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People v. Wolfbrandt





Appeal from the Circuit Court of Warren County; the Hon. U.S. Collins, Judge, presiding. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant, David Wolfbrandt, was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)), armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a)), armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2) and conspiracy (Ill. Rev. Stat. 1981, ch. 38, par. 8-2). He and James Quirin had been previously indicted for these offenses by the grand jury of Warren County. The circuit court of Warren County sentenced defendant to concurrent terms of 70 years, 30 years, 30 years, and 3 years imprisonment in the Illinois Department of Corrections. James Quirin's conviction for conspiracy is not at issue in this appeal.

During the early morning hours of December 7, 1981, Warren County Deputy Sheriff George Darnell was dispatched to a bulk fuel storage plant near Monmouth, Illinois. A caller reported to the sheriff's department suspicious activity at the plant. Upon his arrival at the plant, Deputy Darnell radioed the dispatcher he would be out of his squad car because he observed a tanker either loading or unloading fuel. This was the last message received from the deputy.

Subsequently, a Monmouth city policeman was sent to the plant, where he saw a Warren County squad car with its lights on, the driver's side door open, and the engine running. The officer found the deputy's body lying face up in the grass about 8 to 10 feet from the squad car. The officer further observed that Darnell was dressed in a deputy sheriff's uniform and had a gun in his holster. It was later determined that Darnell was shot twice in the head, once in the chest, and once in the abdomen.

In January 1982, agents of the Illinois Department of Law Enforcement, Division of Criminal Investigation (DCI), received information that defendant was involved in thefts of fuel and may have been responsible for the shooting death of Deputy Darnell. Surveillance of defendant's home in Davenport, Iowa, and surveillance of his blue and white 1972 freightliner truck (vehicle) in Bettendorf, Iowa, was initiated by DCI agents with the knowledge of local law enforcement officials. On the evening of January 31, 1982, defendant was followed by two DCI agents and two Warren County deputy sheriffs. Subsequently, these officers witnessed defendant commit the theft of a grain trailer in Washington County, Iowa. Agent David Reed and Deputy Don Breuer remained in Washington County to notify that county's sheriff, while Agent James Comrie and Deputy Gary Higbee pursued defendant. This pursuit led to Donnellson, Iowa, in Lee County. Reed and Breuer rejoined the pursuit and met Lee County Sheriff's Deputy Henshaw, who joined the pursuit. In Donnellson, the Illinois officials met with Lee County Sheriff Arnold, Deputy Henshaw, and a Donnellson city police officer. These officers decided to attempt an arrest of defendant for the trailer theft; however, defendant left Donnellson before the arrest could be made.

It was subsequently determined that defendant had entered the State of Missouri. Acting under the instructions of Sheriff Arnold, the officers again began the pursuit. Agent Comrie and Deputy Higbee located defendant near Taylor, Missouri, in Marion County. After requesting assistance from Missouri officers by radio, Comrie and Higbee placed defendant under arrest and held him until Sheriff Arnold and Missouri officers arrived. Defendant was advised of his constitutional rights and gave his name as David Hunter. A Sergeant Schroeder of the Missouri State Highway Patrol and Marion County Deputy Sheriff David Lovelace presented defendant with a printed Missouri consent-to-search form, which he subsequently signed. Lovelace and Corporal Gordon of the Missouri State Highway Patrol performed the search of defendant's vehicle. Two pairs of bolt cutters were seized from an unlocked toolbox attached to the rear of the truck. Defendant, at a subsequent suppression hearing, admitted ownership of these bolt cutters. Defendant was charged in Iowa with theft of the grain trailer, but these charges were later dismissed, and defendant was indicted in Warren County, Illinois, for the offenses of murder, armed robbery, armed violence and conspiracy. Trial commenced, and at its conclusion the jury returned a guilty verdict. Defendant has asked that we review numerous issues on appeal, and for the following reasons we affirm the decision of the circuit court.

The first issue on appeal is whether the trial court erred in denying defendant's motion to suppress physical evidence discovered during the search of his vehicle. Defendant first contends that the validity of the search must be resolved under Illinois law, citing People v. Saiken (1971), 49 Ill.2d 504, 275 N.E.2d 381, and People v. DeMorrow (1974), 59 Ill.2d 352, 320 N.E.2d 1, as authority for this proposition. We are not persuaded that these cases are determinative of the issue in question. Neither case involves the validity of an extraterritorial arrest and subsequent search. Both Saiken and DeMorrow held that the issues presented in their respective cases were evidentiary and, therefore, procedural. As the court in Saiken stated, "[t]raditional conflict principles prescribe that issues of clearly procedural nature are governed by the internal laws of the forum, whereas substantive matters are controlled by the laws of the State where the transaction occurred." 49 Ill.2d 504, 509, 275 N.E.2d 381, 385.

• 1 The United States Supreme Court has held that the question of reasonableness of a State search and seizure is governed by Federal constitutional standards as expressed in the fourth amendment and the decisions of the court in applying that amendment. (Ker v. California (1963), 374 U.S. 23, 10 L.Ed.2d 726, 83 S.Ct. 1623.) According to Miller v. United States (1958), 357 U.S. 301, 2 L.Ed.2d 1332, 78 S.Ct. 1190, and United States v. Di Re (1948), 332 U.S. 581, 92 L.Ed. 210, 68 S.Ct. 222, the validity of an arrest without a warrant is determined by the law of the State where the arrest took place. In accord with this ruling is People v. Clark (1977), 46 Ill. App.3d 240, 360 N.E.2d 1160, where the court stated that "* * * the validity of an arrest without a warrant for State offenses is determined by the law of the State in which the arrest occurred. * * *" (46 Ill. App.3d 240, 243, 360 N.E.2d 1160, 1163.) In the present case it is undisputed the arrest occurred in Missouri. We hold the substantive law of Missouri must be applied to determine the validity of defendant's arrest and the consequences of the arrest.

Defendant next contends that his arrest in Missouri was not justified under the doctrine or "fresh pursuit" or as a citizen's arrest. Generally, a peace officer is not granted the authority to make warrantless arrests outside of the political entity in which the officer serves, unless the officer is engaged in "hot" of "fresh pursuit" of a suspect. (See People v. Clark (1977), 46 Ill. App.3d 240, 360 N.E.2d 1160.) The doctrine of "fresh pursuit" in Missouri is governed by the Uniform Fresh Pursuit Law. The pertinent Missouri statute allows any member of a duly organized peace unit of another State of the United States who enters Missouri and continues within Missouri in fresh pursuit of a person believed to have committed a felony in another State the same authority to arrest as any law enforcement official of Missouri. The statute also states that "[f]resh pursuit * * * shall not necessarily imply instant pursuit, but pursuit without unreasonable delay." (Mo. Ann. Stat. sec. 544.155 (Vernon 1953).) Under Missouri law, therefore, the arrest of the defendant in the present case is valid if the arrest fits within the definition of "fresh pursuit" as determined by the circumstances of this particular case.

Here, the Illinois agents, while exercising surveillance over defendant in Iowa, witnessed him commit a felony. Clearly, the requirement of probable cause to effect an arrest was satisfied under these circumstances. (See Henry v. United States (1959), 361 U.S. 98, 4 L.Ed.2d 134, 80 S.Ct. 168; Beck v. Ohio (1964), 379 U.S. 89, 13 L.Ed.2d 142, 85 S.Ct. 223.) The felony was committed in Washington County, Iowa, and its sheriff's department requested the Illinois agents to assist in maintaining surveillance of defendant. The defendant continued driving and entered Lee County, Iowa, where the Lee County sheriff asked the Illinois agents to assist in making the arrest. Defendant, however, left the area before an arrest could be accomplished, and he subsequently entered Missouri. The Lee County, Iowa, sheriff and the Illinois officers pursued defendant, who was subsequently arrested in Marion County.

• 2 This arrest was valid because the requirements of the Missouri Fresh Pursuit Law were satisfied. The Illinois agents were members of a duly organized peace unit of another State who entered Missouri in fresh pursuit of a person known to have committed a felony in another State. This pursuit was carried out without unreasonable delay. Defendant argues that there was no fresh pursuit because he was not fleeing from his pursuers, and in fact, he was never aware of the officers behind him. We are not persuaded by this argument. Defendant is attempting to rely on the Illinois statutory definition of "fresh pursuit," which states, "`Fresh pursuit' means the immediate pursuit of a person who is endeavoring to avoid arrest." (Ill. Rev. Stat. 1981, ch. 38, par. 107-4(a)(3).) While the Illinois fresh pursuit statute is not applicable to this case, even if it were, we believe that the phrase "endeavoring to avoid arrest" does not mean that a person must be consciously aware of the pursuit, but rather than a person is fleeing the scene of the crime to avoid arrest. Since we hold the arrest valid under the doctrine of fresh pursuit, it is not necessary to dispose of defendant's contention that the arrest was not justified as an arrest by a private citizen.

Defendant next contends the consent to search his vehicle was illegally obtained and was, therefore, invalid. According to Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L.Ed.2d 854, 93 S.Ct. 2041, a valid consent to search must be freely and voluntarily given, and not the result of duress or coercion. Defendant cites cases which describe various factors used by courts> in considering all circumstances surrounding the consent to search. (See e.g., United States v. O'Looney (9th Cir. 1976), 544 F.2d 385; United States v. Cepulonis (1st Cir. 1976), 530 F.2d 238; United States v. Rothman (9th Cir. 1973), 492 F.2d 1260; United States v. Mapp (2nd Cir. 1973), 476 F.2d 67; People v. Shaver (1979), 77 Ill. App.3d 709, 396 N.E.2d 643.) While these cases are illustrative of factors which may be considered by a trial court in determining the validity of a consent to search, none support the defendant's claim his consent was involuntary as a matter of law.

• 3 A court of review will not disturb a trial court's decision on a suppression motion unless the trial court's finding was manifestly erroneous. (People v. Long (1983), 99 Ill.2d 219, 457 N.E.2d 1252.) In the present case, defendant was given a printed Missouri consent-to-search form, which he signed. At the time he signed this consent he had already been advised of his constitutional rights. There were two officers present at the time of the signing, but neither had a weapon drawn. In fact, testimony of witnesses disclosed that no force, threats, or promises were made to defendant to obtain the consent. Based upon the circumstances of this case, the trial court's finding that defendant's consent to search his vehicle was freely given is supported by the evidence.

The second issue on appeal is whether the trial court erred in moving the place of trial. Pursuant to defendant's motion for change of venue, the place of trial was moved from Warren County to Hancock County. Defendant contends that once a change of venue is granted and a new location is selected, it should not be to a county where the opportunity to select an impartial jury is even less likely than from the county from which the case is removed. Defendant argues he received no fairer a trial in Hancock County than he would have received had the trial remained in Warren County, because both counties were nearly identical in population; there was no jury commission in Hancock County to screen initial veniremen; one out of four prospective jurors was prejudiced by what he or she had heard or read; younger jurors were not available in Hancock County; and Hancock County was the nearest county to where the deceased had spent much of his life and where the prosecutor had spent his early years.

If a trial court determines there exists in the county where the prosecution is pending such prejudice against the defendant that he cannot receive a fair trial, it shall transfer the cause to the circuit court in any county where a fair trial may be had. (See Ill. Rev. Stat. 1981, ch. 38, par. 114-6(c).) In selecting this circuit court, the determination of the impartiality of potential jurors rests ...

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