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People v. Jackson





Appeal from the Circuit Court of Will County; the Hon. Thomas W. Vinson, Judge, presiding. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Defendant, Melvin Jackson, was found guilty of the burglary of an automobile after a jury trial in the circuit court of Will County. Conviction was entered and he was sentenced to a five-year term of imprisonment. In this appeal, defendant takes issue with the trial court's denial of his pretrial motion to suppress, its denial of his motion for a mistrial for possible tainting of the jury, and its denial of his motion for a new trial on grounds of prosecutorial misconduct. We affirm.

Defendant was arrested in the afternoon of February 6, 1985, in the parking lot of a Bolingbrook shopping center. He was subsequently charged, together with Ricky Cotton and Donald King, with having entered a black 1978 Trans Am belonging to Susan Field with the intent to commit a theft. The circumstances leading up to defendant's arrest, as presented at the hearing on his motion to suppress, follow.

Dennis Wheeler, a freshman student in a law-enforcement program, was riding on patrol with police officer John Moravecek of the Bolingbrook police department as part of his internship on February 6, 1986. At the suppression hearing, Wheeler testified that he and Moravecek monitored three radio dispatches between 1:45 and 2:10 p.m. concerning the theft of a vehicle from the Hillcrest Shopping Center around 1:30 that afternoon. According to the broadcast messages, the theft had been committed by three black males driving a blue van, possibly a Dodge, with blue recreational license plates. The officers were also cautioned that one of the men may have been carrying a 4-inch steel-plated revolver. The blue van was reported as having been last seen traveling northbound from mile post 264 around 1:50 p.m., on I-55.

After hearing the third dispatch around 2:10 p.m., Moravecek was north of mile post 264, and he parked his squad car on the northbound entrance ramp at Interstate 55 at the intersection of Route 53 and I-55, having stopped a vehicle for no license plates. Wheeler remained in the squad car while Moravecek walked over to issue a citation. Wheeler next saw Moravecek pointing and gesturing to him to look at a blue van on the northbound exit ramp at a stop light directly across from where the squad car was parked. Wheeler saw two black males seated in the front of the van looking back at the squad car, which still had its mars lights flashing. As he watched, the passenger slouched down in his seat. When the light changed, the van crossed three or four lanes of traffic without signaling and proceeded north on Route 53.

Moravecek returned to the squad car and backed down the ramp to follow the van. The mars lights remained on, but Moravecek did not activate his siren. Enroute, Moravecek radioed to the dispatcher that he believed he had the blue van involved in the Hillcrest theft in sight. The van pulled into the Bolingbrook shopping-mall parking lot and parked. As Moravecek and Wheeler pulled into the lot, another squad car pulled up to assist. Moravecek parked up behind the van and Officer Gunthy, in the second squad car, pulled up along the driver's side of the van. Both officers approached the van with guns drawn.

The driver (defendant) got out of the van. He was placed against the van, and the two officers proceeded to frisk him as Wheeler over-heard another radio dispatch. This dispatch provided further information about the van's driver, describing him to be about 5 feet 11 inches tall, weighing about 150 pounds, and wearing green coveralls and a black stocking cap. A search of the defendant yielded a pair of 8-inch silver-colored modified vice grips. No gun was found. Wheeler testified that he thought the radio broadcast physical description of the driver was close to that of the defendant, although he said that the defendant was wearing blue coveralls. The passenger also stepped out of the van. He was not wearing green coveralls. Wheeler stated that a green army jacket and a black knit cap were subsequently found in the van. A screwdriver, empty beer cans and a bottle of alcohol were also found. Wheeler noted that the van had cardboard over the grille. Moravecek inquired via radio whether the van involved in the auto theft had had cardboard over the grille, and a response was returned that it had.

At the scene of the arrest, defendant identified himself as Terry Jackson. He had neither a driver's license nor any identification. A registration check on the van was returned inconclusive. Defendant was subsequently taken to the police station for booking, and the van was towed.

Defendant testified that he had used several aliases, but that his correct name is Melvin Jackson. He stated that he had taken his girlfriend's van as a practical joke on February 6, 1985. He and a friend, Ricky Cotton, had headed south on I-55 and he observed Moravecek's squad car with the flashing mars lights at the intersection of I-55 and Route 53. Defendant denied breaking any traffic laws or drinking in the van. He denied having had a second passenger in the van earlier on the day of his arrest. Defendant said he pulled into the mall parking lot to do some shopping for his son. When he parked, he heard the police yell at him and Cotton to get out with their hands up. No arrest warrants and no search warrants were produced.

No other witnesses testified at the suppression hearing. At the close of the defendant's evidence, the prosecution moved for a "directed" finding that at the time of defendant's arrest the officers had probable cause to believe that the defendant had committed an auto theft. After arguments of counsel, the trial court granted the prosecutor's motion and denied defendant's motion to suppress all evidence and statements as fruit of the poisonous tree.

• 1 Clearly a warrantless arrest is not valid unless supported by probable cause. Where, however, the totality of the facts and circumstances known to the officers at the time of an initial detention are not such that a reasonably prudent person would believe that the subject is committing or has committed a crime, but would nonetheless support such a reasonable inference, the detention, if temporary and relatively non-intrusive, may be justified, allowing for the officer to discover sufficient facts to support a subsequent arrest. Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868; Ill. Rev. Stat. 1985, ch. 38, par. 107-14.

Here, as is so often the case when a vehicle is involved, questions are raised as to whether the initial detention was a valid Terry stop or was based on a mere hunch, and when did the situation escalate to an arrest — at the time defendant stepped out of the van in response to the arresting officers' command, as suggested by defendant; or after Moravecek's pat-down search and his discovery of the modified vice grips in defendant's pocket, as contended by the prosecution.

• 2, 3 The trial court found that Moravecek had probable cause to arrest "based upon the radio broadcast and that there's no prima facie case to the contrary." On review, we need not accept the trial court's reasons for ruling as it did, but we must determine only whether the trial court's decision to deny the defendant's motion to suppress is contrary to the manifest weight of the evidence. (People v. Dyer (1986), 141 Ill. App.3d 326, 332, 490 N.E.2d 237, 241, citing People v. Tobe (1971), 49 Ill.2d 538, 547, 276 N.E.2d 294, 300.) Factors to be considered in determining whether a detention is an investigatory stop or an arrest include:

"the demeanor of the police officer, display of a weapon by an officer, physical touching of the person, and the use of language or tone of voice. Other considerations include whether defendant is handcuffed or placed in a squad car [and] the duration of detention." People v. Dyer (1986), 141 Ill. App.3d 326, 332, 490 N.E.2d 237, 242.

From the radio dispatch, Moravecek knew that he was looking for a blue van, possibly a Dodge, with blue plates and male, black occupants. The van was last seen heading north on I-55 from mile post 264. In addition, Moravecek's first sighting of the van coincided in time, distance and direction with the information from the radio messages. The officer knew that two black males were seated in the front. The van matched the description of the van described in the messages, even though it was subsequently determined to be a Ford, rather than a Dodge. Wheeler's testimony further established that the passenger, Rick Cotton, slouched in his seat as Wheeler looked at him from the parked squad car. This furtive movement, coupled with a near match with the descriptions of the van, its occupants, and the physical and temporal proximity of the ...

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