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10/07/87 the People of the State of v. Richard A. Mcfarland

October 7, 1987





514 N.E.2d 72, 161 Ill. App. 3d 163, 112 Ill. Dec. 676

Appeal from the Circuit Court of Livingston County; the Hon. William T. Caisley, Judge, presiding. 1987.IL.1516


JUSTICE GREEN delivered the opinion of the court. LUND and KNECHT, JJ., concur.


In February 1986 the defendant, Richard A. McFarland, was charged in the circuit court of Livingston County in a 15-count indictment with the offenses of home invasion, residential burglary, armed robbery, aggravated criminal sexual assault, theft over $300, and armed violence. A trial by jury was held and the court directed verdicts on two counts, and the State withdrew one count and nolprossed another count. The jury returned guilty verdicts on all counts submitted to it. On July 31, 1986, after a sentencing hearing, the court entered judgment on the verdicts on counts I (home invasion), III (armed robbery), IV (aggravated criminal sexual assault), and X (armed violence), and sentenced defendant to concurrent terms of 35 years' imprisonment on each count. On November 7, 1986, after hearing on defendant's post-trial motions, the court entered a written order reducing defendant's sentence to concurrent terms of 30 years' imprisonment on each count. Defendant has appealed, contending (1) the trial court erred in denying his motion to suppress his confession and certain physical objects, and (2) he is entitled to resentencing.

All counts against defendant were based on the unlawful entry of defendant and two other men to a rural farmhouse outside Cullom, Illinois, in Livingston County, during the middle of the night on January 10, 1986; the taking of items from the home; and acts committed upon the residents while the perpetrators were inside the residence. The house was located on a lane about 200 feet off the blacktop, with a garage and farm buildings behind it. It was inhabited by a couple, a 29-year-old farmer and his 24-year-old wife, and their 4-month-old daughter.

The evidence adduced at trial showed the couple was awakened by the doorbell at 2:30 a.m., followed by a banging on the front door. As they looked out the window of their first-floor bedroom, they saw a car sitting just off their garage and a man with his back to them standing by the door to the house. The husband dressed, went out the kitchen door and onto the enclosed porch, and talked to the man, who said he had lost his way. The farmer thought he had pulled the door to the kitchen and into the house shut behind him, but the door had failed to latch. Three men had been in the car which drove up to the house: Michael Holmes, 5 feet 8 inches and 240 pounds; defendant, 5 feet 5 inches and about 125 pounds; and Jerry Uhlhorn, 6 feet and 145 pounds. The three men came to the Cullom area from Missouri in order to burglarize an isolated rural farmhouse. Holmes was from the area and knew the roads. Holmes hit the farmer over the head, which knocked the farmer back through the door and onto the kitchen floor. Defendant entered the home with a rifle and Holmes had a Bowie knife. A 35mm Konica camera was among the items taken from the home.

According to evidence at the suppression hearing, the 35mm Konica camera was recovered from the locked trunk of a car in a consent search on a traffic stop by a St. Louis County, Missouri, police officer on February 5, 1986. When a computer check on the serial numbers of the cameras in the car indicated the Konica camera in the trunk had been reported stolen in a Livingston County burglary, both the driver of the car, who consented to the search, and defendant -- the passenger in the car -- were arrested for possession of stolen property. At the police station, after being read his Miranda rights, defendant confessed to the Livingston County offense, implicated Holmes and Uhlhorn, and made a taped confession and other statements.

At hearing on the motion to suppress, Officer Seymour testified he observed a 1971 Cutlass Oldsmobile southbound in the 1300 block of Lemay in St. Louis County at 2:24 a.m. and noticed the car did not appear to have a front license plate as required by Missouri law. Seymour testified there had been a rash of burglaries on businesses in the area, but he had no immediate report of a burglary. Seymour said when he pulled the 1971 Cutlass over, his sergeant and supervisor also pulled over and asked Seymour why he stopped the car. Seymour testified his sergeant informed him that he had stopped the men in the car the night before at approximately the same time in the same area and had run warrant checks on them then and released them.

Seymour testified the driver of the vehicle identified himself and produced a Missouri driver's license, and the passenger identified himself as Richard McFarland. Seymour said the driver directed his attention to temporary plates taped to the front and the right-rear windows of his car. Seymour inspected the paper in the rear window to check the registration of the vehicle and, in doing so, observed two expensive-looking cameras, a radio, and a stereo box in the backseat. Seymour said the car occupants had indicated they were from Arnold, Missouri, about five miles away, and said he became suspicious because the driver said they were in Lemay to go to the all-night Steak N Shake restaurant across from where he had stopped the car -- and Seymour knew there was an all-night Steak N Shake in Arnold.

Seymour testified after observing the items in the backseat, he asked the driver if he could search the car and look at the items, and the driver consented. Seymour proceeded to obtain the serial numbers from the cameras on the backseat, looked in the stereo box, and inspected under the seat and in the glove box of the car. He then asked the driver for permission to search the trunk, and the driver obtained a screwdriver from inside the car and opened it for the officer. Seymour said he recorded the serial number of a Konica camera in the trunk, asked the driver and passenger to have a seat in the car, and went to his squad car to run the car occupants' names for warrants and run the serial numbers of the cameras. The radio dispatcher informed him several minutes later that the serial number on the camera in the trunk matched one reported taken in a burglary in Livingston County. After obtaining this information, Seymour went back to the car and placed both individuals under arrest for possession of stolen property and seized items from the car and took them in his vehicle to the station. Seymour transported the car's driver to the station and another officer transported defendant.

According to Seymour, he spoke first to the car driver and then to defendant. He interviewed defendant at about 5 a.m., at which time defendant waived his Miranda rights. Seymour told defendant the Konica camera in the trunk of the car had been stolen in a burglary in northern Illinois, and information he had gained led him to believe the offenses committed were more serious than burglary. Seymour said defendant first stated he had bought the camera from an individual named Tom who lived in the Arnold area. After a very short time, defendant told Seymour he had lied about purchasing the camera; and he in fact had been involved with two other individuals, whom he named, and had taken the camera out of the house in a robbery-type situation in northern Illinois. Seymour said he took a very brief verbal statement and asked defendant if he would be willing to give a taped statement, and defendant said he would and that he fully understood the seriousness of the charges. After several more telephone calls between law-enforcement personnel in Livingston County and Officer Seymour, Seymour obtained tapes and a recording device and took defendant's taped statement at a second interview at about 7 a.m.

On this evidence, the trial Judge denied defendant's motion to suppress, concluding (1) the officer had probable cause to stop the car for a traffic violation; (2) given the circumstances, the officer had grounds to make a visual search from the exterior of the car with his flashlight; (3) on observation of two 35mm cameras lying on the backseat of the car, the officer had probable cause to search the interior of the car; (4) the car operator consented to a search of the interior of the car and the trunk; (5) in conducting the consent search, the officer had a legitimate right to search the trunk and observe the serial number on a 35mm camera found there; (6) after receiving information from reliable police sources that the camera in the trunk had been reported stolen, the officer had a right to seize the camera on the grounds that it represented stolen goods, and he had reasonable grounds to believe the car occupants had committed an offense and to arrest them; (7) defendant, a ...

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