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People v. Winters





Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. John S. Teschner, Judge, presiding.


Rehearing denied September 30, 1983.

On January 18, 1979, indictments were filed in the circuit court of Du Page County charging Kenneth H. Killian, Daniel B. Winters and Mark A. Van Roekel with multiple counts of robbery.

Each defendant moved to quash his arrest, to suppress all evidence seized from both the apartment in which the defendants were arrested and the car that the police had observed being used in one of the alleged robberies, and to suppress the defendants' oral and written confessions.

Following suppression hearings on the defendants' motions, the circuit court of Du Page County, on December 23, 1980, entered orders suppressing all of the evidence, including the defendants' confessions, and quashed all of the arrests that occurred immediately after the entry into the defendants' apartment by the police officers.

The State appealed, and on April 20, 1982, the appellate court, in a Rule 23 order (87 Ill.2d R. 23), affirmed the circuit court's rulings quashing the defendants' arrests, suppressing evidence seized from the defendants' apartment, and suppressing the defendants' oral and written confessions, finding that the arrests were the result of an illegal entry and that the items seized, as well as the defendants' confessions, were the fruits of the illegal entry. However, the appellate court reversed the order of the circuit court suppressing evidence seized from the car, in finding that none of the defendants had standing to contest the search of the car or seizure of those items. 105 Ill. App.3d 1206.

We granted the State's petition for leave to appeal (87 Ill.2d R. 315). The defendants are not contesting on appeal to this court the appellate court's finding as to that part of the order reversing the trial court's suppression of the evidence seized from the automobile.

In January of 1979, Officer Thomas Vitek of the Bensenville police department received information from a telephone informant that Kenneth Killian and two other individuals were responsible for robberies of Fotomat stores in the area of several Du Page County communities. Vitek knew the informant and knew that information previously given from this person had led to arrests in four or five instances. The informant indicated to Vitek that he was getting his information from an unidentified third party, whose reliability could not be attested to. According to the information that the informant had, the individuals responsible for the Fotomat robberies lived in Lisle, Illinois, and drove a 1975 maroon-over-white Pontiac. Officer Vitek testified that, through the use of State records, he was able to ascertain that the vehicle was registered to a "Killian." As Vitek recalled, it could have been Ralph W. Killian. Kenneth Killian testified that the car belonged to his father.

A surveillance of the car was set up by the police departments of Lisle, Elmhurst and Bensenville early in the evening on January 4, 1979, on Beau Monde Lane in Lisle, Illinois, in the vicinity of the apartment complex in which the defendants lived. At about 6:30 p.m. officers observed two individuals drive the vehicle away from the Lisle apartment complex. The officers followed the car to a Fotomat store in the Lisle area. The officers then observed one of the passengers get out of the car and pull a knit hat over his face as he walked over to the Fotomat store. The subject under surveillance then knocked on the window (which was apparently used for normal business transactions) and went back to the car when the window was not opened.

After the car had left the vicinity of the Fotomat store, Officers Vitek and Millner went up to the window and asked if there had just been a robbery and learned that the employee had refused to talk with the masked man because the employee feared that he was going to be robbed. Other officers then followed the car as it proceeded back toward the apartment complex at which the surveillance had begun. The officers following the car next observed one of the passengers leave the car, enter and exit a White Hen Pantry store and then enter the Little Italian Restaurant. Shortly thereafter, the subject was seen running from the Little Italian Restaurant and getting into the car.

At this juncture, Officers Vitek and Millner were parked on a side street near the Little Italian Restaurant. After seeing one of the subjects running toward the Pontiac under surveillance Officers Vitek and Millner proceeded to the apartment complex at which the surveillance began. Officer Vitek testified that en route he received a radio communication that the Little Italian Restaurant had just been robbed.

Officer Damico and his partner, Detective Busiedlek, had observed from their unmarked squad car one of the passengers emerge from the Pontiac, enter the White Hen Pantry and soon thereafter flee running from the Little Italian Restaurant. The radio dispatcher had then confirmed, upon Officer Damico's inquiry, that there had, as of that moment, been an armed robbery at the Little Italian Restaurant. The officers then observed the car pull away and followed it back to the apartment complex. While following the car into the complex, the officers lost sight of the vehicle for 10 to 15 seconds. When the officers regained the view of the car, it was parked and unoccupied.

The surveillance teams, six to 10 officers, gathered in the parking area and then entered the apartment building closest to where the car was parked and, in two elevator trips, went to the door of apartment 301. One of the officers testified that, while waiting for the second group to arrive, he heard voices through the door discussing splitting up money and saving enough money for bond.

In order to gain entry to the apartment, Officer Vitek knocked, and when defendant Winters asked who was there, the officer responded, "Mark, why weren't you at work today?" whereupon defendant Winters partially opened the door. How far the door was opened, whether there was a chain lock, and whether the chain lock was broken by the police depends upon what witnesses are believed. However, the trial court determined that the door was secured by a chain and was broken by the police.

The police entered the apartment with their guns drawn and quickly subdued defendants Killian and Winters, directing the defendants to the floor and handcuffing them. Officer Millner then kicked in a bathroom door in the back of the apartment, apprehended defendant Van Roekel, and discovered some money in the bathroom.

While it is not clear exactly what happened in what sequence, at this point it appears that Van Roekel was handcuffed and brought into the living room with the other defendants.

It is clear that Killian signed a consent form approving the officers' search of the apartment and car. The defendants testified that a metal box in the bedroom was pried open and a money bag taken from the box. Killian testified that while he had a key, no one had asked him for it.

The defendants were interrogated at the apartment, where Killian and Winters confessed, and were subsequently questioned at the Lisle police station, where ...

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