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11/12/87 the People of the State of v. Troy E. Brown

November 12, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

TROY E. BROWN, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

515 N.E.2d 1285, 162 Ill. App. 3d 528, 114 Ill. Dec. 14 1987.IL.1673

Appeal from the Circuit Court of Champaign County; the Hon. Harold L. Jensen, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., and GREEN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

In January 1987, defendant was indicted for armed robbery, a Class X felony, in that on January 2, 1987, while armed with a dangerous weapon, a gun, he took money from a victim by threatening the imminent use of force. (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a).) Defendant moved to quash his arrest and suppress all evidence seized from his presence and from the house in which he was arrested, statements he made, and the identification resulting from a showup conducted at the time of his arrest. Following a hearing on the defendant's motion, the circuit court of Champaign County on April 6, 1987, allowed the motion to quash the arrest and suppress the evidence seized thereafter. The State filed a certificate of impairment and appeals the ruling of the circuit court. 107 Ill. 2d R. 604(a).

At the hearing on defendant's motion to suppress, six witnesses testified: three police officers involved in the search of the residence in which defendant was found; defendant's grandmother, owner of the house in which defendant was found; and defendant's sister and her 13-year-old cousin, who were present when the police arrived and entered the house.

Officer Kreiling of the Champaign police department testified that on January 2, 1987, at about 8:05 a.m., he went to Sunset and Busey Streets after hearing a police radio dispatch that an armed robbery had just occurred there. Kreiling testified Officer Kosta also answered the call and met the victim of the offense. The armed robbery had taken place inside the victim's vehicle about 75 feet east of Sunset and Busey. On the morning of the offense, there was about an inch of fresh snow on the ground. Kreiling examined the scene and found two or three sets of vehicle tracks in the snow. Kreiling saw the tracks of a person "as if they were running" about 75 feet east of Busey, where the tracks were approximately 5 1/2 to 6 feet apart. Kreiling said the footprints began near some vehicle tracks in the snow on Sunset and, "at the beginning they were bunched up close together," spreading out to 5 1/2 to 6 feet apart about 8 to 10 feet away from the vehicle tracks and heading southwest.

Kreiling testified the victim of the offense described the details of the armed robbery to Officer Kosta. The victim identified one set of vehicle tire tracks in the snow as belonging to his vehicle, pointed out the footprints at a location the black male perpetrator left his vehicle, told officers the man left the truck and ran, and identified the direction the perpetrator ran as the direction of the footprints. Kreiling testified there were no other footprints around the area of the vehicle tracks near Sunset and Busey.

Kreiling followed the footprints for close to a mile and found the last footprint was 6 inches from the front door of the house at 1213 West Beardsley. Throughout the time he followed the footprints (about 30 minutes), they were clear, remained unbroken, and there were no other footprints around them.

Police Lieutenant Parker testified that on January 2, 1987, he assisted Kreiling in following the footprints for a distance, and then pursued the search by squad car. Parker said after hearing that Kreiling found the tracks stopped at a house, he proceeded to 1213 West Beardsley, and parked his car west of that location. He found no tracks in the area as he proceeded east, and no tracks on the west side of the house -- the only tracks around the house were those that ran up to the front door.

Officer Kreiling testified that when he arrived at the front of the house, he advised METCAD of his location and took a position just east of the front door, flat against the wall. Lieutenant Parker and Officer Tharp, approaching the house from the west, covered the back of the residence while waiting for additional help. No one contacted METCAD or the State's Attorney to secure a warrant.

Kreiling testified that shortly after he called METCAD for backup, a black female teenager exited the door and started walking down the sidewalk away from him, facing west, wearing pajamas and a robe. Kreiling testified he may have touched her shoulder to get her attention, identified himself as a police officer, and asked her if everything was all right inside the residence. She said everything was fine, and Kreiling said he then asked her if there were any black males inside the residence. He said she thought for a moment and then responded that her cousin's boyfriend was inside. Kreiling said he then asked her if he could enter the residence and speak with him, and she answered affirmatively. Kreiling said he entered the house at about 8:36 a.m., with Officer Tharp behind him, and, as he was entering the residence, he observed a black male in underwear putting on camouflage pants. Kreiling described his Discussion with the black male (the cousin's boyfriend) as follows:

"I asked the black male if he at any time had been out of the house in the morning. He stated no, he had just gotten out of bed. I quickly explained that I needed to -- about the situation that we were in, that an armed robbery had just occurred, and I asked him if he would step outside with me, and he stated he would. I then escorted him to his bedroom so that he could complete getting dressed, and he then exited the residence with me, stood at the front steps."

Kreiling said the victim was outside the residence in a squad car and, on observing this male, said he was not the armed robber.

Officer Kreiling testified he later found out the name of the teenager who permitted him to speak to her cousin's boyfriend was Jackie Brown. He said he never withdrew his weapon from the holster and Jackie Brown neither appeared threatened nor showed in her demeanor that she was not willingly responding in the affirmative when he asked if he could go in and talk to her cousin's boyfriend. Kreiling acknowledged he did not hear anything going on inside the house, and he did not ask the teenager if she lived there or how old she was. Kreiling testified that if Jackie Brown had told him he could not go in the house, he would not have gone in.

Officer Tharp testified that when he entered the residence he was accompanied by Sergeant Spanglo and they observed three black females together in the living room -- Michelle Brown, Jackie Brown (having returned from outside), and Monica Robinson -- with an infant. Tharp testified the females were dressed in what appeared to be bedclothes, two wearing lightweight flannel pajamas or housecoats, with one wearing a sweatshirt and a pair of slacks. Tharp testified he and Sergeant Spanglo talked to the females, explaining why they were there and asking if there were any other black male occupants of the residence. Tharp said the females replied there was no one else in the residence. Tharp said he and Sergeant Spanglo both asked permission to look through the rest of the house, and permission was granted by both Michelle Brown and Monica Robinson. Tharp said he and Sergeant Spanglo asked Michelle Brown if she had authority to give consent to search the house and learned she did not live there. According to Officer Tharp, Michelle Brown told the officers the house was owned by her grandmother, who was out of town, and she was taking care of the residence for her grandmother in her absence. Tharp testified the females did not appear upset or intimidated and nothing was done to suggest anything would happen to them if they did not agree to let the officers look through the house.

Officer Tharp testified that after obtaining permission to search the residence, he and Sergeant Spanglo started down the hall checking bedrooms and, on opening a door at the end of the hall, observed another black male lying on the bed. He testified that at no time had any of the females indicated the officers should not enter that room. He said none of the officers drew their weapons at any time.

Officer Kreiling testified that after determining the cousin's boyfriend was not the perpetrator, he reentered the residence and learned from Officer Tharp and Sergeant Spanglo that they had received permission to continue searching the house for another black male. Kreiling testified Tharp opened the door to the bedroom and found another black male, the defendant, lying on the bed and a firearm under the bed. Kreiling testified he placed defendant under arrest for armed robbery and took him outside, where the victim identified defendant as the man who had robbed him. Kreiling further testified he seized the firearm from beneath the bed and found it similar to the description of the firearm given by the victim.

Michelle Brown testified her grandmother owned the residence at 1213 West Beardsley in Urbana and was out of town in Texas; her grandmother had asked Michelle to watch over the house and take care of it while she was away. Michelle testified defendant is her brother and he resides with her grandmother at 1213 West Beardsley.

Brown recalled having a conversation around noon on January 2, 1987, with Officers DeJong and Kreiling and acknowledged she told them something to the effect that her grandmother had made arrangements with her to take care of the residence in her absence, including collecting the mail and cleaning. She acknowledged telling DeJong and Kreiling she had been in defendant's bedroom on numerous occasions when he was present, with his knowledge and consent. Michelle said the officers did not ask her anything about whether she had access to ...


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