APPEAL from the Circuit Court of Will County; the Hon. ANGELO
F. PISTILLI, Judge, presiding.
MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
The defendant, Larry Moody, appeals from his conviction for burglary following a jury trial in the Circuit Court of Will County. The defendant was sentenced to a 4-year term of probation which was subsequently revoked. He now serves a 6-year term of imprisonment. Two issues are presented for review: (1) whether the circuit court erred in denying the defendant's motion to quash his arrest and suppress evidence seized; and (2) whether the court erred in considering matters outside the record in determining the credibility of the State's principal witness at the suppression hearing. We reverse and remand.
Because we have reversed the original judgment of conviction, we also vacate the order revoking the defendant's probation and sentencing him to 6 years imprisonment.
Following the defendant's indictment for the offense of burglary, he moved inter alia to quash his arrest and suppress physical evidence, claiming his arrest on December 29, 1979, at Silver Cross Hospital, Joliet, Illinois, was made without probable cause.
Shortly after 9 p.m. on December 29, 1979, Joliet police officer Robert Briney responded to a reported burglary at the Collector's Gallery. He found that someone had broken and entered through a large plate glass window, broken a glass display case, and removed three firearms. The thief apparently cut himself while breaking the glass case because Briney discovered several droplets of blood in and around the case. No description of any suspects was given. Briney called in this information and an instruction to alert local hospitals that might treat the wounded suspect. The weapons were recovered in a truck later identified as not belonging to the defendant.
At 9:30 p.m. Officer Clifford Erwin received a radio dispatch which indicated that a possible burglary suspect was being treated at Silver Cross Hospital for a laceration. Erwin arrived 30 minutes later and found the defendant lying on a hospital cart being treated for a 3- to 4-inch laceration on the upper part of his right leg. Erwin learned from a hospital employee that the defendant had entered the hospital at approximately 9:20 p.m. The hospital is approximately 3 miles from the Collector's Gallery. Officers Fleck and Nagra had arrived shortly before Erwin and had learned from the defendant that he had been attacked in a local tavern "by a couple of guys" who cut the defendant with a bottle. Erwin then spoke to the defendant, who he knew, and asked where he lived. When the defendant answered "Around," Erwin asked where he had slept the preceding night and the defendant replied he had slept at a Regal 8 Motel. Erwin further questioned the defendant about his place of employment, and the defendant replied he worked at Joliet Paint and Glass. The officer then advised the defendant that he would like to question the defendant concerning a burglary at a gun and coin shop. Erwin then read the defendant his Miranda rights. The defendant stated he understood his rights, but he denied having any knowledge of the burglary. Erwin replied he did not believe the defendant, but "knowing the defendant as he did," Erwin decided against further questioning.
Erwin then contacted Briney at the Collector's Gallery and exchanged information with Briney. Erwin spoke with Thomas Pennington, the store owner, who said that he knew the defendant and that the defendant had recently been in the store looking at guns. The defendant, who lay on a hospital cart approximately 30 feet from Erwin, called the officer back and said he "had a friend right around the corner" who had a gun shop which he had recently visited. He had handled several guns, including an M-1 carbine, which was the same model as one of the stolen weapons. Although the defendant did not refer to the name of the gun shop, Erwin assumed the defendant was referring to the Collector's Gallery. Erwin then asked the defendant whether the police could take a blood sample from him. The defendant refused this request.
Another officer showed Erwin the defendant's boot, which had been removed by the hospital staff along with the rest of his clothes. The boot contained particles of glass embedded in the sole. Erwin then instructed the officer to take possession of the clothes and asked the defendant whether he would come down to the police station to have his fingerprints and photograph taken. Erwin made this request in spite of his knowledge that the Joliet police already had the defendant's fingerprints and photograph. Erwin added that the police would provide some clothes at the station for the defendant, who at the time wore only a hospital gown. Erwin ordered Officer Nagra to accompany the defendant to the station house, but Nagra was not to arrest the defendant. The record is unclear whether the defendant heard that instruction.
According to Erwin's testimony, the defendant was not under arrest at the hospital on December 29. Moreover, he admitted at the suppression hearing that no probable cause then existed to arrest the defendant. Although Erwin testified that the defendant was free to leave the hospital, Erwin never so informed him. Erwin concluded the defendant was the burglar only after police matched the defendant's fingerprints to fingerprints found inside the glass display case.
Officer Nagra testified that he collected the defendant's surgical dressings and clothes and escorted him to the station. The defendant still wore only a hospital gown. When asked whether he would have restrained the defendant had he attempted to leave Nagra's custody, Nagra said he was uncertain whether the defendant should be restrained, and said he would contact Erwin for instructions in such a circumstance. At the station, police took the defendant's fingerprints and photographs, gave him some clothes, and drove him to a local tavern. The defendant posted no bond, nor did the police file an arrest sheet.
The defendant testified he never told the police that he would willingly go to the police station. Although the officers did not tell him he was under arrest, they never informed him that he was free to leave. In fact, the defendant assumed he was arrested. When the defendant inquired about his clothes at the police station, Nagra told him the clothes were being held as evidence.
Defense counsel argued that the police had in fact arrested the defendant, but that the arrest was not supported by probable cause. The circuit court agreed that the police had arrested the defendant on December 29, but ruled that probable cause to arrest existed. Therefore, the seizure of the defendant's clothes was made pursuant to a lawful arrest. Accordingly, the court denied the motion to quash the arrest and suppress the physical evidence.
The defendant now contends that the propriety of the officers' actions should not be viewed as whether they had probable cause to arrest, but whether they had probable cause to detain the defendant as defined in Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed 2d 824, 99 S.Ct. 2248. In response, the State initially argues that the defendant has waived this issue by failing to raise it during the suppression hearing.
The United States Supreme Court in Brown v. Illinois (1975), 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 2254, applied the fourth amendment and its exclusionary rule to statements made as a result of an illegal arrest or seizure. The court rejected the argument that Miranda warnings alone attenuated the illegality of an arrest, believing that without the exclusionary rule, police could wantonly arrest suspects without probable cause and immunize statements derived therefrom simply by giving Miranda warnings. ...