APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. WHITE, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
In a simultaneous trial, defendant Sakalas was convicted by a jury of aggravated battery, and defendant Stravinskas was convicted by the court of both armed robbery and aggravated battery. Sakalas was given a five-year sentence and Stravinskas concurrent sentences of four to six years for armed robbery and two to six years for aggravated battery. On appeal, Sakalas contends that his warrantless arrest should have been quashed because probable cause was lacking and, alternatively, that it was illegal because it was made inside his home. Stravinskas separately asserts that he did not waive a jury trial and that he was not proved guilty beyond a reasonable doubt. Both defendants maintain that they were prejudiced by the State's failure to provide certain reports and photographs before trial.
Prior to trial, Stravinskas moved to quash his arrest and suppress his identification. He and the State stipulated, for the purposes of the pretrial hearing, that on October 6, 1974, police officer Antelek responded to a call of an aggravated battery at 7300 South Kedzie, in Chicago, where Issac Clark (a black bus driver) said he had been attacked by two men on the bus. He described one as a white male, 25 to 30 years old, 5'6" to 6' tall, with a bandage on his neck, and the other as a white male, 25 to 30 years old, weighing approximately 175 pounds and wearing a cap.
At the pretrial hearing, Sakalas testified that police officers came to his home and asked him to come to the police station concerning a fight occurring a few days earlier. He went with them and, at the station, he was read his rights and placed in a lineup with friends of his who came to the police station after having been called by his mother. Officer Antelek testified that on October 13, he and his partner, Officer Botwinski, were told by Michael Leonard that he had heard Sakalas say that "he beat a nigger in the bus at 73rd and Kedzie" a few days earlier. Antelek stated that he obtained the address of Sakalas from Leonard, and he and his partner went to Sakalas' home where they identified themselves as police officers and asked him to come to the station because of his involvement in a fight occurring a few days earlier. Sakalas stated that he had not been involved in any fight, but accompanied the officers to the station where he was placed in a lineup and identified by Clark as an assailant. It is undisputed that the officers had no warrant for Sakalas' arrest.
The motion to quash and suppress was denied with the court finding that the officers had probable cause to arrest.
At trial, Clark testified that on the evening of October 6, he was the driver of a Chicago Transit Authority (CTA) bus, which was parked under a streetlight on 73rd Street near Kedzie; that the headlights and the interior dome lights of the bus were on; that he was wearing a CTA uniform with his badge pinned on his shirt-sleeve; that two white males (whom he later identified as defendants) walked across 73rd Street in front of the bus and both entered by the front side door; that Stravinskas said he was going to "f____ [him] up"; that Sakalas then told Stravinskas, "Go ahead, f____ the black son-of-bitch go ahead, kill the black son-of-a-bitch"; that Stravinskas hit him [Clark] in the face with his fist, and both defendants then began striking him on the head and arm with pipes; that he noticed a white gauze patch on Stravinskas' neck; that at the conclusion of the beating, Sakalas said, "Man, let's go"; and that Sakalas grabbed the CTA badge from his shirt-sleeve on the way out. Later that day, Clark viewed a lineup at the police station and identified Stravinskas as one of his assailants. On cross-examination, Clark stated that he did not observe whether his assailants had mustaches or scars, and that at the lineup Stravinskas was the only person wearing a blue jacket as well as the only person having his jacket zipped to the top with his collar pulled up.
Dr. George Siler, CTA medical director, testified that he had examined and treated Clark on approximately 14 occasions beginning October 7, 1974, and that Clark suffered lacerations on his forehead and left side of his face in addition to having a broken left arm.
Defendants rested without presenting any evidence, and they were convicted and sentenced as stated above, with this appeal following.
Sakalas initially asserts that his warrantless arrest should have been quashed because probable cause was lacking. We first note that the determination of whether probable cause for an arrest exists in a specific instance depends upon the totality of the facts and circumstances known to the officers when an arrest is made (People v. Creach (1980), 79 Ill.2d 96, 402 N.E.2d 228; People v. Robinson (1976), 62 Ill.2d 273, 342 N.E.2d 356), and probable cause exists if a reasonable and prudent person in possession of the knowledge which has come to the arresting officer would believe that the person to be arrested had committed a crime (People v. Vogel (1978), 58 Ill. App.3d 910, 374 N.E.2d 1152). Hearsay evidence may be considered in the determination of probable cause (People v. Brooks (1973), 13 Ill. App.3d 1003, 301 N.E.2d 496), and the court's finding will not be disturbed unless manifestly erroneous (People v. Clay (1973), 55 Ill.2d 501, 304 N.E.2d 280).
1 Clay involved a warrantless arrest for the armed robberies and murder occurring in a tavern. Witnesses informed police that the two men involved had shotguns and were black males in their early twenties, approximately 5'8" and 6' tall, with one being dark and the other light complected. Three days later, police officers questioned an individual named Charles Knox, who told them that two days before he met a man known to him as Moses, who was with another man identified by Moses as his brother; that Moses said that he and his brother had committed a robbery on Bissell Street and that he had "to trigger the woman with a shotgun"; that Moses was approximately 20 years old and was dark complected, and his brother was light complected; that he had seen a shotgun in the front bedroom of Moses' apartment; and that while he did not know Moses' specific address, he could point out the building and describe the floor plan of Moses' apartment. The police then went to the building, entered the apartment, and arrested Moses and his two brothers. In concluding there was probable cause, the court reasoned:
"To establish probable cause for the defendant's arrest under the circumstances in this case it was not necessary that it be established that Knox was an informant who had previously given reliable information to the police. This is not the customary case where the arrest is made solely on the basis of information obtained from an informant. The officers knew that a murder and three armed robberies had been committed by two men armed with shotguns. They knew the descriptions of the men. What Knox told the officers was corroborated by the descriptions of the men as to age, height and complexion which they had received from witnesses. This independent corroboration of the information obtained from Knox was sufficient to establish probable cause to arrest the defendants. (Citations.)" 55 Ill.2d 501, 505, 304 N.E.2d 280, 282.
The situation here parallels the circumstances presented in Clay. Officer Antelek had information that a black bus driver had been beaten by two white men in his bus at 73rd and Kedzie on October 6. In addition, the bus driver told Antelek that one of his assailants was 25 to 30 years old, 5'6" to 6' tall, with a bandage on his neck; that the other was 25 to 30 years old, wore a cap, and weighed approximately 175 pounds; and that one was light and the other dark complected. One week after the beating, Antelek was told by Leonard that he overheard Michael Sakalas say that a few days earlier he "beat a nigger in a bus at 73rd and Kedzie." Thus, Leonard gave information which corroborated facts already known to Antelek that is, the beating of a black man in a bus a few days earlier at 73rd and Kedzie. Additionally, when Officer Antelek went to Sakalas' home and spoke with him, Leonard's information was further corroborated in that Sakalas fit the general description Clark had given of one of the assailants. In view thereof, we believe that the trial court's finding of probable cause to arrest was not manifestly erroneous.
Alternatively, Sakalas argues that even though probable cause existed, the warrantless arrest made at his home was illegal in the absence of exigent circumstances excusing a warrant.
In this regard, we note that in People v. Johnson (1970), 45 Ill.2d 283, 259 N.E.2d 57, cert. denied (1972), 407 U.S. 914, 32 L.Ed.2d 689, 92 S.Ct. 2445, the Illinois Supreme Court held that where probable cause existed, the police had a right to enter a home to make an arrest without a warrant or consent. This holding has been the controlling law in this State (see Clay; People v. Taylor (1979), 68 Ill. App.3d 776, 386 N.E.2d 555) and, in view thereof, the question of the necessity of a showing of exigent circumstances to excuse a warrant was very seldom considered by the reviewing courts> in Illinois (see People v. Logan (1979), 78 Ill. App.3d 646, 397 N.E.2d 504; People v. Bean (1979), 73 Ill. App.3d 918, 392 N.E.2d 650; People v. Abney (1978), 58 Ill. App.3d 54, 373 N.E.2d 861). *fn1
In United States v. Watson (1976), 423 U.S. 411, 46 L.Ed.2d 598, 96 S.Ct. 820, the United States Supreme Court held that where probable cause exists, a warrantless arrest may be made in a public place (a restaurant) without exigent circumstances. However, in Watson, the court specifically stated that it left unsettled the question of whether and under what circumstances an officer may enter a citizen's home to arrest that citizen. Recently, however, that court held in Payton v. New York (April 15, 1980), 48 U.S.L.W. 4375, that, in the absence of exigent circumstances, a warrantless and nonconsensual entry into a suspect's home to make an arrest is prohibited by the fourth amendment. The arrest in the instant case was without warrant, and we are thus concerned with questions as to whether it was with consent and, if not, whether exigent circumstances existed.
2 On a motion to quash an arrest, the burden of proof is upon the defendant (In re Potts (1978), 58 Ill. App.3d 550, 374 N.E.2d 891; People v. Thomas (1977), 47 Ill. App.3d 402, 362 N.E.2d 7) and thus, defendant here was required to establish the warrantless entry to be nonconsensual. The record discloses that this was not done. Concerning the entry of the police, Sakalas testified at the hearing on the motion to quash only that they "came to my home" and that "my mother and stepfather" were also home. Officer Antelek was the only other witness testifying at the hearing, and he merely stated that after talking to Leonard, he arrested Sakalas but he did not say (nor was he asked) where or under what circumstances the arrest was made.
Additionally, in considering a ruling upon a motion to suppress, a reviewing court may consider evidence during trial after the conclusion of the suppression hearing. (People v. Braden (1966), 34 Ill.2d 516, 216 N.E.2d 808; People v. Turner (1976), 35 Ill. App.3d 550, 342 N.E.2d 158.) Here, the only testimony during trial as to entry came from Officer Botwinski, who stated that he and Antelek went to Sakalas' home, where they had a conversation with him, and he then came to the police station in his own car and was then given his "rights" and asked to stand in the lineup. Thus, it appears from Botwinski's testimony that the arrest may not have occurred until Sakalas came to the station. In any event, there is no testimony from any witness, either at the hearing or subsequently at trial, that the officers physically entered the home. Sakalas said only that the police came to his home and asked him to come to the station. Antelek said that he and Botwinski went to Sakalas' home, had a conversation with him, and asked that he come to the station. In the light of the foregoing, we conclude that defendant did not establish a nonconsensual police entry.
Moreover, even if the police entry was without consent, we believe that exigent circumstances existed.
"The following have been enumerated as factors to be considered in determining whether exigent circumstances exist:
`(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect "is reasonably believed to be armed"; (3) "a clear showing of probable cause * * * to believe that the suspect committed the crime"; (4) "strong reason to believe that the suspect is in the premises being entered"; (5) "a likelihood that the suspect will escape if not swiftly apprehended"; and (6) the peaceful circumstances of the entry.' United ...