APPEAL from the Circuit Court of Peoria County; the Hon.
ROBERT E. HUNT, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 26, 1980.
Lawrence Herron, defendant, was tried before a jury and found guilty of armed robbery. He was sentenced to a term of 12 years. Defendant appeals arguing (1) that the trial court erred in denying his motion to suppress certain evidence, (2) that the police officers improperly stopped the defendant pursuant to Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, (3) that the trial court erred in finding that defendant voluntarily consented to accompany the police officers to the scene of the offense, (4) that the trial court erred in denying defendant's pretrial motion to suppress, which urged the initial identification of defendant was improper because it was the fruit of an illegal arrest.
At the hearing on the motion to suppress evidence the following facts were presented. On August 30, 1978, Officers Walters and Look of the Peoria County Sheriff's Department were on patrol in a marked squad car when, at 12:30 a.m., they were advised by the police radio that there had just been an armed robbery at a nearby 7-11 store. No description of the suspect was given. Upon receiving the call, the officers, who were only about 1 1/2 blocks from the store, immediately turned toward the store when Officer Walters noticed a black male, the defendant, walking toward them in a direction away from the scene of the armed robbery, carrying something in his hand which the officers could not discern.
Both officers, Gary Walters and Harold Look, stepped out of their marked police car and drew their weapons because they were suspicious of what was in the defendant's hand. As Officer Look approached defendant, while Officer Walters remained at the side of the squad car, Look testified, "I drew my revolver but I did not approach him with it drawn. I put it away as I was going up to him," after seeing defendant drop the object he was carrying. A limited pat-down of defendant for weapons was conducted. The search revealed no contraband or weapons. It was later discovered that the objects dropped by the defendant were the same hat and sunglasses worn by the robber.
Officer Look explained to the defendant that there had just been an armed robbery, and defendant indicated he had seen someone running in a northerly direction. Look asked defendant if he would go to the 7-11 store as a witness. Defendant agreed to go, walked with Look to the squad car and got in. Defendant was not placed under arrest nor was he handcuffed. We believe it important to note that defendant opened the rear door of the police car himself, got into the back seat alone and rode to the store sitting by himself in the back seat, while both officers occupied the front seat, contrary to the customary police practice of transporting suspects who are under arrest.
After they arrived at the store, Look went inside and spoke to the cashier, the victim of the armed robbery, and she related the description of the bandit as a black male, about 5'11", sunglasses, a hat, light-colored jacket and armed with a blue revolver with pearl handle. The victim further related that defendant took five $5 bills, some $1 bills, and a paper bag containing certain bottle caps. Look recognized that the description matched defendant and, returning to the car, he asked defendant to step out. Walters also got out of the car and stood next to the defendant. Look then asked the cashier if she could identify defendant, and she indicated defendant was the man who had just held her up. Defendant was placed under arrest and searched by Officer McCoy who recovered $71 in currency, which included five $5 bills. After Walters took defendant to the Peoria County jail, he returned to the street where he had first encountered defendant. There he found a paper sack containing the bottle caps which had been taken in the robbery and a revolver, both having been thrown under a parked truck.
The sack had defendant's fingerprints on it, but no fingerprints were found on the handgun. Defendant testified at trial that he had won $71 at a crap game and was walking down the street where he was to be picked up by a friend when he saw a paper bag near a truck. He picked it up, saw it was only bottle caps and threw it away.
Prior to trial, defendant moved to suppress the currency found on his person, the pearl-handled revolver, the sack containing bottle caps, articles of defendant's clothing, fingerprints and the out-of-court identification.
On appeal, defendant contends that the trial court erred in denying his motion to suppress. Defendant contends that the initial stop was impermissible under the fourth and fourteenth amendments and that defendant's consent to accompany the police to the 7-11 store was not voluntary.
We first consider the permissibility of the initial stop. Defendant urges us to hold that the original stop was an arrest for which there was no probable cause. The People urge us to consider it a permissible stop which met the standards promulgated in Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868. There is a difference between an arrest and a stop for questioning. An arrest is the initial stage in a prospective criminal prosecution. It is the taking of a person into custody (Ill. Rev. Stat. 1977, ch. 38, par. 102-5), and is accomplished by an actual restraint of that person or by his submission to custody (Ill. Rev. Stat. 1977, ch. 38, par. 107-5(a)). On the other hand, a brief, investigative questioning is not an arrest. The Code of Criminal Procedure of our State provides that:
"A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person * * * has committed an offense * * *, and may demand the name and address of the person and an explanation of his actions." (Ill. Rev. Stat. 1977, ch. 38, par. 107-14.)
The Code of Criminal Procedure also provides that during this temporary questioning a peace officer may search the person for weapons if he reasonably believes that he is in danger of attack. Ill. Rev. Stat. 1977, ch. 38, par. 108-1.01.
• 1 Although defendant contends the officers did not consider Herron a suspect when he was initially stopped, we believe they had a right to make an investigatory stop because they were in possession of sufficient articulable facts reasonably to infer that criminal activity was afoot. When the defendant voluntarily suggested that he had seen someone running from the scene of the offense, the officers were entitled to make further inquiry. See People v. Rogers (1979), 71 Ill. App.3d 1046, 390 N.E.2d 542.
In People v. Thomas (1973), 9 Ill. App.3d 1080, 293 N.E.2d 698, a similar set of facts was presented. There the defendant contended that, when the police officers received a radio message of a woman screaming for help on the 10th floor of a building, and they arrived about a minute later and observed defendant, a male Negro shabbily dressed, run past them from the vicinity of the stairway in the lobby, his arrest was unlawful, thereby tainting subsequent on-the-scene and in-court identification of him. The court held:
"[T]he officers were faced with the `appropriate circumstances' under which they reasonably could detain the defendant until the matter could be more fully investigated. Contrary to defendant's contention, he was not placed under arrest at that time, but only detained for questioning; probable cause did thereafter exist for his arrest when the officers received the description of the assailant which matched that of the defendant. The actions of the officers under these circumstances were reasonable and within the scope of the statute and the Terry case." 9 Ill. App.3d 1080, 1081.
We believe the initial stop of defendant here was for investigative purposes pursuant to Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, and within the context of the instant case we do not believe the initial encounter, prior to the time the defendant was identified by the victim of the armed robbery, can be denominated an arrest.
In United States v. Brignoni-Ponce (1975), 422 U.S. 873, 880-81, 45 L.Ed.2d 607, 616, 95 S.Ct. 2574, 2580, the court said:
"We elaborated on Terry in Adams v. Williams, 407 U.S. 143, 32 L.Ed.2d 612, 92 S.Ct. 1921 (1972), holding that a policeman was justified in approaching the respondent to investigate a tip that he was carrying narcotics and a gun.
`The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.' Id., at 145-146, 32 L.Ed.2d 612, 92 S.Ct. 1921."
In the case before us the officers in answering the radio call of an armed robbery left their squad car with guns drawn because they were uncertain what defendant was carrying in his right hand near the scene of the armed robbery and within minutes of its commission. Certainly the officers had reason to fear for their safety. We do not believe it reasonable to assume under these circumstances that an inference can be drawn that they intended to restrain defendant. In People v. Chestnut (1980), 51 N.Y.2d 14, ___, 431 N.Y.S.2d 485, 489, 409 N.E.2d 958, 961-62, the court considered a closely resembling set of facts and said:
"Nor does the fact that the officer approached the two men with guns drawn mandate that a different conclusion be reached. The officers had reason to believe that Hernandez had just committed a robbery, armed with a revolver. Certainly, they were justified in taking precautionary measures to ensure their own safety and well-being, not knowing for certain whether Hernandez or the defendant has possession of the gun. To hold that policemen, thrust into emergency situations where the difference between life and death is often measured in seconds, must isolate those persons whom they have probable cause to arrest from all bystanders before they can draw their guns is patently absurd. We simply cannot accept the premise, urged by defendant, that once a gun is drawn all persons being addressed by the officer are necessarily under arrest. Given the particular facts and circumstances of this case, the presence of the drawn gun did not transform the stop and frisk of defendant into an arrest."
To attempt to counter this reasoning, defendant contends he was not a suspicious individual but was merely walking down a residential sidewalk after midnight. This ignores the fact that he was moving away from the nearby scene of an armed robbery; was alone on the street without moving automobiles or other pedestrians; and was carrying something in his right hand. It is the totality of the circumstances which must be considered. In Terry, the police officer observed "* * * a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation." (392 U.S. 1, 22, 20 L.Ed.2d 889, 906, 88 S.Ct. 1868, 1880-81.) Moreover, each case must be decided on its ...