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11/20/87 the People of the State of v. William Hardway

November 20, 1987





516 N.E.2d 830, 163 Ill. App. 3d 596, 114 Ill. Dec. 675 1987.IL.1728

Appeal from the Circuit Court of Cook County; the Hon. Jack G. Stein, Judge, presiding.


JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.


Following a bench trial, defendant was convicted of residential burglary and sentenced to five years' incarceration. On appeal he urges the following: (1) the trial Judge committed reversible error when he denied his motion to suppress his confession, and (2) the prosecutor failed to prove him guilty beyond a reasonable doubt.

We reverse and remand.

At the hearing on defendant's motion to quash his arrest and suppress his confession the following testimony was adduced. The home of Maria Avonzado was burglarized at 10 p.m. on February 16, 1986. On February 19, Officer John Guswiler telephoned Avonzado and he and Officer Herbert then proceeded to defendant's home, which was next door to Avonzado.

Defendant testified that on February 19, 1986, at 9 a.m., he was awakened by his sister, who stated that there were two gentlemen upstairs waiting to speak to him. Defendant dressed and went upstairs. The two men arrested him, placed handcuffs on him, and took him to the police station at Belmont and Western. No arrest or search warrant was presented to defendant. At the police station defendant was placed in a room by himself for approximately one hour. During this time he was informed that he had been arrested for a robbery. This was the only conversation he had with police officers. Thereafter defendant was processed and taken to a cell at the station, where he remained for 13 hours. At 1 a.m. he was transported to the police station at 26th and California. Defendant testified that he never gave a statement to the police about his involvement in the burglary of his neighbor's home and he denied telling Officer Herbert that he had committed the burglary.

Defendant's sister, Jennifer Hardway, testified that on February 19, 1986, two men came to her house. Initially, the two men asked to see Jim Hardway, defendant's brother. When Miss Hardway informed the men that Jim Hardway was not at home, the men then asked to speak with defendant. Miss Hardway left the door open and proceeded downstairs to wake up defendant. When she returned the men were standing in the living room. She informed them that defendant would not wake up. The men responded that if defendant did not get out of bed, they would go downstairs to get him. Miss Hardway was successful in waking defendant the second time and accompanied him upstairs to where the men were waiting. According to Miss Hardway, the men did not identify themselves as police officers, explain their purpose for being there or present her with an arrest warrant or complaint. Miss Hardway further testified that defendant was immediately handcuffed and when she asked whether he had to accompany the men, they responded in the affirmative.

Officer John Guswiler testified that on February 19, 1986, he received a report prepared by a beat officer detailing the burglary of Maria Avonzado's home three days earlier. The report indicated that the victim believed defendant to be involved in the burglary. The report also indicated that on the night of the incident footprints were found leading from the rear entrance of the victim's house to the rear entrance of the defendant's house and that the victim's stolen stereo equipment was found beneath defendant's back porch. After hearing the report, Guswiler telephoned Avonzado to confirm the facts cited in the report. Thereafter Guswiler and his partner, Officer Herbert, proceeded to defendant's home to investigate. The officer's knock on defendant's door was answered by a female who asked, "Who is it?" Guswiler responded "Police" and the door was opened. Guswiler asked whether defendant was at home and Miss Hardway responded "Yes" and proceeded to get defendant. When defendant appeared, Guswiler asked whether he would accompany them to the station at Belmont and Western. Defendant agreed and proceeded to finish dressing. According to Guswiler, defendant was neither handcuffed nor arrested at this time. At the station, between 10:30 and 10:45 a.m., defendant voluntarily gave the police a statement in which he confessed to committing the burglary. Defendant was arrested at that time.

Officer Herbert testified that on February 19, 1986, he accompanied Guswiler to defendant's home in furtherance of their investigation of the burglary of Avonzado's home. When defendant's sister answered the door, they identified themselves and asked to speak with William Hardway. Miss Hardway turned to get her brother and the officers followed her in. Because Miss Hardway did not say otherwise, Herbert believed he and Guswiler had been invited to come inside. When defendant arrived, Herbert informed him that he was a suspect in a burglary committed in the neighborhood and asked whether defendant would accompany them to the police station. At this point defendant was not arrested, handcuffed, or in any way restrained. At the station defendant voluntarily confessed to the commission of the burglary. Defendant was then handcuffed and placed under arrest. Herbert further testified that he was informed that the stereo had been dusted for fingerprints and the results were negative. Also, the State's Attorney's office was contacted only after defendant confessed. Also, it was admitted by the police officers that prior to the confession the officers had no probable cause to arrest defendant.

Following this testimony and arguments in support and in opposition, the trial court denied defendant's motion to quash his arrest and suppress his confession.

At trial Maria Avonzado testified that on February 16, 1986, at approximately 10 p.m., she was entering the vestibule of her apartment building when she heard a noise coming from the basement. She waited until the noise stopped before entering the basement. At that time she observed that the basement window had been smashed and her stereo had been stolen. She called the police, who arrived immediately. As the officers were investigating the burglary outside the home, Avonzado noticed footprints in the snow leading from the rear of her house to the rear of defendant's house. Following the footprints to defendant's house, the police officers discovered the stolen stereo equipment under ...

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