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08/04/87 the People of the State of v. John Harris

August 4, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

JOHN HARRIS, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

512 N.E.2d 80, 159 Ill. App. 3d 592, 111 Ill. Dec. 176 1987.IL.1115

Appeal from the Circuit Court of St. Clair County; the Hon. William B. Starnes, Judge, presiding.

APPELLATE Judges:

JUSTICE KASSERMAN delivered the opinion of the court. HARRISON, J., concurs. JUSTICE WELCH,1 Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Defendant, John Harris, was charged by indictment with two counts of residential burglary. After the circuit court of St. Clair County determined that defendant was arrested without probable cause, it ruled that evidence obtained from the arrest would be inadmissible against defendant at a subsequent trial for these crimes. The State appeals from the court order suppressing such evidence. The facts are as follows.

On April 16, 1985, at approximately 4 p.m., defendant and Jackie McLean entered the Mid-City Buy and Sell Shop in Belleville, Illinois. Present in the shop at the time were Barbara Wagner, the owner, and her husband, Dale Wagner, a patrolman with the Belleville police department. Patrolman Wagner recognized Jackie McLean and knew that McLean and McLean's frequent companion, Clyde Jines, were the subject of outstanding felony warrants in Madison County. Believing that the defendant was Jines, Wagner went to a nearby business and telephoned the Belleville police department. Wagner told the dispatcher that McLean and Jines were in his wife's shop and that he was going to arrest them. Wagner then returned to the shop, told his wife to leave, and, displaying a gun, arrested McLean and defendant. Wagner testified that although defendant did not protest that he was not Clyde Jines when Wagner referred to him by that name, defendant did ask Wagner what he was being arrested for, to which Wagner replied "[You] know." Wagner stated that he almost shot defendant because he kept moving.

Barbara Wagner testified that after she left the shop through the back door, a neighborhood woman pointed to a blue automobile parked nearby, exclaiming, "[the] two guys got out of that car and went in your store." When police officers arrived at the shop a minute or so later, Mrs. Wagner pointed to the blue automobile and said, "[that's] the car they were in." The automobile, a 1975 blue Ford Torino, matched a police description of a vehicle that Jines and McLean were driving. David Klingler, one of the officers responding to Wagner's call, checked the license plate on this vehicle and determined that the license plate was stolen. Although a woman at the scene told Klingler that defendant and McLean had gotten out of this vehicle prior to entering the shop, she did not indicate whether defendant or McLean was the driver. Klingler stayed with the vehicle until it was impounded. A subsequent inventory search of the vehicle produced goods taken in two recent St. Clair County burglaries.

At approximately 4:05 p.m., Officers Isenhart, Proksha, and Moore simultaneously arrived at the shop. Isenhart took photographs of the jewelry defendant and McLean had in their immediate possession, then placed the jewelry in a bag and took the bag to the police station. No effort was made to separate the jewelry possessed by defendant from that possessed by McLean. The victim of a recent St. Clair County burglary later identified a charm bracelet from this bag as being hers.

Shortly after arriving, Proksha and Moore handcuffed defendant and McLean and took them to the police station, where it was discovered that defendant was not Clyde Jines and that he had no outstanding warrants. Nonetheless, defendant was incarcerated. Prior to his incarceration, defendant emptied his pockets of various items, including a key to the trunk of a 1975 Ford Grand Torino automobile. While incarcerated, the defendant made certain statements regarding his activities on April 16, 1985, and, at approximately 7 p.m., gave his consent to a search of his residence. The search of the residence allegedly produced additional incriminating evidence. There is no indication in the record that defendant was given Miranda warnings prior to interrogation or prior to giving his consent to the search of his residence.

The State concedes that defendant was arrested without probable cause and that, consequently, his arrest was illegal. Nevertheless, the State urges that, although the fruits of an unlawful arrest are generally inadmissible against the accused (Wong Sun v. United States (1963), 371 U.S. 471, 484-85, 9 L. Ed. 2d 441, 453, 83 S. Ct. 407, 416), the evidence in the present case should be admitted because it would have been discovered by means sufficiently distinguishable to be purged of the primary taint. (371 U.S. 471, 488, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417.) Specifically, the State contends that the evidence (1) would have been derived from an independent source (Segura v. United States (1984), 468 U.S. 796, 82 L. Ed. 2d 599, 104 S. Ct. 3380), or (2) inevitably would have been discovered. Nix v. Williams (1984), 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501.

We note at the outset that, under the circumstances of this case, the State has the burden of showing that the allegedly tainted evidence is admissible (see Brown v. Illinois (1975), 422 U.S. 590, 604, 45 L. Ed. 2d 416, 427-28, 95 S. Ct. 2254, 2262; see also People v. Rodriquez (1987), 153 Ill. App. 3d 652, 505 N.E.2d 1314) and that a reviewing court will not disturb a circuit court's finding on a motion to suppress evidence unless that finding is manifestly erroneous (People v. Holloway (1981), 86 Ill. 2d 78, 91, 426 N.E.2d 871, 877).

The State correctly recognizes that the evidence which was suppressed in the case at bar falls into three categories: (1) the evidence found on defendant's person at the shop and at the police station, (2) the evidence found in the vehicle pursuant to the inventory search, and (3) the evidence found at defendant's residence pursuant to defendant's consent. Our analysis of the issues presented in relation to the allegedly inadmissible evidence is as follows.

It is well established that a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. (Ybarra v. Illinois (1979), 444 U.S. 85, 91, 62 L. Ed. 2d 238, 245, 100 S. Ct. 338, 342.) The record establishes that the only reason defendant was arrested and searched was because he was in the company of Jackie McLean. Thus, it cannot be said that the evidence found on defendant's person at the shop or at the police station was not tainted by the illegal arrest and subject to exclusion. Moreover, as the State presented no proof linking defendant to the items found on McLean or in the suspect vehicle other than the defendant's presence with McLean at the time of arrest, the items found in the suspect vehicle are also tainted ...


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