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People v. Denwiddie

OPINION FILED JUNE 30, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES DENWIDDIE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. A.F. PISTILLI, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Defendant, James Denwiddie, was convicted of armed robbery following a jury trial in the Circuit Court of Will County and was sentenced from 8 to 24 years in the penitentiary. On appeal he raises issues concerning his arrest, the search and seizure of items from his apartment and person, the scope of cross-examination and the admission of "mug shot" photos into evidence.

At 3:30 p.m. on June 19, 1974, a tall black man produced a sawed-off shotgun from a brightly colored shopping bag and pointed it at Richard Steller, who was selling train tickets behind a counter at Joliet Union Depot. A smaller black male, armed with a pistol, leaped over the counter to where Steller stood and exchanged guns with the other assailant. At gun point, the smaller man took Steller's wallet and directed Steller and Linda Stanford, another employee, to open a safe in a back office. The safe required a key to be opened. Subsequently Robert Pearson, the employees' supervisor, opened the safe, removing from it paper currency and rolled coins which the smaller robber stuffed into his pockets. The robbers then fled on foot.

Eyewitnesses told police that the smaller robber was dressed in a blue jacket and hat and wore tennis shoes, and that the taller robber wore a Levi hat. Steller stated that prior to the robbery the smaller man had shown him two one-way train tickets from Joliet to Chicago dated June 19, 1974, and had inquired whether they would be valid on a later date. Each eyewitness was shown 56 photos of armed robbery suspects, the last of which, chronologically, was a clear picture of the defendant bearing a prior arrest legend. Robert Patient, who had conversed with the smaller man prior to the robbery, and Robert Pearson positively identified defendant's photograph. Steller and Stanford made tentative identifications.

Five or six hours after the initial photographic identification by witnesses at the depot, police conducted a photographic lineup at the police station for Pearson, Steller and Stanford. The witnesses were shown 12 photographs of black males, including one of defendant which had not been shown to them during the afternoon. Pearson was unable to identify anyone, but Steller and Stanford positively identified defendant's photograph.

Based on the afternoon identification, police arrived at defendant's last known address, an apartment building at 109 Richards Street, around 4:40 p.m. The doors were not marked, and they initially went to the wrong apartment. Upon finding the right apartment and having been informed that the tenant was inside, police knocked loudly on the door and announced their presence. No one responded. Officers then summoned the building manager, who tried unsuccessfully to unlock the door with a pass key. Next the police tried to kick open the door after again knocking loudly and announcing their presence without any response from inside. Eventually the building manager forced open the door and several officers, with guns drawn, entered the apartment.

Defendant's studio apartment had a living room, dining room, kitchen area and a bathroom. Defendant was arrested in the living room which doubled as a bedroom. Here police observed an open shopping bag containing a sawed-off shotgun, a bandolier containing shotgun shells, and loose shotgun shells. Police walked through the apartment in search of the second suspect and apprehended another man hiding in the bathroom at the rear of the apartment. In the dining area police observed a blue jacket and hat on a chair and two $50 money wrappers on the floor. In the kitchen an officer found a bag of rolled coins inside a china closet.

A search of the defendant's person produced $301.13 and two one-way railroad tickets from Joliet to Chicago dated June 19, 1974. A pair of tennis shoes, being worn by defendant, were also taken. The other suspect told police his name was "Buster Brown," but had no identification. "Brown" asked Officer Kelley to bring him some shoes located near the bed. Kelley went to the bed, picked up a shirt and observed an open bag containing money and a gun on top of the shoes. Hearing "Brown's" request to Officer Kelley, Officer Gerdes noticed a second pair of shoes near a couch which appeared to contain some business cards. Hoping to identify "Brown," Gerdes picked up the shoes and tilted them so that the cards fell out onto a coffee table. The cards bore the name of Richard Steller.

As defendant was removed from the apartment, police asked him if they could conduct a more thorough search of the premises, and he agreed. This search produced a Levi hat and trousers containing 128 one-dollar bills.

Pretrial hearings on defendant's motions to suppress certain statements, the photographic identification, and the evidence seized after his arrest resulted only in the exclusion of his statements and the bag of coins from the china closet. All other evidence was ruled admissible, and the court concluded that the photographic identifications were not the product of an unduly suggestive procedure.

At trial, Steller, Stanford, Pearson and Patient identified defendant as one of the robbers. A police officer identified defendant as one of two men he saw running down the street approximately one-half block from the depot at about the time of the robbery. He also testified that one of the men had carried a brightly colored shopping bag. A police technician testified that latent palm prints found on the ticket counter matched defendant's.

• 1 Defendant first contends that his arrest was illegal because police, without a warrant, forced entry into his apartment. We disagree. In People v. Wolgemuth (3d Dist. 1976), 43 Ill. App.3d 335, 356 N.E.2d 1139, we relied upon the case of Dorman v. United States (D.C. Cir. 1970), 435 F.2d 385, in reversing defendant's conviction for possession of a controlled substance where there were no exigent circumstances to justify the warrantless entry by police into his apartment. Dorman set forth various factors to be considered in determining whether "exigent circumstances" are present, including the following: (1) a grave offense is involved, particularly one that is a crime of violence; (2) the suspect is reasonably believed to be armed; (3) there exists not merely the minimum of probable cause that is required when a warrant has been issued but beyond that a clear showing of probable cause including "reasonably trustworthy information" to believe the suspect committed the crime involved; (4) strong reason exists to believe that the suspect is in the premises being entered; (5) there is a likelihood the suspect will escape if not swiftly apprehended; (6) whether the entry is forcible or peaceful; and (7) the time of entry (day or night). Although on balance, the Dorman criteria as applied in Wolgemuth precluded our sanctioning the warrantless entry into defendant's apartment, we think Wolgemuth is distinguishable on its facts. Unlike Wolgemuth, we are concerned in this case with a crime of violence and a suspect who was armed. Moreover, there is more than "minimum" probable cause for defendant's arrest, there was strong reason to believe that he was in the premises at the time of the entry, and the entry itself was secured in the daytime within two hours of the robbery. While the likelihood of defendant's escape was not great, we think that on balance the Dorman criteria were satisfied in this case. Since "exigent circumstances" existed here, it follows that no warrant was required.

We do not mean to suggest by our discussion of Dorman and Wolgemuth that a warrantless arrest will only be justified when exigent circumstances exist. Section 107-2(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 107-2(c)) permits an officer to arrest a suspect when he has reasonable grounds to believe that person is committing or has committed an offense. Reasonable grounds is the equivalent of probable cause (People v. Lawson (1st Dist. 1976), 36 Ill. App.3d 767, 345 N.E.2d 41), which has been defined as "facts and circumstances sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense." Gerstein v. Pugh (1975), 420 U.S. 103, 111, 43 L.Ed.2d 54, 95 S.Ct. 854, 862.

• 2 Where a statute authorizes arrest upon probable cause, as does section 107-2(c), an arrest made under such statute is not invalid because of a failure to obtain an arrest warrant. (United States v. Watson (1976), 423 U.S. 411, 46 L.Ed.2d 598, 96 S.Ct. 820; cf. United States v. Santana (1976), 427 U.S. 38, 49 L.Ed.2d 300, 96 S.Ct. 2406; People v. Johnson (1970), 45 Ill.2d 283, 259 N.E.2d 97, cert. denied (1970), 407 U.S. 914, 32 L.Ed.2d 689, 92 S.Ct. 2445; People v. Bell (4th Dist. 1976), 41 Ill. App.3d 233, 355 N.E.2d 38.) The fact that police may have had time to obtain an arrest warrant is immaterial. The Supreme Court said in United States v. Watson, 423 U.S. 411, 417, 46 L.Ed.2d 598, 605, 96 S.Ct. 820, 824, "The necessary inquiry, therefore, was not whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest." In Johnson, the Supreme Court upheld defendant's warrantless arrest several days after police discovered his identity and address. Here defendant was arrested within two hours of the crime. Neither case involves the issue of whether the entry by police into defendant's apartment had been consented to. Under these circumstances, we conclude that defendant's warrantless arrest was based upon probable cause and would have been lawful even absent exigent circumstances.

• 3 Furthermore, the police were justified in forcing entry into defendant's apartment. Section 107-5(d) (Ill. Rev. Stat. 1975, ch. 38, par. 107-5(d)) authorizes police to use all necessary and reasonable force to effect arrest. Where, as here, police, after announcing their authority and purpose, are refused entry into the place occupied by the person to be arrested, they are authorized to break open the door. People v. Barbee (1966), 35 Ill.2d 407, 220 N.E.2d 401.

Defendant next contends that the items seized from his apartment and person were products of an impermissible search. In order to determine the merit of his claim it is necessary to review the ...


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