Appeal from the Circuit Court of Cook County Honorable Marcus R. Salone, Judge Presiding. 08 CR 20482
The opinion of the court was delivered by: Justice Robert E. Gordon
JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Justices Cahill and McBride concurred in the judgment and opinion.
Defendant Lamarr Maxey was charged by indictment with three counts of attempted aggravated robbery (720 ILCS 5/8-4(a), 18-5 (West 2008)). Defendant filed a pro se motion to quash his arrest and suppress evidence. Following a hearing, the trial court granted defendant's motion. On appeal, the State claims that the trial court erred in finding that the arresting police officers did not have probable cause to arrest defendant or, alternatively, the arresting police officers had reasonable suspicion to detain defendant for further investigation which ripened into probable cause to arrest. For the foregoing reasons, we reverse and remand.
Prior to trial, defendant filed a pro se motion to quash arrest and suppress evidence alleging that his initial detention was illegal because it was not based on reasonable suspicion or probable cause to arrest and, thus, evidence recovered by police subsequent to arrest should be suppressed.
On May 13, 2009, the trial court held a hearing on defendant's motion to quash arrest and suppress evidence. At the hearing, defendant represented himself pro se and called two witnesses: (1) Aselo Hernandez, one of the victims; and (2) Chicago police officer Christopher Nelligan, an investigating detective.
Aselo testified that at approximately 12 p.m. on October 8, 2008, he was working with his son, Hector Hernandez, at Hector's Upholstery Store, which is located on South Western Avenue in Chicago, near the intersection of 105th Street. He observed defendant enter the store with a handgun and approach them. Defendant then said to them, "it is a robbery FF's."
Aselo testified that he panicked and ran toward a door in the rear of the store. He testified that defendant ran after him and knocked him to the floor. He testified that while he was on the floor, defendant pointed the handgun at the back of his head. Aselo testified that Hector approached defendant and defendant then pointed the handgun at Hector.*fn1
Aselo testified that Hector "was able to wrestle the [handgun]" from defendant's hand and knock the handgun to the floor. He testified that Hector yelled that the handgun was a fake and defendant ran out of the store through the front door. He testified that Hector then ran after defendant. Aselo testified that he stood up, exited the store through the front door, and observed a "witness" standing in front of the store. He further testified that the witness told him that he had observed Hector chasing defendant and that he called 911 emergency services.
Aselo testified that he did not provide the police with a description of defendant because he was "too panicked *** to describe everything precisely." Rather, he testified that Hector described the defendant to an unnamed police officer who arrived at the store.
On cross-examination, Aselo testified that a police vehicle arrived "a few minutes later" after the attempted robbery and he observed defendant exit the police vehicle. He testified that he and Hector both positively identified defendant as the person who had attempted to rob them.
Officer Nelligan testified that on October 9, 2008, he was assigned as the investigating detective for the attempted robbery at the upholstery store. He testified that he interviewed "several witnesses" at the scene, including Hector. Officer Nelligan testified that Hector informed him that the offender drove away from the crime scene in a "red or maroon Oldsmobile" with temporary license plates.
During Officer Nelligan's testimony, the trial court advised defendant that he needed the assistance of a lawyer to properly present his motion and to properly examine witnesses. Defendant agreed and requested that the trial court appoint the public defender's office to assign an assistant public defender to represent him. The trial court then appointed the Cook County public defender's office and continued the hearing to October 7, 2009.
On June 10, 2009, an assistant public defender was assigned to represent defendant. The assistant public defender filed a new motion to quash arrest and suppress evidence, alleging that the police subjected defendant to arrest before establishing probable cause in violation of the fourth amendment of the United States Constitution.
On October 7, 2009, the hearing on defendant's motion to quash arrest and suppress evidence continued. At the hearing, three witnesses were called by the defense: (1) Michael Sweeney, the arresting officer; (2) Laura Dunha, an employee of the Office of Emergency Management Communications (OEMC); and (3) defendant.
Officer Sweeney, a 17-year veteran of the Chicago police department, testified that at approximately 12 p.m. on October 9, 2008, he was driving an unmarked police vehicle westbound on 107th Street near the intersection of 107th and Halsted Streets and was responding to a radio transmission concerning an attempted robbery that had occurred on South Western Avenue. He testified that he monitored another radio transmission that described the suspect as 6 feet 2 inches tall, male, African-American, thin, wearing a light blue baseball cap, jeans, and a dark-colored vest. He did not testify whether the suspect was described in the radio transmissions as having facial hair or wearing glasses.
He further testified that the radio transmission further described the suspect as a driver in a "red or burgundy" automobile with temporary license plates. Officer Sweeney testified that he heard another radio transmission from Sergeant Coghlan, who observed a vehicle matching the description of the suspect's vehicle driving near the intersection of 103rd Street and Charles Street.*fn2
Officer Sweeney testified that he drove to the intersection of 103rd Street and Vincennes, near Charles Street, and observed, within two to three minutes, a "red or burgundy older [automobile] with a temporary [license] plate driving eastbound" on 103rd Street. He further observed Sergeant Coghlan and Officer Lough*fn3 following the automobile in separate marked police vehicles. Officer Sweeney testified that after all three motor vehicles passed him, he turned eastbound onto 103rd Street and he and the other officers then illuminated their emergency lights.
Officer Sweeney testified that he curbed the automobile by driving his police vehicle in front of the automobile and slowing his vehicle until both motor vehicles stopped. He testified that from the time he heard the description of the suspect's vehicle to the time he stopped the automobile on 103rd Street, approximately two minutes had passed. He further testified that the distance from the location where he curbed the automobile to the upholstery store was approximately one mile.
Officer Sweeney testified that he exited his vehicle and approached the driver's side of automobile. He observed defendant in the driver's seat and that he was "sweating profusely."
He testified that he asked defendant to exit the vehicle, and the defendant complied. The officer testified that, after defendant exited the vehicle, he observed a "a dark sweater vest and a light, baby blue baseball cap" located on the front passenger seat. He further testified that when defendant exited his vehicle, defendant appeared to be approximately 6 feet 2 inches tall and "matched the description" of the suspect that he had heard in the earlier radio transmissions.
Officer Sweeney testified that he explained to defendant that he stopped him because an "attempt robbery" had occurred on South Western Avenue and that defendant matched the description of the suspect. He testified that defendant denied any knowledge of the attempted robbery and agreed to accompany Officer Sweeney to the crime scene "to clear this up." Officer Sweeney testified that at this point defendant was not free to leave. He further testified that, before curbing defendant's vehicle, he did not observe defendant "engage in any illegal activity" and he did not have a warrant to arrest defendant.
Officer Sweeney testified that a police wagon arrived approximately five minutes later and defendant was placed inside the rear of the wagon. He testified that the police wagon drove defendant to the upholstery store. He further testified that, when defendant exited the wagon, the two victims and two unnamed witnesses immediately identified defendant as the offender. He testified that defendant was then placed under arrest. Officer Sweeney further testified that the arrest occurred at approximately 12:15 or 12:20 p.m. and that "the whole incident," from the time defendant was stopped to the time he was arrested, "took 15 minutes."
On examination by the trial court, Officer Sweeney testified that, in general, he could not determine the height of an occupant of a moving vehicle. On re-cross-examination, the officer testified that when he observed the defendant's vehicle driving on 103rd Street, he could not determine if the driver was "tall," ...