People v. Riszowski
| Decision Date | 05 September 1974 |
| Docket Number | Nos. 58233,58234,s. 58233 |
| Citation | 318 N.E.2d 10,22 Ill.App.3d 741 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Victor RISZOWSKI, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James J. Doherty, Public Defender, (Paul D. Katz, Asst. Public Defender, of counsel), for defendant-appellant.
Bernard Carey, State's Atty. (Patrick T. Driscoll, Jr., Jerald A. Kessler, Asst. State's Attys., of counsel), for plaintiff-appellee.
Defendant, Victor Riszowski, was charged with petit theft and attempt deceptive practice. After a bench trial in the circuit court of Cook County, he was found guilty of both charges. He was sentenced to one year on each charge, the sentences to run concurrently. Defendant appeals, contending that the trial court committed reversible error in failing to suppress certain inculpatory statements attributed to him stemming from an allegedly illegal arrest.
On the date of trial, defendant requested a fourth continuance because his retained counsel had not appeared. The trial court denied the motion and informed defendant that he would have to go to trial on that day. An assistant public defender was appointed to represent defendant, and the case was passed for a short while.
When the case was called, appointed counsel again advised the court that defendant still wished time to hire private counsel. The trial judge again refused to grant a continuance. Thereupon, appointed defense counsel pleaded defendant not guilty, waived a jury trial, and made an oral motion 'to suppress statements made by the defendant.' The State agreed to waive its right to a written motion, and the hearing on the motion to suppress statements proceeded immediately.
One witness, Frank Capadona, the arresting officer, testified at that hearing. The record reveals that the direct examination by the defense attorney commenced in the following manner:
Q. Did you have occasion to place the defendant under arrest?
A. I did.
Q. Did you have a warrant for his arrest?
A. I did not.
Q. Where was the defendant when you placed him under arrest?
A. He was hiding in the closet at 5105 West Huron.
Q. Did you see the defendant commit any crime?
A. No, I didn't.
The balance of the examination by defense counsel related to the voluntariness of the statements given by the defendant and to the officer's compliance with the giving of the Miranda warnings.
Officer Capadona testified that after he had advised defendant fully concerning his constitutional rights under Miranda, defendant at the scene of the arrest made an oral inculpatory statement. Defendant was then taken to the police station where he orally repeated to Officer Capadona the confession he had given earlier. The second statement was preceded by another admonishment of his Miranda rights and defendant's signed waiver of those rights.
The prosecutor devoted his entire cross-examination of the officer to showing that the Miranda warnings had been given and that defendant's confession had been produced voluntarily. No other witness testified at the hearing on the motion to suppress statements and both sides waived argument. The trial judge denied the motion to suppress, and the matter proceeded to trial.
James Baraniak, the owner of a currency exchange in the City of Chicago, testified that on April 5, 1972, defendant entered the currency exchange, put his endorsement on the reverse side of a check, and requested that it be cashed. Defendant stated that the check belonged to his sister-in-law who was shopping next door. Defendant stated that he would go and bring her to the currency exchange. Defendant left without the check and without getting any money. He did not return. Thereafter, the witness called the police. The witness also identified the check possessed by defendant as one naming Mary Bishop as the payee.
Mary Bishop testified that on the day in question Officer Capadona visited her and inquired about the defendant. She told the officer that she believed defendant resided downstairs in the same building. The witness received a monthly public aid check in the mail at her address. At trial she identified the check bearing her name as payee and defendant's name as one of the endorsers as her public aid check. She testified that she had never signed her name on the back of the check, and had never given anyone permission to exercise control over the check.
Officer Capadona testified at trial that, upon concluding a conversation with Baraniak at the currency exchange, he went to Mrs. Bishop's apartment and talked to her briefly. He then proceeded downstairs and talked to a tenant named Mrs. Smith. Upon receiving permission, the officer conducted a search and discovered defendant in a bedroom closet. After defendant was arrested and fully informed of his constitutional rights, he was questioned by the officer in the apartment. The officer testified that defendant told him that he had taken the check in question from Mrs. Bishop's mailbox and attempted to cash it. Defendant was then taken to the police station where, after again being informed of his rights, he repeated to Officer Capadona the same statements he earlier had made in the apartment.
The defendant did not call any witnesses at trial. After both sides waived closing argument, the trial judge, sitting as trier of fact, found defendant guilty of both charges and sentenced him.
Defendant contends that the State did not establish probable cause for his arrest at the hearing on his motion to suppress statements, and that the trial court thus erred in permitting his statements to be introduced into evidence. The State initially counters by maintaining that defendant waived the issue of probable cause for the arrest. It reasons that the thrust of defendant's motion and argument at the hearing was directed toward establishing the invalidity of defendant's statements based upon Miranda and, consequently, that defendant should be foreclosed from raising the issue on appeal.
We cannot accept the State's view of the nature of the hearing on the motion to suppress. In the first place, it is clear that defendant's motion to suppress statements was not expressly predicated upon a violation of the Miranda standards. Furthermore, although it is true that defendse counsel devoted most of his examination at the hearing to questions concerning the voluntariness of defendant's statements and the officer's compliance with Miranda, the record clearly indicates that the first questions asked the arresting officer by defense counsel at the hearing directly related to the circumstances surrounding defendant's arrest and not to his later statements. (Compare People v. Harris (1969), 105 Ill.App.2d 305, 245 N.E.2d 80.) Moreover, in light of the manner of appointment of defense counsel, we are reluctant to impose the doctrine of waiver. (See People v. Montgomery (1972), 51 Ill.2d 198, 282 N.E.2d 138.) The trial court was well within its discretion in denying defendant's motion for a continuance, but appointed counsel obviously had only a brief time to consult with his client and to become acquainted with the facts. We conclude that the issue of probable cause for arrest was preserved for review.
We next consider whether defendant proved at the hearing that no probable cause existed to justify his arrest. A police officer may arrest a person without a warrant when he has reasonable grounds to believe that the person is committing or has committed an offense. (Ill.Rev.Stat.1971, ch. 38, par. 107--2(c).) Probable cause exists when a reasonable and prudent man in possession of the knowledge which has come to the arresting officer's attention would believe the person to be arrested is guilty of the crime. (People v. Harper (1973), 16 Ill.App.3d 252, 305 N.E.2d 680.) The burden fo proving that defendant's statements were not given incident to a lawful arrest rests with the defendant. (Ill.Rev.Stat.1971, ch. 38, par. 114--12(a)(1).)
As shown above, defense counsel immediately ascertained at the hearing that the officer did not have a warrant for defendant's arrest and that the officer had not observed defendant committing any crime. It is well established that once defendant has made out a prima facie case that the police lacked probable cause, the burden of going forward shifts to the State to negate that evidence at the hearing. People v. Cassell (1968), 101 Ill.App.2d 279, 243 N.E.2d 363; People v. Williams (1973), 16 Ill.App.3d 440, 306 N.E.2d 678; People v. King (1973), 12 Ill.App.3d 355, 298 N.E.2d 715; See also People v. Roebuck (1962), 25 Ill.2d 108, 183 N.E.2d 166.
In the present case, defendant satisfied his legal burden. The arresting officer admitted that he had no arrest warrant and that he had not observed defendant commit any crime. Although defendant was arrested in a bedroom closet, it cannot be said that the evidence adduced at the hearing showed that defendant wwas doing anything unusual at the time of his arrest. It is indisputable that the State did not go forward at the hearing to rebut defendant's showing of no probable cause. The State now attempts to show by the testimony adduced at trial that the police possessed probable cause justifying defendant's arrest, but the above-cited cases direct that the evidence to negate the lack of probable cause be produced by the State at the hearing on the motion to suppress and not later at trial. We are compelled to hold that the proof adduced at the hearing on the motion did not indicate that the police had probable cause for the arrest and, therefore, that the arrest was illegal.
The courts in this state, in accord with the majority view, have ruled that the illegality of an arrest will not ipso facto render infirm statements made by the accused subsequent to his arrest, thus requiring their automatic suppression from evidence at trial. (People v. Brown (1974), 56 Ill.2d 312, 307...
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