APPEAL from the Circuit Court of Tazewell County; the Hon.
RICHARD E. EAGLETON, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
The defendant, Ricky J. McMahon, was convicted in the Circuit Court of Tazewell County of burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19-1). He was subsequently sentenced to the penitentiary to serve not more than 4 1/2 nor less than 1 1/2 years. The defendant appeals from his conviction.
Although the defendant raises multiple issues on appeal, we need only concern ourselves with three interrelated issues. First, was the defendant under arrest at the time he made incriminating statements; second, if he was under arrest when he made the statements, was he arrested in the absence of probable cause; and third, if there was no probable cause to effectuate the arrest and the arrest was consequently illegal, were the mitigating factors of Brown v. Illinois (1975), 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 2254, present to attenuate the taint of the illegal arrest and thus make the defendant's statements admissible.
On July 3, 1977, the office of Dr. Wendell Carter, located in the Fonduland Medical Center in East Peoria, was burglarized. Detectives David Madsen and Jack Duke of the East Peoria police department investigated the burglary. In the middle of a hallway in the burglarized office Duke and Madsen found some spilled lemonade mixture. In the lemonade mixture was a shoeprint.
On July 12, Detectives Madsen and Duke were in the vicinity of the burglarized office and observed three individuals sitting on a bench immediately to the rear of the doctor's office. One of these individuals was the defendant, Rick McMahon. After exiting from their police car, the detectives walked up to the three and asked McMahom and his two companions their names. Detective Duke then asked to see the bottoms of their shoes. Duke and Madsen observed that the pattern on the bottom of McMahon's boot was similar to the pattern they had seen in the spilled lemonade powder at the burglary scene. At this time Duke asked McMahon to accompany them to the police station. When McMahon entered the car, he sat in the right front seat. Duke drove, and Madsen sat in the rear.
On the way to the police station, Duke asked McMahon if he was hungry, and McMahon replied that he was. They stopped at a McDonald's, and while McMahon and Madsen waited in the car, Duke purchased some food for McMahon. After Duke returned, the three continued on to the police station. At no time was the defendant manacled, although Duke testified that it was normal police procedure to handcuff arrestees.
At the station, McMahon was given his Miranda warnings which, according to Officer Madsen, was normal procedure for everyone whom the police suspected had knowledge or information of a crime. After stating that he understood his rights and signing a waiver form, McMahon was questioned about the burglary at Dr. Carter's office. While questioning McMahon, Duke directed the defendant to take off one of his shoes, and he so complied. After initially denying any knowledge of the burglary, McMahon made an admission when Duke confronted him with incriminating evidence, i.e., the shoeprint and an unidentified palmprint. McMahon's oral admission came 10 to 15 minutes after the signing of the waiver. Forty-five minutes later an oral confession was made by McMahon, and a written confession followed.
Although Officers Madsen and Duke testified that McMahon was free to go, and was not under arrest, until he made his first oral admission, neither officer actually told McMahon that he was not under arrest prior to his admission. In addition, after a preliminary hearing, Duke stated to defense counsel that McMahon would have been free to leave prior to making the admission, but added, "He might not have made it down the stairs." When defense counsel asked him why, Duke's response was "Well, he might have fell down those stairs." McMahon testified that when Duke and Madsen asked him to accompany them to the police station, he felt that he had no choice but to go along, and felt that at this time he was under arrest.
The defendant contends on appeal that the statements made by him at the station should have been suppressed because they were the fruits of an illegal arrest. Whether or not the defendant's contention has merit hinges upon several factors, the first of which is whether or not the defendant was under arrest when he made the statements.
Both the defendant and the State have cited to us many cases which have a bearing on whether or not there was an arrest of the defendant. (See, e.g., People v. Wipfler (1977), 68 Ill.2d 158, 368 N.E.2d 870; People v. Dowdell (1980), 81 Ill. App.3d 266, 401 N.E.2d 295; People v. Gale (1979), 72 Ill. App.3d 23, 390 N.E.2d 921; People v. Boerckel (1979), 68 Ill. App.3d 103, 385 N.E.2d 815; People v. Creach (1979), 69 Ill. App.3d 874, 387 N.E.2d 762, aff'd in part (1980), 79 Ill.2d 96; People v. Dozier (1979), 67 Ill. App.3d 611, 385 N.E.2d 155; In re Foster (1978), 66 Ill. App.3d 193, 383 N.E.2d 755; People v. Helms (1978), 67 Ill. App.3d 729, 385 N.E.2d 127; People v. Ussery (1974), 24 Ill. App.3d 864, 321 N.E.2d 718.) However, we find the recent Supreme Court decision of Dunaway v. New York, 47 U.S.L.W. 4635 (June 5, 1979), to be dispositive of this on this issue. In Dunaway, Detective Anthony Fantigrossi of the Rochester police department interviewed a jail inmate who he was told had information implicating the defendant Dunaway in an armed robbery and felony murder. Although Fantigrossi learned nothing from the inmate that would constitute grounds for an arrest warrant, he ordered the other detectives to "pick up" Dunaway and "bring him in." Three detectives located the defendant at a neighbor's house, and took him into custody. Although at no time was he told he was under arrest, if he had attempted to leave he would have been physically restrained. After being picked up, he was taken to the police station and given his Miranda warnings. After waiving his Miranda rights, he made statements which incriminated him.
The defendant's motions to suppress the statements were denied, and both the appellate division and the court of appeals affirmed the defendant's conviction. However, the United States Supreme Court remanded the case to the trial court for findings pursuant to its holding in Brown v. Illinois (1975), 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 2254. On remand, the trial court reversed the defendant's conviction on the grounds that the arrest was illegal. The appellate division reversed the trial court, holding that although the police did not have probable cause to arrest the defendant, "[l]aw enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable and brief period of time under carefully controlled conditions which are ample to protect the individual's Fifth and Sixth Amendment rights." (People v. Dunaway (1978), 61 App. Div.2d 299, 302, 402 N.Y.S.2d 490, 492, quoting People v. Morales (1977), 42 N.Y.2d 129, 135, 366 N.E.2d 248, 251). The United States Supreme Court granted certiorari after the court of appeals dismissed defendant's application for leave to appeal.
The United States Supreme Court reversed. "Reasonable suspicion," the court held, may be sufficient to justify a governmental intrusion in the form of a "stop and frisk" when the police officer has reason to believe he is dealing with an armed and dangerous individual. (Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868.) However, intrusion tantamount to a "seizure" can only be effectuated on the basis of probable cause.
In determining whether or not the intrusion in Dunaway was such to mandate a showing of probable cause, the Supreme Court said:
"[T]he detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor's home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was `free to go'; indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody. The application of the Fourth Amendment's requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an `arrest' under state law. The mere facts that petitioner was not told he was under arrest, was not `booked,' and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, see Cupp v. Murphy, 412 U.S. 291 (1973), obviously do not make petitioner's seizure even roughly analogous to the narrowly defined intrusions involved in ...