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People v. Lippert





APPEAL from the Circuit Court of Fulton County; the Hon. U.S. COLLINS, Judge, presiding.


Rehearing denied February 10, 1981.

This is an appeal from an order of the circuit court of Fulton County finding the defendant, Stanley Lippert, guilty of armed robbery and sentencing him to a six-year term of imprisonment. About 11 p.m. on November 15, 1979, Fulton County Deputy Sheriff Daniel Dugan received a call concerning an armed robbery on the Liverpool Blacktop in Fulton County. He immediately went to the Riverview Inn in Liverpool and met with the victims, Mr. and Mrs. Raymond Morse and Mr. and Mrs. Charles Scott. The four told the officer they were driving north on the Liverpool Blacktop leaving Liverpool when their car broke down. A car containing four males stopped and attempted to help them. A short time later, one of the four males came over with a rifle, pointed it at the Morses and Scotts and demanded their money. The four males then drove off in a northerly direction.

The Morses and Scotts were able to describe two of the assailants as follows: one had medium length blond hair and was about 5 foot, 11 inches tall, and another had bushy brown hair and a blue coat. Officer Dugan told the couples to wait at the hotel, and he checked out the area. Dugan drove north on the Liverpool Blacktop, proceeding through what he termed a "desolate" area of farmland between Route 24 and Liverpool. He was advised by radio that another car was coming up behind him driving north. He pulled off the road, backing into a driveway with his headlights pointed toward the road. A car drove past, containing two white males whom Dugan testified matched the descriptions given him earlier by the Morses and Scotts. He pulled the car over to the side of the road and had the driver, defendant, and the passenger, Bill Long, step out. After the defendant and Long were frisked they were transported back to the Riverview Inn for identification. En route, Dugan read the defendant his rights and then questioned him about the robbery. At the Inn, Mrs. Morse identified both the defendant and Long as being involved in the robbery. After the identification, the defendant was handcuffed and the officer asked him about his involvement with the robbery. Defendant responded that Long and Darrell Brazee had performed the robbery and he had just sat in the car. He named the fourth person as being Richard Sale. Brazee and Sale were apprehended, arrested and transported with the defendant to the county jail. Within an hour and a half after being picked up, defendant and Sale gave handwritten statements admitting their involvement in the robbery. The next day they made further statements regarding their involvement.

Defendant made a pretrial motion to suppress his statements and other evidence on the ground that they were fruits of an illegal detention and that the statements were involuntary and were taken in violation of Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. The trial court, after a hearing, found that Officer Dugan had "probable cause to stop" the defendant's car and that all statements by the defendant and Richard Sale were voluntary and in compliance with Miranda. The court therefore denied the motion to suppress.

The defendant waived a jury trial and proceeded to a bench trial together with co-defendant Richard Sale. Defendant was found guilty and sentenced to a six-year term of imprisonment. On appeal, defendant raises two issues: (1) whether the trial court improperly denied the defendant's motion to suppress the evidence; and (2) whether the defendant was proved guilty beyond a reasonable doubt.

We initially discuss whether the trial court improperly denied the defendant's motion to suppress. Defendant's argument consists of two parts. First, he contends that the initial stop and detention of the automobile defendant was driving was not a justifiable Terry stop under the standards promulgated in Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868. Second, defendant contends that the officer's forcing the defendants to return to the Riverview Inn constituted a seizure which was impermissible under the fourth amendment because there was a lack of probable cause. The State argues that the initial stop was a justifiable Terry stop and that, although there was no probable cause, transporting the defendant back to the Riverview Inn was permissible as part of the Terry stop. We need not decide whether or not the original stop of the car was a justifiable Terry stop because we find that the transportation of the defendant to the Riverview Inn in the absence of probable cause was not permissible as part of a Terry stop.

In Terry v. Ohio, the Supreme Court held that there may be a brief, on-the-spot investigatory stop of a person on the street and a frisk for weapons without probable cause, so long as the police officer making the stop is able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. (392 U.S. 1, 21, 20 L.Ed.2d 889, 906, 88 S.Ct. 1868, 1879-80.) In Illinois, the Terry exception to the probable cause requirement for detention has been codified in section 107-14 of the Code of Criminal Procedure (Ill. Rev. Stat. 1979, ch. 38, par. 107-14), which reads:

"Temporary Questioning without Arrest. 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 is committing, is about to commit or has committed an offense * * * and may demand the name and address of the person and an explanation of his actions. Such detention and temporary questioning will be conducted in the vicinity of where the person was stopped."

In determining the permissibility of transporting the defendant back to the hotel, the occurrences in the instant case must be split into two separate time frames — the occurrence leading up to the Terry stop, and what happened after the stop. After the stop is made and the suspect has been questioned and frisked for weapons, one of two things can happen. First, the officer can find that there is probable cause, in which case the officer can arrest the suspect. Second, the officer can find there is not probable cause. In the instant case the defendant contends, and the State concedes, that at the time the officer transported the defendant back to the hotel, probable cause did not exist.

• 1 The issue, therefore, is, in the absence of probable cause may an officer continue to detain a suspect and transport him from the scene of the stop to another place for purposes of identification and further questioning. We hold that he may not.

This holding is based on two factors. First, a natural reading of the statute codifying Terry in Illinois prohibits transporting the suspect under the guise of a Terry stop. The statute specifically states that detention and questioning under a Terry stop must be conducted in the vicinity of where the suspect was stopped. Transporting the suspect miles back to the hotel for identification and further questioning simply cannot be considered detention and questioning within the vicinity of the stop. Therefore, the statute clearly prohibits such transportation where there is no probable cause, and the detention is simply a Terry stop.

In addition to the statute, such a prohibition is necessary for policy reasons. In Terry, the court held that a limited intrusion on a person's liberty is permissible only under certain, limited circumstances. To force a person to accompany an officer to a place miles away for identification and further questioning is a much more severe curtailment of the person's liberty, indistinguishable for all practical purposes from an arrest. No support for such a severe curtailment of a person's liberty in the absence of probable cause can be found in Terry.

The State argues strenuously that People v. Attaway (1976), 41 Ill. App.3d 837, 354 N.E.2d 448, is authority for the argument that transporting the suspect for identification is permissible as part of a Terry stop. Such an argument misinterprets the holding in Attaway. In Attaway, a police officer received a radio communication that an armed robbery was in progress. He stopped two black males who generally fit the broadcast description and decided to take them back to the scene of the crime, where they were identified as the robbers. The appellate court held that the trial court properly denied the defendants' motion to suppress. However, far from stating that returning the defendants to the scene of the crime was permissible in the absence of probable cause under a Terry stop, the appellate court stated that there was ...

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