APPEAL from the Circuit Court of Will County; the Hon. ROBERT
HIGGINS, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Steven Wipfler, an 18-year-old high school student, was convicted of two separate charges of burglary and sentenced to concurrent terms of 4 years' probation, with the first 45 weekends to be spent in the Will County Jail. We have consolidated the two cases for the purposes of hearing and disposition.
On appeal in this court defendant argues that his confession to the crimes was obtained by the police subsequent to an illegal arrest, or that, alternatively, the confession was given without a valid waiver of his constitutional rights as required by Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602.
The two burglaries involved took place in the month of February, 1974, in Bolingbrook, Illinois. On the evening of February 4, 1974, an office trailer on a construction site was broken into, entered, and then set on fire. Thereafter, during the weekend of February 16, 1974, the home of Jerald Kraushaar was burglarized and several items were taken. Kraushaar reported the incident when he returned, from a trip out of town with his family, on February 19, 1974. The police subsequently talked to a youth who lived in the neighborhood who told them that Steven Wipfler would know something about the break-in. At 8:30 a.m. on February 20, 1974, police telephoned defendant at his home. His mother said he was at school, but agreed to tell him to go down to the station after school. The police informed her that they simply wished to ask Wipfler some questions about some burglaries.
Defendant did come to the police station after school where he first talked briefly to Chief Johnson, who had apparently taken on a sort of father image to Wipfler since the death of the youth's father. The chief, in the course of his conversation with Wipfler, told him something to the effect that if a person did something wrong, he should be a man and admit it. Wipfler then was escorted into an office room where he was interrogated by detectives Mahoney and Kuntz. The detectives testified that they first informed defendant fully of his "Miranda" rights concerning his privilege against self-incrimination and the right to counsel. Wipfler, however, testified he was not so informed.
Mahoney first inquired about the Kraushaar burglary, and Wipfler denied complicity in the incident. When the detectives asked him if he would take a polygraph test on the subject, however, defendant said he would not and admitted knowing something about the break-in. The questioning then turned to the trailer burglary. At first, Wipfler denied any knowledge of it, but finally said he knew about it although he had not participated. Officer Mahoney expressed disbelief of this story. At that point, Wipfler said he would tell the truth about everything. Mahoney interrupted him again to carefully re-emphasize defendant's constitutional rights. The detective read the rights from a card and allowed defendant to examine a waiver form before defendant signed it. Defendant later testified that he signed the card because Mahoney told him to, and that he did not read it.
After defendant had signed the waiver, he admitted participation in both burglaries. This admission came after 45 minutes to an hour of questioning as we have indicated. Later defendant drove his car home. He obtained from his room, and surrendered to police, several items subsequently identified by Jerald Kraushaar as having been taken during the burglary of the Kraushaar home. Defendant remained at home that night but came to the police station the following day.
A motion to suppress the items and the confession as evidence was made in the court below, but, following extensive testimony heard by the trial court, the motion was denied. The cases proceeded to trial and resulted in the conviction of the defendant in each case. We note that in each trial the substantial portion of the evidence presented by the State consisted of Wipfler's confession. In the trailer burglary case there was also accomplice testimony and in the Kraushaar case there were the additional items of evidence which were shown to have been in the possession of defendant.
Defendant argues on appeal that from the time he walked into the police station, or at least into the interrogation room, he was under arrest. He contends that the arrest was illegal because there was no warrant and no other probable cause to arrest him and that the resulting confession was thus inadmissible in evidence against him as a fruit of the illegal arrest.
1, 2 It is clear that statements and other evidence obtained pursuant to an illegal arrest are inadmissible as evidence unless there is some intervening act of free will (Wong Sun v. United States (1963), 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407); and the fact that Miranda warnings were given does not necessarily purge the taint of an illegal arrest (Brown v. Illinois (1975), 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 2254). Even assuming, however, that there was no probable cause to arrest the defendant initially, we must conclude from the record that defendant was not under arrest until he agreed to admit more than mere knowledge about the crimes, at which point there would be no dispute as to probable cause to arrest.
An arrest is the taking into custody of a person, accomplished either by actual restraint of the person or his submission into custody. (People v. Howlett (1st Dist. 1971), 1 Ill. App.3d 906, 909, 274 N.E.2d 885; Ill. Rev. Stat. 1973, ch. 38, §§ 102-5, 107-5(a).) We conclude that simply by acceding to a police request to come to the station to answer some questions, defendant was not thereby under arrest. We also conclude that he did not automatically become arrested by further agreeing to answer questions once he arrived at the station. Nor, on the basis of the record, would we be justified in concluding, that, once the interrogation began, defendant was prevented from leaving whenever he pleased. Detective Mahoney testified that he did not consider defendant under arrest until defendant announced he would tell the truth, after having already admitted knowledge of both crimes, but denying participation.
While we are not bound by Federal Court decisions on the issue before us, we find, pertinent to the issues in this case, a statement by the Federal Appellate Court in Hicks v. United States, 382 F.2d 158 (D.C. Cir. 1967), regarding the nature of an arrest as follows:
"The test must not be what the defendant * * * thought but, what a reasonable man, innocent of any crime, would have thought had he been in defendant's shoes."
3 While defendant Wipfler testified that he wanted to leave during the early questioning, but felt that he could not, that subjective evidence is not as significant as the conclusion which we find clearly stems from the testimony as a whole: A reasonable, innocent man, would not have felt himself under arrest or in any significant ...