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People v. Moore





APPEAL from the Circuit Court of Cook County; the Hon. DANIEL J. WHITE, Judge, presiding.


Rehearing denied May 3, 1982.

Defendant Stevie Moore was convicted of robbery and sentenced to 3 years in the Illinois Department of Corrections. Defendant appeals, contending that (1) his arrest without a warrant was illegal in that police, who would have been required to have a warrant to arrest him inside his home, used a subterfuge to lure him from his home and effect the arrest in a public place; (2) he was denied the effective assistance of counsel; and (3) the trial court improperly excluded evidence tending to prove that defendant had not been identified as the robber prior to his arrest.

At about 11:30 p.m. on February 28, 1979, Gail Anderson was returning to her apartment on North Wolcott Street in Chicago. The apartment building had an unlocked outer door and an illuminated narrow hallway about 15 feet long leading to a locked security door. As Miss Anderson was unlocking the security door she heard footsteps in the hall and saw two men running toward her. She tried to push the security door shut but the men caught the door before it latched and forced the door open. One of the men pushed her against the wall, put his hand over her mouth and told her not to scream. The man pushing her against the wall demanded money, and Miss Anderson surrendered her purse. The man passed the purse to the second robber who was standing an arm's length away to Miss Anderson's right. While the first robber went through Miss Anderson's pockets, the second robber rifled her purse. Before the men left, the second robber took Miss Anderson's keys. She watched the two men leave by the front door and saw the second robber drop the keys in a snow bank outside. Miss Anderson followed the men outside and saw them enter a car that was standing in the street with its engine running. She described the car as a late model blue Chevrolet Vega with license plate number SAL 547.

Charles Ford, an investigator with the Chicago Police Department, interviewed Gail Anderson on March 1, 1979. At trial, Ford testified that a computer terminal in the police station provides access to the Secretary of State's automobile registration records. Ford entered the plate number "SAL 547" and learned that the license number belonged to a Cadillac registered to a person living outside of Chicago. Ford then entered the partial plate number "SAL" and learned that plate number SAL 567 was registered to a blue 1977 Chevrolet that had been reported stolen. The car was registered to Dorothy Holiday.

On March 1, Investigator Ford phoned Mrs. Holiday. At trial, Holiday testified that her car, a blue Chevrolet Vega, had been stolen on February 22, 1979, while it was in the custody of a friend, James Ollie. Ford also called Mr. Ollie on March 1. At trial, Ollie testified that Dorothy Holiday, a friend and co-worker, regularly gave him the use of her car. On February 22, 1979, after driving Holiday home from work, Ollie drove the Vega to a tavern. While at the tavern, Ollie encountered defendant, whom he knew. Defendant introduced Ollie to a woman named Cheryl, whom defendant described as a cousin. At about 9:30 p.m., Ollie and Cheryl left the tavern in the Vega and drove to a motel, where they had intercourse. Ollie awoke about 2 a.m. to find Cheryl and the Vega missing, along with $20 from Ollie's pocket and the Vega's keys. Ollie then reported that the car had been stolen.

On March 5, Ford interviewed Gail Anderson for the second time and showed her five police "mug shots." One of the photographs was of defendant; another was of defendant's brother. At trial, Anderson and Ford testified that she positively identified defendant as the man who went through her purse and dropped her keys in the snow (the "second robber"). Anderson testified that she also selected the photograph of defendant's brother, believing at the time that the two pictures were of the same person. On April 4, 1979, Anderson viewed a lineup and positively identified defendant as one of the robbers. Anderson also identified defendant at trial.

Investigator Ford testified that during March 1979 he made several unsuccessful attempts to arrest defendant. On the evening of April 3, Ford and his partner made two trips to defendant's apartment. There is conflicting testimony as to precisely what occurred during these visits. Ford testified that, on the first visit, defendant was not home. Ford left instructions with defendant's wife for defendant to call Ford. Ford stated that he told defendant's wife that defendant was wanted for robbery. A short time later, defendant phoned Ford and Ford advised defendant that he would come by to pick him up. When Ford arrived at defendant's home, defendant come out and surrendered. He was then placed under arrest.

At a hearing on a motion to suppress evidence, defendant and his wife testified concerning the circumstances of defendant's arrest. Their testimony conflicts with that of Ford only with respect to what Ford allegedly said during his two visits. Defendant's wife testified that when Ford came to the apartment he said, with reference to the robbery, "We know that he didn't do it but we think that he may know someone who did it." Defendant testified that, during his phone conversation with Ford, he (defendant) denied involvement in any robbery and Ford stated that he only wanted defendant to come to the station to look at some pictures and answer some questions. Defendant's wife testified that, when defendant went out to meet the policemen on their second visit, she called down from the apartment and asked if she could go along. One of the policemen reportedly answered, "No need for you going. We are going to ask him some questions. We will bring him right back."

Defendant moved to quash his arrest and suppress evidence concerning the April 4 lineup, contending that his arrest was illegal and the subsequent lineup was a product of the illegal arrest. Citing Payton v. New York (1980), 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371, defendant argued that the police, who did not have an arrest warrant, could not have entered his home to effect the arrest. Defendant asserted that Ford's alleged statement (e.g., "We know that he didn't do it") were calculated to draw defendant from his home so that the police could arrest him in a public place, thus circumventing the warrant requirement. Defendant acknowledges that a warrantless arrest in a public place, upon probable cause, is legal. The trial court found that the police had probable cause to effect the arrest and defendant does not appeal that finding. In denying defendant's motions, the trial court did not state which version of the arrest he found more credible. He simply stated that the arrest was properly made upon probable cause.

The trial court's order does not comply with section 114-12 of the Code of Criminal Procedure of 1963, which, referring to motions to suppress, states:

"(e) The order or judgment granting or denying the motion shall state the findings of facts and conclusions of law upon which the order or judgment is based." (Ill. Rev. Stat. 1979, ch. 38, par. 114-12(e).)

Defendant contends on appeal that since the trial court's order lacked a finding of fact with respect to the credibility issue, the conviction must be reversed and the cause remanded for such a ruling. In response, the State cites People v. Holloman (1970), 46 Ill.2d 311, 317, 263 N.E.2d 7, and argues that the ruling below implies that the trial court discredited defendant's and his wife's testimony.

• 1 Before addressing the questions presented by the form of the trial court's ruling, we must answer a more basic question: did defendant offer evidence sufficient to support an order quashing the arrest and suppressing the lineup evidence? Put another way, does defendant's and his wife's testimony, taken as true, compel the conclusion that the arrest was illegal? We think not. Defendant assumes that since the Payton case requires police to have an arrest warrant before entering a suspect's home, any act of the police that induces a suspect to leave his home must be an unconstitutional circumvention of the Payton rule. None of the cases cited by defendant suggests that such a per se rule is either necessary or desirable. In Payton, the Supreme Court stressed the inviolability of the home and stated that warrantless intrusions into the home are presumptively unreasonable. (445 U.S. 573, 586, 63 L.Ed.2d 639, 651, 100 S.Ct. 1371, 1380.) In the case at bar, there was no nonconsensual entry into defendant's home. Defendant left his home and was arrested on the street. Defendant argues that his act of leaving the home was induced by deception so that his presence on the street was not truly voluntary. The United States Supreme Court has indicated that "voluntariness" in such situations is not susceptible of fixed definition. Rather, the concept of voluntariness must accommodate a complex of values ranging from society's need for effective police investigations to fundamental notions of fairness. (See Schneckloth v. Bustamonte (1973), 412 U.S. 218, 224-25, 36 L.Ed.2d 854, 861, 93 S.Ct. 2041, 2046.) Viewing the circumstances of defendant's arrest in that perspective, we do not believe that defendant's act of leaving his apartment was involuntary. In other contexts, courts> have considered the police tactic of misinformation and have found no constitutional violation. (See, e.g., People v. Boerckel (1979), 68 Ill. App.3d 103, 111-12, 385 N.E.2d 815, cert. denied (1980), 447 U.S. 911, 64 L.Ed.2d 861, 100 S.Ct. 2998 (fact that police misrepresented the evidence against defendant did not render his confession involuntary or violate fundamental fairness); People v. Houston (1976), 36 Ill. App.3d 695, 699, 344 N.E.2d 641, cert. denied (1977), 429 U.S. 1109, 51 L.Ed.2d 562, 97 S.Ct. 1143 (police officer investigating an armed robbery stated that he was investigating an accident; "suble subterfuge" held constitutionally permissible); see also Lewis v. United States (1966), 385 U.S. 206, 210, 17 L.Ed.2d 312, 315-16, 87 S.Ct. 424, 427 (no violation of defendant's privacy when policeman misrepresented his identity in order to gain admittance to defendant's home and purchase illegal drugs).) The alleged deception in the ...

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