APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
A. WEXLER, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The defendant, Henry Fisher, was indicted for the offense of robbery. He was found guilty as charged after a jury trial, and he was sentenced to serve a term of not less than four nor more than eight years in the Illinois State Penitentiary.
On appeal, he contends (1) that his in-court identification was inadmissible because it was the result of an illegal arrest and detention and (2) that the jury was improperly instructed.
In order to properly consider the first contention we must first set out the facts and determine whether the defendant's arrest was based upon probable cause. On January 23, 1968, at approximately 7:00 A.M., Theodore Snyders, a laundry truck driver, was beaten and robbed in an alley by three men after he had made a laundry pick up. The police arrived at the scene shortly after the crime was committed and Snyders gave a description of the assailants to Officer James Wadlington.
Troy Yates, a Chicago Police Officer, testified that he was working the midnight watch on January 23, 1968, and that at about 7:05 A.M. he received a radio report that a strong-arm robbery was in progress. He proceeded to the scene of the robbery and after obtaining a description of the robbers from Officer James Wadlington he toured the area in search of the three assailants. The description which he had received of the third offender was that of a male negro with short hair who was wearing a short green jacket and dark pants, but who did not have a hat.
Fifteen to twenty minutes after the robbery, at about 7:20 A.M., he observed a male negro walking in a southerly direction at a point four and one-half blocks from the site of the crime. This man, the defendant, was "dressed in approximately a green jacket with a brown front, boots, black pants and a short natural [haircut] with a blue jersey underneath the green [jacket]." Officer Yates then called the defendant to the squad car and noticed that he had perspiration marks around his forehead and that he seemed to be "breathing heavily" and in a "rapid manner."
The following conversation occurred:
"* * * I asked him what was he doing in the area.
He told me he had just left his friend's house because he was getting ready to go to work. I asked him where he lived and he told me he lived on 74th and Jeffrey.
I asked him why would he walk all the way over here to try and get a ride to work. He said that is just the way he did things, the man couldn't pick him up."
After this exchange the defendant was placed under arrest, taken to the site of the robbery, and identified by the victim as one of the robbers.
The defendant points out that the description given to Officer Yates contained no estimate of the assailant's height and weight and included no mention of the assailant's facial characteristics, and he argues that his arrest was not based upon probable cause because at the time of the arrest Officer Yates with respect to the offender's appearance knew only that the robber was male negro with short hair who was wearing a green jacket and dark pants.
• 1, 2 A police officer has probable cause to arrest a person without a warrant when the facts and circumstances within his knowledge and of which he has reasonable and trustworthy information are sufficient in themselves to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested is guilty thereof. (People v. Peak, 29 Ill.2d 343, 194 N.E.2d 322.) The question of whether a police officer had probable cause to arrest a defendant must be judged from the totality of circumstances presented in a given case. People v. McCrimmon, 37 Ill.2d 40, 224 N.E.2d 822.
• 3 In the present case, Officer Yates knew that a crime had been committed and that one of the offenders was a male negro with short hair who was wearing a green jacket and dark pants. Shortly after the commission of the crime, he observed the defendant, a male negro who was wearing a green jacket and black pants, walking in the vicinity of the robbery. He noticed that the defendant had perspiration marks around his forehead and that he seemed to be breathing heavily. He questioned the suspect and made the arrest only after the defendant had given an unsatisfactory and unconvincing explanation of his presence in the neighborhood. In view of all the information known by Officer Yates at the time of the ...