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People v. Gabbard





APPEAL from the Circuit Court of Sangamon County; the Hon. SIMON L. FRIEDMAN, Judge, presiding.


After trial by jury in the circuit court of Sangamon County, defendant Danny Ray Gabbard was convicted of burglary and armed robbery and sentenced to a term of 20 to 40 years' imprisonment on the armed robbery conviction. Upon appeal, he asserts that the trial court erred in denying his pretrial motions to quash his arrest and to suppress evidence seized, statements made by him in custody, and certain identifications made of him. We agree that some of the relief he requested in those motions should have been granted and, accordingly, reverse and remand for a new trial.

The evidence at trial of the occurrence of the armed robbery was not in dispute and need not be related in detail. On the evening of March 4, 1977, two masked men and one unmasked man entered the Springfield home of Leroy and Mary Cummings and at gunpoint, held them along with Mrs. Cummings' son John Prillaman at bay while taking items of substantial value from them. At trial, all three victims identified defendant as the unmasked bandit. Leroy Cummings and Prillaman had also identified defendant in a pretrial lineup.

Defendant's various motions to suppress were premised upon his contention that he had been impermissibly stopped and searched by police and that the items taken from him, in custody statements given by him, and identification made of him were all fruits of that improper police conduct.

At the hearing on the motion to suppress, Illinois State Policeman Earl Acup testified that on April 29, 1977, he was driving south on U.S. 66 near the northwest corner of Lincoln, Illinois, when he saw the defendant walking south on the right shoulder of the road. Acup stopped behind the defendant, who turned, came back to the squad car, opened the door and got in. The trooper had not put his lights or siren on, or told the defendant to come to the car, nor did he motion the defendant back to the car. Acup inquired as to where Gabbard was going and the defendant replied he was going to Springfield and that he had come from Springfield. After asking the defendant's name, the officer asked for identification, whereupon Gabbard opened a checkbook that had his name printed on the checks. Officer Acup testified that he could see an Illinois driver's license sticking out from a corner of the checkbook. He asked whether or not the defendant had any other identification, to which Gabbard replied, "No," and put the checkbook back in his bag. The officer immediately told defendant to put his head forward and his hands behind him, and Acup drew his weapon and placed handcuffs on the defendant. Officer Acup took the checkbook back out of defendant's bag and found both an Illinois and a Missouri driver's license. Defendant was then taken to jail.

Trooper Acup testified that defendant was not violating any law when he pulled up behind him, but that it was the policy of the Illinois State Police to check out everybody found walking along a public highway to find out what they are doing. (Defendant testified that Officer Acup pulled up behind him and motioned for him to come back to the car, telling him to get in. He also said that the officer had his weapon cocked and halfway out of its holster.)

The parties stipulated at the hearing that John Prillaman's Missouri driver's license, social security card, college identification cards, a car rental card, and other items testified to by Prillaman as having been taken from him at the robbery and admitted into evidence at trial, were taken by police from defendant's checkbook or his bag. They also stipulated that a gun admitted into evidence had been taken from the bag.

The parties agree that defendant was arrested by the time the officer drew his gun and placed handcuffs on the defendant. Defendant argues on appeal that the officer had violated defendant's rights by merely questioning him and asking him for identification and that this conduct invalidated the subsequent search and seizure. We need not decide this question because we conclude that the arrest itself was without probable cause and thus invalidated the subsequent search and seizure.

To support the arrest the State relies heavily on testimony that six days prior to the arrest, Officer Acup had seen a bulletin which indicated that an escaped Federal prisoner might be on Interstate 55 or Peoria Road north of Springfield. Peoria Road converges into Interstate 55 north of Springfield and a person going northerly on Interstate 55 would pass by Lincoln. The escapee was described as a white male, 5'9" in height and weighing 150 pounds, with scars on his left ring finger and left arm, possessing blue eyes and brown hair, wearing blue jeans and a green army fatigue jacket, and carrying a backpack. The officer explained that police are constantly furnished with information of this nature about persons wanted for crime. When asked if he had the report of the escaped person on his mind when he stopped his car by the defendant, the officer testified, "You always have something like that on your mind." Testimony indicated that the defendant was a white male about 6' or 6'1" in height, and carried a gas mask bag but was not wearing an army jacket. No showing was made as to whether he had scars.

The State maintains that this evidence coupled with the officer's testimony that the defendant stated that he was both going to and coming from Springfield and the officer's testimony that the defendant had a driver's license in his checkbook but did not show it for identification was a sufficient basis for the trial court's finding of probable cause. The State cites the case of People v. Lewis (1968), 92 Ill. App.2d 463, 236 N.E.2d 417. There, the accused was stopped by police officers who were investigating a pattern of burglaries in a crime-ridden neighborhood. Upon request for identification, the accused gave the officers an unemployment compensation card having one name on it and a social security card with a different name upon it. The accused told the officers that his name was that shown on the social security card. The officers then arrested the accused. The propriety of the arrest was raised for the first time on appeal and ruled to be waived. The opinion indicated that the case differed from the cases cited by the accused but did not state that the arrest would have been upheld if the point had not been waived.

• 1 In order to arrest a person without a warrant and without knowledge that a warrant has been issued for that person, a police officer must have "reasonable grounds to believe that the person is committing or has committed an offense." (Ill. Rev. Stat. 1975, ch. 38, par. 107-2(c).) The defendant was 3 or 4 inches taller than the escapee and wearing somewhat different clothing. He was some 30 miles from where the escapee had been believed to be 6 days earlier. Although the officer saw defendant's hands before the arrest, no showing was made that the officer looked for a scar on the left ring finger. Even though the defendant gave a suspicious answer when he stated that he was both coming from and going to Springfield and although the officer might have inferred that the defendant had a driver's license in his possession that did not belong to him or did not want the officer to know his true name, we find this evidence insufficient as a matter of law for the officer to have had reasonable grounds to believe that the defendant was the escapee. We also find it insufficient as a matter of law to be the basis of reasonable grounds for the officer to have believed that defendant was committing or had committed any other crime.

Although both in the trial court and on appeal, defendant has placed the thrust of his argument on the theory that the officer's original questioning of him was improper, the issue of probable cause for the arrest has been raised in both courts>. We recognize that arresting officers must make difficult, quick decisions based on probabilities (People v. Robinson (1976), 62 Ill.2d 273, 342 N.E.2d 356), but arrests cannot be made upon mere suspicions. (People v. Attaway (1976), 41 Ill. App.3d 837, 354 N.E.2d 448.) We rule the finding of the trial court that probable cause existed for the arrest to be contrary to the manifest weight of the evidence. The motion to quash the arrest and suppress the evidence seized should have been allowed. For this reason we reverse and remand for a new trial.

In order that any subsequent trial be properly conducted, we must pass upon the trial court's denial of the motion to suppress statements and identification.

The evidence at the suppression hearing showed that defendant was taken first to the Logan County jail and then, in the afternoon of his arrest, transferred to the Sangamon County jail. A State police investigator testified that he first talked to defendant at the Logan County jail at 9 a.m. and advised him of his Miranda rights and then asked him some questions about the Cummings' robbery which defendant did not answer. Detective Sedlak of Sangamon County testified that he and Detective Dalby interviewed defendant about 2:45 p.m. that day at the Sangamon County jail and also advised defendant of his Miranda rights. Defendant indicated a willingness to talk without a lawyer. They showed ...

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