APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
A. FLEISCHMAN, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
In a jury trial Willie Ross identified Leonard Holdman and DeWayne Williams (defendants) as the men who had robbed him at gunpoint in the early morning hours of February 4, 1973. Ross also testified that he had identified the two defendants at a show-up a few hours after the robbery. On the basis of this testimony, defendants were convicted of armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2), and each was sentenced to a term of 4 to 6 years' imprisonment. *fn1 Both defendants have appealed.
Because we determine that the show-up identification and the subsequent in-court identification should have been suppressed as the direct products of improper arrests of the defendants, we reverse their convictions.
At the hearing on defendants' motion to suppress Ross' identification testimony, the following testimony was elicited:
At about 12:30 a.m. on February 4, 1973, Willie Ross had returned from a party and had just finished helping a friend get out of his car and into the friend's apartment at 521 West Englewood in Chicago. As Ross walked back to his car, a man grabbed his arm from behind and turned him around. The man had a gun in his hand and told Ross it was a "stick-up." A second man joined the first and they robbed Ross, taking his wallet. At the hearing Ross identified defendant Holdman as the gunman and defendant Williams as the man who took his wallet. After the robbery the two men fled in a car driven by a third person. Ross called the police, and at about 12:50 a.m. Officers Colton and Stien arrived and interviewed him in their squad car for 15 to 20 minutes. Officer Colton testified that the only description he received from Ross was that the men were two Negroes in their late teens, between 5'8" and 5'10" tall, wearing dark jackets. Ross described the escape vehicle as an older model Buick. Colton made notes of the interview but later that day he discarded them. After 15 to 20 minutes the interview was interrupted by a police radio message of a chase in progress. The officers drove to the scene of the chase, with Ross still in the back seat. When they arrived they observed a Buick which had crashed into a viaduct at 340 West 61st Place. Several squad cars were on the scene. The officers got out of their car, telling Ross to remain in it. But Ross, believing the Buick was the same car used by his robbers, walked over to the scene. In the back of one of the squad cars Ross saw the defendants seated with a third man. Ross identified the defendants as the men who had robbed him, specifying that Williams had held the gun and Holdman had taken his wallet. The interior light of the car was on and Ross could clearly see the defendants. Ross was then told to return to the squad car in which he had arrived.
The circumstances of the apprehension of defendants were related at the hearing by Officers Hamel and Hofer, and by Investigator Pienta. While on routine patrol in their marked squad car Officers Hamel and Hofer saw a Buick Skylark in front of them. They decided to investigate further because they believed the vehicle to be one used on prior occasions by one Orlando Page, for whom they had a warrant. The basis of this belief was their observation of a similar vehicle on numerous occasions in the vicinity of Page's home. They had never seen Page in the vehicle, nor did they know whether he owned it. The officers pulled along side the Buick and shined their spotlight on the driver, whom they clearly saw and later determined to be Robert Toney. They saw a second person on the passenger side whom they could not identify. Toney looked over at the officers and then accelerated ahead of the squad car. The officers chased the car with their emergency equipment on, including the siren. At one point the Buick stopped, and when the spotlight was shined on it the officers saw the person in the passenger seat whom they later identified as defendant Williams. The car then accelerated in reverse and a short chase ensued, ending when the Buick crashed into a viaduct. The officers saw one man run from the driver's side into a field. They chased him and then observed a total of three men running through the field. The three ran around a corner and were temporarily out of the officers' sight. When the officers rounded the corner they saw Investigators Pienta and Gaffney talking to three men. The investigators had responded to a call for assistance communicated by Officers Colton and Stien, had seen the three men running through the field, and had stopped them for questioning moments before the officers arrived. The officers informed the investigators that these were the men they had been chasing. According to Investigator Pienta, the men were then placed under arrest. They were searched and placed in the investigators' car, driven back to the crash scene, then placed in the officers' marked squad car. A radio message was received requesting them to wait for beat car 720 to arrive. This was the car in which Ross was being interviewed. About five minutes later the car arrived and the identification already described was made.
At trial essentially the same facts were adduced along with the following additional relevant testimony:
Ross identified defendant Williams as the man who held the gun on him, and described him as having worn gray pants, a black and rust-colored jacket, and a black hat covering most of his face, and having no facial hair. Ross identified defendant Holdman as the second robber and described him as having worn a blue windbreaker jacket, a t-shirt, and white or beige slacks. He stated that Holdman took his wallet; he stood directly in front of Ross when he took it, close enough so Ross could "kiss him." Ross asked Holdman if he would return his charge plates and important papers. Holdman said he would mail them to him.
Officer Hofer testified that his attention was drawn to the Buick because there were three young men in it. When Hofer saw Investigators Pienta and Gaffney talking to three men, he recognized defendant Williams and Robert Toney. The third man he identified at trial to be Holdman. Hofer described Williams as having worn a black leather coat with brown rust-colored inlay and gray pants. Holdman was wearing a blue windbreaker jacket with dark pants. At trial Pienta did not state that defendants were arrested when Officers Hofer and Hamel arrived, but he did testify that they were placed in a car and driven back to the crash scene. No one described Williams as wearing a hat at the crash scene, but Officer Hamel noticed a black felt hat on the rear seat of the Buick.
Defendants did not testify. They did present alibi testimony which, in view of our disposition, we need not consider.
On appeal defendants make the following contentions: (1) Ross' identification testimony should have been suppressed as the product of the illegal arrests of the defendants; (2) Ross' identification testimony should have been suppressed as the product of an unnecessarily suggestive show-up; (3) defendants were denied due process of law by the destruction of Officer Colton's notes; (4) defendants' guilt was not established beyond a reasonable doubt.
We first consider defendants' contention that the trial court erred in denying their motion to suppress the identification testimony of Willie Ross because it was the product of illegal arrests.
• 1 The State does not contest that there was an arrest of the defendants before Ross' crash-scene identification. At the hearing on the motion to suppress Investigator Pienta stated that defendants were arrested when Officers Hamel and Hofer informed him that they were the men they had been pursuing. Defendants were searched and then placed in one police car, driven back to the crash scene, and placed in another police car where they were held until the identification took place. The police had the general authority to make an arrest; there was testimony that they asserted that authority with intent to make an arrest, and defendants were restrained and taken into custody pursuant to that assertion of authority. Clearly they had been placed under arrest. Ill. Rev. Stat. 1975, ch. 38, par. 107-5(a); People v. Grant (1976), 38 Ill. App.3d 62, 347 N.E.2d 244; People v. Howlett (1971), 1 Ill. App.3d 906, 274 N.E.2d 885.
The crucial question is whether the police had probable cause to make the arrests. A warrantless arrest is proper if the officer has reasonable grounds for believing that the person to be arrested has committed a criminal offense. (Ill. Rev. Stat. 1975, ch. 38, par. 107-2(c); People v. Wilson (1970), 45 Ill.2d 581, 262 N.E.2d 441.) A mere suspicion cannot validate an arrest. Henry v. United States (1959), 361 U.S. 98, 4 L.Ed.2d 134, 80 S.Ct. 168; People ...