Dortch v. O'Leary

• Decision Date: 13 December 1988
• Docket Number: No. 87-1914,87-1914
• Citation: 863 F.2d 1337
• Parties: Leodis DORTCH, Petitioner-Appellant, v. Michael O'LEARY and Neil F. Hartigan, Attorney General of Illinois, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1337

863 F.2d 1337

Leodis DORTCH, Petitioner-Appellant, v. Michael O'LEARY and Neil F. Hartigan, Attorney General of Illinois, Respondents-Appellees.

No. 87-1914.

United States Court of Appeals Seventh Circuit.

Argued Feb. 17, 1988.

Decided Dec. 13, 1988.

Melvin Avanzado, Law Student, Notre Dame, Ind., for petitioner-appellant.

Joan G. Fickinger, Ill. Atty. Gen. Office, Chicago, Ill., for respondents-appellees.

Before BAUER, Chief Judge, and WOOD, and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Petitioner Leodis Dortch appeals the order of the United States District Court for the Northern District of Illinois denying his petition for writ of habeas corpus. The petitioner was found guilty of murder and attempted armed robbery after a jury trial and sentenced to 28 years' imprisonment. The Appellate Court of Illinois affirmed the judgment of the trial court, People v. Dortch, 109 Ill.App.3d 761, 65 Ill.Dec. 308, 441 N.E.2d 100 (1982), and the Illinois Supreme Court denied review. Dortch filed his habeas petition in the district court pursuant to 28 U.S.C. Sec. 2254, having exhausted his available remedies in the Illinois courts. The district court denied Dortch's petition and granted summary judgment for the respondents. Dortch appeals, alleging two constitutional errors requiring the issuance of a writ of habeas corpus: (1) the Illinois courts applied an improper constitutional standard to the lineup identification, thereby denying him an opportunity to fully and fairly litigate his fourth amendment claim; and (2) the prosecutor in his closing argument violated Dortch's fifth, sixth and fourteenth amendment rights by referring to Dortch's election not to testify at trial and unfairly attacking the integrity of defense counsel. We affirm.

I.

On September 19, 1979, two men walked into a Church's Fried Chicken restaurant in Chicago, Illinois, and announced a robbery. One of the robbers fatally wounded an employee and then attempted to open the cash register. When this failed, the two men exited the restaurant. Ethel Collins, a customer in the restaurant at the time, witnessed the murder and testified that she had the opportunity to observe the gunman for approximately three minutes. Upon the arrival of the police at the crime scene, Collins described the gunman to Detectives Shine and Lazar of the Chicago Police Department.

Approximately four weeks into the investigation, Detectives Shine and Lazar filed a police report concluding that petitioner Dortch was the prime suspect in the murder of the Church's employee. Based on this report, three Chicago police officers arrested the petitioner in his home on October 17, 1979. Although the police report naming Dortch as the prime suspect was filed four days earlier, no warrant was obtained to effectuate Dortch's arrest. Within four hours of his arrest, Dortch was placed in a police lineup at the Area Four Homicide Station of the Chicago Police Department, and Ethel Collins identified him as the gunman.

Prior to trial, Dortch moved to quash his warrantless arrest alleging that he did not consent to the officers' entry into his home, and there were no exigent circumstances to justify their failure to obtain a warrant prior to effectuating the arrest. The trial court found that although there was probable cause to arrest Dortch, exigent circumstances did not exist, and the defendant did not give his consent for the police officers to enter his dwelling without a warrant; thus, under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the arrest was illegal.

Dortch also moved to suppress Collins' lineup identification, the in-court identification and any testimony concerning the lineup identification as the fruit of his illegal arrest. At the outset, the trial court recognized that in some cases the connection between an illegal arrest and evidence derived therefrom can be so remote, suppression of the derivative evidence is not required. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The trial court then found that the illegal arrest was not made for the purpose of having a lineup, obtaining evidence, or for otherwise exploiting the illegality of the arrest. In making this finding, the trial court emphasized that because probable cause existed to arrest Dortch, the illegality of his arrest derived solely from the police officers' entry into his home. That is, if the police had arrested Dortch outside his home, there would have been no constitutional violation and thus, no basis to quash his arrest or suppress any evidence derived therefrom. Based on these findings, the trial court ruled that under Wong Sun and Brown the taint from the illegal arrest had long dissipated. The court therefore denied Dortch's motion to suppress Collins' identification evidence and testimony.

On appeal to the Appellate Court of Illinois, Dortch argued that the trial court erred in denying his motion to suppress the identification evidence and testimony because this evidence was tainted by his illegal arrest. Accepting the trial court's finding that Dortch's arrest was illegal, the Illinois appellate court began its analysis by stating the rule that "[n]ot all evidence obtained from illegal searches and seizures in violation of the Fourth Amendment is suppressible." Dortch, 65 Ill.Dec. at 311, 441 N.E.2d at 103 (citing Wong Sun and Brown, supra ). The court, again relying on Wong Sun, further stated:

"The guiding question ... is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' "

Dortch, 65 Ill.Dec. at 311, 441 N.E.2d at 103 (quoting Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417, 9 L.Ed.2d at 455). In determining whether the taint of Dortch's illegal arrest was purged from Collins' lineup identification, the Appellate Court of Illinois employed a four-factor analysis: "the temporal proximity of the illegality to the evidence obtained; the presence of intervening circumstances; the purpose and flagrancy of the police conduct; and the presence of or absence of Miranda warnings." Dortch, 65 Ill.Dec. at 312, 441 N.E.2d at 104. These factors were first set forth in Brown v. Illinois, supra, and had been employed in another Appellate Court of Illinois decision, People v. Sampson, 86 Ill.App.3d 687, 41 Ill.Dec. 657, 408 N.E.2d 3 (1980). The court recognized that the Supreme Court in Brown placed particular emphasis on the presence of Miranda warnings and the purpose and flagrancy of the official misconduct.

At the outset, the Illinois appellate court recognized that unlike Brown, this case did not involve a confession and thus the presence of Miranda warnings was irrelevant. The court next concluded that the temporal proximity between the illegal arrest and the lineup was four hours, as contrasted with two hours in Brown, and that there were no intervening circumstances during that four-hour time period. With regard to the fourth factor, the court stated:

"If police conduct is found to be purposeful and flagrant, then the taint from the illegality is not attenuated or diminished.

This is because the purpose of suppressing evidence is to prevent similar conduct on the part of the police in the future and to deny them any benefit from such conduct. However, in the instant case, the trial court specifically found that Dortch's arrest was not effected for the purpose of obtaining evidence. The police did not embark on the expedition in the hope that 'something might turn up.' "

Dortch, 65 Ill.Dec. at 312-13, 441 N.E.2d at 104-05 (quoting Brown, 422 U.S. at 605, 95 S.Ct. at 2262, 45 L.Ed.2d at 428). Based on the relevant factors set forth in Brown, the Appellate Court of Illinois concluded that the taint from Dortch's illegal arrest was sufficiently dissipated to admit Collins' lineup and in-court identifications and testimony into evidence, and accordingly affirmed the trial court's denial of Dortch's motion to suppress.

In his habeas petition, the petitioner again argues that the court's failure to suppress the lineup and in-court identifications allegedly tainted by his illegal arrest amounted to a denial of his due process right to a fair trial. The district court held that petitioner was barred from seeking review of this claim under Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), because he had already fully litigated the issue in the Illinois state courts. In Stone, the Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 482, 96 S.Ct. at 3046, 49 L.Ed.2d at 1080.

Dortch contends on appeal that Stone v. Powell does not bar federal review of his fourth amendment claims because the Illinois courts failed to apply the proper constitutional standards. In support of this argument, Dortch places substantial reliance on Gamble v. Oklahoma, 583 F.2d 1161 (10th Cir.1978). The primary issue in Gamble was whether the petitioner's fourth amendment claim had been "afforded an 'opportunity for full and fair litigation' within the meaning of Stone." Id. at 1164. Because Stone did not define its "full and fair litigation" requirement, the Tenth Circuit extensively analyzed other opinions addressing the requirement set forth in Stone and concluded that "full and fair litigation" involves more than mere opportunity to present fourth amendment arguments but also includes "at least colorable application of the correct fourth amendment constitutional standards." Gamble, 583...