APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
The defendant, Daniel Garza, was charged with six counts of aggravated battery. He waived a jury, was found guilty by the trial court on four of the counts and was sentenced to 3 to 9 years in the penitentiary. He contends that the trial court committed reversible error in denying his motion to suppress pretrial identifications and evidence, which was seized by the police pursuant to his arrest, because both were products of an arrest that was conducted without probable cause. He also asserts that his in-court and out-of-court identifications by two complaining witnesses and one occurrence witness should have been suppressed because they were based upon impermissibly suggestive identification procedures.
Around 8 p.m. on November 1, 1972, David Koscielski, Arthur Bernt and Jimmy Tucker were standing in front of a tuxedo shop located at 50th Street and Ashland Avenue, Chicago. All three boys were looking in the shop's brightly lighted window when an automobile with four occupants drove up. Garza and one other emerged from the vehicle and asked the group whether they were members of the "Gay Lords." When they answered "no," Garza called them liars and struck Bernt in the eye, causing his glasses to fall to the ground. While Bernt was attempting to retrieve his glasses, Garza hit him over the head with a bottle. Garza then repeated the charge that they were Gay Lords. Koscielski denied the accusation and Garza sliced him across the throat with a knife, described by Koscielski and Bernt as a "linoleum" knife and by Tucker as a "carpenter's" knife. At this point, Koscielski and Tucker ran to a nearby drug store and called the police.
By this time, Bernt had gotten to his feet. Garza began walking towards him and Bernt backed away. Garza then lunged at Bernt and started slashing him on the back with the same knife. Bernt screamed for help and a man in the tuxedo shop opened the door; Bernt ran through the open door and the man telephoned the police.
The police responded to the calls and took the boys to a hospital. Bernt received a total of 164 stitches in his back, around his eye and in the back of his head and was confined in the hospital eight days; Koscielski's throat required ten stitches. Tucker received no medical treatment since he was not injured in the assault.
In separate interviews with the police, the three boys described their assailants as four male Mexicans or Puerto Ricans, who were in their late teens or early 20's and stated that at least two of the group were wearing black cashmere coats. After receiving the descriptions, the police began touring the area surrounding the location of the attack. About two hours after it had taken place and about seven blocks away, two officers observed four male Mexicans, two of whom were wearing black cashmere coats, standing on a sidewalk. Since they fit the general description given by the victims, the officers decided to question the four men. Garza and his brother were in this group, and one of the officers knew Garza from prior arrests. The officer asked him where he had been for the previous two or three hours. Garza replied that he had been at his brother's house. The officer asked Garza's brother the same question. The brother answered that he had been out. The officer then conducted a "pat-down" of Garza. He discovered a knife which he termed a "box-cutter" in Garza's pants pocket. The officers placed the four men in their squad car, took them to the hospital and brought them, one at a time, into the emergency room where Bernt's and Koscielski's cuts were being sutured. Each man was brought to the bed of each victim. Both Bernt and Koscielski identified Garza as the person who had attacked and cut them, and at least two of the other three men as his accomplices.
The four arrestees were then taken to a police station where a lineup was conducted for Tucker who had not seen them at the hospital. All the participants in the five-man lineup were approximately the same height, age and weight. However, the fifth man had a goatee. Tucker identified Garza and two of the other three arrestees as the perpetrators of the attack on his two friends.
Garza did not take the witness stand at his trial, but his brother, sister-in-law and three friends testified that at the time of the assault, he was with them at a party in his brother's apartment.
Although the arresting officer testified that he did not arrest Garza until after he had been identified at the hospital, the trial court ruled that he was under arrest when he was placed in the squad car. Later, in a discussion as to the amount of his bond following his conviction, the court stated that he thought there was a legal question involving the initial arrest that should be decided by a higher court. The defendant supports his claim that his arrest was illegal with the following: the police officers did not have a warrant for his arrest; he was not committing any crime and one of the arresting officers testified that he had no knowledge that Garza had committed a crime when he was taken into custody, and the same officer stated that he arrested him and his companions because they fit the general description of the assailants. The defendant argues that a general description is insufficient to provide probable cause for an arrest and that the uncertain incriminating nature of the general description is demonstrated by the fact that the ethnic makeup of the neighborhood, where the assault and arrest took place, is approximately 50 percent Mexican-American and that many young men of this particular racial background wear black cashmere coats. The defendant concludes that the seizure of the knife from his person and his identification by the witnesses at the hospital showups and the police station lineup were a direct consequence of this unlawful arrest, and should have been suppressed because they were tainted with its illegality.
There is a difference between an arrest and the stopping of an individual for questioning. An arrest is the initial stage in a prospective criminal prosecution. It is the taking of a person into custody (Ill. Rev. Stat. 1971, ch. 38, par. 102-5) and is accomplished by an actual restraint of that person or by his submission to custody. (Ill. Rev. Stat. 1971, ch. 38, par. 107-5(a).) On the other hand, a brief, investigative questioning is not an arrest. The Code of Criminal Procedure of our State provides that:
"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 * * * has committed an offense * * *, and may demand the name and address of the person and an explanation of his actions." (Ill. Rev. Stat. 1971, ch. 38, par. 107-14.)
The Code of Criminal procedure also provides that during this temporary questioning a peace officer may search the person for weapons if he reasonably believes that he is in danger of attack. Ill. Rev. Stat. 1971, ch. 38, par. 108-1.01.
The existence of probable cause is necessary for an arrest, but it is not a prerequisite to temporary questioning. (See Adams v. Williams (1972), 407 U.S. 143, 32 L.Ed.2d 612, 92 S.Ct. 1921.) However, there are restrictions upon the right of a peace officer to stop a person and upon his right to search him. The stop itself must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the stop. If the stop is valid, a limited search of the suspect for weapons is justified only if a reasonably prudent man under the same circumstances would be warranted in the belief that his safety or that of others was in danger; and the scope of the search must be restricted to the discovery of objects capable of use as weapons. Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868; People v. Watson (1972), 9 Ill. App.3d 397, 292 N.E.2d 457.
Garza was stopped when the officers approached him and his companions and inquired as to their whereabouts at the time of the assault. The stop was justified because the officers had been told that the assailants were four male Latin Americans in their late teens or early 20's and that two of the four wore black cashmere coats. Garza's group was observed by the police seven or eight blocks from the location of the attack. The group was composed of four Mexicans, two of whom were wearing such coats. Additionally, one officer knew, because of prior arrests, Garza's age. These ...