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People v. Brown

OPINION FILED SEPTEMBER 10, 1981.

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

v.

WALTER REED BROWN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. JOHN S. TESCHNER, Judge, presiding.

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

The defendant, Walter Reed Brown, was convicted of armed robbery following a jury trial and sentenced to a term of 10 to 30 years' imprisonment. He appeals, contending that the trial court erred in denying his motion to suppress evidence, that his in-court identification was the result of impermissibly suggestive pretrial procedures, and that numerous errors in ruling on evidence together with improper argument of the prosecutor combined to deny him a fair trial.

On the morning of July 22, 1977, an individual carrying a bowling bag was observed in the game room of the Stardust Bowl in Addison, Illinois, and a white-over-blue automobile was observed in the parking lot. At approximately 9 a.m. this individual forced his way into the bowling alley's rear office and ordered three employees, Frances Felz, Judy Busse and Patricia Nudo, against the wall. The gunman fired a shot, which embedded itself harmlessly in a wall, and took between $11,000 and $13,000 from the safe. At least part of this money had been bundled into groups and packed in bank bags. The gunman then ordered the women to lie down on the floor and left. The police were subsequently summoned, and various employees of the bowling alley who had seen the robber "contributed to a description" of the individual.

On January 16, 1978, Frances Felz observed the defendant in the bowling alley's game room and called the police, informing them that the man who had committed the July 22 robbery had returned. The police arrived and arrested defendant, finding in his coat pocket a .38-caliber revolver which the parties stipulated at trial had not been used to fire the shot involved in the July 22 robbery. The police claimed that defendant was asked how he had gotten to the bowling alley and that he responded by pointing to a green Dodge Charger parked on the street near the main entrance. Defendant denied that he pointed out the car. Two officers remained with the car until it could be towed to the police station, at which point its contents were inventoried. The inventory produced two empty bowling bags and a blue bowling shirt. A search of defendant's Arizona residence disclosed a white-over-blue Dodge Charger with Illinois plates, two bank bags and a photo album.

Three of the Stardust Bowl's employees, Patricia Nudo, Judy Busse and Kay Cottone, were called to the Addison police station in January 1978. Mrs. Cottone was deceased at the time of trial. The three women were first shown a book of mug shots, but no identification was made. Busse testified that she was then shown the photo album taken from defendant's Arizona home and identified defendant from a picture in the album, a shirt and a gun. The women then were shown the defendant, who was sitting alone in a room. Nudo and Cottone observed defendant together, while Busse observed the defendant by herself. Busse identified defendant as the robber; Nudo failed to make an identification.

Defendant's motions to suppress the items taken from his car, and the identification of defendant by Judy Busse were denied, as was his motion in limine to exclude testimony about the pistol found on his person at the time of his arrest.

Defendant testified that he had been at a party the night before the events in question and that he had not awakened until 8 o'clock on the morning of July 22. He had then gone to his brother's home and had thereafter driven in a blue and white Dodge Charger to a garage, where he had some speakers installed. Defendant had arrived at the garage at approximately 9 o'clock and had stayed until sometime after noon. After having lunch, defendant had assisted his girl friend prepare for a move to Phoenix, Arizona, where defendant had been living. Defendant and his girl friend left for Arizona the following day, but their relationship deteriorated, and defendant returned home in December. He had gone to the Stardust Bowl in January because he had previously worked there as a night bartender and wanted to seek employment. He was carrying a pistol which his mother had given him after some random shots had been fired at him in an incident outside a bar. Various aspects of defendant's testimony were corroborated by his mother, brother, former girl friend, nephew, and sister-in-law, and by a neighbor of defendant's brother. A mechanic who assisted with the installation of the speakers testified that he towed the blue-over-white Charger into Franks Garage between 8:30 and 9 a.m. on July 21, 1977, because it had no brakes. He said that the defendant was in the shop to pick up the car at approximately 10 a.m. on July 22, 1977, and then he was accompanied by his girl friend and his nephew. The witness testified also that he was a friend of the family. There was also testimony that defendant's hair style was different from that described by the robbery victims, and that various individuals other than defendant had been seen in the bowling alley on the morning of the robbery.

I

Defendant first contends that the trial court erred in denying his motion to suppress items retrieved by the police during a warrantless search of his car. Following his arrest, defendant had been taken outside the bowling alley and questioned by the officers as to his means of transportation. Defendant pointed out a green Dodge Charger parked on the street in front of the bowling alley. Two officers were detailed to watch the car until a tow truck could arrive. One officer looked into the car's interior through the windows and saw a gold or brownish gold bowling bag on the rear seat and part of a blue bowling shirt underneath the front seat. When the tow truck arrived, the officer entered the vehicle to straighten out the steering wheel for the tow operator, but did not search or seize any items at that time. The Dodge was then towed to the police garage, where its contents were subsequently inventoried. The officer testified that, while there was no written policy on the subject, there had been a practice in effect for seven years "that any time we bring a vehicle in involved in a crime or that was used by someone who is believed to be involved in a crime, the vehicle is completely inventoried and checked for valuables or anything that should not stay with the vehicle when the vehicle is released to the tow company." While there was testimony that a form entitled "Tow Report" was prepared, there was no testimony that a written inventory of the contents found was ever made. The trial court denied the motion to suppress on the authority of South Dakota v. Opperman (1976), 428 U.S. 364, 49 L.Ed.2d 1000, 96 S.Ct. 3092, dealing with inventory searches.

We cannot justify the search on this basis. The plurality opinion in Opperman approved routine police practice of securing and inventorying vehicles which have been properly impounded, on the basis of the need for protection of the owner's property, to protect police against claims of loss or theft, and to protect them against potentially dangerous instrumentalities contained within the vehicle. (Opperman, 428 U.S. 364, 369-70, 49 L.Ed.2d 1000, 1005-06, 96 S.Ct. 3092, 3097.) Following the opinion in Opperman, which is premised on the proper impounding of the vehicle in the first place, the Illinois cases also require that the police act properly in taking possession of the vehicle. E.g., People v. Schultz (1981), 93 Ill. App.3d 1071, 1075-76.

• 1 Here, the defendant's car was lawfully parked on a public street, and it does not appear from the record that the police had any responsibility for the vehicle or its contents. There thus was no basis upon which the police could have conducted a valid inventory search.

The State urges that the search may nevertheless be upheld as one based on probable cause and exigent circumstances. (See Arkansas v. Sanders (1979), 442 U.S. 753, 756-57, 61 L.Ed.2d 235, 240, 99 S.Ct. 2586, 2589.) With this we agree.

Officer Tyndall, an experienced Addison police officer, testified that when he was called to the Stardust Bowl, he knew of the earlier armed robbery at that location; he had been informed that the robber was again in the bowling alley; an employee, Frances Felz, had pointed the defendant out to him when he arrived at the bowling alley and had stated "that's him. I'm afraid he's going to leave"; he and another officer had arrested defendant, and in patting him down had found that he was carrying a loaded blue steel revolver in his coat pocket. The officer knew that the robber in the July 22, 1977, occurrence was armed with a blue steel revolver and had carried a gold colored bowling bag. He knew that on the earlier occasion the robber had first been noticed in the game room of the establishment and that on this occasion he was also reported in the same area. The officer also knew from the defendant that he had come to the Stardust Bowl in the Dodge Charger which the defendant had pointed out as being parked on the street about 20 feet from the entrance.

Further, when Officer Peterson was directed by Tyndall to go to the car awaiting a tow, Peterson looked through the car window and observed in plain view a "gold, or some sort of brownish gold" bowling bag located on the rear seat, and saw a part of a blue shirt sticking out from the bucket seat on the passenger side in the front of the vehicle.

• 2 Under these circumstances, we conclude that the officers had reasonable cause to seize the vehicle on the basis that it contained evidence of crime or it may have been an instrument of the July 22, 1977, crime even though the description did not exactly match in color the vehicle seen in front of the Stardust Bowl on the previous occasion. See People v. Peter (1973), 55 Ill.2d 443, 454-55; People v. Henry (1977), 48 Ill. App.3d 606, 609-10.

• 3 The fact that the car was properly in police custody "does not of itself dispense with constitutional requirements of searches thereafter made of it." (People v. Davis (1981), 93 Ill. App.3d 217, 226.) However, defendant's reliance on Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022, in support of his contention that there were no circumstances to justify the "automobile exception" as the basis for the warrantless search, is misplaced. The car was seized in a public place, and was inadvertently discovered in the process of arresting defendant when he pointed it out. These facts distinguish Coolidge. The fact that the car or its contents could have ...


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