People v. Kirby

• Decision Date: 10 March 1970
• Docket Number: Gen. No. 53610
• Citation: 121 Ill.App.2d 323,257 N.E.2d 589
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas KIRBY (Otherwise called Kirby Thomas) (Impleaded), Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 589

257 N.E.2d 589

121 Ill.App.2d 323

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas KIRBY (Otherwise called Kirby Thomas) (Impleaded),

Defendant-Appellant.

Gen. No. 53610.

Appellate Court of Illinois, First District, Second Division.

March 10, 1970.

Michael Seng, Jenner & Block, Chicago, for appellant.

Edward V. Hanrahan, State's Atty., County of Cook, Chicago, for appellee, Elmer C. Kissane, Asst. State's Atty., of counsel.

LYONS, Justice.

The defendant was convicted, following a jury trial, of the offense of robbery in violation of Illinois Revised Statutes, Chapter 38, section 18--1 (1967). Judgment was entered on the verdict and defendant sentenced to a term of not less than five nor more than twelve years in the Illinois State Penitentiary. In this appeal the defendant contends that the trial court erred in denying his motions to suppress physical evidence and identification testimony.

At the hearing on the motion to suppress physical evidence, Kirby and his co-defendant testified that they were arrested in the vicinity of 2400 West Madison Street in the City of Chicago, Illinois, on February 22, 1968. The defendant further testified that after police stopped him they searched his person, recovering his personal identification and certain traveler's checks bearing the name Willie Shard. The officers did not inform him that he resembled a man wanted by the police for confidence game, at the time of his arrest.

The arresting officers testified for the State. Officer Baggio Panepinto testified that he and his partner were riding in a squad car in the vicinity of 2200 West Madison when he noticed that the defendant Kirby, then walking, resembled one Alphonso Hampton, who was wanted for con game according to a police department bulletin which bore Hampton's picture and description and which was in the squad car.

Officer Panepinto further testified that the defendant and his companion were stopped and asked to identify themselves. While Kirby was looking for identification in his wallet, he, Panepinto, noticed certain traveler's checks bearing the name 'Willie' in the wallet. He asked the defendant who they belonged to and he responded that they were play money. The officer then asked to see the checks. Kirby handed them to Panepinto who was then able to observe the complete name which the checks bore, 'Willie Shard.' When asked who Willie Shard was, Kirby stated that he won the checks in a crap game. On cross-examination the officer testified that Alphonso Hampton was 5 2 in height and defendant Kirby 5 5 in height. At the time defendant was stopped, the officer did not know that Willie Shard had been the victim of a robbery.

Officer James Rizzi's testimony, insofar as it was relevant to the present defendant, corroborated that of Officer Panepinto.

At the close of this testimony the trial court denied defendant's motion to suppress the traveler's checks and a Social Security Card later taken from defendant and also bearing the name 'Willie Shard.'

At the hearing on defendant's motion to suppress the identification testimony of the victim, Kirby and his co-defendant each testified that he was not advised of his right to have counsel present prior to and at the time of his identification. The State did not cross examine, nor did they present any evidence. Defendant's motion was denied.

The testimony at trial with respect to Shard's identification of the defendant at the police station was as follows:

Willie Shard

On Feburary 22, 1968, two days after he was robbed and one day after he reported the robbery to the police, he was requested, by phone, to come to the police station. Two police officers picked him up and brought him to the station. The officers who picked him up asked if he was robbed and if he could identify the offenders and he responded in the affirmative.

When he walked into the police station the defendant and co-defendant were seated at a desk. A police officer asked him if he recognized his assailants and he identified the defendant, along with his co-defendant.

Officer James Rizzi

When Mr. Shard arrived at the station, two hours after the defendant had been brought in, the defendant were seated in a large room. Shard walked into the room and stated that Kirby and his co-defendant were the men who had robbed him. The men identified were then asked to stand and Shard reaffirmed the identification. To the best of his knowledge, Mr. Shard was not prompted or coached prior to entering the room.

Ralph Bean (co-defendant)

He and defendant Kirby were seated at a table with police officers when Mr. Shard arrived. He walked in and stood by the door until approached by another man who the witness assumed was a police officer. The officer brought Mr. Shard toward the table where he and Kirby were seated. As they approached the table Shard said something to the effect that he did not know or could not identify them, and one of the police officers said that the witness and Kirby must be the ones since they had Shard's property.

This last statement was objected to as hearsay and the objection was sustained.

Defendant first contends that the trial court erred in denying his motion to suppress physical evidence. He argues that his arrest was without probable cause and therefore the physical evidence taken from his person should have been suppressed as the product of an unlawful arrest. While the defendant properly states the proposition of law, the testimony of Officer Panepinto, which the trial court was at liberty to, and apparently did believe, clearly presents a factual situation in which the rule is not applicable. The officer testified that he noticed the traveler's checks in defendant's wallet while defendant was looking for identification. Further, the officer testified that defendant surrendered the checks to him upon request. Clearly the checks were not recovered by the officer as the result of a search. Rather, their discovery falls within the purview of the plain view doctrine of People v. Davis, 33 Ill.2d 134, 210 N.E.2d 530 (1965).

Defendant is also correct in his assertion that the mere possession of the goods of another is not sufficient to establish probable cause for arrest. Here, however, an additional element is present. Defendant's possession, coupled with his having given conflicting explanations of that possession, is sufficient to establish probable cause for arrest. The Social Security Card taken from defendant was not recovered until after probable cause for the arrest existed.

This determination, that defendant's arrest was based upon probable cause, is also determinative of his second contention, that the identification testimony should have been suppressed as the product of an unlawful arrest.

Defendant next contends that the trial court erred in denying his motion to suppress identification...