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People v. Garcia

OPINION FILED MARCH 31, 1981.

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

v.

JESUS GARCIA, JR., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRED G. SURIA, JR., Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Defendant Jesus Garcia, Jr., was charged by indictment with the aggravated kidnapping (Ill. Rev. Stat. 1977, ch. 38, par. 10-2) and murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1) of 11-year-old Roger Myers. *fn1 Defendant filed motions to quash his arrest and to suppress statements and other evidence which resulted therefrom. The trial court denied these motions. A stipulated bench trial followed. The trial court acquitted defendant on the murder charges but convicted him of aggravated kidnapping. Defendant was sentenced to a prison term of 15 years.

This appeal focuses upon the trial court's denial of defendant's motions to quash the arrest and to suppress evidence. Defendant contends that (1) his warrantless arrest was illegal in that (a) the arresting officers lacked probable cause, and (b) the warrantless arrest in his home violated his fourth amendment rights; (2) all statements made by him following his arrest as well as other evidence, including the corpus delicti, must be suppressed as fruits of that allegedly illegal arrest; and (3) all statements must be suppressed since they were allegedly given in return for a promise of immunity from prosecution which was not kept.

For the sake of clarity, those facts which specifically relate to the issues raised will be set forth in the discussion thereof. The facts related to the crime itself have been set forth in detail in this court's opinion in the appeal of defendant's co-defendant, Jerry Kavinsky (see footnote 1), and will only be given summary treatment here.

On March 2, 1978, defendant drove Jerry Kavinsky, Donald Owens, Paul Pennock, and Roger Metzger to Westmont, Du Page County, Illinois, to commit some burglaries. They eventually arrived at the Myers family residence. Believing the home to be unoccupied at the time, the group broke in. Once inside, one of the party discovered the presence of Roger Myers, who was hiding under a bed. Jerry Kavinsky determined that it would be necessary to kill Myers in order to prevent his identification of the burglars.

Myers was taken from the house and eventually driven to a forest preserve area in Willow Springs, Cook County. Defendant was the driver of the car. Kavinsky and Owens took Myers into the forest preserve and emerged later without him. Owens told defendant that Kavinsky had stabbed the boy to death. Roger Myers' body was found by the police with the assistance of defendant on April 9, 1978.

I.

Defendant contends that his warrantless arrest was illegal in that (a) the arresting officers did not have reason to believe that defendant had committed a crime and therefore lacked probable cause to arrest him, and (b) the entry into his home to arrest him was unreasonable in the absence of a warrant, thus violating his fourth amendment rights.

A.

Defendant first asserts that the arresting officers lacked probable cause to arrest him.

• 1 Once evidence is submitted by a defendant which shows that he was doing nothing unusual when arrested by police who lack an arrest warrant, the defendant has made a prima facie case that the police lacked probable cause. Although the burden of proof of the issue remains with defendant throughout a motion to quash an arrest on this ground, in such circumstances the burden of going forward with the evidence shifts to the State. It must show through evidence presented on the record that the police had reasonable grounds to believe that the defendant had committed a crime. People v. Martin (1977), 46 Ill. App.3d 943, 947, 361 N.E.2d 595, appeal denied (1977), 66 Ill.2d 634.

It is undisputed in this case that defendant was doing nothing unusual when arrested in his home by police who possessed neither an arrest nor search warrant. In order to meet the thus shifted burden of presenting evidence, the State brought to the witness stand one of the arresting officers as well as another policeman who had provided the former with some information regarding defendant.

Officer Peter Tanke of the Du Page County sheriff's office arrested defendant at his parents' home in Chicago on the morning of April 9, 1978. Tanke was ordered to make the arrest by his superior officer, who did not testify in the case. Tanke related that this arrest order was in part the result of certain information he had received from a fellow officer, William Glinski, who also did not take the witness stand. Glinski told the witness that he had interviewed a Roland Williams. Williams never testified during this case. In Tanke's own words, Glinski told Tanke that Williams had told Glinski that "Jessie Garcia was the driver, and he had driven to the location over in a wooded area where the body of Roger Myers was left." Glinski informed Officer Tanke that Jessie Garcia was a companion of a Jerry Kavinsky. Tanke gave no additional information in his testimony concerning Williams' identity, the source of Williams' information, the identity of Jerry Kavinsky, the relationship of "Jessie Garcia" to defendant, or any other background information to serve as a foundation for the reliability of the matters related.

Tanke further testified that after he talked to Glinski, he phoned Officer Vincent Musial of the Westmont Police Department. Musial gave Tanke the address of a "Jessie Garcia." This occurred at about 10:30 p.m. on April 8, 1978.

Tanke next related that he and his partner had proceeded to Chicago on the morning of April 9, 1978. They stopped at an area police station to report their planned activities and to request assistance. Tanke, his partner (Paul Dungan), and two Chicago policemen proceeded to defendant's residence. Defendant's mother answered the door. Tanke asked for Jessie Garcia and was shown to defendant's room by his mother. There, defendant was told that he was under arrest.

Officer Musial was also called to testify. He related that he was conducting a narcotics investigation involving Jerry Kavinsky and defendant. On March 7, 1978, he had stopped near a disabled car and called for assistance. Musial waited for the assisting car to arrive and then watched the proceedings. Kavinsky was in the back seat, Roland Williams was a passenger, and defendant was the driver. The officer who arrived to assist the occupants obtained defendant's home address when running a driver's license check on him.

On March 15, 1978, Musial knew that another officer had stopped a car for failing to display license plates. The driver of that car was defendant. Kavinsky, ...


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