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People v. Lippert





Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Fulton County, the Hon. U.S. Collins, Judge, presiding. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

At the conclusion of a bench trial in the circuit court of Fulton County defendant, Stanley Lippert, was found guilty of the armed robbery of two elderly couples and was sentenced to a term of six years' imprisonment. A divided appellate court held that a showup identification of defendant by the robbery victims and a subsequent confession should have been suppressed and remanded the cause for a new trial. (93 Ill. App.3d 273.) That court held that Terry v. Ohio (1968), 393 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, provided insufficient basis for the detention and transportation of the defendant to the site of the showup. We granted the State's petition for leave to appeal.

At the hearing on the motion to suppress, a deputy sheriff, Sergeant Daniel Dugan, testified that he responded to a call from the Riverview Inn, Liverpool, Illinois, about 11 p.m., November 5, 1979. There he interviewed the complainants, Mr. and Mrs. Raymond Morse and Mr. and Mrs. Charles Scott, who told him that they had been robbed at gunpoint by four young men about 25 minutes earlier. The robbery occurred on the Liverpool road, the only northbound route out of town, at a point about one-half mile south of Illinois route 24. This was two to three miles from the Inn. The Morses' car had developed engine trouble, and they had pulled to the side of the road. The victims had flagged down an approaching car containing four young men and asked for assistance. After tinkering with the engine for a few minutes, one of the men, later identified as defendant, obtained a rifle from their car, pointed it at the victims and announced the robbery. About $30 was taken. The robbers then got back in their car and left, headed northward.

According to Deputy Dugan's testimony, one of the robbers was described to him as about 5 feet 11 inches in height with medium length blond hair, and another as having bushy brown hair and wearing a blue jacket.

The deputy testified that he requested the Morses and Scotts to remain at the Inn while he checked the area. He then proceeded northward on the Liverpool road and within a few minutes received a radio message from another deputy that a car was approaching him from the rear. At a point between Morse's car and route 24, he backed his squad car into a driveway so that his bright lights would shine onto the road and across traffic. He saw a car without license plates approaching, and observed that the driver had medium length light brown hair and the passenger had bushy hair and was wearing a blue coat. He testified that the two matched the descriptions given him. The car passed at about 30 miles per hour and he followed, stopping the car at the route 24 intersection. When he approached the car he saw that it had a temporary registration certificate taped on the passenger side of the windshield. Defendant, who had been driving, identified himself by presenting a uniform traffic citation in lieu of a driver's license. He and his passenger, William Long, were frisked, Deputy Dugan noting that defendant had light brown hair and was about 5 feet 11 inches tall.

Defendant and Long were taken back to the Liverpool Inn, defendant in Deputy Dugan's squad car and Long in another squad car which had arrived after the stop. Deputy Dugan read defendant his Miranda rights during this trip and defendant acknowledged he understood them. However, defendant denied knowing anything about the robbery. They arrived at the Riverview Inn about 55 minutes after the robbery. Mrs. Morse came out and identified defendant and Long, who were sitting in the squad cars in which each had arrived. Mrs. Morse told Deputy Dugan that defendant had complained about a cut finger during the robbery, and, upon checking defendant's hands, Dugan found that defendant had stitches in his little finger. Mr. Morse then came out and identified defendant as the robber who held the rifle.

Deputy Dugan questioned defendant at this time and defendant told him that two others, Darrell Brazee and Richard Sale, had committed the robbery while he sat in the car. After the robbery, Brazee and Sale were dropped off near Brazee's house in Liverpool, where they were going "'coon hunting." They had taken the .22 rifle with them. Defendant was handcuffed and driven to an area near Brazee's home. After about 25 minutes Brazee and Sale were arrested as they emerged from a wooded area. They were carrying a flashlight and a .22 rifle. The four were then taken to the county jail, about 20 minutes away.

Defendant, Sale and Brazee each gave short written statements that night admitting their participation in the robbery. (Long, who was 16, was turned over to juvenile authorities.) The following morning more detailed statements were tape recorded and later transcribed. The three confessions corroborated each other in almost all respects. There is no contention here that Miranda warnings were inadequate or that the confessions were involuntary. The other witnesses called by the State at the motion hearing testified to the Miranda warnings and as witnesses to the statements. Defendant testified, contrary to the State's witnesses, that he was handcuffed before the showup. He also stated that he had been drinking that night.

The trial court denied the motion to suppress, finding that the confessions were voluntarily given and that Deputy Dugan "had probable cause to stop the car" because of the lack of license plates and because of his "identification of these two individuals being possibly involved in the robbery according to the description which he had been furnished." It was then stipulated that the testimony at trial would be the same as at the hearing on the motion to suppress and that defendant had been identified by the Morses and Scotts, both at the Inn and in court. The confessions were also admitted. The only additional witness called at trial testified that the defendant had been read his Miranda rights before he confessed. Defendant renewed his motion to suppress but offered no other evidence, and a judgment of guilty was entered.

There is, of course, no doubt that the absence of license plates justified the initial stop of defendant's car. The determination that the temporary registration was valid, however, eliminated the absence of license plates as authority for defendant's further detention, and that authorization must be found, if at all, in the existence of probable cause to arrest defendant or under Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868. While one member of the appellate court stated that the State had there conceded the absence of probable cause, that conclusion is now disputed by the State, which indicates it believed the trial court's denial of the motion to suppress was predicated on Terry and accordingly focused its argument upon that issue.

Defendant, however, argues that even if the initial stop was valid under Terry, his subsequent detention and transportation must be supported by nothing less than probable cause to arrest. Since, defendant contends, the facts known to Deputy Dugan at the time of the stop do not constitute probable cause for arrest, the initial identification and subsequent confession should have been suppressed.

Whether there was probable cause for arrest is a mixed question of law and fact. (People v. McGowan (1953), 415 Ill. 375, 380; People v. Roberta (1933), 352 Ill. 189, 193; 5 Am.Jur.2d Arrest § 49 (1962).) The facts and circumstances of the stop and detention of the defendant were fully developed at the hearing on the motion to suppress and are uncontroverted. Although the trial court found only that Deputy Dugan had probable cause to stop and did not make a finding on the issue of probable cause to arrest, there appears to be no reason why the remaining question of law may not be determined here. (Cf., People v. Kalpak (1957), 10 Ill.2d 411, 425-26 (where the question of defective warrant was avoided by finding that probable cause to arrest without warrant was established); see also State v. Byers (1975), 85 Wn.2d 783, 539 P.2d 833.) The question here is a close one, but we believe that Deputy Dugan had probable cause to arrest the defendant and Long, for armed robbery, following the stop.

Probable cause for arrest exists when facts and circumstances within the arresting officer's knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. (People v. Creach (1980), 79 Ill.2d 96, 101; cert. denied (1980), 449 U.S. 1010, 66 L.Ed.2d 467, 101 S.Ct. 564; People v. Robinson (1976), 62 Ill.2d 273; People v. Clay (1973), 55 Ill.2d 501; see also Brinegar v. United States (1949), 338 U.S. 160, 93 L.Ed. 1879, 69 S.Ct. 1302; Carroll v. United States (1925), 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280.) Although a "mere suspicion" that the person arrested has committed the offense is an insufficient basis for arrest (see Henry v. United States (1959), 361 U.S. 98, 4 L.Ed.2d 134, 80 S.Ct. 168; Mallory v. United States (1957), 354 U.S. 449, 1 L.Ed.2d 1479, 77 S.Ct. 1356), evidence sufficient to convict is not required (People v. Marino (1970), 44 Ill.2d 562, 573; People v. Macias (1968), 39 Ill.2d 208, 213, cert. denied (1969), 393 U.S. 1066, 21 L.Ed.2d 709, 89 S.Ct. 721; People v. Fiorito (1960), 19 Ill.2d 246, 253, cert. denied (1960), 364 U.S. 870, 5 L.Ed.2d 93, 81 S.Ct. 113).

Because, as Professor LaFave points out in his treatise on the law of search and seizure, an arrest not only serves the function of producing persons for prosecution but also serves an investigative function, courts have not ruled that an arrest can occur only when the known facts indicate that it is more probable than not that the suspected individual has committed the crime. (1 W. LaFave, Search and Seizure ยง 3.2, at 478-85 (1978), noting in particular the position taken in the Model Code of Pre-Arraignment Procedure 14 (Proposed Official Draft 1975).) Professor LaFave also ...

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