from the Circuit Court of Will County, No. 07-CF-2219; the
Hon. Carla Alessio-Policandriotes, Judge, presiding. Judgment
Reversed and remanded with directions.
Kathleen T. Zellner and Nicholas N. Curran, of Kathleen T.
Zellner & Associates, P.C., of Downers Grove, for
Glasgow, State's Attorney, of Joliet (Thomas D. Arado, of
State's Attorneys Appellate Prosecutor's Office, of
counsel), for the People.
JUSTICE LYTTON delivered the judgment of the court, with
opinion. Justice McDade specially concurred, with opinion.
Justice Schmidt dissented, with opinion.
1 Defendant, Ricardo Gutierrez, appeals the denial of his
motion to quash arrest and suppress evidence, arguing that he
was arrested without probable cause when several police
officers entered his residence in the early hours of the
morning, woke him, handcuffed him, and did not tell him that
he was free to leave. We reverse and remand with directions.
3 Defendant was charged by indictment with two counts of
first degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2006))
with codefendant Gabriela Escutia. The indictment alleged
that defendant and Escutia shot Javier Barrios with a
handgun, causing Barrios's death on October 28, 2007.
4 Defendant filed a motion to quash arrest and suppress
evidence, arguing that he was arrested in his home at
approximately 5:20 a.m. on October 29, 2007, without a
warrant or without probable cause. The motion argued that
statements made by defendant while in police custody
following his arrest should be suppressed as the product of
an unlawful arrest.
5 A hearing was held on defendant's motion. Officer
Robert Plutz of the Plainfield police department testified
for the State. Plutz testified that he assisted in the
investigation into the death of Barrios who was shot in a
parking lot near the Meijer gas station in Plainfield.
6 Once the officers identified Barrios as the victim, they
"ran his information" and learned that Escutia had
an order of protection against him. The officers then
"ran the information" on Escutia and obtained a
general description of her and her vehicle. Plutz obtained
Escutia's address, which he believed was in Plainfield.
Plutz requested that a patrol car drive by Escutia's
residence to see if her vehicle was parked outside. An
officer drove by Escutia's residence but did not observe
her vehicle there.
7 Sergeant Troy Kivisto asked Plutz to make exigent
circumstances requests on Barrios's and Escutia's
cell phone numbers. Plutz requested cell phone records from
Escutia's cell phone company. Plutz sent a fax to the
phone company at approximately 11:25 p.m. on October 28
stating, "Per our phone conversation today, the reason
we needed the phone records were [sic] to quickly follow up
on any leads, identification on owners and persons of
interest in our homicide case." Plutz testified that a
person of interest could include a witness, someone with
knowledge, or a suspect. Plutz sent a second fax to the phone
company requesting Escutia's records, including incoming
and outgoing calls, cellular tower pings, texts, and
voicemails. Plutz also requested that the phone company
"put a freeze on" Escutia's voicemails.
8 After Plutz requested the records, Kivisto informed him
that they were going to Chicago to meet Secret Service agents
who were going to help them locate Escutia's cell phone.
Three Plainfield officers and several Kendall County officers
met the Secret Service agents at the District 9 police
station in Chicago. The Plainfield and Kendall County
officers drove around with the Secret Service agents for two
to three hours while the agents tried to locate Escutia's
cell phone. Several Chicago officers joined them as well. The
Secret Service agents learned that Escutia's alternative
billing address was a residence in Chicago.
9 Plutz and approximately seven other officers arrived at the
residence of the alternative billing address at approximately
5:20 a.m. The Chicago officers went up to the front door and
knocked. The Plainfield officers were behind the Chicago
officers. A Chicago officer had a conversation in Spanish
with the individual who answered the door. A female resident
let the officers in. One of the Chicago officers spoke with
the female resident and filled out a permission to search
form with her.
10 Plutz was told by another officer that Escutia and
defendant had come out of the back bedroom, where they had
been sleeping when the officers arrived. Plutz spoke with
defendant. Plutz introduced himself and asked if defendant
would come to the police station to answer some questions.
Defendant asked Plutz where he was from, and Plutz said he
was from the Plainfield police department. Defendant then
said, "yeah, sure." A Chicago police officer handed
Plutz a cell phone and a 9-millimeter bullet that the officer
found in a drawer in defendant's bedroom. Plutz put the
items in his pocket.
11 Plutz testified that he believed the officers wanted to
question defendant because he was found sleeping in a bed
with Escutia, who was a person of interest. Plutz stated that
the officers did not take defendant into custody because of
the 9-millimeter bullet that was located in his room. Plutz
testified that the first time he heard defendant's name
was at the residence in Chicago. Plutz did not put defendant
in handcuffs before he left nor did he physically restrain
defendant in any way. Plutz did not see anyone else put
defendant in handcuffs. Plutz was armed while in the
residence, but he never removed his weapon from its holster.
Plutz did not observe any other officers display their
weapons or yell. Plutz testified that defendant was
"absolutely" free to stay at the residence if he
had chosen to do so.
12 When the officers left the residence, all the squad cars
were full. The Chicago officers drove defendant to the
Chicago police station where the Plainfield and Kendall
County officers had parked their cars. Plutz was still in the
residence when defendant got into the car with the Chicago
officers. Plutz rode to the Chicago police station with
several Kendall County officers. When Plutz got to the
Chicago police station, defendant was not in handcuffs.
Defendant got into the front passenger seat of Plutz's
squad car, and Plutz drove to the Plainfield police station.
Defendant was not in handcuffs while in Plutz's vehicle.
Defendant did not make any statements regarding Barrios's
death during the car ride. Plutz did not recall saying
anything to defendant during the car ride that would have
indicated that defendant was free to leave.
13 When they arrived at the Plainfield police department,
defendant asked to use the restroom, which Plutz allowed him
to do. Plutz then led defendant to a small interview room
with chairs and a table. Plutz told defendant to knock on the
door if he needed anything, and Plutz left the room. Plutz
learned that Escutia, while she was in another officer's
car being driven to Plainfield, had stated that she and
defendant shot Barrios. At that point, Plutz did not believe
that defendant was free to leave. Plutz eventually returned
to the interview room with another detective. They led
defendant to another small interview room for recording
purposes. Shortly before 12 p.m. on October 29, the
detectives went over defendant's Miranda rights.
Defendant waived his Miranda rights and answered
their questions. Defendant signed a written statement typed
by Plutz after he had read the statement. The statement
contained admissions regarding defendant's involvement in
Barrios's murder. A videotape of defendant's
communications with Plutz was entered into evidence.
14 Plutz testified that defendant was not arrested prior to
making a statement at the Plainfield police department. Plutz
stated that the officers had no reason to arrest defendant at
the residence. Plutz acknowledged that he later stated in an
affidavit attached to a complaint for a search warrant that a
Nokia cell phone was seized as evidence when defendant was
arrested. Plutz testified that the statement in his affidavit
was incorrect; Plutz put the Nokia cell phone in his pocket
at the residence before defendant was arrested. Plutz stated
someone from the State's Attorney's office drafted
the affidavit, but Plutz signed it.
15 On November 8, 2007, Plutz sent a fax to Escutia's
cell phone company stating, "The reason we needed phone
records was to locate possible offenders in a homicide that
might be a threat to other individuals." Plutz testified
that someone from the cell phone company asked him to phrase
it that way. Plutz stated that when he initially requested
Escutia's cell phone records on October 28, 2007, he
believed it was possible that Escutia was an offender.
16 Detective Carianne Siegel of the Plainfield police
department testified that she was assigned on October 28,
2007, to investigate the death of Barrios. Siegel and other
officers learned that Escutia had an active order of
protection against Barrios. Siegel testified that another
Plainfield officer sent an "exigent circumstances
request" regarding Escutia's cell phone number to
Escutia's cell phone company, requesting "subscriber
information" about Escutia, including her billing
17 Siegel contacted a Secret Service agent because the Secret
Service has the ability to ping cell phones. Siegel told the
Secret Service agent about the events leading up to the
homicide, what happened at the scene, and that they were
trying to locate Escutia's cell phone. Siegel, two other
Plainfield officers, and several Kendall County officers went
to the Chicago police station to meet the Secret Service
agents. Three Chicago officers joined as well. The officers
drove around Chicago for approximately one hour trying to
locate the ping from Escutia's cell phone. Eventually, a
representative from Escutia's cell phone company gave a
Secret Service agent an alternate billing address for Escutia
at a residence in Chicago.
18 At approximately 5:20 a.m., all the officers drove to the
alternate billing address to look for Escutia. Siegel did not
know whose residence it was. Three Chicago police officers,
three Plainfield police officers, four Kendall County
officers, and approximately four members of the Secret
Service went to the residence. The three Chicago officers
were in uniform, but the others were in plain clothes. While
the Secret Service agents stayed outside, Siegel thought that
the other 10 officers may have all entered the residence.
19 One of the officers knocked on the front door, and four
people from inside the residence came to the door, including
the homeowner and three young men. The individuals who
answered the door were cooperative with the police. The
residence was crowded when the officers entered; Siegel
believed that there were approximately 16 people in the
residence including the officers and residents. Neither the
police nor the individuals inside the residence yelled or
screamed during the encounter. No police officer drew a
weapon inside the residence at any point. One of the members
of the household consented to a search of the residence.
20 One of the residents told the officers that Escutia and
defendant were sleeping in the residence. The officers
located defendant and Escutia in a back bedroom. An officer
asked Escutia if she would come to the Plainfield police
department to speak with the officers, and Escutia said yes.
Siegel left the residence with Escutia and Kivisto. The three
of them rode in a car to the Plainfield police department.
Before they arrived, Escutia told the officers that she and
defendant shot Barrios.
21 Siegel believed defendant left the residence with the
Chicago officers and was initially taken to the Chicago
police station. Siegel did not overhear any Plainfield
officers tell any Chicago officers that defendant was free to
leave if he chose to do so. Siegel did not know whether the
Chicago officers handcuffed defendant because she did not see
them transport him. Siegel testified that, at the time the
officers arrived at the residence, defendant was not a
suspect in the murder of Barrios. Siegel stated that the
officers had not developed probable cause to believe
defendant was responsible for the crime.
22 A few days after the officers encountered defendant and
Escutia at the residence, Siegel obtained a court order for
the information they received from Escutia's cell phone
company pursuant to the exigent circumstances request. In her
application for the order, Siegel stated under oath: "At
that point, officers made an exigent circumstances request
with T-Mobile for above cellular phone information, which led
to the arrest of Gabriela Escutia and [defendant]. Both
suspects later confessed to the murder that is the subject of
said homicide investigation." Siegel testified at the
hearing that neither Escutia nor defendant were under arrest
at the time they confessed to the murder.
23 Sergeant Kivisto of the Plainfield police department
testified that he was involved in the investigation of
Barrios's death on October 28, 2007. Kivisto and other
officers investigating the case learned that Escutia had an
order of protection against Barrios, and they wanted to speak
to Escutia regarding Barrios's death. The officers sent
an exigent circumstances request to Escutia's cell phone
company to obtain her subscriber information. They did not
have a court order at that time. The officers attempted to
locate Escutia using the subscriber information they obtained
from her cell phone company, but she was not at her
24 Kivisto, the other Plainfield officers investigating the
case, and officers from the Kendall County major crimes task
force went to the Chicago police station to meet Secret
Service agents to discuss tracing Escutia's cell phone.
The Secret Service agents received information that
Escutia's cell phone may have been pinging in the City of
Chicago. Sometime after 12 a.m. on October 29 the Plainfield
officers, Kendall County officers, and Secret Service agents
drove around Chicago trying to locate Escutia's cell
phone. Three Chicago officers were with them as well. At
approximately 5 a.m., the Secret Service agents were informed
by Escutia's cell phone company that Escutia had an
alternative billing address in Chicago. The officers then
went to the residence at the alternative billing address at
approximately 5:20 a.m.
25 Kivisto testified that three Plainfield officers, several
Kendall County officers, three Chicago officers, and
approximately three Secret Service agents went to the
residence. The officers identified a black Nissan vehicle
parked outside the residence as being registered to Escutia.
Only the Chicago officers were in uniform. The Chicago
officers may have had marked police vehicles, but the other
officers were in unmarked squad cars. When the officers
arrived at the residence, they did not turn on their sirens
or police lights. Two officers went to the back of the
residence, where there was a door, due to officer safety
concerns and so they could make contact with anyone exiting
the residence to determine if Escutia was inside.
26 The remaining officers went to the front door and knocked.
Two of defendant's brothers initially opened the door.
The officers identified themselves and asked to enter the
residence. They were permitted to enter and went inside.
Kivisto believed that approximately six officers entered the
residence. Kivisto spoke with defendant's mother, Maria
Garcia. One of the Chicago officers acted as a translator for
Kivisto, as Maria only spoke Spanish. Kivisto told Maria they
wanted to speak with ...