People v. Vena
| Decision Date | 29 February 1984 |
| Docket Number | Nos. 81-737,81-738,s. 81-737 |
| Citation | 77 Ill.Dec. 582,460 N.E.2d 886,122 Ill.App.3d 154 |
| Parties | , 77 Ill.Dec. 582 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Albert VENA and Mario Rainone, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Fred L. Foreman, State's Atty., Waukegan, Phyllis J. Perko, Marshall Stevens, State Attys. Appellate Service Com'n, Elgin, for plaintiff-appellant.
Russo Doty & Assoc., William M. Doty, Jr., Robert DeMeo, Chicago, for defendants-appellees.
The State appeals (87 Ill.2d R. 604(a)(1)) from an order of the circuit court of Lake County which granted the post-trial motion of defendant, Albert Vena, to quash his arrest and suppress the evidence seized from his person subsequent to the arrest. The State's sole contention on appeal is that the trial court incorrectly granted the motion to quash and suppress because the arrest was based upon probable cause.
Albert Vena was charged by information with attempted burglary, burglary, and theft over $150. After a jury trial he was convicted of felony theft (Ill.Rev.Stat.1981, ch. 38, par. 16-1(a)(1) and found not guilty of burglary. Mario Rainone, a codefendant who was tried separately, was charged by information with attempted burglary.
Each defendant filed a pretrial motion to quash his arrest and suppress evidence seized subsequent to the arrest. After holding an evidentiary hearing the trial court denied the motion. Defendants filed a motion for reconsideration of the denial of their motions to quash and suppress; the court below denied the motion to reconsider. Vena filed another motion to suppress. Subsequent to holding a hearing at which additional evidence in support of the motion was presented, the court again denied the motion to suppress. Thereafter the court granted Vena's motion to sever his trial from that of the codefendant.
During Vena's trial and prior to presenting defendant's case, defense counsel renewed his motion to suppress evidence; the trial court denied the motion. The jury found Vena guilty of theft over $150 and not guilty of burglary. Subsequently, the court entered a judgment of conviction on the theft verdict. Thereafter, Vena again filed motions to quash his arrest and to suppress evidence as well as a post-trial motion for a new trial, which was based on the ground, among others, that the trial court erred in refusing to grant his prior motions to quash his arrest and to suppress the evidence seized as a result of the arrest.
After hearing argument on the matter, the court reversed its earlier ruling and determined that the evidence which the police seized from Vena was the result of an arrest that was not based on probable cause or reasonable grounds. Accordingly, the court below suppressed the evidence which was seized from Vena, vacated the judgment of conviction and the jury's verdict, and granted Vena's request for a new trial. Pursuant to the State's request, the trial court extended its ruling affecting the admissibility of evidence in Vena's case to the case of the codefendant Rainone as well.
The State filed a motion for reconsideration, which the trial court denied. Thereafter, the State filed a timely notice of appeal in both cases, which have been consolidated for purposes of this appeal. The State also filed in the trial court the requisite certificate of impairment relative to each defendant. See People v. Young (1980), 82 Ill.2d 234, 45 Ill.Dec. 150, 412 N.E.2d 234.
The incident in question took place on February 10, 1981, in the Village of Lincolnshire. At approximately 3:13 p.m. on that day Officer Born responded to a call from the Dedrich home that three "suspicious" men were walking through the backyard at 39 Canterbury Drive. Mr. Dedrich did not tell the officer that he observed the three individuals committing any criminal offense. Dedrich briefly described the men as persons who were wearing dark jackets, pants and hats; Born related that brief description over his police radio to other squad cars.
The weather that day consisted of very heavy snow and blizzard-like conditions; six to eight inches of snow were on the ground. Officer Born followed two sets of footprints from the Dedrich's backyard leading to, then crossing, Queen's Way. He followed the unbroken footprints for one-half hour and for a distance of approximately a mile and one-half to two miles. The footprints led across Queens Way Road and to a location called Dawson Farm, where the officers saw the two defendants. There was no break in the footprints from the time Born commenced following them until he found Vena and Rainone.
Born stated that the clothing defendants were wearing was similar to that which Mr. Dedrich had described to him. According to Born, at the time he observed defendants they were not violating the law, and he had no reason to arrest them. When Born, who was in uniform, saw defendants, he announced that he was a police officer and told them to "freeze." At that moment, defendants turned around, looked at him, stopped climbing a fence, came down and started running. Born began to pursue them and radioed for assistance. The officer chased the two individuals, and with the help of Officer Bracatto, Born apprehended Vena. In effecting the apprehension, Bracatto's mouth was injured. Both officers had their weapon drawn at the time they apprehended Vena; Officer Born then placed handcuffs on Vena. Born stated on two separate occasions during his testimony that he placed Vena under arrest at this time, although he later testified that he never advised Vena that he was under arrest when Vena was taken into custody at Dawson Farm. Born also assisted with the arrest of Rainone. At that time, neither subject was charged with a crime because Born was not then aware that any crimes had been committed in the area.
Officer Tavernier, who helped Officer Born follow the footprints testified as follows:
"Q. Officer, did you have reason to believe there had been a crime committed in the area?
A. Yes, sir, I did.
Q. What was that belief based upon?
* * *
* * *
A. We had been experiencing numerous burglaries in the area of Wood Creek Courts. We received a telephone call from a concerned citizen reporting three male subjects, adult male subjects, in their backyard.
Q. Officer, that was Mrs. Dedrich, is that correct?
A. Mrs. Dedrich made the initial call to our department.
Q. Subsequent to that call, within the next half-hour, had your department received another phone call?
A. Yes, shortly thereafter we received a second phone call.
Q. Do you know who that phone call was from?
A. From a lady. I don't know the name. Who was taking care of a house at 6 Tidewater. A citizen called and reported also there were men in the backyard of 6 Tidewater.
Q. Proceed. Tell us what your belief is based upon.
A. Like I say, the area on Tidewater we had at least two burglaries on Tidewater.
When Tavernier observed defendants at Dawson Farm, they were not committing a crime, and he was not aware that a crime had been committed in the area at the time defendants were stopped. According to the witness, the police stopped defendants because of the two complaints regarding suspicious persons in the residential area and in order to investigate their identity. Defendants were taken into custody because they ran from the police, failed to stop, and refused to identify themselves.
Tavernier apprehended Rainone and placed him in custody, and Officer Andrews advised Rainone of his Miranda rights. When Officer Tavernier asked Rainone who he was and what he was doing there, defendant did not respond to the inquiries other than to comment that he knew the officer had a job to do. The officer then conducted a pat-down search of Rainone and found nothing. Officer Roulo assisted two other policemen place Rainone in the rear seat of Roulo's squad car; he also helped take Vena, who was handcuffed, into custody. Prior to putting Vena into the squad car, Roulo conducted a pat-down search of the subjects and felt two large objects in Vena's backpocket. The items were a yellow plastic flashlight and a large folding knife. Then Officers Roulo and Tavernier transported defendants to the Lincolnshire police department.
Approximately 15 to 20 minutes after Vena had been placed in custody and taken to the police station, Corporal Richter radioed a report to the station regarding an attempted burglary at 3 Queens Way in Lincolnshire. After hearing that report, Officer Roulo then searched Vena at the police station and removed additional items from Vena's person, including a large set of keys, a wallet containing identification and miscellaneous papers, yellow metal cufflinks, a yellow-colored toothpick in a leather sheath and an earring.
The police department received a report of a burglary at 1810 Saunders Road in Riverwoods, which adjoins Lincolnshire and is patroled under contract by the Lincolnshire police department, at least one day after defendants were taken into custody. Several days later the victim of the Riverwoods burglary identified items found in the search of defendant Vena as property taken in the burglary. Defendant Vena's conviction of theft of property exceeding $150 in value was based upon the Riverwoods burglary and theft.
The State advances a two-fold argument on appeal in support of its position that the trial court improperly granted the motion to quash and suppress. The State contends first that the police were justified in conducting an investigatory stop and pat-down search (Ill.Rev.Stat.1979, ch. 38, pars. 107-14, 108-1.01) of defendants at the Dawson Farm. Continuing, the State maintains that, once defendants fled at the approach of the police and refused to identify themselves upon being apprehended and after police discovered a flashlight and a long knife on the...
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