People v. Walker

• Decision Date: 19 January 1977
• Docket Number: No. 75--262,75--262
• Citation: People v. Walker, 360 N.E.2d 64, 45 Ill.App.3d 627, 4 Ill.Dec. 317 (Ill. App. 1977)
• Parties: , 4 Ill.Dec. 317 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Phillip WALKER, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 64

360 N.E.2d 64

45 Ill.App.3d 627, 4 Ill.Dec. 317

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Phillip WALKER, Defendant-Appellant.

No. 75--262.

Appellate Court of Illinois, Fifth District.

Jan. 19, 1977.

Rehearing Denied March 1, 1977.

E. Charles Geittmann, Terry J. Foster, Geittmann & Foster, Metropolis, for defendant-appellant.

James G. Gullett, State's Atty., Elizabethtown, for plaintiff-appellee; Bruce D. Irish, Principal Atty., M. Lucinda Awerkamp, Senior Law Student, Ill. State's Attys. Assn., Statewide Appellate Assistance Service, Mt. Vernon, of counsel.

EBERSPACHER, Justice.

This cause is an appeal by the defendant, Phillip Walker, from a judgment of conviction for the crime of unlawful delivery of cannabis entered by the circuit court of Hardin County, pursuant to a jury verdict of guilty. Three issues are presented for review in this Court, to-wit: Did the trial court err in denying the defendant's Motion to Suppress Evidence as illegally seized; Did the trial court err in denying the defendant's Motion to Suppress defendant's Confession, and; Did the trial court err in denying defendant's Motion to Dismiss for failure to receive a speedy trial pursuant to Ill.Rev.Stat.1973, ch. 38, par. 103--5(b).

It is necessary to examine the factual background with regard to the defendant's first two contentions. On March 4, 1974, pursuant to an investigation, conducted by the office of the Hardin County Sheriff, sheriff's deputies arrested Kevin Vinyard for possession of cannabis. At the time of his arrest, Vinyard allowed an inspection of his truck after he was told that if he refused, the sheriff's department would take legal steps and obtain permission to search it. That search produced three bags of a green, leafy substance believed to be cannabis. After that discovery, Vinyard told police he believed the substance to be marijuana and, further, that he had obtained that marijuana from the defendant, Phillip Walker, in exchange for an automobile. The Hardin County Sheriff's office then telephoned the office of the sheriff of neighboring Pope County and requested only that his office take the defendant into custody and hold him until Hardin County officials could arrive. Late in the afternoon Pope County deputies arrested the defendant in Pope County. Upon notification of defendant's arrest, the Hardin County Sheriff's office dispatched two officers to Pope County where they arrested the defendant without a warrant at 5:30 p.m. and, after advising defendant of his rights, as required by law, returned with the defendant in custody to the Hardin County Courthouse. They arrived there at approximately 6:30 p.m. The defendant was not taken before a judge in People County. On arrival, the defendant was placed in a jury room where he was held until approximately 9:05 p.m. while the sheriff's office was questioning other persons. He was not provided any dinner as the dinner hour had ended prior to defendant's return. Defendant was then taken to the sheriff's office, advised of his rights and, after one hour and ten minutes of questioning, signed a statement admitting delivery of cannabis to Vinyard in exchange for an automobile. He was thereafter charged by criminal complaint with unlawful delivery of cannabis and, after posting bail, was released.

The defendant's first contention, that the cannabis seized in Vinyard's truck was inadmissible against the defendant by reason of an illegal search of Vinyard's truck, is premised entirely upon defendant's ability to assert an alleged infringement of Vinyard's constitutional right against unreasonable searches and seizures. This defendant may not do. The defendant lacks standing as a person aggrieved to raise any such alleged infringement. As the United States Supreme Court said in Jones v. United States, 362 U.S. 257, 260, 80 S.Ct. 725, 731, 4 L.Ed.2d 697:

'In order to qualify as a person aggrieved by an unlawful search and seizure one must have been the victim of a search or seizure, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed against someone else * * *.'

This rule applies in Illinois, People v. McNeil, 53 Ill.2d 187, 290 N.E.2d 602.

The second contention of the defendant, that his confession was involuntary and should have been suppressed, raises a considerably closer question. The defendant argues that he did not give the confession voluntarily, and that it was in fact obtained in violation of his Fifth Amendment right to be free from self-incrimination. Defendant also argues that the confession was obtained by means of an illegal seizure of his person in violation of his rights under the Fourth Amendment to the U.S. Constitution.

The State raises the issue of whether this issue was properly preserved for purposes of appeal. The denial of pretrial motions is given as one ground for reversal although all the motions are not stated specifically. In this case, we believe the reference to 'pretrial motions' is sufficient to preserve the issue for appeal.

No question is raised on this appeal as to whether the defendant was adequately advised of his rights as prescribed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The question is, having been so advised, did the defendant waive those basic constitutional rights voluntarily, knowingly and intelligently. The rule in Illinois is clearly stated in People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601:

'Whether a statement is voluntarily given depends on the totality of the circumstances. The test is whether it has been made freely, voluntarily and without compulsion or inducement of any sort or whether the defendant's will was overcome at the time he confessed. (People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466.) In making its decision the trial court need not be convinced beyond a reasonable doubt, and the finding of the trial court that the statement was voluntary will not be disturbed unless it is contrary to the manifest weight of the evidence. (Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618; People v. Higgins, 50 Ill.2d 221, 278 N.E.2d 68; People v. Johnson, 44 Ill.2d 463, 256 N.E.2d 343.)'

The defendant was arrested without a warrant, and transported from Pope County to Hardin County without having first been advised of his rights by a judge in Pope County. This was in violation of Ill.Rev.Stat.1973, ch. 38, par. 109--1 which provides:

'(a) A person arrested without a warrant shall be taken without unnecessary delay before the nearest and most accessible judge in that county, and a charge shall be filed. A person arrested on a warrant shall be taken without unnecessary delay before the judge who issued the warrant or if he is absent or unable to act before the nearest or most accessible judge in the same county.

(b) The judge shall:

(1) Inform the defendant of the charge against him and shall provide him with a copy of the charge.

(2) Advise the defendant of his right to counsel and if indigent shall appoint a public defender or licensed attorney at law of this State to represent him in accordance with the provisions of Section 113--3 of this Code.

(3) Hold a preliminary hearing in those cases where the judge is without jurisdiction to try the offense; and

(4) Admit the defendant to bail in accordance with the provisions of Article 110 of this Code.'

We consider this failure to comply with the statute as improper conduct on the part of the officers involved. However, the failure to comply with the statute does not in and of itself require the exclusion of statements made by the defendant (People v. Brooks, 51 Ill.2d 156, 165, 287 N.E.2d 326), nor as a matter of logic, does such conduct cast a pale on the voluntary or involuntary nature of a confession. We also find it reprehensible that the sheriff's office would hold a 17 year old man in custody over the dinner hour without providing him food, although the record does not disclose that defendant asked for, or complained of lack of food, nor that it was known that defendant had not been fed in Pope County.

These factors taken together, however, when viewed in light of the rule set forth in People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601, are not sufficient to convince this Court that the trial court's finding that the confession was voluntary is contrary to the manifest weight of the evidence.

The defendant's corollary argument that the confession was the product of an illegal seizure of his person is premised on the fact that the transcript herein discloses that the Pope County deputies, who initially arrested the defendant, did not have personal knowledge of facts sufficient to give rise to the probable cause required for a warrantless arrest. Ill.Rev.Stat.1973, ch. 38, par. 107--2(c) provides:

'A peace officer may arrest a person when: * * *.

(c) He has reasonable grounds to believe that the person is committing or has committed an offense.'

This standard was more fully addressed by this Court in People v. Harden, 24 Ill.App.3d 304, at pages 307--308, 320 N.E.2d 587, at page 590, where we said:

'This same element of probable cause is one of constitutional dimension which must be demonstrated from the attending circumstances of the case as reasonably existing in the mind of the arresting officer at the moment his arrest of the accused is effectuated. (Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142.) As stated in People v. Brooks, 13 Ill.App.3d 1003, 1006, 301 N.E.2d 496, 498:

'This belief may be founded on hearsay evidence and on factual and practical considerations of every day life upon which reasonable, prudent men, not legal...