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People v. Berry

May 30, 2000


The opinion of the court was delivered by: Presiding Justice O'mara Frossard

Appeal from the Circuit Court of Cook County Honorable Richard E. Neville and Mary Maxwell Thomas, Judges Presiding.

Following a simultaneous but severed bench trial, the court found defendant, Allen Berry, guilty of first degree murder and armed robbery and sentenced him to a 30- year term of prison. The trial court also found co-defendant, Bobby Berry, guilty of first degree murder and sentenced him to a 25-year term of prison. Both defendants appeal the trial court's denial of their motions to suppress evidence, namely, their oral and written confessions. In reviewing the motions to suppress we address the scope of an electronic search, which is a question of first impression. While the court found that the police had probable cause to arrest Allen, it also found that the police lacked probable cause to arrest Bobby. Following an attenuation hearing, the court, however, ruled that Allen's statements to the police constituted an intervening circumstance that attenuated Bobby's illegal arrest. On appeal, Allen contends that the police illegally arrested him in violation of his fourth amendment rights and the statements he made should have been suppressed. Bobby contends that his statements were a result of both defendants' illegal arrests and should have been suppressed. We affirm.

At the suppression hearing, Detective Hamilton testified that on October 15, 1995, he went to Enrico Perry's apartment and saw that Perry had been shot to death. Perry's hands were tied behind his back and a sheet covered his head. Detective Hamilton observed a leather carrying case for a Motorola cellular phone and a cigarette lighter plug-in adaptor for the phone. Hamilton saw these items in the center of the coffee table of Perry's apartment but failed to find the Motorola phone that matched these cellular phone accessories.

At the crime scene, Detective Hamilton spoke with Perry's cousin, Gregory Carter. Hamilton testified that Carter confirmed that Perry's cellular phone was missing from Perry's apartment. Carter told Hamilton that the night before the murder he had visited Perry's apartment to use Perry's cellular phone adapter and saw the cellular phone in Perry's apartment. Carter stated that four individuals who frequented Perry's apartment were there at that time. The four individuals discussed the Motorola cellular phone. Specifically, Carter overheard one individual inquire about purchasing it, but another person advised him not to purchase it. Carter also told Hamilton that he saw one of the individuals pick up a videotape off the television set with his shirt sleeve over his hands and fingers, trying not to leave any fingerprints. Hamilton obtained the number of Perry's cellular phone from Perry's brother, Derrick Perry.

On October 19, 1995, Carter told Hamilton he knew the names of the four males who were at Perry's apartment the night before the murder. Carter stated that these four males showed up at Perry's funeral and Carter confronted them. The four individuals became argumentative and other family members separated them from Carter. He told Hamilton their names were Charles Gardner, Mario, Allen Berry and Bobby Berry, and he told Hamilton where to find the defendants.

On October 29, 1995, Hamilton and three Chicago police detectives went to 6833 South Hamilton, where they believed they could find and talk with the defendants. The detectives did not have an arrest warrant or a search warrant. Hamilton and the other detectives spoke with a woman who identified herself as the defendants' mother. Hamilton explained that they were looking for the defendants, and she replied that "Bobby is right there in that bedroom and Allen is downstairs with his girlfriend."

After Bobby came out of his room and started to speak with the detectives, defendants' mother pointed to the basement and said "Allen is down there." Hamilton knocked on the door, identified himself, and stated he wanted to talk with Allen. Allen told him to come down to the basement. Hamilton descended the stairs and saw a Motorola cellular phone on a dresser near Allen that was identical to the phone missing from the victim's apartment. Hamilton asked if it was Allen's phone and Allen stated it was. Hamilton then asked if he could look at the phone and Allen stated, "Go right ahead." Hamilton turned on the phone, pushed recall and pound, and obtained the number of the cellular phone. Hamilton immediately recognized the number as the one the victim's brother gave him for the victim's phone. Hamilton asked Allen how long he had the phone and Allen responded two months. Hamilton advised Allen of his Miranda rights and arrested him. Hamilton then instructed the other detectives to arrest Bobby.

At the station, police "Mirandized" and questioned both Bobby and Allen. Both initially denied any involvement in the crime. After the police confronted Allen with the fact that he possessed the victim's cellular phone, Allen gave an oral confession. Early the next morning, the police detectives told Bobby that his brother Allen had given a statement implicating Bobby in the murder. Bobby did not believe the detectives. The detectives then brought Allen to the door of the room where Bobby was being interviewed. Bobby asked Allen if he made a statement. Allen raised his right hand and said, "I'm grandma, man, I'm grandma." At approximately 7 a.m., Bobby gave the police an oral confessions and later a written confession.

The trial court found that the police had probable cause to arrest Allen but did not have probable cause to arrest Bobby. The trial court rejected Allen's argument that Hamilton did not have authority to retrieve the phone number of the cellular phone to determine if it was the victim's cellular phone. The court ruled that because Allen gave permission to Detective Hamilton to look at the phone, Hamilton could perform a "minimally intrusive" examination of the phone to determine its phone number.

The State then filed a motion to demonstrate that independent factors attenuated Bobby's confession from Bobby's illegal arrest. Following a hearing, the trial court found that Allen's confession and Allen's conversation with Bobby, after Bobby's arrest, were independent factors that led to Bobby's confession and purged it of any taint from the illegal arrest. The trial court therefore admitted the confessions of both Bobby and Allen into evidence.


Although at trial the defendants called two witnesses to contest the police testimony that defendants' mother consented to their entrance into the house and that Allen told Detective Hamilton that he could look at the cellular phone, defendants on appeal do not challenge these facts. Defendants argue that, despite the court's factual finding and the police testimony, the police had no probable cause to arrest Allen. Defendants further argue that Detective Hamilton had no authority to turn on the cellular phone and retrieve its telephone number because that action exceeded the scope of the consent given by Allen.

The defendants bring their challenge of the evidence under both the United States and Illinois Constitutions. Both the United States and the Illinois Constitutions govern the conduct of police officers in performing warrantless arrests and searches and prohibit unreasonable searches and seizures. U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I, §6; People v. Buss, 187 Ill. 2d 144, 204 (1999). These constitutional provisions allow the police to make a warrantless arrest but only if the police have knowledge which would lead a reasonable man to believe that a crime has occurred and that it has been committed by the defendant. People v. Robinson, 167 Ill. 2d 397, 405 (1995). In reviewing a probable cause challenge, the court evaluates the police conduct in accordance with practical, everyday principles. People v. Kidd, 175 Ill. 2d 1, 22 (1996). Probable cause for an arrest exists when the facts and circumstances known to the police would justify the belief, in a person of reasonable caution, that the person arrested has committed an offense. People v. Lumpp, 113 Ill. App. 3d 694 (1983). The court determines under the totality of the circumstances whether the evidence available to the arresting officer at the time of the arrest provides a reasonable basis for the officer to believe that the suspect committed an offense. People v. Dizon, 297 Ill. App. 3d 880, 885 (1998). When a defendant solely challenges the trial court's legal conclusions for denying a motion to quash arrest and suppress evidence, as in this case, our review is de novo. People v. Wright, 183 Ill. 2d 16, 21 (1998).

I. Probable Cause To Arrest Allen

Defendants first argue that the discovery of the victim's cellular phone in Allen's possession did not give the police probable cause to arrest Allen. According to defendants, Allen could have obtained the phone in a number of legitimate ways and, at most, the discovery of the cellular phone by the police gave the police a "suspicion" that would permit them to question Allen. However, this argument fails to address the substantial evidence in this case which linked Allen to the murder. While the officers did not visit the defendants' home until two weeks after the crime, a probable cause analysis does not require the police to possess proof beyond a reasonable doubt. The police may arrest the defendant if it is more probably true than not that the evidence available to them supports the conclusion that defendant committed the crime. People v. House, 141 Ill. 2d 323, 370 (1990). Here, at the time of Allen's arrest, the police, as a result of their investigation, had the information connecting Allen to the crime. Gregory Carter, the victim's cousin, connected Allen to the victim, placed him at the crime scene and reported that the victim's cellular phone, the phone found in Allen's apartment, was taken from the victim's apartment at or near the time of the murder. During the course of his investigation, Detective Hamilton learned the names and address of the Berry brothers, who had been seen in the victim's apartment within 24 hours of the murder. Detective Hamilton learned from the victim's cousin that a Motorola cellular phone was missing from the victim's apartment. The victim's brother provided Hamilton with the phone number of the missing cell phone.

Carter, the victim's cousin, told Hamilton that Bobby Berry had talked to the victim about purchasing the victim's cellular phone. Further, Carter described suspicious behavior and told Hamilton that it was Bobby Berry who concealed his fingerprints by using his sleeve to pick up a videotape while he was at the victim's apartment. Immediately after Hamilton confirmed that the phone found in Allen's room belonged to the victim, Hamilton asked Allen how long he had had the phone and Allen lied. Allen told Detective Hamilton that he had had the cellular phone for two months. Hamilton, however, knew that the missing phone had been in the victim's apartment within 24 hours of the murder and at that time Allen together with his brother and friends discussed with the victim buying that phone. Allen's false statement as to how long he had the phone, his possession of the victim's property, his fight with Carter at the funeral, his presence at the victim's apartment when the victim was last seen alive, and his discussing with the victim the purchase of the victim's phone all provide a reasonable basis to support the conclusion of Detective Hamilton that ...

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