Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Sangamon
County, the Hon. Simon L. Friedman, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
After a trial by jury in the circuit court of Sangamon County, the defendant, Danny Ray Gabbard, was convicted of burglary and armed robbery, and was sentenced to serve from 20 to 40 years' imprisonment. The appellate court, one judge dissenting, reversed and remanded for a new trial (67 Ill. App.3d 945), and we granted the State's petition for leave to appeal.
The issues before us grow out of the denial by the trial court of the defendant's pretrial motion to suppress articles seized from him at the time of his arrest and of inculpatory statements made thereafter while in police custody on the ground that his arrest was unlawful. The articles of evidence and the statements were admitted into evidence at his trial. The trial court ruled that the arrest had been valid. The appellate court reached the opposite conclusion. It went on to hold that the articles seized from the defendant should have been suppressed, but that the illegality of the arrest did not render the inculpatory statements inadmissible.
The burglary and armed robbery of which the defendant was convicted took place at the home of Mr. and Mrs. Leroy Cummings in Springfield, on the evening of March 4, 1977. The defendant gained entrance by a subterfuge, and then admitted two confederates. Mr. and Mrs. Cummings, and the latter's son, John Prillaman, who was staying with them, were held at gunpoint and were robbed of various articles. During the robbery each of the defendant's accomplices wore a mask. The defendant, however, did not, and at his trial each of the three victims identified him as one of the robbers. The defendant did not testify and presented no evidence at his trial. The record does not show what disposition was made of the two accomplices.
The testimony given at the pretrial hearing was that the defendant was arrested at about 7 a.m. on April 29, 1977, on a highway near Lincoln, which is some 30 miles north of Springfield. The arrest was made by Earl Acup, a State Police officer. Acup testified that when driving his police car south on U.S. 66 in the outskirts of Lincoln, he observed the defendant walking south on the shoulder of the southbound lane. Acup pulled his car onto the shoulder and drew up behind the defendant. The latter turned and saw the police car, walked back to it, opened the door on the passenger side, and got in. Acup testified that he had not called to the defendant or motioned him to approach the car, although the defendant testified that Acup had beckoned to him.
Acup inquired where the defendant was going, to which the reply was "Springfield." Acup then asked where the defendant was coming from, and the same answer was given. After asking the defendant his name, which the defendant supplied, Acup asked if the defendant had any identification. The defendant stated that the only identification he had was a checkbook, which he produced from a bag he was carrying and displayed to Acup. The checkbook contained blank checks on which the defendant's name was imprinted. Acup noticed a piece of paper stuck in the checkbook which appeared to be an Illinois driver's license, and he asked if the defendant had any further identification. The defendant said no, and started to replace the checkbook in his bag. At that point, Acup testified, "I ordered him to put his head forward on the dash, his hands behind him. I drew a weapon and handcuffed him."
Acup took possession of the checkbook and searched it. He extracted the Illinois driver's license which he had previously noticed and also a Missouri driver's license. Neither of these bore the defendant's name. It was stipulated that the Illinois license bore the name of one Roosevelt Irvin, whose identity is not disclosed by the record. The Missouri license belonged to John Prillaman, one of the victims of the robbery. It was brought out at the trial that the license had been in a wallet which was taken from Prillaman in the robbery. There is no suggestion that Acup was aware of the Springfield robbery at this time.
Acup drove the defendant to the Logan County jail in Lincoln. While on the way Acup inquired over his radio for information about the defendant and the two persons whose names appeared on the licenses, and received a radio report that the defendant was wanted for parole violation and for escape from a State mental institution. After Acup and the defendant arrived at the county jail, a search was made of the defendant's bag, in which a loaded pistol was found. The defendant was then booked on a charge of carrying a concealed weapon.
When asked why he pulled his car over and stopped by the defendant, Acup testified on direct examination in the hearing on the motion to suppress that his reason was a police department policy "to check out everybody you find walking on the road no matter what the reason may be, whether there is a stranded motorist or somebody that's wanted for something or somebody that just happens to be there. You pull over and find out what they're doing." In response to the question whether there was any other reason, Acup answered no.
On cross-examination by the State Acup nevertheless offered as an additional reason that six days earlier, among the reports distributed of persons wanted by the police, he had seen one of an escaped Federal prisoner who was then believed to be on a road some 30 miles away from the point where Acup encountered the defendant. The report, a copy of which was introduced in evidence, did not contain a detailed description of the escapee. It did give his height and weight and the clothing he was wearing, each of which differed from those of the defendant, as Acup admitted. Acup was not asked whether he believed from the defendant's appearance that the latter was the escapee.
The defendant contends that Acup's questioning of him was itself a restraint which, under the doctrine of Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, and its progeny, must meet a test of reasonableness, and that it failed to do so. We find it unnecessary to consider that contention, for the articles in question were not seized from the defendant until after he had been handcuffed. Although Acup did not then tell the defendant that he was under arrest, the State admits that his handcuffing constituted an arrest, and we agree. See Dunaway v. New York (1979), 442 U.S. 200, 60 L.Ed.2d 824, 99 S.Ct. 2248.
Section 107-2(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 107-2(c)) authorizes an officer to arrest a person without a warrant when the officer "has reasonable grounds to believe that the person is committing or has committed an offense." The State does not maintain that any of the criteria contained in the departmental policy testified to by Acup would justify the arrest, but asserts that Acup had reasonable grounds to believe that the defendant was the escapee referred to in the police report. For several reasons that argument must be rejected.
The description contained in the police report was so general and lacking in distinctiveness as to furnish no more basis for the arrest of the defendant than of many other persons who might be walking along the highway. (In re Woods (1974), 20 Ill. App.3d 641, 646-48; United States ex rel. Wright v. Cuyler (3d Cir. 1977), 563 F.2d 627, 630.) Acup himself admitted, moreover, that the defendant did not match the description as to those few particulars which the description provided. Acup did not testify that his stop of the defendant was motivated by a belief that the latter was the escapee, and his permitting the defendant to enter and sit down in the police car is not consistent with such a belief.
The State argues that when the defendant, after being asked for identification, failed to produce the Illinois driver's license which Acup saw in his checkbook, Acup could reasonably infer that the license belonged to the defendant, and that inspection of it would reveal that "Gabbard" was not his real name. When encountered by Acup, however, the defendant was not operating a motor vehicle.
Whether at this point Acup could have detained the defendant temporarily and required him to answer further questions about his identity is not relevant. (See Brown v. Texas (1979), 443 U.S. 47, 61 L.Ed.2d 357, 99 S.Ct. 2637.) What took place here was an arrest, and the question is whether there were reasonable grounds to believe that the defendant was the person who had committed the offense, i.e., that he was the escapee. We agree with the appellate ...