 572, 576, 182 N.E.2d 662 (1962).

When police officers are working in concert on an investigation,
probable cause for an arrest may be established on information possessed
by any of those officers. People v. Holveck, 171 Ill. App. 3d 38, 48,
524 N.E.2d 1073 (1988). However, even if the information from Officer
Haskins to Officer Haynie may be imputed to Officer Bankston, the
accusation against the defendant made by the unnamed student does not
contain any more indicia of reliability than the anonymous phone calls.
A trial court's ruling on a motion to suppress is subject to reversal
only if it is manifestly erroneous. People v. Wheeler, 281 Ill. App. 3d
447, 454, 667 N.E.2d 158 (1996); People v. Steinberg, 260 Ill. App. 3d
653, 656, 633 N.E.2d 142 (1994). The finding by the trial court in the
instant case was against the manifest weight of the evidence. In the
instant case, Armstrong's age, the lack of any communication that he was
free to leave at any time, the anonymous tips to police, the absence of
his grandmother, his lack of previous arrests, and his level of
education all support the contention that he concluded that he was not
free to leave. Therefore, we hold that defendant was under arrest while
he was at the police station, prior to making his statements during
interrogation.

Courts look at the following factors to evaluate whether a reasonable
person in the defendant's position would believe himself to be in
custody: (1) the location, mood, and length of interview; (2) the number
of police officers present; (3) the presence or absence of the
defendant's family or friends; (4) any indicia of formal arrest, such as
physical restraint, the show of weapons or force, booking, or
fingerprinting; and (5) the manner by which the defendant arrived at the
place of the interview. Melock, 149 Ill. 2d at 440.
Moreover, custodial interrogations are seizures and require probable
cause even though the "trappings of a technical formal arrest" may not
be present. People v. Wicks, 236 Ill. App. 3d 97, 103, 603 N.E.2d 594
(1992). We hold that the actions of the officers in the instant case
constituted an illegal seizure.

The following cases are instructive when a reviewing court is presented
with facts that do not include the "trappings of a technical formal
arrest." In People v. Fitzpatrick, 107 Ill. App. 3d 876, 438 N.E.2d 222
(1982), the issue on appeal was whether the trial court erred in denying
the defendant's motion to suppress his written statement taken at the
police station because the statement was the fruit of an illegal arrest.
The trial court in Fitzpatrick found that the defendant was not
involuntarily detained or arrested until after he had made the
incriminating statement. Fitzpatrick, 107 Ill. App. 3d at 878. The
appellate court, however, disagreed and held that the denial of the
motion constituted error. Fitzpatrick, 107 Ill. App. 3d at 877. Similar
to the instant case, the investigation in Fitzpatrick was focused on the
defendant as a result of information received through an anonymous tip.
In Fitzpatrick, as in the instant case, the defendant was not told that
he need not accompany the officer to the police station. Fitzpatrick,
107 Ill. App. 3d at 879. The reviewing court in Fitzpatrick stated that
although the defendant was not handcuffed, fingerprinted, or
photographed, the circumstances indicated that the detention of
defendant resembled a traditional arrest and that a reasonable person
would not have felt free to refuse the officer's request. Fitzpatrick,
107 Ill. App. 3d at 880.

A landmark case regarding unreasonable seizures is Dunaway v. New York,
442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979). In Dunaway, a
jail inmate awaiting trial for burglary supplied information to the
police implicating the defendant in a murder and attempted robbery.
Defendant was taken into custody, driven to the police station for
questioning, and given his Miranda warnings. At the station, the
defendant made incriminating statements. The Supreme Court reasoned that
"seizures are 'reasonable' only if supported by probable cause."
Dunaway, 442 U.S. at 214, 60 L. Ed. 2d at 837, 99 S. Ct. at 2257.
Moreover, the Court held that the seizure of a citizen cannot be an
"expedition for evidence." Dunaway, 442 U.S. at 218, 60 L. Ed. 839, 99
S. Ct. at 2259.

A similar, although not identical, case to the instant case is In re
J.W., 274 Ill. App. 3d 951, 654 N.E.2d 517 (1995), in which the court
applied the aforementioned principles in the juvenile context. In that
case, a 14-year-old was called into the principal's office and when he
arrived, there were three officers waiting for him. J.W., 274 Ill. App.
3d at 952-53. They told him that they wanted to speak to him about a
homicide and notified his grandmother, who, however, was not his
guardian. J.W., 274 Ill. App. 3d at 953. He was placed in the back of
the police car, one officer sat in the back with him, his book bag was
searched, and he was fed on the way to the police station. J.W., 274
Ill. App. 3d at 953. The boy was taken to a large room where he was
questioned while the door was left open. J.W., 274 Ill. App. 3d at 953.
The boy made incriminating statements while at the station. Those
statements were admitted at trial despite defense counsel's motion to
quash his arrest and suppress evidence. J.W., 274 Ill. App. 3d at 956.

Based on the defendant's age, the number of officers present, the method
of questioning, the place of questioning, and the lack of any
communication that he was free to leave, the appellate court held that a
reasonable person in the boy's situation would not have felt free to
leave and that the defendant's motion to his quash arrest and suppress
evidence should have been granted. J.W., 274 Ill. App. 3d at 961-62. The
appellate court stated that "[i]t is well understood that interrogation
at the police station is inherently coercive [citation], especially when
a minor is involved." J.W., 274 Ill. App. 3d at 960. The J.W. court also
noted that "[h]aving been driven to the station, J.W. was in effect
stranded there, buttressing the conclusion that a reasonable person in
his situation would not have felt free to leave." J.W., 274 Ill. App. 3d
at 960.

MOTION TO SUPPRESS/RIGHT TO COUNSEL/CUSTODIAL INTERROGATION

1st Dist. People v. DeSantis No. 1-99-1256 (December 22, 2000) 5th div. (QUINN) (GREIMAN, dissent) Reversed and remanded.

Defendant, Richard DeSantis, was charged with two counts of obstructing
justice for leaving Illinois and concealing himself with the intention
of obstructing the prosecution of Frank Caruso, Victor Jasas and Michael
Kwidzinski, who were each charged with attempted murder, aggravated
battery and hate crimes for the beating of a black child, Lenard Clark.
Defendant filed a motion to suppress written and oral statements he made
to police during the investigation into the Clark beating. Defendant's
written statement was taken at station where attorney was asking to see
defendant and was denied, but when persons obtaining statement were
unaware of presence of attorney. Defendant claimed that he was unable to
knowingly waive his fifth amendment right to counsel because he was
unaware that his attorney was at the police station attempting to
communicate with him.

The trial court found that the interrogation was not custodial and the
statements were given voluntarily. The trial court denied the motion to
suppress as to oral statements made by defendant before his attorney
arrived, but granted the motion as to the written statement taken and
signed by defendant after his attorney arrived, relying on the holding
in People v. McCauley, 163 Ill. 2d 414, 645 N.E.2d 923 (1994). The State
appeals from that portion of the trial court's ruling granting
defendant's motion to suppress the written statement.

Defendant urged the court to affirm the trial court's ruling based on
the supreme court's ruling in People v. McCauley, 163 Ill. 2d 414, 645
N.E.2d 923 (1994). In McCauley, as here, an attorney retained by the
family of the defendant arrived at the police station where the
defendant was being interrogated and was refused permission to see his
client. Defendant argues that we should apply the holding of McCauley to
defendant as the police clearly failed to tell defendant of the presence
of his attorney. The State argues that we should hold that McCauley does
not apply to witnesses. The court declined to do either.
"We hold that McCauley does not require suppression of defendant's
statements as they were not given during a custodial interrogation.
Therefore, defendant's state constitutional rights were not violated. We
also hold that, as defendant was never an accused, the defendant's state
due process rights were not violated.

" In determining whether an interrogation is custodial, courts consider
several factors, including: (1) the time and place of the confrontation;
(2) the number of police officers present; (3) the presence or absence
of family or friends; (4) any indicia of a formal arrest procedure, such
as physical restraint, the show of weapons or force, booking or
fingerprinting; and (5) the manner by which the individual arrived at
the place of the interrogation. People v. Melock, 149 Ill. 2d 423, 440,
599 N.E.2d 941 (1992). The trial court's finding on the issue of custody
is a question of fact, and we will not disturb that finding unless it is
manifestly erroneous. People v. Wheeler, 281 Ill. App. 3d 447, 458, 667
N.E.2d 158 (1996).

In the instant case, the trial court found that defendant was not "held
in custody" or subject to "custodial interrogation." The evidence also
supports the State's position that defendant was not a "suspect" or an
"accused." Prior to defendant admitting his presence at the scene of the
attack, the police had developed information from lineups and interviews
with witnesses that defendant had attempted to aid Lenard Clark.

Defendant's statements also indicated that he was only a witness.
"We note that at the time defendant gave his written statement to
police, he did not have "reasonable cause to suspect the possibility of
subsequent prosecution from a direct answer" (Cooper, 202 Ill. App. 3d
at 341) and, therefore, under our holding in Cooper, the fifth amendment
right against self-incrimination did not apply. Defendant is not being
prosecuted because of his answers to the authorities. He is being
prosecuted because he allegedly, possessing knowledge material to the
prosecution of Frank Caruso, Victor Jasas, and Michael Kwidzinski, and
with the intent to obstruct the prosecution of those individuals,
knowingly left the State of Illinois and concealed himself in violation
of section 31-4(c) of the Criminal Code of 1961. (720 ILCS
5/31-4(c)(West 1996)). If we were to accept defendant's argument that,
because he is now charged with a criminal offense, he had a fifth
amendment right to counsel at the time of his interviews with police, it
would encourage similarly situated witnesses who are reluctant to
testify to flee the state."

1st Dist. People v. Ross (October 17, 2000) MOTION TO SUPPRESS/ARREST 2nd div.

Trial court erred when it granted defendant's motion to quash arrest
and suppress evidence based on stop of defendant, within two minutes
and one half block of victim placing call to police that he had been
assaulted and robbed in his home. It was legitimate Terry stop for
police to detain defendant, who met general description given by
elderly victim, and transport him to home of victim for positive
identification. Upon receiving that identification, police had
probable cause to arrest defendant. No formal declaration of arrest
is necessary for an arrest to occur. People v. Bahnfleth, 233 Ill.
App. 3d 289, 174 Ill. Dec. 470, 599 N.E.2d 16 (3 Dist. 1992). Here,
Arrest did not occur until after positive id.

1st Dist. People v. Villalobos. CONFESSIONS (September 21, 2000, 1st Dist. Affirmed)

CONFESSIONS (September 21, 2000, 1st Dist. Affirmed) Trial court did
not err in refusing to suppress confession given while defendant was
in custody despite written entry of appearance signed by defendant
containing statement that permission was refused for any
interrogation of defendant while case pending without attorney
present. At issue in this appeal is whether the defendant invoked
his fifth amendment right to counsel pursuant to Miranda v. Arizona
384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), by filing a
form at a bond hearing that stated defendant would not participate
in "any questioning, identification process or other procedures on
any case or matter" without his counsel present. The appellate court
concluded that he did not. The Illinois Supreme Court allowed
defendant's petition for leave to appeal (177 Ill. 2d R. 315) and
affirmed the judgment of the appellate court. (MCMORROW) HEIPLE,
dissent, Appeal, 1st Dist. Affirmed.

1st Dist. People V. Gonzalez (August 29, 2000) where
affidavit supporting search warrant of defendant and his apartment
is based on informant's knowledge of defendant's actions personally,
it was proper to search defendant's person when stopping and
arresting defendant away from his apartment. Therefore, cocaine
obtained from search of defendant and subsequent search of
defendant's car was properly admitted. However, it was plain error
for court to assess street value fine without any testimony from law
enforcement personnel with regards to amount of drugs seized or
value thereof. Court can't base fine on arresting report alone.

1st Dist. People v. Williams, (June 30, 2000, 1st div.) FELONY MURDER(GALLAGHER)

(FROSSARD, special concurrence) Affirmed in part, reversed in
part. In this multiple defendant case for felony murder, the
court erred when it denied motion to suppress confessions of
defendants who were illegally arrested. The police lacked
probable cause, and there were no exigent circumstances. In
order to attenuate the illegal arrest, by intervening confession
of codefendant, the police would have been required to tell the
defendant the details of the confession. Confession of juvenile
defendant, who was detained without probable cause was
attenuated by presence of his mother, who was given several
minutes to speak with defendant in private and who was present
at interrogation. Arrest of last defendant was proper because
police entered home with probable cause and exigent circumstance
existed. In addition, it was proper for the trial court to allow
prosecutor to dismiss counts of complaint charging intentional
murder and proceed on remaining felony murder charge. By doing
that, prosecutor avoided instruction on manslaughter and
evidence did not warrant second degree murder instruction.

1st Dist. People v. Delaware No. 1-98-2445 (June 12, 2000) 1st
div. (FROSSARD) Reversed. The trial court erred when it denied
motion to quash arrest and suppress evidence where contraband was
found in defendant's car. Police had right to chase and detain
defendant seen running away from parking lot in which police thought
they heard gunfire. However, once Terry stop revealed no evidence,
they lacked probable cause to detain defendant stopped in apartment;
and illegal arrest of defendant tainted subsequent consensual search
of defendant's vehicle.

1st Dist. People v. Berry No. 1-98-0359 (May 30, 2000) 1st div.
(FROSSARD) Affirmed. Trial court's denial of motion to suppress
confessions of defendants and cellular phone seized by police was
correct where police were given permission to enter defendants' home
by their mother. Once inside, police spotted cell phone on the
table; after being informed that witness had seen defendants in
victim's apartment prior to murder in proximity to cell phone, which
was missing. When officer picked up the cell phone, he was given
permission to look at it and pushed button to retrieve phone number
of phone; which he recognized as that of victim's phone. When both
brothers were arrested, the taint of any illegal arrest of brother
not in proximity to phone was cured by subsequent confession of his
brother implicating him before he made confession.

1st Dist. People v. Wimbley No. 1-98-3632 (May 30, 2000) 1st div.
(FROSSARD) Reversed. Trial court erred when it denied defendant's
motion to suppress evidence obtained after forced, warrantless entry
into defendant's dwelling. Statement by witness that he had just
obtained cannabis from defendant's dwelling coupled with witness
knocking on door at behest of police and defendant answering door
holding bag of green leafy material did not provide exigent
circumstances in order to justify forced entry and search.

 

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