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People v. Devine





APPEAL from the Circuit Court of Peoria County; the Hon. ROBERT E. MANNING, Judge, presiding.


Rehearing denied August 31, 1981.

The defendant, James L. Devine, was indicted on charges of murder, felony murder, and armed robbery. Following the denial of defendant's motion to suppress evidence, quash arrest and suppress statements, the matter proceeded to a jury trial. Defendant was convicted of felony murder and armed robbery and acquitted of murder. He was thereafter sentenced to a 75-year term of imprisonment for felony murder and a consecutive 20-year term of imprisonment for armed robbery.

First among the 18 issues raised on appeal is the defendant's claim that the trial judge erred in denying his motion to quash arrest. Defendant's motion to quash arrest alleged that the officers, who did not have a warrant for defendant's arrest, did not have probable cause to arrest him. On appeal, defendant now asserts for the first time that the police violated his fourth amendment rights when they arrested him in the bedroom where he was staying without either an arrest or search warrant. Defendant's argument is premised upon the recent United States Supreme Court decision of Payton v. New York (1980), 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371. The People maintain that the defendant has waived consideration of the argument by his failure to present the same in either his motion to quash or at the hearing on said motion or in his post-trial motion. Also presented with the People's waiver argument is their contention that the Supreme Court's decision in Payton should be given prospective application only.

• 1 The accepted rule of appellate review states that an issue not raised before the court below is waived for appellate purposes. As stated by this court in People v. Bullis (1980), 85 Ill. App.3d 693, 694, 407 N.E.2d 1100, 1102:

"It is an accepted principle of law that an issue not presented to or considered by the trial court cannot be raised by the appellant for the first time on review. * * * the trial court should be given an opportunity to consider the issues or theories which the appellant, on review, assigns as error in its judgment. The failure to urge a particular theory before the trial court will often cause the opposing party to refrain from presenting available pertinent rebuttal evidence on such theory, which evidence could have a positive bearing on the disposition of the case in both the trial and reviewing courts>." Citing People v. McAdrian (1973), 52 Ill.2d 250, 253-54, 287 N.E.2d 688, 690.

At the motion to quash hearing defendant argued that the police did not have a warrant for his arrest, and that the police did not have probable cause to make a warrantless arrest. Defendant failed to reveal the argument that regardless of whether the police had probable cause, the fourth and fourteenth amendments of the Federal Constitution prohibited the warrantless arrest of defendant in his bedroom unless there is either consent or exigent circumstances to justify proceeding without a warrant. It is apparent from the evidence and argument presented by defense counsel and from the trial judge's ruling on defendant's motion to quash that this issue was never presented to nor considered by the trial judge in deciding defendant's motion to quash. Consequently, defendant has waived this theory.

The trial judge's denial of defendant's motion to quash arrest was rendered on April 5, 1979. Payton was decided on April 15, 1980. Thus, a necessary adjunct of the waiver issue is the consideration of Payton's applicability, that is, whether the decision applies prospectively or retroactively. The People contend that Payton should be applied prospectively and would therefore be inapplicable to this appeal.

• 2 It has been consistently held that there is no inflexible constitutional rule requiring in all circumstances either absolute retroactivity or complete prospectivity for decisions construing the broad language of the bill of rights. (Williams v. United States (1971), 401 U.S. 646, 651, 28 L.Ed.2d 388, 394, 91 S.Ct. 1148, 1151.) The guiding criteria used to resolve this question concerns (a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967.

Complete retroactive effect to a new rule is given, regardless of good faith reliance of law enforcement authorities or the degree of impact on the administration of justice, where the major purpose of the new constitutional doctrine is to overcome an aspect of the criminal trial that has substantially impaired its truth-finding function, thus raising serious questions about the accuracy of guilty verdicts in past trials. (Williams, 401 U.S. 646, 652-53, 28 L.Ed.2d 388, 394-95, 91 S.Ct. 1148, 1152; Adams v. Illinois (1972), 405 U.S. 278, 280, 31 L.Ed.2d 202, 207, 92 S.Ct. 916, 918.) It is quite a different matter, however, where the purpose of a new constitutional standard proscribing the use of certain evidence or a particular mode of trial is not to minimize or avoid arbitrary or unreliable results, but to serve other ends. In these situations the new doctrine raises no question about the guilt of defendants convicted in prior trials. (Williams, 401 U.S. 646, 652-55, 28 L.Ed.2d 388, 394-96, 91 S.Ct. 1148, 1152-53.) It is apparent on analysis that all three factors which need be considered favor only the prospective application of the rule stated in Payton.

Foremost among these factors to be considered is the purpose to be served by the new constitutional rule. (Witherspoon v. Illinois (1968), 391 U.S. 510, 522, 20 L.Ed.2d 776, 784-85, 88 S.Ct. 1770, 1777.) For a decision amplifying the evidentiary exclusionary rule, this criteria strongly supports prospective application only. (Desist v. United States (1969), 394 U.S. 244, 249, 22 L.Ed.2d 248, 255, 89 S.Ct. 1030, 1033.) Furthermore, it should be observed that, in contrast with decisions which have accorded retroactive application, "`there is no likelihood of unreliability or coercion present * * *'" in an unlawful arrest case. The exclusionary rule is but a "`procedural weapon that has no bearing on guilt,'" and "`the fairness of the trial is not under attack.'" Desist, 394 U.S. 244, 250, 22 L.Ed.2d 248, 255, 89 S.Ct. 1030, 1034.

As applied to the instant case, the purpose to be served by the new standard set forth in Payton is to interpose the magistrate's determination of probable cause between the zealous officer seeking to make an arrest and the citizen's right to be secure in his own home as provided for by the fourth amendment. The court's ruling in Payton gave expanded fourth amendment protection against warrantless arrests. The purpose behind Payton's ruling casts no doubt upon the accused's guilt or innocence, but was implemented solely to deter official invasion of an individual's privacy rights protected by the fourth amendment. Thus, in considering the retroactivity of Payton, this court is dealing with a situation quite different from those where "emerging constitutional doctrine casts such doubt upon the soundness of some aspect of prior trials and that State and Federal Governments [are] disentitled from further pursuing the goals of their criminal law against defendants convicted in such prior trials." Williams, 401 U.S. 646, 654, 28 L.Ed.2d 388, 395, 91 S.Ct. 1148, 1153.

Secondly, based upon Illinois statutory law, law enforcement personnel have undoubtedly relied in good faith upon their ability to arrest an accused without a warrant at his residence where the police have probable cause. Section 107-2(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 107-2(c)) provides that a peace officer may arrest an individual when the officer "has reasonable grounds to believe that the person is committing or has committed an offense." In conjunction therewith, section 107-5(d) (Ill. Rev. Stat. 1977, ch. 38, par. 107-5(d)) provided that in making an arrest, "All necessary and reasonable force may be used to perfect an entry into any building or property or part thereof to make an authorized arrest." It is quite apparent that both statutes when read together provided that an officer could make a warrantless arrest, even in an accused's residence, as long as probable cause existed therefor. It is noteworthy to point out here that the United States Supreme Court in Payton found Illinois to be among the 24 States who permitted such warrantless entries and arrests. 445 U.S. 573, 598 n. 46, 63 L.Ed.2d 639, 658 n. 46, 100 S.Ct. 1371, 1386 n. 46. See also People v. Ortiz (1975), 35 Ill. App.3d 283, 340 N.E.2d 714; People v. Denwiddie (1977), 50 Ill. App.3d 184, 365 N.E.2d 978; People v. Logan (1979), 78 Ill. App.3d 646, 397 N.E.2d 504.

Finally, the effect of a holding of general retroactivity on law enforcement and the administration of justice would be significant. The warrantless arrest of an accused in his home has occurred in a very great number of cases. The number of convictions obtained in reliance on pre-Payton decisions is substantial. Moreover, a determination of whether a particular warrantless arrest was made with a defendant's consent or upon exigent circumstances would in most cases be a difficult and time-consuming task, if not virtually impossible. Desist, 394 U.S. 244, 250-51, 22 L.Ed.2d 248, 256, 1030, 1034-35.

• 3 In summary, we believe Payton should be given prospective application only.

A review of the record also leads us to conclude that the defendant has waived consideration of such issues as to whether defendant's brother's consent to search was voluntary (the defendant was arrested in an attic bedroom of a residence rented from his brother), and whether defendant had standing to raise the issue of an alleged illegal police entry into his brother's home.

Defendant's motion to quash was premised upon two basic grounds: (1) lack of a warrant; and (2) lack of probable cause. At the hearing on defendant's motion, evidence submitted by defendant directly related to the above-mentioned issues and nothing more. No evidence was presented concerning the issues dealing with standing and defendant's brother's consent in which he allowed the police to enter and search his residence for the defendant. It is equally apparent that the trial judge never ruled on these issues since the defendant has raised them for the first time on appeal. Accordingly, defendant has waived these issues. See People v. Householder (1980), 81 Ill. App.3d 31, 400 N.E.2d 988; and People v. Logan (1979), 78 Ill. App.3d 646, 397 N.E.2d 504.

• 4 The officers in the case at bar had probable cause to arrest defendant. Independent evidence (defendant's fingerprints at the crime scene) had been gathered which linked the defendant to the murder. The search of the house was conducted with the consent of the owners. Moreover, the search of the adjoining storage area which uncovered much of the physical evidence admitted at defendant's trial was conducted only after defendant consented to a search, a consent that was given only after defendant had been advised of his Miranda warnings and also after he had been informed of his right to refuse to consent to such a search. The totality of the officers' actions in the case at bar was based upon probable cause and a reasonable belief that they could arrest defendant under the circumstances without a warrant.

The defendant also filed a motion to suppress physical evidence. The evidence sought to be suppressed consisted of items found in a storage room adjacent to defendant's sleeping room. Following a hearing the trial judge denied the motion. The denial was predicated on two grounds: (1) that defendant did not have standing to object to the search of the room adjacent to the one he allegedly rented from his brother; and (2) that defendant knowingly and understandingly consented to a search, thereby waiving any right to object. Defendant now attacks both rulings, claiming error. We believe the trial judge's ruling denying defendant's motion to suppress physical evidence was correct.

• 5 As the trial judge aptly found, defendant's evidence established nothing more than the fact that defendant rented and used only one room, the upper front bedroom. No evidence was presented at the hearing to establish that the adjoining storage room was a closet for defendant's bedroom or that it was even used as such by the defendant. Hence, defendant failed to establish any legitimate or objectively reasonable expectation of privacy in the room where the search was conducted and the evidentiary items seized. Rakas v. Illinois (1978), 439 U.S. 128, 58 L.Ed.2d 387, 99 S.Ct. 421.

We also believe defendant freely and voluntarily consented to the search of the bedroom and adjoining storage area.

• 6 In Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L.Ed.2d 854, 93 S.Ct. 2041, the United States Supreme Court dealt with the question of "voluntariness" as it relates to consent searches. The question of whether a consent to search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. (Schneckloth, 412 U.S. 218, 228, 36 L.Ed.2d 854, 863, 93 S.Ct. 2041, 2048.) The trial court's determination of voluntariness of a ...

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