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People v. Hardy





Appeal from the Circuit Court of Adams County; the Hon. Dennis K. Cashman, Judge, presiding. JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:

Defendant was convicted of burglary in violation of section 19-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 19-1), and was sentenced to four years' imprisonment. He appeals, contending that certain evidence and statements attributable to him should have been suppressed due to an alleged illegal seizure in violation of the fourth and fourteenth amendments as well as alleged police coercion in violation of his sixth amendment rights. U.S. Const., amends. IV, XIV, VI.

Defendant was charged by information on November 5, 1984, with one count of burglary. On January 4, 1985, defendant filed two motions to suppress the evidence. A hearing was then held before the circuit court of Adams County concerning the motions to suppress on February 1, 1985.

Testimony elicited at the suppression hearing may be summarized as follows: Sergeant Ronald Lance of the Adams County sheriff's department stated that on November 5, 1984, at about 5:20 a.m., he was on his way to breakfast prior to going on duty when he noticed a pickup truck parked at the northwest corner of Jefferson and Main Streets in Clayton, Illinois. Sergeant Lance noticed one occupant in the vehicle. He recalled that the truck was "sitting in the shadows," partially parked on the paved portion of the street. The motor was running, but the truck's lights were off. Sergeant Lance indicated he was familiar with most of the residents and vehicles in the small town, as he himself was a long-time resident, but that he failed to recognize either the truck or its occupant.

His suspicions aroused, Sergeant Lance turned his unmarked car around, approached the truck, and asked the occupant, the defendant, for some identification. Sergeant Lance was wearing his uniform at the time. Defendant handed Sergeant Lance his driver's license, which indicated defendant lived in Quincy. When asked what he was doing in Clayton, defendant responded he was in town to visit some friends, but he could not name them, nor could he locate where they lived. He stated he was having difficulty with the truck. The truck had no license plates, but the vehicle sticker on the window showed it was registered to a John Kindhart of Missouri. Defendant told Sergeant Lance that he had borrowed the truck from Kindhart to come to Clayton.

Sergeant Lance then noticed items he classified as antiques, consisting of old furniture and dishes, in the back of the pickup. Defendant stated he had "no knowledge" of those items, and that they probably belonged to Kindhart. Lance informed defendant that there had been several thefts of antiques within the past few days in the Quincy area as well as within the last six months in Clayton. Lance told the defendant that "if he [defendant] didn't mind," he would keep the driver's license while checking out a few places in town to see if they had been broken into. Defendant replied that that was fine, but he was in kind of a hurry to get the truck back to Kindhart. Initially, Sergeant Lance drove a few blocks away, parked out of sight, and shut off his lights to see if the defendant would "run." When it became apparent that the defendant would wait, Lance then checked two homes in town which he knew contained antiques. He found no evidence of break-in or burglary.

Upon his return, Lance apprised defendant that "everything was okay," and asked defendant his destination. Defendant stated he would be going to Taylor to return the truck. Sergeant Lance then asked defendant "if he would consider following [him] to the sheriff's department" in Quincy to have pictures taken of the contents of the truck and answer a few more questions. Defendant stated he would accompany the officer because it was "on his way anyway," but reminded the officer that he was in a hurry to return the truck. Significantly, Sergeant Lance never returned the defendant's driver's license, and never told him he was free to go.

Upon leaving Clayton, Sergeant Lance radioed his dispatcher and instructed that John Kindhart be contacted to confirm ownership of the truck. The dispatcher later related that Kindhart said he had sold the truck to defendant and denied having anything to do with the contents in back.

Upon their arrival in Quincy, defendant was led to a squad room. The door was closed behind him. No one ever informed defendant that he was free to go, and he never inquired whether he could do so. While the defendant was in the room, Lance discussed the morning's events with Sergeant Edward Curliss, who disclosed a tip he received that stolen antiques were being taken out of the county into Missouri. Curliss subsequently accompanied Lance to the squad room for further questioning of the defendant.

Once inside the squad room, Sergeant Lance told the defendant that some of the questions he would ask might be incriminating, and therefore read him his Miranda rights. Defendant indicated he understood the Miranda warning, although initially he had difficulty distinguishing what was meant by "persuasion" and "coercion." Sergeant Lance testified he instructed defendant that any cooperation on his part would be reflected in their report to the State's Attorney's office. After being informed of his rights, but before signing the waiver sheet, defendant admitted that he had stolen the items in the truck, and further informed the officers which building in Clayton they had been taken from.

Sergeants Lance and Curliss continued to interrogate the defendant. They were joined by two sheriff's deputies, Ray Neede and Russell Garrison, who were intermittently present in the squad room during questioning. The testimony of Sergeant Curliss and Deputy Sheriff Neede at the suppression hearing essentially duplicated Lance's account of the questioning of the defendant, although Curliss indicated it was only after defendant made his incriminating statements that he was told his cooperation would be noted in their reports. Deputy Garrison, however, was not called upon to testify at the suppression hearing.

Defendant testified he was having trouble with the truck when Sergeant Lance approached, confiscated his license and began questioning him. Defendant stated he felt like he was "under arrest or something" at that time. He also stated he thought he was under arrest when he first got to the police station, although the officers did not so indicate until later. Defendant testified that the officers initially threatened to revoke his probation unless he cooperated. He further related that Sergeant Curliss told him: "I know you're dirty. You might as well come clean."

The motions to suppress the evidence and statements were denied. A motion to reconsider was also denied.

During defendant's bench trial on April 1, 1985, the State called Sergeant Lance, Sergeant Curliss, and Deputy Neede, all of whom reiterated, for the most part, their previous testimony. When the State then called Deputy Garrison as a witness, defense counsel objected, noting he had not been called during the suppression hearing. The record indicates some discussion at trial as to a stipulation allegedly agreed upon at the time of the suppression hearing that Garrison could not testify that day because he was "having medical treatment." Neither the trial judge nor defense counsel had any specific recollection of it. Nevertheless, Deputy Garrison was allowed to testify; he stated he was present for 15 to 20 minutes during questioning of the defendant, but he was not there during the giving of the Miranda warning.

• 1 Defendant contends, initially, that the investigatory stop was in fact a constitutionally impermissible "seizure" without probable cause, and therefore all evidence subsequently obtained should have been suppressed. In Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, the United States Supreme Court recognized a narrow exception to certain investigatory stops or seizures of the person which do not rise to the level of full arrests. Two acknowledged justifications support this distinction. First, while a stop is still subject to fourth amendment scrutiny, it involves a lesser intrusion upon individual freedom than a traditional arrest. (392 U.S. 1, 26, 20 L.Ed.2d 889, 909, 88 S.Ct. 1868, 1882.) Second, a valid and properly limited Terry stop serves the legitimate governmental interest of effective crime prevention and detection which, under some circumstances, is substantial enough to outweigh the privacy interests of the individual. Thus, when the intrusion on the person is minimal, and the law enforcement interests outweigh the privacy interests otherwise infringed, a police officer may stop and question an individual when he "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot * * *." (392 U.S. 1, 30, 20 L.Ed.2d 889, 911, 88 S.Ct. 1868, 1884.) The officer must be able to point to specific and articulable facts which, taken together with the rational inferences therefrom, reasonably warrant the intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L.Ed.2d 889, 906, 88 S.Ct. 1868, ...

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