APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Defendant was indicted with one Freddie Mines for murder and attempt armed robbery. In a separate trial, a jury found him guilty of both offenses, and he was sentenced to a term of not less than 16 years nor more than 50 years.
On appeal, defendant contends (1) a warrantless automobile search conducted by police was unlawful; (2) the arrest of Freddie Mines was without a warrant or probable cause; hence, the revolver seized from the automobile could not be justified as incident to Mines's arrest; (3) the arrest of defendant was without a warrant or probable cause and, therefore, statements given by him to police following the arrest were fruits of continuing police illegality; and (4) even if defendant's arrest was lawful, the statements were the product of being confronted with the unlawfully seized gun.
Prior to trial, defendant filed motions to suppress the use of the murder weapon recovered by the police, to quash his arrest, and to suppress the statements made by him while in custody.
At the hearing on the motion to suppress the use of the gun, Officer Nigro testified that while in a patrol car with a partner, Officer White, a radio message was received to watch for a 1963 gold Rambler automobile with a damaged right front fender that had been involved in a shooting. Shortly thereafter, he observed nearby an unoccupied car answering that description, and he and his partner set up a surveillance of the vehicle.
After 30-45 minutes, Nigro saw a young man enter the rear of the car, and when the officers attempted to get closer the young man, subsequently identified as defendant, had already left the car and disappeared into a building. Later, another man approached the car carrying what appeared to be a bumper jack and some tools. Nigro and his partner stopped this man as he placed the tools in the vehicle. Upon questioning this man, who was later identified as Mines, he said the car belonged to a friend and he was going to change the tire. Nigro then made a search of the vehicle and removed a gun from the slit of the rear seat. A shell was also found on the rear floor and a pellet in the front seat. When the gun was found, Mines was arrested.
Jessie Harris, defendant's mother, testified she owned a 1964 brown or beige Rambler. On the evening in question, she was in her second floor apartment and saw the police near her car. She asked them why they were "messing" with her car, but she denied telling them they could do what they wanted with her car or that she told any police officer that defendant and Mines had used the car earlier that day.
Officer Reynolds, who was assisting in the surveillance, testified that a woman called from a second floor apartment and said, "What are you doing by my car?" He asked whether they could look through the car, and she replied in the affirmative. He also heard Officer Marrello say he would go upstairs and explain the circumstances to her.
The court denied the motion to suppress, and the hearing on the motion to quash the arrest of defendant followed, at which Officer White who was working with Nigro gave testimony that was substantially the same as that of Nigro. In addition, he said that defendant was in the apartment of Mrs. Harris when he went there with Officer Marrello. White heard Marrello ask her whether the car had been used earlier and heard her reply that defendant and Mines "were out with the car trying to get it fixed." At that point, one of the officers called up and told them that a gun had been found in the car, and defendant was then arrested.
The motion to quash the arrest was denied and the hearing on the motion to suppress defendant's statements followed, at which Officer White testified that he heard Marrello inform defendant of his rights, and Officer Reynolds then testified he was present when defendant gave a statement to Assistant State's Attorney Rocco. Prior thereto, he heard Rocco advise defendant of his Miranda rights and, after each right was explained, defendant said he understood it.
Rocco then testified he advised defendant of his rights at police headquarters, and defendant stated he understood them. He also told defendant's mother of her son's rights and that he wanted to take a statement from him. She told defendant to tell the truth. Defendant then made an oral statement to Rocco and, later, gave a court reporter statement. When Rocco left police headquarters, he didn't determine whether a judge was still sitting there, although he was aware that court was held in that building.
Officer Philbin testified that defendant gave three statements one orally to him, one orally to Rocco, and later a court reporter statement was taken from him. The court denied the motion to suppress the statements, finding that they were made knowingly and voluntarily.
The testimony at trial was substantially the same as that adduced on the motions. In addition, however, Officer Reynolds testified that he was with another officer when he heard a gun shot and saw a black male running across the street and a man lying in the street holding his stomach. He put out a radio communication and, after being joined by Officers Nigro and White, he went to an alley about eight blocks from the shooting where he saw a 1963 or 1964 gold-colored Rambler. He also testified that the gun taken from the car was shown to defendant when he gave a statement to Rocco, and at that time defendant identified it as the weapon with which he shot Mr. Okamura.
Officer Marrello then testified that he and his partner, Officer Gall, were in a police vehicle in the vicinity of Madison and Paulina on the day in question when he heard a shot fired and saw a black male run across the street. He reported that information by radio, and he and his partner then went to the scene of the shooting where, after talking to bystanders, he radioed a message to look for a 1963 or 1964 gold, four-door Rambler with two black males in it. They next went to the hospital where the victim had been taken and, upon their return to the area of the shooting, they saw a 1963 or 1964 gold Rambler in an alley behind the building at 2450 West Monroe. Later, he and Officer White went up to the apartment of defendant's mother, where she told them that defendant and Freddie Mines had used the car earlier that day. After an officer called up from the alley that a gun had been found in the car, they arrested defendant who was in his mother's apartment when the officers entered it. Defendant was informed of his rights and later, when Marrello and Gall were taking defendant to the station, they passed a car which resembled the vehicle involved in the shooting. When Marrello mentioned ...