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October 27, 1983


The opinion of the court was delivered by: Roszkowski, District Judge.


Before the court are petitioner's and respondent's motions for summary judgment on petitioner's amended petition for a writ of habeas corpus. Jurisdiction is based upon 28 U.S.C. § 2241. For the reasons set forth below, respondent's motion is granted and petitioner's motion is denied.

The petitioner seeks habeas relief on two grounds: (1) that the state courts improperly refused to suppress evidence flowing from a custodial interrogation of petitioner before he was given Miranda warnings, thereby violating his rights under the Fifth and Fourteenth Amendments; and (2) that the state courts incorrectly refused to suppress evidence of statements resulting from an interrogation by authorities when he had not waived his right to counsel, thereby violating his rights under the Sixth and Fourteenth Amendments. These claims are addressed separately.


Petitioner's first claim to entitlement of habeas corpus is based on his claim that he was in custody when he was interrogated at his home by Chicago police officer Segroves. On August 9, 1975, Segroves was on patrol on 21st Street in Chicago when he saw petitioner and another man run in front of his squad car with a group of people pursuing them. Segroves and his partner drove down 21st Street to Leavitt where they saw an ambulance and a man being placed on a stretcher. Segroves learned the injured man had been involved in a fight, and heard that two people involved in the attack had been chased by a group of people. He further learned from a teenager that one of the men running (petitioner) was named Greg and lived at petitioner's address.

At 2:50 a.m., Segroves went to petitioner's home and spoke to him on his front porch. Segroves asked petitioner about the incident, and petitioner said he and Ricardo Amora had been chased by a group of Mexicans for unknown reasons. Segroves asked petitioner to come to the hospital. On the way there they went to Amora's home, where they picked him up and drove to the hospital. There some people identified Amora in connection with the incident, and Segroves arrested both of them.

Petitioner's claim for habeas relief based on the contention that he was in custody at the time he was interrogated at his home and on the way to the hospital requires little response from this court. The record contains more than ample evidence that he was not in custody until he was placed under arrest at the hospital. The test for whether one is in custody is whether a reasonable person under the circumstances would have felt free to leave. The test is an objective one, United States v. Kennedy, 573 F.2d 657, 660 (9th Cir. 1978), and "no single criterion is necessarily decisive." United States v. Jordan, 557 F.2d 1081, 1083 (5th Cir. 1977). The record indicates that petitioner was questioned in the familiar surroundings of his home, rather than in a police station. At times during the questioning at home, petitioner's mother was present. She accompanied him to the hospital as well. Therefore, there was not the sort of incommunicado interrogation found coercive in Miranda. Petitioner was never told that he was not free to leave, nor were any words said which would imply that he could not leave. There were only two officers present, and there is no suggestion that they displayed weapons. In fact, the state trial court found that the officers were non-aggressive and polite throughout their investigation.

While petitioner is correct that the presence of probable cause for arrest at the time of interrogation is a factor, it is only one factor. Moreover, it is questionable whether Officer Segroves had probable cause for arrest at the time he began questioning at petitioner's home. When Segroves went to petitioner's home, he had simply heard that two people involved in the attack had been chased by a group of people and that a teenager had identified petitioner as one of the men running. During questioning, petitioner admitted he had been chased by the group, and identified Amora as his companion. Only upon picking up Amora was Segroves able to confirm from personal knowledge that Amora was one of the two persons who had been chased. Finally, it was not until reaching the hospital that Segroves obtained the identification of Amora as one of the men involved in the attack. At each of these stages information was obtained which provided an additional link, or confirmed a previously suspected link, between petitioner and the crime. It is at least arguable that Segroves did not have probable cause until the time of the arrest at the hospital.

Based on this information, this court would conclude that petitioner was not in custody at the time of the questioning even if the court was examining the evidence de novo. Here, however, the state trial court and appellate court have already concluded that petitioner was not in custody during the relevant time, and this finding is entitled to a presumption of correctness. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). As petitioner has clearly failed to overcome this presumption, summary judgment on ground one of petitioner's amended petition for writ of habeas corpus is granted in favor of respondent.


Petitioner's second claim presents a much closer legal question. This claim stems from the interrogation of petitioner after formal charges had been filed against him. The interrogation here at issue took place in the lock-up area of the courthouse after the petitioner appeared before a Circuit Court judge. Petitioner was advised by that judge to remain silent and that he should speak to a lawyer before he spoke to anyone. (Record at 96, 124). Also, he was told that if he could not afford a private attorney, he should request representation by the Public Defender, and an attorney would be assigned to him. After leaving the courtroom petitioner was placed in the lock-up, where he was approached by a police investigator, William Baldree, and an Assistant State's Attorney Parkerson. At this time petitioner was given the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After each right was told to him, petitioner nodded his head and stated "yes." Subsequent to receiving his Miranda warnings and without the presence of counsel, petitioner made several different statements relating to the incident underlying the charges against him. At trial these statements, over objection, were introduced as part of the prosecution's case against petitioner.

The Sixth Amendment right to counsel*fn1 attaches at the time adversary judicial proceedings are initiated against a person, "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977).

By Illinois statute, prosecutions begin upon the issuance and filing of a complaint, information, or indictment. See, Ill.Rev.Stat. ch. 38, §§ 111-1 and 111-2; People v. Billings, 52 Ill. App.3d 414, 424, 9 Ill.Dec. 903, 912, 367 N.E.2d 337, 346 (1st Dist. 1977). Therefore, "[t]here is no question but that after the defendant is charged either by information, complaint, or indictment, it is an adversary proceeding and he is entitled to counsel." People v. McDonald, 23 Ill. App.3d 86, 90, 318 N.E.2d 489, 491 (2d Dist. 1974), aff'd 62 Ill.2d 448, 343 N.E.2d 489 (1976). As formal charges had been filed against the petitioner prior to his interview in the courthouse lock-up, petitioner's right to assistance of counsel under the Sixth and Fourteenth Amendments had attached at the time he was questioned. People v. Johnson, 96 Ill. App.3d 763, 771, 422 N.E.2d 50 (1st Dist. 1981).

Petitioner's claim is based on the Sixth Amendment rule established in Massiah v. U.S., 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) where the Supreme Court held:

  [T]he petitioner was denied the basic protections of
  [the Sixth Amendment] when there was used against him
  at his trial evidence of his own incriminating words,
  which federal agents had deliberately elicited from
  him after ...

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