People v. Leach

• Decision Date: 08 January 1993
• Docket Number: Nos. 2-90-0998,2-90-1407,s. 2-90-0998
• Citation: 612 N.E.2d 825,183 Ill.Dec. 898,245 Ill.App.3d 644
• Parties: , 183 Ill.Dec. 898 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Russell E. LEACH, Defendant-Appellee (Hosie Thurman et al., Defendants). The PEOPLE of the State of Illinois, Defendant-Appellant, v. Russell E. LEACH, Defendant-Appellee (Hosie Thurman et al., Defendants).
• Court: United States Appellate Court of Illinois

Page 825

612 N.E.2d 825

245 Ill.App.3d 644, 183 Ill.Dec. 898

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Russell E. LEACH, Defendant-Appellee (Hosie Thurman et al.,

Defendants).

The PEOPLE of the State of Illinois, Defendant-Appellant, v. Russell E. LEACH, Defendant-Appellee (Hosie Thurman et al.,

Defendants).

Nos. 2-90-0998, 2-90-1407.

Appellate Court of Illinois Second District.

Jan. 8, 1993.

James E. Ryan, Du Page County State's Atty., Barbara A. Preiner, Supervisor of Appeals, Du Page Co. State's Atty's. Office, Wheaton, William L. Browers, Deputy Director, Gregory L. Slovacek, State's Attys. Appellate Prosecutor, Elgin, John X. Breslin, Deputy Dir., State's Atty. Appellate Prosecutor, Nancy Rink Carter, State's Attys. Appellate Prosecutor, Ottawa, for people.

Raymond Myles, Chicago, G. Joseph Weller, Deputy Defender, Paul J. Glaser, Office of State Appellate Defender, for Russell Leach.

Presiding Justice INGLIS delivered the opinion of the court:

In consolidated appeals, the State asks us to reverse trial court orders granting motions by defendant, Russell Leach, to quash his arrest and suppress evidence. We hold that (1) we lack jurisdiction to hear the State's appeal in case No. 2-90-1407 (trial court No. 90-CF-2011); (2) the trial court did not manifestly err in concluding that the warrantless arrest of defendant inside his home was unconstitutional; and (3) the State is not entitled to a hearing on whether any of defendant's post-arrest statements to the police are admissible in spite of the illegality of the arrest. We therefore dismiss the appeal in case No. 2-90-1407 and affirm the judgment of the trial court in case No. 2-90-0998 (trial court No. 90-CF-1245).

On June 13, 1990, in case No. 90-CF-1245, defendant, Hosie Thurman and Clarence Thurman, Hosie Thurman's brother, were each indicted on four counts of attempted armed robbery (Ill.Rev.Stat.1989, ch. 38, pars. 8-4(a), 18-2(a)), two counts of aggravated unlawful restraint (Ill.Rev.Stat.1989, ch. 38, par. 10-3.1(a)), and two counts of unlawful restraint (Ill.Rev.Stat.1989, ch. 38, par. 10-3(a)). All these charges were based on an incident that transpired early in the morning of May 24, 1990.

On August 17, 1990, in case No. 90-CF-2011, defendant was indicted on three counts of armed robbery (Ill.Rev.Stat.1989, ch. 38, par. 18-2(a)). The charges were based on alleged incidents of February 14, 1990, May 3, 1990, and May 6, 1990. Clarence and Hosie Thurman were indicted on two counts of armed robbery, based on the May 3, 1990, and May 6, 1990, incidents.

Maywood police officers arrested defendant at his home at about 6:30 a.m. on May 24, 1990. About five hours earlier, Downers Grove police arrested the Thurmans following a car chase during which a third person escaped.

On July 20, 1990, in case No. 90-CF-1245, defendant moved to quash his arrest and to suppress all evidence that was the product of the arrest. The Thurmans also moved to quash their arrests and to suppress evidence. On September 7, 1990, directly after a consolidated evidentiary hearing, Judge Thompson denied the Thurmans' motions. However, the judge found that defendant's warrantless arrest violated the fourth amendment (see Payton v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639). Judge Thompson granted the motion to quash the arrest. Also on September 7, 1990, Judge Thompson entered a written order in case No. 90-CF-1245 suppressing the use at trial of all evidence resulting from defendant's arrest. On September 14, 1990, the State appealed from the September 7 orders (No. 2-90-0998). See 134 Ill.2d R. 604(a).

On September 28, 1990, in case No. 90-CF-2011, defendant moved to quash his arrest and to bar from trial all evidence that was the product of the arrest. On October 16, 1990, defendant moved for an order applying collateral estoppel to his motion to quash arrest and suppress evidence. Defendant argued that, under principles of collateral estoppel, the court, in deciding defendant's September 28 motion to quash arrest and suppress evidence, was bound by its factual findings from the September 7, 1990, hearing. Defendant contended that because the evidence in each case was derived from the same arrest, the fourth amendment issues in each case were identical. Defendant's motion prayed for an order of collateral estoppel in case No. 90-CF-2011, "thereby quashing the arrest and suppressing the evidence therein."

On October 16, 1990, the trial court, per Judge John Nelligan, entered a written order stating that defendant's motion for collateral estoppel was granted and that case No. 90-CF-2011 was continued "for status" to November 30, 1990.

On November 30, 1990, the court, per Judge Thompson, entered a "Court Order for Collateral Estoppel." The order stated that the issues litigated and decided in the September 7, 1990, hearing in case No. 90-CF-1245 were the same as those raised in defendant's motion to suppress in case No. 90-CF-2011; that, at the September 7, 1990, hearing, the court found that defendant's warrantless arrest was unconstitutional because the police lacked both probable cause to arrest defendant and exigent circumstances to justify the warrantless in-house arrest; that, had the State brought the two prosecutions at the same time, Judge Thompson would have heard a single motion to quash arrest and suppress evidence and a subsequent motion would not have been necessary; and that defendant was entitled to an order of collateral estoppel. The order stated that collateral estoppel applied to defendant's motion to quash arrest and suppress evidence in case No. 90-CF-2011, "thereby quashing the arrest and suppressing the evidence therein." On November 30, 1990, the court, per Judge Nelligan, entered an order continuing both cases until May 23, 1991 "for status as agreed." On December 14, 1990, in case No. 90-CF-2011, the State filed its notice of appeal from the November 30, 1990, order suppressing evidence (No. 2-90-1407). We have consolidated the appeals.

The State contends that the trial court erred in finding that the police lacked probable cause and exigent circumstances to arrest defendant. The State argues further that, even should this court uphold the quashing of the arrest, we should remand this case to the trial court for a hearing on whether any of defendant's post-arrest statements were admissible because they were sufficiently purged of the taint of the illegal arrest.

Defendant replies that (1) this court lacks jurisdiction to hear the appeal in case No. 90-CF-2011 (No. 2-90-1407 on appeal) because it waited more than 30 days to appeal from the trial court's October 16, 1990, collateral estoppel order, which was in effect a suppression order immediately appealable under Supreme Court Rule 604(a); (2) the trial court did not manifestly err either in finding that the police lacked probable cause to arrest defendant or in finding that the police lacked the exigent circumstances necessary to validate a warrantless in-home arrest; and (3) the State has waived any hearing on attenuation by failing to raise the issue at the trial level.

We turn to the relevant evidence at the suppression hearing. Officer Timothy Gunn of the Downers Grove police department testified that, early in the morning of May 24, 1990, he was on patrol at the Finley Square Mall. All the stores were closed. Aside from a couple of cleanup crew vehicles, only one car, a white four-door Chevrolet, was parked in the mall lot. The car was parked "in an unusual manner." Looking beyond the car, Gunn saw two people running from the Burger King; another person waved and yelled toward Gunn. The two people running entered the Chevrolet. There was already a driver in the car. They drove north, at first with the headlights out. Gunn followed the car.

As Gunn followed him, the driver of the car increased his speed until both vehicles were going about 90 miles per hour on Finley Road. As he followed the car, Gunn radioed his base, which informed him that the police had just been notified of an armed robbery at the Burger King. As the two vehicles approached the border of Downers Grove and Lombard, Gunn saw the passenger door of the Chevrolet open. Someone tossed out an object, out of which another object fell. Gunn caught up to the Chevrolet at Grace Street in Lombard, about three or four miles from Downers Grove. When the Chevrolet stopped, one person got out from the passenger side and ran from the car toward the backyard of 106 Grace Street. The other two individuals cooperated with Gunn. Gunn handcuffed the two men and took them into custody. He later learned that the two arrestees were Clarence and Hosie Thurman.

Consistent with Officer Gunn's testimony, the State conceded that the police never obtained warrants to arrest or search the Thurmans or defendant.

Downers Grove police detective Dominic Scalzetti testified that, at about 1:30 a.m. on May 24, 1990, the police department telephoned his home. Scalzetti went to the station. There, at about 3:15 a.m., he interviewed Clarence Thurman. Thurman told Scalzetti that defendant was the third person involved in the attempted armed robbery at the Burger King and that defendant had been in the car with the Thurmans. Clarence Thurman later told Scalzetti defendant's address.

Immediately after interviewing Clarence Thurman, Scalzetti interviewed Hosie Thurman separately. Hosie Thurman also told Scalzetti that defendant was the third person involved in the Burger King incident. He also gave defendant's address.

Hosie Thurman further told Scalzetti that, as Officer Gunn pursued the three suspects north on Finley Road, defendant handed Hosie Thurman a gym shoe from the front of the Chevrolet. Hosie Thurman could see that the shoe contained a small caliber handgun. Defendant told Hosie Thurman to throw the shoe out of the vehicle. Thurman opened the back door and did so. Before the interview...