Appeal from the Circuit Court of Cook County; the Hon. Robert
J. Collins, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Richard Williams (defendant) was convicted by a jury in the circuit court of Cook County of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2) and murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(3)) and was sentenced to concurrent terms of 40 years for murder and an extended term of 40 years for armed robbery. Defendant here contends that the trial court erred in denying his motion to suppress statements and physical evidence and that the sentences imposed were excessive.
At the hearing on defendant's motion to suppress, Detective Minogue testified for the State: he and his partner, Detective Oravetz, were assigned to investigate the February 13, 1982, murder of Mr. Cha, who was found beaten and shot to death in the novelty store he owned in Chicago. On February 24, 1982, Detectives Oravetz and Minogue interviewed Lonnie Reid in connection with the Cha murder. After Reid was given his Miranda warnings, he told the detectives that he lived with defendant, defendant's brother and defendant's sister in the first-floor apartment at 6041 South Calumet, in Chicago. A few days before Cha's murder, defendant had told Reid that defendant would like to rob Cha "if the opportunity arose and [defendant] needed some money." Shortly after Cha's murder, defendant brought to the apartment four bags of merchandise which defendant told Reid had come from Cha's store. Reid stated that the two gold chains Reid was then wearing around his neck were given to him by defendant and that they too came from Cha's store. Reid further advised the detectives that there was a .22 pistol in the apartment "hidden on a shelf near a horse."
The police officers then presented Reid with a "consent to search" form for the apartment he shared with defendant, which Reid signed in their presence. The officers then went to the apartment building and knocked on the door of the apartment located on the first floor left. Ms. Belinda Shenault, defendant's sister, opened the door. After introducing themselves as police officers, Ms. Shenault "allowed" them into the apartment, wherein defendant and his brother were arrested. The gun was recovered from the area designated by Reid, as were various items of merchandise which Minogue stated were similar to the kind of merchandise he had observed in Cha's store. Ms. Shenault assisted the officers in their search for merchandise. At the police station, Minogue read defendant his rights and interrogated him for 30-45 minutes.
Detective O'Callaghan testified for the State: on February 25, 1982, at 9 a.m., he read defendant his rights and interrogated him. After some 30 minutes, O'Callaghan returned to defendant's apartment and recovered several articles of clothing. Returning to the station, O'Callaghan further interrogated defendant for 15 minutes, after which O'Callaghan went to a novelty shop where additional merchandise taken in the Cha robbery was recovered. At 5 p.m. defendant confessed to his participation in the robbery and shooting of Cha.
Assistant State's Attorney John Cooney testified that on February 25, 1982, at 7 p.m., he was present when defendant made a statement regarding the Cha killing; defendant was not beaten or threatened, and did not request an attorney. The State then rested.
The only witness called by defendant on his motion to suppress was Detective Silvestrini. Neither Shenault nor Reid testified. The court denied defendant's motion to suppress, finding that Reid had executed a consent to search form, and that the police had probable cause to arrest defendant.
At trial the State introduced defendant's confession in which he admitted that he and Reid had committed the crimes; evidence that clothing recovered from defendant's apartment contained blood of Mr. Cha's type; and the testimony of the owner of the novelty shop from which items taken in Cha's robbery were recovered affirming that defendant had sold that merchandise to her.
• 1 Defendant contends that the search of his apartment and his arrest therein were illegal because the police were without a warrant, and the alleged "consent" to search the apartment was not shown to be voluntary.
The rule in Illinois is that:
"* * * the police cannot enter a person's apartment or home to effect a warrantless arrest based on probable cause alone. There must be factors of exigency justifying prompt police action [citations] or a showing of a consent to enter [citation]." (People v. Columbo (1983), 118 Ill. App.3d 882, 928, 455 N.E.2d 733.)
In the instant case, we believe it clear that the police had probable cause to arrest defendant. Probable cause exists if a reasonable and prudent person in possession of the arresting officer's knowledge would believe that the person arrested had committed a crime. (People v. Amft (1982), 109 Ill. App.3d 619, 440 N.E.2d 924.) Reid's statements that defendant, before the shooting, had expressed a desire to rob Cha and defendant's subsequent action in bringing four bags of merchandise into the apartment which he stated were taken from Cha's store, coupled with Reid's testimony that there was a .22 gun in the apartment established probable cause for defendant's arrest. See, e.g., People v. Beto (1980), 86 Ill. App.3d 622, 408 N.E.2d 293.
• 2 Probable cause to arrest, alone, however, is not sufficient to justify a warrantless arrest in defendant's apartment; the police must have a consent to search, or there must exist exigent circumstances justifying the police action. *fn1 The State contends that here the police had the consent of two persons, Reid and Shenault, which justifies their action. It is true that consent need not be given by the defendant himself; it may be obtained from a third party who has control of the premises. (People v. Bean (1981), 84 Ill.2d 64, 417 N.E.2d 608.) Defendant does not deny that Reid and Shenault could give valid consent for the search of the apartment; defendant does, however, contend that the State failed in this case to meet its burden to show that the consent given was voluntary.
• 3 "In warrantless arrest situations, the standard for valid consent to enter a dwelling which has been applied by the Supreme Court is whether the consent was voluntarily given. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L.Ed.2d 854, 93 S.Ct. 2041.)" (People v. Columbo (1983), 118 Ill. App.3d 882, 928.) It is the State's burden to demonstrate that the consent was voluntarily given. "[T]he consent must be proved by clear and positive testimony and it must be established that there was no duress or coercion, actual or implied. The prosecution must show a consent that is unequivocal and specific, freely and intelligently given." (People v. Wahlen (1982), 111 Ill. App.3d 194, 196, 443 N.E.2d 728.) ...