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People v. Hart





APPEAL from the Circuit Court of Boone County; the Hon. DAVID BABB, Judge, presiding. MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Defendant was charged by information with the offense of reckless conduct which occurred on July 29, 1979. (Ill. Rev. Stat. 1979, ch. 38, par. 12-5.) Motions to suppress statements and to suppress evidence were heard and they were granted and denied, respectively. The defendant was convicted by a jury on January 14, 1980, and his bond was revoked. On February 1, 1980, he was sentenced to the Department of Corrections for 364 days. His appeal was timely filed.

Three issues are raised on appeal: (1) whether the trial court erred in denying defendant's motion to suppress evidence because the arrest of the defendant was warrantless and nonconsensual and there was no probable cause to arrest; (2) whether the trial court erred by sustaining the State's objection to defense counsel's use of an FBI manual in cross-examination of the evidence technician and (3) whether the trial court erred in sentencing defendant for the maximum term and whether the sentence imposed was excessive.

The record disclosed that Belvidere resident Myron Perkins and his wife, Brita, retired to their separate bedrooms a short while before 11 p.m. on the evening of July 29, 1979. Brita was reading, propped up on pillows, in her bed. The headboard was against the windows in the front bedroom which faced the street. Shortly after 11 p.m., four shots were fired through those windows. Two bullets went through the wall opposite the windows and dropped to the floor in the closet; one bullet lodged in the wall and one bullet was later found to have been lodged amongst the clothes in the closet. Myron was awakened by the shots, ran to Brita's room and found her on the floor, shaken but not wounded. She had thought there were children with firecrackers outside the windows. Myron observed the bullet holes through the windows and immediately called the police. The police responded, and several witnesses described the car the offender had been driving as a late model black or dark-colored TransAm Firebird or Camaro. One of the responding officers knew the defendant's son had recently been killed in a three-vehicle accident which also involved the Perkinses. Another police officer and the son of two of the witnesses provided the information that the defendant's son purchased a 1979 black Pontiac TransAm about two weeks before his death. One person at the scene stated that the defendant blamed the Perkinses for his son's death.

Police went to the defendant's house where they observed a black TransAm and a truck parked in the driveway. The TransAm was parked in front of the truck and furthest from the street. The officers felt the hood of the TransAm, and it was warm. One of the officers, Captain Leggett, rang the door bell and knocked on the screen door several times without receiving an answer. He then opened the screen door and knocked on the inside door, which swung partially open and he continued to ring the bell. At that point, the defendant responded to the knocking and ringing, clad only in T-shirt and shorts. The police either asked if they could enter or were simply invited in by the defendant. The defendant then either asked to be allowed to put some pants on or independently decided to do so by calling upstairs to his wife to throw a pair of pants to him. The police read the Miranda warnings to the defendant twice and explained them to him also when he said he did not understand. Captain Leggett told the defendant he was under arrest, and asked where his gun was. The defendant replied that it was upstairs, and he led them to a bedroom where he retrieved a gun from beneath a mattress and gave it to the police. Six bullets were unloaded from the gun. With the defendant's permission, the downstairs gun cabinet was searched but no evidence was retrieved therefrom. The defendant then was asked to and did open the car hood and the officers felt the radiator and hoses which were too hot to hold. The officers requested permission to search the car and trunk. The keys were obtained from the defendant's wife in the house and the defendant opened the car and trunk and permitted a search thereof. The defendant's wife permitted Captian Leggett and a third officer who had arrived to re-enter the house and upon inquiry, led the officers upstairs to see defendant's gun cleaning kit in a closet. She then led them into a bedroom, where a wastebasket was found containing empty shell casings and Kleenex or toilet paper which was soaked with oil and black residue. Defendant's wife permitted the officers to take the wastebasket and its contents. The officers then left the house with defendant in custody.

• 1, 2 Addressing the first aspect of the first issue, defendant contends his arrest was the result of a warrantless, nonconsensual entry into his house and that the physical evidence resulting therefrom should have been suppressed. Defendant cites the fourth amendment, several United States Supreme Court cases and, most notably, the recent decision in Payton v. New York (1980), 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371. In Payton, the supreme court held that in the absence of exigent circumstances, and notwithstanding probable cause and statutory authority, the fourth amendment prohibits the police from making a warrantless, nonconsensual entry into a suspect's home in order to make a routine felony arrest. By Illinois statute, arrests based on probable cause are permitted anywhere within the jurisdiction of the State absent either a warrant or consent. (Ill. Rev. Stat. 1979, ch. 38, par. 107-2(c), par. 107-5(c) and (d).) At least two recent Illinois cases, People v. Bean (1979), 73 Ill. App.3d 918 and People v. Taylor (1979), 68 Ill. App.3d 776, considered the question of warrantless, nonconsensual entry into a private dwelling to make an arrest to be unsettled in Illinois. One Illinois case, People v. Abney (1978), 58 Ill. App.3d 54, held similarly to Payton, but that holding was seemingly contrary to numerous previous cases which permitted such arrests absent exigent circumstances and even though there was time to get a warrant. (People v. Johnson (1970), 45 Ill.2d 283; People v. Fisher (1979), 76 Ill. App.3d 331; People v. Bell (1976), 41 Ill. App.3d 233; People v. Ortiz (1975), 35 Ill. App.3d 283; People v. Franklin (1974), 22 Ill. App.3d 775.) Abney was appealed to the Illinois Supreme Court and that court's opinion was delivered during the pendency of this appeal. The court in Abney stated essentially that prior Illinois cases dealing with the issue of warrantless arrests in private dwellings pursuant to sections 107-2(c) and 107-5(c) and (d) (Ill. Rev. Stat. 1979, ch. 38, pars. 107-2(c) and 107-5(c) and (d)) caused the additional requirement of "exigent circumstances" to be judicially engrafted upon the statute which, on its face, requires only probable cause. The court said:

"Although this court in Johnson, Sprovieri *fn1 and Barbee *fn2 did not use the phrase `exigent circumstances' and even expressed some doubts about the exigent-circumstances requirement (see, e.g., People v. Johnson (1970), 45 Ill.2d 283, 287-88), it appears that the principles of the exigent-circumstances rule were adopted in those cases and that the requirements of the rule, by virtue of constitutional restrictions, have been judicially engrafted upon the statute. The statute, as construed, is thus in compliance with the constitutional guidelines enunciated in Payton." (People v. Abney (1980), 81 Ill.2d 159, 167-68.)

Accordingly, we view the Abney decision not as a statement of new law, but an exposition of what the law is. Without specifically defining "exigent circumstances," the Abney opinion set forth an evaluation of the facts in that case which the court considered to be indicative of such circumstances and of the reasonableness of the police action. The court considered that the following factors were worthy of specific mention in connection with the presence of exigent circumstances:

(1) The recentness of the offense and the need for prompt action (i.e., within the spirit of the "hot pursuit" doctrine);

(2) The fact there is no deliberate or unjustified delay by the officers during which time a warrant could have been obtained, and

(3) The fact the suspect is armed and exhibited some sign of a violent character.

The court went on to set forth these other factors which suggested that the police acted reasonably:

(1) The existence of a clear showing of probable cause based on reasonably trustworthy information;

(2) The clear identification of the suspect;

(3) The belief that the suspect is in the ...

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