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09/13/88 the People of the State of v. Mark A. Fasse

September 13, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

MARK A. FASSE, DEFENDANT-APPELLEE. -- THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

BRADLEY D.

HANING, DEFENDANT-APPELLEE. -- THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

JAMIE EVANS, DEFENDANT-APPELLEE. -- THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

MARK E. GILMORE, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

528 N.E.2d 1049, 174 Ill. App. 3d 457, 124 Ill. Dec. 158 1988.IL.1369

Appeal from the Circuit Court of McLean County; the Hon. W. Charles Witte, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Defendants were charged with consuming alcoholic liquor while under the age of 21. (Ill. Rev. Stat. 1985, ch. 43, par. 134a.) Defendants filed motions to suppress their admissions based upon a purported violation of the principles set forth in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. The circuit court suppressed the admissions. The People appeal, contending the circuit court's determination that a custodial interrogation occurred is contrary to the manifest weight of the evidence.

We vacate the suppression order and remand.

On May 31, 1987, Scott Stuart, a police officer for the Village of McLean, and Brian Sparrow, a McLean County deputy, investigated a matter at Olympia High School. While at the high school, Stuart told Sparrow he had noticed a car coming out of the area near the Sugar Creek Bridge. The officers drove separate vehicles to the area. While patrolling, Sparrow noticed a large gathering of vehicles. He and Stuart observed a vehicle leave a farm field. Stuart stopped the automobile, which contained persons who stated they had been drinking at a party near the creek. They were under 21 years of age, had approximately a case of beer in their vehicle, and accompanied the officers back to the party.

Sparrow stated a large group of people were sitting around a fire when the officers arrived. Eight to ten persons were drinking some beverage. At the time he observed the group from his vehicle, he could not determine which persons were drinking beer and which persons were drinking pop. Containers for alcoholic beverages were scattered around the group. Several persons started running. Sparrow admonished the persons fleeing but did not pursue them.

Sparrow stated there was no question in his mind that the law was being violated when he left his vehicle. He recognized some of the individuals from high school wrestling. Sparrow asked whether anyone in the group was over 21 years of age. No one responded. Sparrow then told the youths to split into two groups, those who had been drinking and those who had not been drinking. He smelled the breaths of those who were in the nondrinking group and released them. The drinkers were arrested. No one was free to leave until the officers had determined who was drinking alcoholic beverages. He did not advise any suspect of his Miranda rights.

Stuart testified that he saw about 20 youths sitting around a fire and beer cans in the area. No one was free to leave until he and Sparrow investigated the gathering. It was dark and he could not determine which persons were drinking alcoholic beverages. No arrests were made until after the drinkers had been separated from the nondrinkers. The balance of Stuart's testimony supported Sparrow's testimony.

Defendants argue the admission inherent in stepping into the "drinking group" should be suppressed because the youths had not been advised of their Miranda rights and because the State failed to produce three material witnesses to the admission. The circuit court found that the testimonial act of stepping into the drinking group was inadmissible. It declined to rule on the material witness argument.

In Miranda, the Court stated that prior to custodial interrogation an accused must be advised that he has a right to remain silent, any statement may be used against him, and he has the right to the presence of an attorney, either retained or appointed. Custodial interrogation was defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in a significant way. (Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612.) The Court cautioned that its decision was not meant to hamper the traditional function of police officers in investigating crime. Therefore, it stated that general on-the-scene questioning as to the facts surrounding a crime or other general questioning was not affected by its holding. The Court noted that the compelling atmosphere inherent in custodial interrogation is not necessarily present in an on-the-scene investigation. Miranda, 384 U.S. at 477-78, 16 L. Ed. 2d at 725-26, 86 S. Ct. at 1629-30.

In Berkemer v. McCarty (1984), 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138, the Court held that statements made in response to questions during a traffic stop were admissible. The Court addressed two issues, the protections of Miranda to a person subjected to custodial interrogation and the admissibility of self-incriminating statements made prior to formal arrest. The Court acknowledged that the driver was not free to leave when stopped for an ...


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