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People v. Gomez

OPINION FILED SEPTEMBER 26, 1986.

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

v.

PEDRO GOMEZ, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. James M. Schreier, Judge, presiding.

PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Pursuant to Supreme Court Rule 604(a)(1) (87 Ill.2d R. 604(a)(1)), the State appeals from an order granting defendant's motion to quash his arrest and suppress evidence of his identification by the victim of a robbery. The State contends that there was probable cause to arrest defendant for the robbery and that, assuming otherwise, the placing of defendant in a lineup constituted a minimal intrusion on his fourth amendment rights not requiring suppression of the identification testimony. Although defendant has not filed a brief, we elect to reach the merits of this appeal under the principles enunciated by our supreme court in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

Defendant was arrested in his apartment shortly before midnight on May 16, 1983. Investigator Ronald Branum testified that he arrested defendant for the robbery of a gas station on May 14, 1983, and a series of other robberies of small businesses on the northwest side of Chicago. At the time of defendant's arrest, Branum also knew that there was an outstanding warrant charging him with an unspecified traffic offense. Sometime between 7 p.m. and 8 p.m. on May 17, 1983, defendant was placed in a series of lineups where he was viewed separately by approximately 12 victims and witnesses of different robberies. It appears that only one witness, Martha Perez, who was the victim of a robbery at a food mart on May 3, 1983, identified defendant. None of the other witnesses, including the victims of the gas-station robbery, could identify him. The record does not clearly establish whether Ms. Perez' identification of defendant preceded or succeeded the nonidentification of defendant by the victims of the gas-station robbery. For purposes of ruling on defendant's motion, however, the trial court assumed that Ms. Perez identified defendant after the victims of the gas-station robbery failed to do so.

The court found that the police had probable cause to arrest defendant for the gas-station robbery but that once the victims of that robbery failed to identify him in a lineup, probable cause to hold him for that offense dissipated. The court reasoned that defendant's continued detention, which resulted in a positive identification by Ms. Perez, could be justified only if the police had probable cause to hold him for the food-mart robbery. The court then determined that the police lacked probable cause to believe that defendant had committed that robbery. The court also rejected the State's alternative theory that the continued detention of defendant constituted a minimal intrusion on his fourth amendment rights not requiring suppression of the identification testimony. Based upon these rulings defendant's motion to quash was granted, and this appeal followed.

OPINION

• 1 Initially, we note that it is unnecessary to address the issues framed in the State's appeal. Regardless of whether the police had probable cause to arrest or detain defendant for the robbery of the food mart, it appears that when defendant was identified in a lineup by the victim of that robbery, he was lawfully being held in custody on a warrant charging him with a traffic offense. Under these circumstances, requiring defendant to appear in a lineup did not implicate any of his fourth amendment rights. (People v. Nelson (1968), 40 Ill.2d 146, 152, 238 N.E.2d 378; People v. Hinton (1977), 45 Ill. App.3d 925, 360 N.E.2d 451; People v. Cruz (1976), 38 Ill. App.3d 21, 25-26, 347 N.E.2d 227; People v. Stringer (1970), 129 Ill. App.2d 251, 264-65, 264 N.E.2d 31, aff'd (1972), 52 Ill.2d 564, 289 N.E.2d 631.) Parenthetically, we note that the police were not obligated to advise defendant orally that he had a right to post bail on the traffic warrant. People v. Seymour (1981), 84 Ill.2d 24, 30-31, 416 N.E.2d 1070.

Although we recognize that Investigator Branum may not have gone to defendant's apartment solely for the purpose of executing a traffic warrant, the evidence is uncontradicted that an arrest warrant had been issued and that Branum knew of the existence of that warrant at the time he effected defendant's arrest. This evidence cannot be ignored or "wished away," as the dissent would do. Moreover, in view of the fact that Branum's testimony concerning his knowledge of the warrant was elicited on cross-examination, it is reasonable to assume that the prosecutor was not aware of the existence of the traffic warrant prior to the hearing on defendant's motion, which may serve to explain why no reference was made to the warrant in argument.

The dissent, however, reasons that if an arrest warrant had been issued, then adversarial judicial proceedings had commenced and defendant was entitled to counsel at any subsequent lineup. We disagree.

• 2, 3 A person's sixth amendment right to counsel attaches only at or after the time that adversary proceedings have been initiated by formal charge, preliminary hearing, indictment, information or arraignment. (Kirby v. Illinois (1972), 406 U.S. 682, 32 L.Ed.2d 411, 92 S.Ct. 1877; People v. Burbank (1972), 53 Ill.2d 261, 291 N.E.2d 161.) The right of counsel does not arise merely because when the preindictment lineup was held; defendant was in custody on an unrelated criminal matter and his right of counsel had attached as to that charge. (People v. Martin (1984), 102 Ill.2d 412, 422-23, 466 N.E.2d 228; People v. Branson (1984), 131 Ill. App.3d 280, 285-86, 475 N.E.2d 905.) Thus, it is immaterial in this case whether defendant's right to counsel had attached as to the offense charged in the traffic warrant when he was identified in a lineup as the offender in the food-store robbery. When that identification was made, no adversary judicial proceedings had been commenced on the robbery offense.

For the foregoing reasons, we conclude that the trial court erred in granting defendant's motion to quash his arrest and suppress evidence derived therefrom. Accordingly, the order of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

LORENZ, J., concurs.

JUSTICE PINCHAM, dissenting:

I dissent. The trial court was eminently correct in suppressing as evidence testimony of the illegal lineup identification of the defendant. The identification was made while the defendant was detained in violation of his constitutional right against unreasonable seizure guaranteed by the fourth amendment to the Constitution of the United States and article I, section 6, of the Constitution of Illinois. I disagree with the majority's sua sponte holding that "at the time ...


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