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07/07/88 the People of the State of v. Troy E. Brown

July 7, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TROY E. BROWN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

525 N.E.2d 1228, 171 Ill. App. 3d 500, 121 Ill. Dec. 921 1988.IL.1066

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. KNECHT, J., concurs. JUSTICE McCULLOUGH specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On January 2, 1987, defendant Troy Brown was arrested in Champaign County for the offense of armed robbery in violation of section 18-2 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 18-2) and indicted in case No. 87-CF-10. On February 5, 1987, defendant was charged in the instant case (87-CF-46) with the offense of residential burglary in violation of section 19-3 of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 19-3) for an incident which occurred approximately 20 minutes prior to that alleged in case No. 87-CF-10. On April 6, 1987, the circuit court granted defendant's motion to quash his arrest and suppress evidence seized in case No. 87-CF-10.

On June 2, defendant pleaded guilty in the present case to the included offense of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-1) and was placed on 18 months' probation. On October 2, the court revoked defendant's probation for various and sundry curfew violations. At the resentencing hearing on November 2, the State asked the court to take judicial notice of the file in case No. 87-CF-10 and allow testimony of the victim in that incident for purposes of aggravation. The court allowed this over defendant's objection. Defendant was sentenced to six years' imprisonment on the burglary conviction. Defendant filed this appeal.

On November 12, 1987, we reversed the order of the court suppressing the evidence in case No. 87 -- CF -- 10. (People v. Brown (1987), 162 Ill. App. 3d 528, 515 N.E.2d 1285.) On April 7, 1988, the Illinois Supreme Court denied defendant's petition for leave to appeal in that case. On May 25, 1988, the supreme court stayed its mandate to allow defendant to apply for certiorari to the United States Supreme Court. That application has not yet been resolved.

Defendant's sole contention is that since the exclusionary rule should apply to probation revocation proceedings, the court erred by allowing illegally seized evidence from a collateral case to be used at the sentencing hearing. The State asserts this point is moot since the suppression order was reversed. Since the application for certiorari is still pending before the United States Supreme Court, we cannot agree with the State that the point is moot. Neither can we agree with defendant that the admission of the evidence is improper.

In People v. Dowery (1975), 62 Ill. 2d 200, 340 N.E.2d 529, the supreme court held that the exclusionary rule was not applicable to probation revocation proceedings for violations of a defendant's fourth amendment rights against an improper search except in cases of police harassment. In People v. Grubb (1986), 143 Ill. App. 3d 822, 493 N.E.2d 699, we extended this holding to supervision revocation proceedings. Justice Spitz, writing for the court, clearly and concisely explained Dowery where he stated:

"Our supreme court in People v. Dowery (1975), 62 Ill. 2d 200, 340 N.E.2d 529, utilized this balancing test [set forth in United States v. Janis (1976), 428 U.S. 433, 49 L. Ed. 2d 1046, 96 S. Ct. 3021] in determining that the exclusionary rule does not apply in probation revocation proceedings. The Dowery court determined that evidence obtained in violation of the fourth amendment, while normally inadmissible under the exclusionary rule, is not patently untrustworthy and is admissible in a revocation hearing because all reliable evidence should be available to the hearing Judge to gauge a defendant's rehabilitative effort. In reaching its determination the Dowery court stated:

"The grant of probation was imposed upon defendant in the present case after the trial court's consideration that he was not likely to commit another offense; that his rehabilitation would be advanced by probation; and, that the public interest would be served by such Disposition. . . . During a revocation hearing the interests of society must be amply considered. [Citations.] Merely because there may exist a technical deficiency in police conduct, a trial court should not be forced to release a defendant and return him to a probationary status where there is patent evidence of a serious probation violation.' 62 Ill. 2d 200, 206, 340 N.E.2d 529, 532.

Furthermore, the court considered the 'significant dissimilarities' between a probation revocation hearing and a criminal trial. (People v. Dowery (1975), 62 Ill. 2d 200, 204, 340 N.E.2d 529, 531.) A probation revocation proceeding is not a criminal adjudication. It does not determine guilt or innocence of the accused. (Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756; People v. Beard (1973), 15 Ill. App. 3d 663, 304 N.E.2d 707, aff'd (1974), 59 Ill. 2d 220, 319 N.E.2d 745, cert. denied (1975), 421 U.S. 992, 44 L. Ed. 2d 483, 95 S. Ct. 1999.) Hence, the same stringent requirements traditionally embodied in the usual prosecution for crime are not required in a revocation proceeding as it is not considered a stage of the criminal prosecution. People v. Beard (1973), 15 Ill. App. 3d 663, 304 N.E.2d 707; People v. Reese (1976), 37 Ill. App. 3d 820, 347 N.E.2d 451." (Grubb, 143 Ill. App. 3d at 824-25, 493 N.E.2d at 701.)

Thus, even though the present case deals with evidence presented at sentencing after revocation rather than at the revocation hearing, it appears at first ...


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