APPEAL from the Circuit Court of Cook County; the Hon. JAMES
E. STRUNCK, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
At the conclusion of a jury trial in the circuit court of Cook County, defendant, William L. Davis, was found guilty of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1). He was sentenced to serve a term of 20 to 60 years in the penitentiary.
On appeal, defendant contends the trial court erred in: (1) denying his motion to quash his arrest in his home which was performed without a warrant; (2) denying his motion to suppress evidence found in his automobile, which evidence was found pursuant to a search without a warrant; (3) denying his motion in limine to prohibit the State from introducing into evidence a dying declaration or spontaneous utterance made by the deceased victim; and (4) refusing to give his proposed jury instruction on circumstantial evidence.
The events in this case began on the evening of July 9, 1976. At approximately 9:30 p.m., two witnesses saw Lamont Lloyd, the victim, in a Cadillac with defendant and defendant's brother, Richard Davis. (The witnesses knew the names of the persons in the Cadillac from prior meetings.) Richard Davis was driving, defendant was in the back seat, and Lloyd was in the front seat. The Cadillac belonged to defendant. At approximately 9:50 p.m., Lawrence Martin, a United Parcel Service worker, found Lloyd lying in the street near the intersection of 15th and Union Streets in Chicago. Lloyd had been shot four times, once in the head. Lloyd was still alive when Martin found him but had lost a lot of blood. Lloyd told Martin he had been shot and asked to be taken to a hospital. Martin and an unidentified passerby helped Lloyd into Martin's van.
The trip to the hospital took approximately five minutes. On the way, Lloyd continuously urged Martin to run the red lights and get him to the hospital. Shortly after the trip began, Martin asked Lloyd his name. Lloyd told him his name. Martin then asked, "Where are you shot?" Lloyd answered, "All over, William shot me." Shortly thereafter, Lloyd, while continually urging Martin to run the red lights, said that he was dying. When they reached the hospital, Martin got out of his van to seek help. At this time, Martin saw Lloyd "jumping around" in the seat. After Martin returned with aid, Lloyd was removed from the van and taken into the hospital. At this time, Lloyd was unconscious. Minutes later, in the hospital, Lloyd was pronounced dead on arrival.
During the night of July 9, 1976, and throughout the early morning hours of July 10, police investigated the incident. They interviewed the two witnesses who had seen Lloyd with defendant in defendant's Cadillac and also interviewed Martin. The two witnesses told them what they had seen and Martin told them of his conversations with Lloyd in Martin's van. Martin took the police to the scene where Martin had found Lloyd. There, the police found a pool of blood. It was later determined that this blood, type O, matched Lloyd's. The police also determined that defendant was the owner of the Cadillac and determined where defendant lived. At approximately 4 a.m., July 10, several police officers went to defendant's basement apartment residence. No one was home but the police talked to defendant's sister who lived in the apartment above defendant's. The police told her they were looking for defendant and his brother, Richard. Defendant's sister told them she had not seen them all day.
At approximately 8:30 a.m., July 10, the investigation of the incident was turned over to several police investigators when they came on duty. One of these investigators was Walter Siemieniak. After learning of the events of the previous night, Siemieniak and several other investigators went to defendant's residence. When they arrived, they saw defendant's Cadillac parked in the street across from defendant's apartment building. Siemieniak walked over to defendant's car and looked through the window. He saw what he thought to be blood on the front seat of the car. To him it looked as if someone had tried to wipe the blood off the seat.
Thereafter, the investigators went up to the defendant's apartment. The door to defendant's apartment was open. Directly outside the apartment, the police found Richard Davis. They approached him and asked him his name. He told them and they "took him into custody." According to the investigators, Richard Davis then "allowed" them to walk into the apartment. Upon entry, the investigators encountered defendant, whom they immediately placed under arrest.
Upon the request of Siemieniak, defendant gave one of the investigators the keys to his car. Siemieniak told one of the other investigators to drive defendant's car back to the police station. At the station, the car was thoroughly searched. Police took samples of the blood on the front seat of the car, and it was later determined that the blood was human blood but there was an insufficient quantity to determine the blood type. On the rear floor of the car, the police discovered a fired .22-caliber bullet. This bullet was later compared with the four bullets taken from Lloyd's body. These four bullets were also .22-caliber. Because of the condition of the bullet found in the car, the police could not determine conclusively that it had been fired from the same weapon as the other four bullets, but there was a close similarity in the rifling characteristics between the bullet found in the car and the other bullets. No gun was ever found by the police.
After the defendant was arrested, he was taken to police headquarters and his Miranda rights were read to him. Thereafter, the defendant was questioned by Investigator Siemieniak. Defendant initially denied any wrongdoing. After further questioning, Siemieniak asked defendant if he had shot Lloyd. The defendant nodded his head up and down. Siemieniak then asked defendant how many times he had shot Lloyd. Defendant answered, "I don't know, but it was a lot." Defendant then retracted his statements and denied any wrongdoing.
At trial, all of the above evidence discovered by police, was admitted. The jury found defendant guilty of murder.
• 1 Defendant first contends the trial court erred in denying his pretrial motion to quash his arrest and to suppress all evidence that resulted from his arrest. Defendant admits there was probable cause for his arrest but asserts that the entry into his home without a warrant to effect his arrest cannot be justified by probable cause alone. He correctly maintains that, absent consent to enter, "exigent circumstances" are necessary to render such a seizure of his person reasonable under the Constitutions of the United States and Illinois. (U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6; Payton v. New York (1980), 445 U.S. 573, 63 L. Ed 2d 639, 100 S.Ct. 1371; People v. Abney (1980), 81 Ill.2d 159, 407 N.E.2d 543.) However, he also maintains, and we believe incorrectly, that exigent circumstances were absent in this case.
In determining whether exigent circumstances justifying prompt police actions exist, our courts> have generally relied on the factors set out in Dorman v. United States (D.C. Cir. 1970), 435 F.2d 385. (See, e.g., People v. Abney (1980), 81 Ill.2d 159, 407 N.E.2d 543; People v. Sanders (1978), 59 Ill. App.3d 6, 374 N.E.2d 1315.) Included among the factors considered important under the Dorman decision are the following: (1) whether a grave offense is involved, particularly one that is a crime of violence; (2) the suspect is reasonably believed to be armed; (3) there exists not merely the minimum of probable cause that is required when a warrant has been issued but beyond that a clear showing of probable cause; (4) strong reason exists to believe the suspect is in the premises being entered; (5) there is a likelihood that the suspect will escape if not swiftly apprehended; (6) whether the entry is forceable or peaceful; and (7) the time of entry, day or night.
Before discussing the presence or absence of the above factors in this case, we first point out that we believe that the factors enumerated in Dorman are not necessarily the only factors that can be considered, nor do we believe that the absence of one of the Dorman factors necessarily precludes the police from making a warrantless entry into a home to make an arrest. The guiding principle governing searches and seizures under constitutional provisions is reasonableness, and whether the police have acted reasonably depends on the circumstances of each case. People v. Abney (1980), 81 Ill.2d 159, 407 N.E.2d 543.
• 2 We also point out, since defendant has placed great reliance on it, that the mere fact that the police may have had time to obtain a warrant, though important, is not necessarily controlling. The test under the Constitution is not whether it was reasonable to procure a warrant, but whether the search or seizure was reasonable. (Cooper v. California (1967), 386 U.S. 58, 17 L.Ed.2d 730, 87 S.Ct. 788.) We also note that exigent circumstances necessitating prompt police action may arise after the police have had time to procure a warrant, and when this occurs the police may still act without a warrant. Cardwell v. Lewis (1974), 417 U.S. 583, 41 L.Ed.2d 325, 94 S.Ct. 2464 (plurality opinion).
• 3 In the present case, before determining whether exigent circumstances actually existed, we must first determine at what point in time it is necessary to determine whether exigent circumstances existed. It is the unauthorized entry into a home to effect a warrantless arrest that is presumed to be repugnant to the Constitutions of the United States and Illinois. Thus, in determining whether exigent circumstances existed, we must look back from the time just before the police made their attempt to enter defendant's home and at the time of entry. Keeping this in mind, we now consider the factors enumerated in Dorman.
First, there was clearly a grave offense involved here, a crime of violence, murder. Second, the murder was obviously committed by use of a firearm, and the police could have reasonably believed that prompt action to apprehend the defendant was necessary because the defendant could still be armed and dangerous. Third, there was clear probable cause to believe that defendant was involved in the crime. The victim had been seen in defendant's car with defendant minutes before the victim was found in the street. The police had a statement from the rescuer, Martin, that the victim had said, "William shot me," and the police knew the defendant's name was William Davis. Finally, when the police ...