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02/07/97 PEOPLE STATE ILLINOIS v. RENE AGUILAR

February 7, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RENE AGUILAR, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE HENRY R. SIMMONS, JUDGE PRESIDING.

Released for Publication March 13, 1997.

The Honorable Justice Hoffman delivered the opinion of the court. Hartman, P.j., and Hourihane, J., concur.

The opinion of the court was delivered by: Hoffman

JUSTICE HOFFMAN delivered the opinion of the court:

A judge found the defendant, Rene Aguilar, guilty of vehicular hijacking and aggravated battery, and sentenced him to respective concurrent prison terms of 8 1/2 years and 5 years. On appeal, the defendant contends that (1) the court erred in denying his motion to quash his arrest for lack of probable cause, and (2) the State failed to prove him guilty of vehicular hijacking and aggravated battery beyond a reasonable doubt.

The following evidence was adduced at the hearing on the motion to quash arrest. About 1:50 a.m. on February 4, 1995, Officers Matthew Kolasa and James Vins received a "flash" radio dispatch from a nearby police district regarding the forcible taking of a mini-van near 45th and Hermitage Streets in Chicago. The report stated that the offense had just occurred, and identified the perpetrators as Geno and "Grasshopper". Kolasa testified that the dispatching officers, Williams and Romanowski, had obtained a written statement from the victim as well as a tip from an anonymous citizen informant who had witnessed the crime. According to Kolasa, the victim had given a description of the incident, and the informant had stated that the offense was committed by Grasshopper. Vins and Kolasa knew "Grasshopper" to be the nickname of the defendant based upon several prior encounters with him; thus, they proceeded to the area where they knew the defendant frequented at 43rd and Wood Streets, and arrested him there at 4:15 a.m. As the defendant walked into the station, he was immediately identified by the victim. The defendant was subsequently informed of his Miranda rights, after which he admitted to the crime.

At trial, the victim, Feras Asfur, testified that he resided in the 4500 block of south Hermitage in Chicago. About the time of the occurrence, he was driving his wife's mini-van southbound on Hermitage when he had to stop because of a car blocking the road. There were three people standing around the car, one of whom was the defendant. Asfur testified that when he attempted to drive around the car, the defendant hit the van with his foot. Asfur then stepped out of his van, leaving the engine running, and told the defendant that they were neighbors. The defendant responded by punching Asfur in the jaw, while the defendant's companions threw bottles at Asfur, some of which struck him. Asfur escaped through the front gate of his house about six feet down the block.

Asfur testified that when he fled, he left his van on the street with the engine still running. When he arrived at his house, he saw one of the perpetrators enter the driver's side of his van, and saw the defendant looking back at him from in or near the passenger's seat. The men then drove the van away, and Asfur went inside his house and called the police. Asfur testified that about 4:30 that morning, as the defendant was being brought into the police station, he identified him as a perpetrator. On cross-examination, Asfur admitted that no one ever threatened him or told him to get out of his van.

In his own defense, the defendant denied seeing Asfur on the day in question and denied taking his van. The defendant admitted telling police that he got into Asfur's van and drove away, but testified that he did so under physical duress.

Following arguments, the court found the defendant guilty of vehicular hijacking and aggravated battery.

The defendant first contends that his arrest should have been quashed by the court because it was effectuated without probable cause.

In general, we review determinations of probable cause de novo, but will not disturb findings of fact absent clear error, and will give due deference to inferences drawn from those facts by the trial court and arresting officers. Ornelas v. United States, U.S. , 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996); see also People v. Kidd, 1996 Ill. LEXIS 132, No. 76490 (Ill. December 19, 1996).

Probable cause to arrest exists where "'a reasonable and prudent man, having the knowledge possessed by the officer at the time of the arrest, would believe the defendant committed the offense.'" People v. Tisler, 103 Ill. 2d 226, 237, 469 N.E.2d 147, 82 Ill. Dec. 613 (1984), quoting People v. Wright, 41 Ill. 2d 170, 174, 242 N.E.2d 180 (1968). In reviewing the propriety of an arrest, this court must consider the totality of the circumstances and the facts as known to the police at the time they made the arrest; review should not be tainted by hindsight. Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983); Tisler, 103 Ill. 2d at 237. Further, the determination of probable cause is no longer controlled by rigid legal rules, presumptions or classifications, such as the classification of the informant as ordinary citizen as opposed to paid informant ( People v. Adams, 131 Ill. 2d 387, 398, 546 N.E.2d 561, 137 Ill. Dec. 616 (1989)); instead, the totality of the circumstances analysis must be based upon factual and practical commonsense considerations. Adams, 131 Ill. 2d at 396-97.

Probable cause may derive from information received from official police communications ( People v. Rimmer, 132 Ill. App. 3d 107, 113, 476 N.E.2d 1278, 87 Ill. Dec. 286 (1985)), as well as from an informant's tip, as long as the information is justified by indicia of reliability. Tisler, 103 Ill. 2d at 237; People v. Stone, 244 Ill. App. 3d 881, 614 N.E.2d 293, 185 Ill. Dec. 159 (1993). The fact that the information came either from the victim or from an eyewitness to the crime is entitled to particularly great weight in evaluating its reliability. See Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317; People v. Smith, 258 Ill. App. 3d 1003, 1017-18, 630 N.E.2d ...


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