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People v. Dyer

OPINION FILED MARCH 5, 1986.

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

v.

CLIFFORD A. "TONY" DYER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Montgomery County; the Hon. Joseph L. Fribley, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

Defendant, Clifford A. "Tony" Dyer, was charged with armed robbery and armed violence. Following a jury trial in the circuit court of Montgomery County, he was found guilty and sentenced to concurrent terms of 15 years for armed robbery and 30 years for armed violence. Defendant appeals. We affirm.

The pertinent facts adduced at trial are as follows:

Deputy Sheriff Tom Unser testified that he was notified at approximately 10:23 p.m., on July 1, 1984, that a clerk at Fuller Brothers Liquor Store had been robbed at gunpoint. He immediately responded to the call and arrived there by 10:25 p.m. He was told that two white males wearing masks had entered the store from the back door, threatened the clerk with a shotgun, taken money from the cash register, and fled out the back door. He testified that he remained at the store less than a minute to hear the victim's version of the crime. He then immediately proceeded to patrol the road directly in back of the store — the Fillmore Blacktop Road. Approximately two miles south of the store, he saw a vehicle's taillights. The vehicle was heading south, away from the crime scene. This vehicle was the only vehicle he saw in the vicinity of the crime. He explained that the area was virtually undeveloped and that there were no other stores, restaurants, or bars in the area.

Deputy Unser testified that the vehicle was traveling on a road that intersected with the Fillmore Blacktop, 1500 E. When he arrived at 1500 E's intersection with the Fillmore Blacktop, he turned onto 1500 E and drove toward the other vehicle at an excessive rate of speed. He momentarily lost sight of the vehicle as it crested a hill. He continued south and was met by what he perceived to be the same vehicle he had been following, traveling at an excessively slow rate of speed. Deputy Unser stated that he continued down the road and turned west onto a private drive in order to back up and follow the vehicle. He further testified that when he turned into a driveway he observed recent track marks where a vehicle had backed out, confirming his original conclusion that the vehicle which had passed him had turned around. He relayed the car's license number by radio for a check because he considered the car's reversing direction a suspicious move. He turned on his squad car's red lights and stopped the car.

Deputy Unser testified that he approached the vehicle on foot and observed three white males in the car. He stated he did not have his gun drawn but requested the driver to exit the vehicle and place his hands on the roof of the car. He recognized the driver as Jeff Smith and the other occupants as Paul Seago and Clifford "Tony" Dyer. Deputy Unser asked Smith for his driver's license and called it in. Deputy Unser also called for assistance. Sheriff Moore, Deputy Kimbro, and Deputy Hamrock arrived to assist him. Sheriff Moore received permission to search the car but found nothing. He then drove to the liquor store, spoke to the clerk, and returned to the stop. He took notes on the clothing worn by the three men and drove back to the liquor store, where one of the clerks informed him that she might be able to identify one of the robbers. The sheriff immediately returned to the scene of the stop and asked the men if they would go to the Fuller Brothers Liquor Store to let the clerk have a look at them. Dyer queried, "If the clerk doesn't identify anybody, can we go?" The sheriff agreed and led the way to the store in the squad car. Deputy Kimbro followed behind the Smith car. The sheriff then showed the three men to one of the clerks, and she identified Mr. Smith as the man who had worn a dark nylon stocking over his face during the robbery. She also told the police that Mr. Dyer had the same build as the man who had worn the ski mask and carried the gun during the robbery. The three men were taken to jail and on July 2, 1984, charges of armed robbery and armed violence were filed.

Bills of indictment on those charges were returned July 12, 1984, and the defense filed a motion to quash the arrest for lack of probable cause and suppress the resulting evidence on August 3, 1984. A hearing was held on September 13, 1984, and the motion was denied.

On December 5, 6, and 7, 1984, defendant was tried before a jury and found guilty of armed robbery and armed violence.

Defendant appeals, contending that the trial court erred in denying defendant's motion to quash the arrest for lack of probable cause and suppress the evidence that resulted therefrom. Defendant asserts that the arresting officer stopped the car in which the defendant was a passenger on bare suspicion and arrested the defendant with no further facts to form probable cause.

We must initially note that the trial court's findings as to the time the actual arrest occurred are somewhat ambiguous. Therefore we will now provide the court's findings in their entirety and examine them.

"Having considered the evidence presented at the hearing on motion to quash arrest and suppress evidence and the memorandum in support of said motions the court makes the following findings: 1) the defendants were under arrest and 2) there was probable cause for defendants' arrest. Deputy Unser took a route of pursuit on a rural county road which, under the circumstances, was the route most likely taken by the suspects and he took pursuit within minutes of the occurrence. Deputy Unser saw only one vehicle and followed it. Being very familiar with the rural area, when the vehicle turned around in a country lane, Deputy Unser made a judgment the vehicle was taking evasive action and stopped the vehicle. In the vehicle were the three defendants charged in this cause. The court concludes Deputy Unser had probable cause to stop the vehicle. Did the officer have probable cause to hold the defendants for further investigation? The court concludes the officer had reasonable suspicion that these defendants had committed a crime. An armed robbery had occurred in a small rural county — an unusual occurrence [sic] for this county. Found near the Hillsboro scene were three Litchfield residents familiar to law enforcement officers. Each of the three defendants has a history of criminal activity. One has a previous conviction for armed robbery. These defendants and their criminal propensities are well known among law enforcement in the county. This fact, combined with defendants traveling on a rural road at that time of evening away from their communities of residence and all other circumstances, can lead to no other conclusion but that the officer had probable cause to detain these defendants. We are not considering proof beyond a reasonable doubt but simply probable cause. The court finds the officers conduct constitutionally acceptable and denies the motions. Clerk to notify counsel."

We note that the initial broad findings of the court indicate that defendants were under arrest and that there was indeed probable cause for the eventual arrest. However, the court fails to state exactly when the arrest occurred. In the detailed explanation given by the court, the court stated that Deputy Unser had probable cause to stop the vehicle. This indicates that the court was referring to an investigatory stop, not an arrest. Next the court rhetorically asks, "Did the officer have probable cause to hold the defendants for further investigation?" This statement again indicates that the court at this point still considered the detainment to be an investigatory stop, not an arrest. The court eventually concluded that the police had probable cause to detain the suspects for further questioning. Thus we find we must address two issues: (1) whether the investigatory stop was proper, and (2) whether there was probable cause for arrest, and, if so, when it occurred.

• 1 We first consider the permissibility of the investigatory stop. With Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, the United States Supreme Court recognized a limited exception to the probable cause requirement, which was intended to allow police to briefly detain a person for investigatory purposes. Under Illinois codification of the Terry rule (Ill. Rev. Stat. 1983, ch. 38, par. 107-14), a police officer may, after identifying himself, stop a person in a public place for a reasonable period of time if the officer reasonably infers from all of the circumstances that a person is about to commit or has committed an offense. A mere hunch or suspicion is not sufficient to justify an investigatory stop. People v. Waln (1983), 120 Ill. App.3d 73, 76, 457 N.E.2d 979, 980.

Deputy Sheriff Tom Unser testified both at trial and at a hearing on defendant's motion to quash arrest for lack of probable cause and suppress the evidence. On July 1, 1984, at approximately 10:20 p.m., he was notified that a clerk at Fuller Brothers Liquor Store had been robbed at gunpoint. He responded to the call immediately and was able to reach the store in about "one or two minutes." He heard the victim telling the other officer at the scene that two white males had entered the back door of the store and were armed with a shotgun. He immediately left the store to check for any suspicious vehicles in the area. He began to patrol the road directly in front of the defendant's departure point — the Fillmore Blacktop Road. After traveling down the road for a few minutes, Deputy Unser noticed a vehicle that was heading south on a side road of the Fillmore Blacktop, away from the scene of the crime. The vehicle was only two miles from the scene of the crime and was the only car he observed in the vicinity. Deputy Unser further stated that there were no stores, restaurants, or bars in the area, just farms and farmland. He stated that when he got to the intersection of 1500 E — the road he had spotted the other car on — he went south onto it. He then momentarily lost sight of the vehicle after it crested a hill. He proceeded south and met the vehicle coming very slowly back toward him. He realized that it was the same vehicle he had been following because he had visibility of a quarter to one-half a mile before reaching the hill and observed no other cars in the area. He got the license plate number of the vehicle and turned around in a driveway and proceeded north. When he turned into the driveway, he noticed that there were track marks where a vehicle had ...


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