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People v. Pendleton

OPINION FILED MARCH 17, 1982.

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

v.

JAMES PENDLETON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE M. MAROVICH, Judge, presiding.

PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant, James Pendleton, was found guilty of rape and armed robbery and sentenced to 6 to 8 years on each offense, the sentences to run concurrently.

On appeal, defendant raises three issues. First, that the trial court erred in denying his motion to quash his arrest and suppress his lineup identification. Second, that he was denied a fair trial when witnesses referred to police photographs as mug shots and when these photographs were admitted. The defendant failed to preserve either of these issues by failing to raise them specifically in his motion for a new trial. Additionally, defendant failed to object to the photographs when tendered into evidence. Nevertheless, because of their possible bearing on the third issue that he was denied a fair trial due to the incompetency of counsel, we will address both issues.

On May 30, 1975, defendant was stopped by the police because his vehicle failed to display a front license plate. Defendant was unable to produce a valid driver's license. He was taken to the police station and was issued two tickets, one for failure to display a front license plate and the other for failure to produce a valid driver's license. A bond of $50 was set for the traffic violations; defendant's family came to the police station with sufficient money to bail him out. However, police did not release the defendant. The arresting officer had called the "hot desk" and was informed that defendant had a "stop order" placed against him for rape. The stop order had been issued on the basis of prosecutrix' identification of a photograph of the defendant. Later that day defendant was placed in a lineup where he was identified by the prosecutrix as the man who had raped her. Defendant was then charged with the crime of rape.

I

Defendant made a pretrial motion to quash his arrest and suppress his lineup identification. The trial court denied both motions. Defendant contends this action was error and denied him a fair trial. Defendant contends (1) the police lacked probable cause for his arrest; (2) the police improperly held him in custody after bail money had been tendered; and (3) that he was denied right to counsel at the police lineup. We discuss his contentions in that order.

(1) A police officer may arrest a person without a warrant when he "has reasonable grounds to believe that the person is committing or has committed an offense." (Ill. Rev. Stat. 1975, ch. 38, par. 107-2(c).) Whether or not probable cause exists in a particular case depends on the totality of the facts and circumstances known to the officers when the arrest was made. People v. Robinson (1976), 62 Ill.2d 273, 276-77, 342 N.E.2d 356.

In the case before us, the police officers had ample basis for the initial warrantless arrest of defendant for the traffic violation. When the police stopped the defendant his vehicle did not display a front license plate, nor could defendant produce a driver's license. Following customary procedures, the officers took defendant to the police station where bond was set.

(2) Defendant contends that he should have been released when the bail set for the traffic violations was tendered. However, a name check at the station revealed defendant was wanted on the rape charge, so he was not released and a lineup was arranged. In a case very similar to the one before us (People v. Hinton (1977), 45 Ill. App.3d 925, 928, 360 N.E.2d 451), the defendant was initially arrested for disorderly conduct. Later that same day, the defendant was identified in a lineup and subsequently indicted for rape. This court concluded that because there was clear probable cause for the original arrest of defendant, it followed that any identifications which stemmed from the arrest could properly be admitted into evidence against the defendant.

Here, defendant's initial arrest for a traffic violation was clearly based on probable cause. As in Hinton, defendant was placed in a lineup on the same day as his arrest and positively identified by the prosecutrix as her assailant. Defendant does not contend that an unreasonable amount of time elapsed between defendant's arrest and his participation in the lineup. Nor does the defendant complain that the lineup was suggestive. Therefore, because the initial arrest of defendant was proper, the lineup identification was also proper.

• 1 Further, the identification by prosecutrix of defendant's photograph as portraying the offender gave the police probable cause for holding defendant on the rape charge for the lineup which followed. (People v. Henderson (1974), 20 Ill. App.3d 120, 312 N.E.2d 655.) That the police did not formally declare that the defendant was under arrest for rape did not affect the legality of his detention. People v. Helms (1978), 67 Ill. App.3d 729, 735, 385 N.E.2d 127.

(3) We now turn to defendant's contention that he was denied right to counsel at the police lineup. It is well settled that a person's sixth and fourteenth amendment right to counsel attaches only at or after the time adversary judicial proceedings have been initiated against him. Such adversary proceedings may be initiated by way of a formal charge, preliminary hearing, indictment, information or arraignment. Kirby v. Illinois (1972), 406 U.S. 682, 688-89, 32 L.Ed.2d 411, 417, 92 S.Ct. 1877, 1881-82; People v. Earl (1979), 78 Ill. App.3d 188, 397 N.E.2d 97.

• 2 Here, at the time of the lineup under question, defendant had not been charged either by indictment or information. No initiation of an adversary judicial criminal proceeding had begun with respect to the crime for which the identification was sought. Therefore, defendant's constitutional right to counsel did not attach. (People v. Earl (1979), 78 Ill. App.3d 188, 193.) Since there was probable cause for the initial arrest, and probable cause for further detention, the lineup identification which followed was not the fruit of any illegal arrest, nor was it tainted by any deprivation of ...


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