APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
DOLEZAL, Judge, presiding.
MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT: Rehearing denied June 19, 1973.
This action arises from the trial court's granting of the defendant's motion to suppress identification testimony on the ground that it resulted from his illegal arrest. The state appeals pursuant to Supreme Court Rule 604. Ill. Rev. Stat. 1971, ch. 110A, par. 604(a)(1).
On August 12, 1969, the defendant was arrested on charges of burglary and impersonating a police officer. While in police custody, the defendant was photographed, and his color photograph was kept on file by the police. Between the date of his arrest and the court date, the defendant's photograph, along with the photographs of other persons, was shown to Miss Gladys High, who had been the victim of an armed robbery on August 4, 1969. She identified the defendant from his photograph, as did a Mr. Porche, who was a witness to the robbery and who was shown the same group of photographs. Based on these identifications the defendant was arrested as he was leaving the courtroom after appearing with respect to the August 12, 1969 arrest. He was then placed in a three-man lineup, where he was identified by Miss High and Mr. Porche.
On November 19, 1969, the defendant again appeared on the August 12, 1969 charges. At the hearing on that date, the court ruled that the arrest of the defendant on August 12, 1969, was made without probable cause and sustained the defendant's motion to suppress evidence. Thereafter, the charges of burglary and impersonating a police officer were dismissed.
After the defendant was indicted for the armed robbery of Miss High, he filed motions to suppress evidence illegally seized and to suppress lineup identification testimony. The ground for the first of these motions was the fact that the color photograph from which Miss High and Mr. Porche first identified the defendant was taken at the time of his illegal arrest on August 12, 1969. The first motion to suppress was granted, and the state filed this appeal.
The defendant argues that but for his illegal arrest on August 12, 1969, his photograph would not have been taken by the police and shown to the witnesses. Without that identification he would not have been arrested a second time. Since the photograph was a fruit of the illegal arrest, the identification testimony originating with it must be suppressed as evidence in the instant case.
The sole question before us is whether the identification testimony of Miss High and Mr. Porche was so tainted by the illegal arrest on August 12, 1969, as to render it inadmissible as evidence against the defendant. Whether a "booking" photograph transmits such a taint is a novel question in this state, although it has been treated in another jurisdiction. (People v. McInnis, 6 Cal.3d 821, 494 P.2d 690, 100 Cal. Rptr. 618.) The California Supreme Court held that identification testimony based on a photograph taken at the time of the defendant's illegal arrest was admissible on the ground that the record revealed no exploitation of the illegal arrest.
The exclusionary rule, which requires that evidence illegally seized be refused admission to prove the charges against the defendant, has been extended to exclude testimony which was obtained from witnesses discovered by reason of an illegal search or seizure. (People v. Albea, 2 Ill.2d 317, 118 N.E.2d 277.) The extended rule has been applied in Illinois even when the witness was the victim of the crime. People v. Bean, 121 Ill. App.2d 332, 257 N.E.2d 562.
The threshold question is the test to be applied in determining the admissibility of evidence. The defendant contends that it is a "but for" test; i.e., if the police would not have such evidence in their possession but for the initial illegal act, then it must be suppressed. An examination of the authorities does not support this theory.
The Illinois cases on which the defendant relies contain language which implies that a "but for" test was determinative. In the first case, the defendant was walking on the street with a man whose appearance fit the description of a criminal the police were seeking. The police stopped both men, asked for identification, and, finding the identification of one Willie Shard on the defendant, took the defendant to the police station where he was identified by Willie Shard as one of the men who had robbed him. (People v. Bean, 121 Ill. App.2d 332, 257 N.E.2d 562.) The arrest was later found to be without probable cause. In holding inadmissible the identification testimony of Willie Shard, this court said:
"The exhibition of defendant to the victim was a direct consequence of the admittedly unlawful detention of his person. Indeed, the identification would not otherwise have occurred.
We hold the identification of defendant to be a product of the unlawful seizure of his person and consequently all testimony relating thereto improperly admitted into evidence against him. Further, all subsequent identifications of defendant by the victim, including in-court identification, are directly traceable to the unlawful detention of defendant." People v. Bean, 121 Ill. App.2d 332, 335, 257 N.E.2d 562, 564.
As for the second case, the court said, in holding inadmissible the testimony of a witness discovered in an illegal search of the defendant's apartment:
"One could well say of the Martin and the Schmoll cases that but for the illegal search the names of the prosecuting witnesses would not have been obtained, and in this case but for the illegal search the witness, Ora Lee Vaughn, would not have been ...