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People v. Millender

OPINION FILED FEBRUARY 3, 1986.

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

v.

RICKIE MILLENDER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of St. Clair County; the Hon. Richard Hudlin, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

Defendant, Rickie Millender, was charged in St. Clair County with forgery. On March 11, 1985, the trial court entered an order granting defendant's motion to suppress evidence and defendant's statement. The State appeals the granting of the motion to suppress the evidence seized at the time of the defendant's arrest and the defendant's subsequent confession.

The following evidence was presented at the preliminary hearing:

Defendant testified that on or around August 13, 1984, he was in the vicinity of the K mart store. He stated that he was talking with some other fellows when a man he knew to be a policeman came up to him, pulled a big pistol, and told him to "hold it." At that time defendant was wearing a gray jogging suit. He testified that the police officer kicked him, put handcuffs on him, threw him inside of a car, and took him to a Wal-Mart store. He stated that he was not taken inside the store, but there were people walking around the car. Defendant told the court that he was not shown an arrest warrant.

During cross-examination of defendant, it was learned that at the time of his arrest he was carrying a K mart bag. Inside the bag was a black hat and a black shirt. Defendant identified People's exhibit No. 2 as a pair of black pants which belonged to him and stated that he was wearing the black pants under the sweatsuit at the time he was arrested.

Mark Heffernan, a Belleville police department detective, also testified. He stated that on August 13, 1984, between 3 and 4 in the afternoon, he was at police headquarters. He heard over the radio dispatch that the district cars were looking for a black male, with a tall and husky build, wearing black shorts, black tank top and a black cap, in connection with a forgery that had occurred at Wal-Mart. When he arrived in the vicinity of the crime he observed defendant, whom he knew, standing by a chain link fence that separated the National Pride Carwash and the McDonald's Restaurant. Defendant was yelling at a car, asking for a ride. Detective Heffernan stated that he approached the defendant, who was wearing a gray sweatshirt and sweatpants. Detective Heffernan stated that the reason why he approached defendant was that defendant, except for his clothing, fit the description he had been given.

Detective Heffernan stated that as he approached defendant, defendant reached inside the bag, at which time Detective Heffernan drew a service revolver and ordered defendant to halt. Detective Heffernan seized the bag, looked inside and saw a black shirt and black hat. On further investigation, the detective found that defendant was wearing black shorts under his sweat clothes. Detective Heffernan stated that he then arrested defendant and that he based the arrest on a number of factors, including the description he received over the radio dispatch, the time lapse involved, the obviously brand new clothes that defendant was wearing, and the black clothes that were found in the bag.

Detective Heffernan admitted during cross-examination that there was nothing illegal about having new clothes on, but he elaborated, stating it was not common for a person to go into a store, purchase new clothing, and then wear the new clothing home.

The detective also told the court that the shop clerk could not make a positive identification of defendant at that time. He further admitted that at the time defendant was brought to Wal-Mart, the circumstances of the offense had not been sorted out. They only knew that a man in black clothes had been with two other individuals who had been using credit cards that were not theirs. The detective held defendant because he believed him to be one of the suspects and had no information at that time that defendant had actually used the credit card. He further stated that he looked into the bag to make sure that there were no weapons.

The State then moved to admit the exhibits, but defendant objected. The court then denied the admission of the exhibits.

The trial court reasoned that no problems were created by the 25-minute delay between the original broadcast and the time when the detective observed defendant, by the fact that defendant was taken back to the Wal-Mart where the apparent offense occurred and had a confrontation with the individual cashier in the particular incident, or by the search of the bag. However, the court found that defendant did not fit the broadcasted description other than he was a husky, relatively tall black man. The fact that defendant was yelling to individuals in the car for a ride out of the area as the police officer testified would not assist the police in their identification because at that point defendant was not doing anything illegal. Thus the court determined that the police officer did not have probable cause and granted the motion to suppress the evidence seized.

Next the court considered defendant's motion to suppress his confession. The State called Detective Michael Boyne. Detective Boyne related to the court his procedure for the interrogation of a suspect, which includes the giving of Miranda warnings. People's exhibit No. 3, the Belleville police department Miranda warning sheet, was then marked for identification. Detective Boyne stated that on the 14th day of August, 1984, he interviewed the defendant. He further testified that defendant said that he understood the warnings that he was being given and that defendant initialed the form. The detective stated that defendant read the form, understood it and signed it. The form among other things indicated that defendant was waiving his right to counsel and that the statement could be used against him in a subsequent trial. The detective stated that he did not threaten the defendant in any way nor did he promise him anything. Defendant made and signed a statement on August 14, 1984, that was marked People's exhibit No. 4.

On cross-examination, Detective Boyne stated that he did not see the defendant on August 13, 1984. He testified that Detective Heffernan was the detective in charge of this particular case. He further stated that during the time the defendant was being given his rights and the interview was commencing, the defendant asked to make a telephone call, which he was allowed to make. However, he did not remember at which point the defendant asked to make the phone call. He stated that he believed the defendant had been arrested the previous night and that it would have been normal procedure for the department to have allowed the individual to make a telephone call shortly after being taken into custody. Detective Boyne stated that he went to talk to the defendant that morning because he was working the day shift and Detective Heffernan was working the night shift. Boyne stated that he was aware at the time he talked to the defendant that the defendant had not signed the Miranda form when first spoken to by Detective Heffernan. Detective Boyne also stated that he assumed that when he was reading the defendant his Miranda warnings, if the defendant chose to assert that right he would tell him so. He stated that if the defendant had asked to see an attorney after being advised of all the rights, he would not have asked him any further questions. He stated that there were a number of reasons why a defendant would refuse to sign the admonition form without necessarily asserting his right to remain silent.

On redirect, Detective Boyne stated that the defendant told him that he would not talk to Detective Heffernan but would talk to him. Detective Boyne stated that at no time during the interview did ...


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