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People v. De La Fuente

OPINION FILED JANUARY 7, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

PILAR DE LA FUENTE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. DWIGHT W. McGREW, Judge, presiding.

MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

The defendant, Pilar de la Fuente, appeals from convictions on two counts of armed robbery. He was convicted by a jury for the armed robbery of Senaida Perez. On defendant's motion for severance, he was convicted in a bench trial for the armed robbery of John Stapinski. The defendant, following the convictions, was sentenced to two concurrent terms of 8 years' imprisonment in the Department of Corrections. He was 17 years old at the time of his arrest.

Sixteen-year-old Senaida Perez and her 12-year-old cousin, Guillermo Casillas, were accosted by two men on Liberty Street near the corner of Collins in Joliet at around 7:30 p.m. on March 25, 1978. At first, the two men called to Miss Perez to give them her money. She answered that she had none. The two men then approached the young cousins. One of the men was wearing a black jacket and dark pants and the other a brown jacket, dark pants, and tinted glasses. Both men had on big hats with floppy brims and had mustaches and small beards. The area was fairly well lit. The man with the brown jacket took out a gun and demanded Miss Perez' purse. Her cousin, Guillermo, then ran to the corner grocery store to get help. While the man in the black jacket grabbed for Miss Perez' purse, the man in the brown jacket struck her over the head with the gun. After a struggle, the strap on the purse broke and the man in the black jacket ran down Liberty Street with the purse. The other man again struck Miss Perez on the head with the gun and fled with his companion. Miss Perez was struck a total of four times with the gun. She went to the nearby home of her aunt and called the police. Investigating officers arrived about five minutes later.

Slightly earlier that evening, at about 7:15 p.m., John Stapinski was driving north on Collins when he heard a call for help. He stopped about two blocks north of the intersection with Liberty Street and got out of his car. He was then approached by two men and a woman. One of the men pointed a gun at Stapinski's forehead and demanded his wallet. Stapinski described the man with the gun as wearing a big hat, dark clothes and of slight build, with a small goatee. After Stapinski handed his wallet to the man, the man struck him with the gun across his left temple and ran away. Stapinski then went to the Joliet Police Station, arriving there at about 7:30 p.m.

Officer Martin Murrin, while riding in his patrol car, received a radio dispatch concerning a purse snatching in the vicinity of Liberty and Collins Streets. As he proceeded to the scene, Murrin heard a second radio dispatch describing an armed robbery which had occurred on Collins Street. A physical description of the robbers was broadcast. They were described as two male Mexicans, approximately 19 or 20 years old wearing black hats and dark clothing. One of the subjects was described as wearing a brown-colored coat and as having a mustache. Another officer, Terrence Mazur, heard the same radio calls. Officer Mazur spotted the defendant and Mario Perales at approximately 7:45 p.m., at a location four to five blocks from where the purse snatching had occurred. Officer Mazur conducted a pat search of the defendant but found no weapons. Officer Murrin then asked the defendant for some identification. The defendant took a brown wallet from his pocket, looked at it, closed it, and tucked it under his arm. He then removed a black wallet from a pocket. Officer Murrin then took both wallets. He looked inside the brown wallet and found it to contain identification belonging to John Stapinski. Officer Mazur radioed the police station and was informed that John Stapinski was there complaining he had been robbed. The officers then informed the defendant that he was under arrest. The two suspects were then brought to the home of Senaida Perez' aunt, where both Miss Perez and her cousin, Guillermo, identified them as the men who had robbed her.

The defendant's first contention on appeal is that the evidence of John Stapinski's wallet should have been suppressed on the grounds that it was illegally seized. Furthermore, the defendant argues, the evidence of defendant's arrest and identification by Miss Perez should have been suppressed because the "show-up" identification was the fruit of the arrest and the arrest was the fruit of the allegedly illegal seizure of the brown wallet.

• 1 Normally, searches conducted without judicial warrant are per se unreasonable, subject to only a few specifically established and well-delineated exceptions. (Katz v. United States (1967), 389 U.S. 347, 357, 19 L.Ed.2d 576, 88 S.Ct. 507.) One of these recognized exceptions is search incident to a lawful arrest. (Chimel v. California (1969), 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034.) Another exception to the warrant requirement is found in the seizure of an item that is in the "plain view" of a law officer who has a legal right to such a view of the seized object. Both of these exceptions to the normal warrant requirement exist in this case.

A police officer may lawfully seize an article in plain view which, due to the surrounding circumstances, he has probable cause to believe constitutes evidence of criminal activity. The evidence must inadvertently come into the officer's view, and there must exist exigent circumstances which would make it impractical to obtain a warrant. (People v. Pakula (1980), 89 Ill. App.3d 789, 411 N.E.2d 1385, 1389-90.) That an item is in plain view is not sufficient by itself to justify the warrantless seizure of evidence but, in addition, the officer must view the evidence from a position where he has the right to be. Furthermore, the facts and circumstances known to the officer at the time he acts must give rise to the reasonable belief that the item seized constitutes evidence of criminal activity. "The test of reasonableness with respect to search or seizure is whether the facts available to the officer at the moment of seizure or search were such as to warrant a man of reasonable caution to believe the action taken was appropriate (People v. Caruso, supra; People v. Miezio, 103 Ill. App.2d 398, 242 N.E.2d 795): and the conclusions drawn by the officer should be judged upon `factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' (People v. Hester, 39 Ill.2d 489, 514, 237 N.E.2d 466, citing Brinegar v. United States, 338 U.S. 160, 175.)" People v. Holt (1974), 18 Ill. App.3d 10, 309 N.E.2d 376.

The decisive issue, then, is whether the officer had probable cause to reasonably believe that the wallet was evidence of criminal activity. Chronologically, the reasonableness of the officer's act must be gauged not when he examined the wallet and found the identification of John Stapinski, as such identification was not in his view prior to a search into hidden places, but rather at the time when the wallet was first viewed. (Cf. People v. Holt (1974), 18 Ill. App.3d 10, 309 N.E.2d 376.) The record indicates that, at that earlier moment, the seizure of the wallet was motivated by the officer's knowledge of the following:

• 2 A girl had her purse stolen and a man had been robbed by two armed men. The second of the robberies had occurred within 15 minutes of the officer's spotting two suspects at a location four to five blocks from the location of the purse snatching. The radio dispatch informing the officers of the robberies described the perpetrators as two male Mexicans, approximately 19 or 20 years old, wearing black hats and dark clothing. One was described as wearing a brown-colored coat and having a mustache. The defendant is a male Mexican, 17 years old at the time of the incident. He had a mustache and wore a brown jacket and black hat. When asked to produce identification, he withdrew a brown wallet from his pocket, looked inside, quickly closed it, withdrew a black wallet, and handed the latter to the police officer. At that time, the brown wallet, which defendant had tucked under his arm, was in plain view, with the officer's view of it arrived at by unquestionably lawful means. Under the circumstances, based upon the knowledge the officer then had, a reasonable man would have had probable cause to believe that the brown wallet constituted evidence of a crime. The discovery of the wallet during a street encounter provides the exigent circumstance which made it impractical to obtain a warrant. The seizure of the wallet was, therefore, legal.

• 3 The same facts known to the officers at the time the defendant produced the two wallets also would be sufficient to give a reasonable man probable cause to arrest the defendant. A search of the person may be made incident to a lawful arrest. Such a search may be made immediately prior to the arrest, and need not take place subsequent to it. (Rawlings v. Kentucky (1980), ___ U.S. ___, ___, 65 L.Ed.2d 633, 645-46; ___ S.Ct. ___, ___; People v. Jones (1977), 56 Ill. App.3d 414, 371 N.E.2d 1093.) Moreover, the officers' testimony, that they formally placed the defendant under arrest subsequent to learning that the brown wallet belonged to armed robbery victim John Stapinski, does not establish that the arrest had not been effected until that time. It is extremely doubtful that the officers would have allowed the defendant to leave prior to their checking the contents of the wallet and establishing the identity of its owner. Thus, the evidence supports a conclusion that the defendant was already under arrest at the time the wallet was first seized and prior to its being searched. Probable cause to arrest had already been established at the time the defendant displayed two wallets in response to a request for identification. The subsequently obtained information, that the brown wallet belonged to John Stapinski and that John Stapinski had recently been robbed nearby, was merely cumulative and was not necessary for the establishment of probable cause to arrest. People v. Jones (1977), 56 Ill. App.3d 414, 371 N.E.2d 1093.

The defendant next contends that the court erred in admitting into evidence a .22-caliber starter pistol that was found lying in a driveway near the spot where defendant was arrested. Defendant was stopped and arrested as he walked south on the sidewalk in front of 410 Parks Avenue. Fifteen minutes later, Officer Murrin returned to the scene and found the gun lying in the snow in a driveway located just north of 410 Parks Avenue. The gun was found 30 feet from the edge of the street in a residential neighborhood.

At trial, Senaida Perez testified that the gun was similar in appearance to the one with which she was struck on the head. On direct ...


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