U.S. ex rel. Burbank v. Warden, Illinois State Penitentiary, 75-2079

• Decision Date: 24 June 1976
• Docket Number: No. 75-2079,75-2079
• Citation: 535 F.2d 361
• Parties: UNITED STATES of America ex rel. Ronald BURBANK, Petitioner-Appellee, v. WARDEN, ILLINOIS STATE PENITENTIARY, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 361

535 F.2d 361

UNITED STATES of America ex rel. Ronald BURBANK, Petitioner-Appellee, v. WARDEN, ILLINOIS STATE PENITENTIARY, Respondent-Appellant.

No. 75-2079.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 22, 1976.

Decided May 5, 1976.

Rehearing and Rehearing En Banc Denied June 24, 1976.

William J. Scott, Atty. Gen., Thomas Connors, Asst. Atty. Gen., Chicago, Ill., for respondent-appellant.

Kenneth N. Flaxman, John Thomas Moran, Chicago, Ill., for petitioner-appellee.

Before FAIRCHILD, Chief Judge, and CUMMINGS and PELL, Circuit Judges.

CUMMINGS, Circuit Judge.

In this appeal from the district court's order directing the issuance of a writ of habeas corpus, the principal question before us is whether there was probable cause for Burbank's warrantless arrest. Petitioner was convicted of murder in the state court; the Supreme Court of Illinois affirmed. People v. Burbank, 53 Ill.2d 261, 291 N.E.2d 161 (1972), certiorari denied, 412 U.S. 951, 93 S.Ct. 3017, 37 L.Ed.2d 1004. Petitioner instituted this action pending appeal of his conviction and use of the state post-conviction relief procedures. The district court initially dismissed this action for failure to exhaust state remedies. On appeal, this Court reversed and remanded the case with directions to ascertain the status of the collateral attack in the state courts. When Initially, petitioner has moved to dismiss the appeal on the ground that the Warden's notice of appeal was untimely. The 30 days in which to appeal the decision of the district court in a civil case commences on the date a final judgment is entered. F.R.A.P. 4(a). A judgment is final when a separate document is issued and the district court judge need only perform ministerial acts to enforce it. Federal Rules of Civil Procedure 58; Chicago Housing Tenants Organization, Inc. v. Chicago Housing Authority, 512 F.2d 19, 21 (7th Cir. 1975); First National Bank in Dodge City v. Johnson County National Bank & Trust Co., 331 F.2d 325, 327 (10th Cir. 1964).

no relief was forthcoming from the state courts, the district court held a hearing on petitioner's constitutional claims, concluding that the arresting police officers lacked probable cause for their action and therefore the subsequent confession was inadmissible. We disagree and reverse.

On September 19, 1975, the district court entered a minute order that a writ of habeas corpus should issue if the petitioner was not afforded a new trial by the State of Illinois within 120 days. At the same time, the district court stayed the issuance of the writ until October 1, 1975. On October 1, 1975, petitioner's counsel presented a motion requesting the district court to approve a "proposed writ" attached to the motion. That motion was granted on October 1st, and the Clerk was directed to issue the writ, directing the Warden to release petitioner on January 29, 1976, which was 120 days after October 1, 1975. Because of the stay issued September 19th and the calculation of the 120 days, the minute order of that date was not a final judgment. See United States v. Evans, 365 F.2d 95, 97 (10th Cir. 1966); Arena Co. v. Minneapolis Gas Co., 227 F.2d 665 (8th Cir. 1955). We have concluded the final order granting the writ of habeas corpus was issued October 1st and the respondent's October 30 notice of appeal therefore was timely. Petitioner's motion to dismiss the appeal is denied.

The test for the legality of a warrantless arrest is whether the officers then had probable cause to make it. As explained in Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145, this depends on whether at the time of arrest "the facts and circumstances within their (the arresting officers') knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." A quantum of evidence that establishes guilt beyond a reasonable doubt is not necessary to validate such an arrest (Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171-72, 4 L.Ed.2d 134, 139; United States v. Clay, 495 F.2d 700, 705 (7th Cir. 1974), certiorari denied, 419 U.S. 937, 95 S.Ct. 207, 42 L.Ed.2d 164), nor is it material that there may have been time to obtain a warrant. United States ex rel. Falconer v. Pate, 319 F.Supp. 206, 212 (N.D.Ill.1970), affirmed, 478 F.2d 1405 (7th Cir. 1973). Rather, each case must be examined on its own facts to determine whether it is reasonably probable that the individual arrested committed the criminal act. United States v. Clay, supra,495 F.2d at 704; Coleman v. United States, 137 U.S.App.D.C. 48, 420 F.2d 616 621 (1969).

The record shows that Mihran Boghasian was fatally shot in his shoe repair shop at 7159 South Ashland Avenue in Chicago on the afternoon of July 30, 1968. Before the shopkeeper was murdered, two young men separately entered the shoe repair shop. The second entrant had been followed on the sidewalk because three teen-aged girls (Diana Lawrence, Eunice Jackson and Eartha Hudson) thought he was good-looking. They observed him for one or two minutes before he entered the shop, and they lingered outside because they wished to see him again.

Just after the fatal shooting, the three girls saw the man they had been following walk swiftly from the shop while inserting a handgun in his belt. Petitioner walked so close to the girls that he actually bumped into Diana Lawrence at 4:30 p. m. when the sun was still shining. Eunice Jackson described him as looking "a little worried."

After petitioner and the other man, Romell Wilson, petitioner's co-defendant in the ensuing state murder trial, fled, the police were called to the scene.

At 7:30 p. m. on July 30, police Detectives Joseph Barrett and Nick Crescenzo were assigned to investigate the homicide. They interviewed 15 people about the shooting and worked through the night before filing a 5-page report on their findings.

Their report shows that they interviewed Diana Lawrence and Eunice Jackson who told them that they had "observed offender enter store, heard shot fired, and observed offender emerge from store with gun in his hand." They described the assailant as

"One Male Negro, very light complected, approximately 18 to 20 years of age, wavy black hair with sides slicked down, 160 to 170 lbs, 5'7 to 5'8 tall, wearing yellow or gold knit shirt, and dark green slacks, carrying 380 (sic) Caliber Automatic, Blue Steel."

Four other witnesses told the detectives they had observed the offender "run north on Ashland from scene and put a gun inside of his belt." His route of flight was described in the report as follows.

"Offenders Fled North on Ashland Avenue From 7159 South, Then East Through Burger King Parking Lot, Continued East Through Alley Between 71st Place and 72nd Street to Laflin, Then North On Laflin To 71st Place, Then East On 71st Place To Bishop, And Last Seen North On Bishop At 71st."

During separate interviews by the two detectives at police headquarters, all agreed on the description of the offenders. Eunice Jackson and Diana Lawrence added that they thought they had seen petitioner a few times before in the same vicinity.

At 8:30 a. m. on July 31st, Detectives Daniel Fitzgerald and Raymond Luth were assigned to continue the investigation. Fitzgerald conferred with Barrett about the case and both Fitzgerald and Luth read all or part of Barrett's and Crescenzo's report.

Afterwards, Fitzgerald told Luth that he knew someone who matched the aforesaid description and who lived at an address in the area where the offenders had fled. Fitzgerald told Luth he was familiar with the neighborhood because he had lived there for some years. Fitzgerald stated that when he learned of the description given by Eunice Jackson and Diana Lawrence, he determined that the description matched petitioner whom he had seen 40 to 50 times during the course of his work as a policeman in that neighborhood. Fitzgerald knew of petitioner's name since 1965 and considered him a well-groomed, nice-looking person who was meticulous about his clothing. Fitzgerald also had known petitioner's mother.

After discussing the case, accompanied by Luth, Fitzgerald drove to the house where he knew petitioner resided at 1542 West 71st Street, arriving there about 10:15 a. m. Petitioner's mother greeted them at the door and said that he did not live at home any more. She invited them in to see for themselves, and shortly afterwards petitioner arrived. After identifying themselves to petitioner, who later admitted that he had known Fitzgerald, they questioned him as to his whereabouts on the afternoon of July 30th and as to the type of clothing he then wore. Thereupon he was arrested and given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

On the basis of these facts, the district court found no probable cause. Its decision rested upon the judgment that the identification of the suspect was not particular enough to allow the police to focus on the petitioner. We disagree. The flaw in the lower court's analysis is the insufficient weight given to Fitzgerald's knowledge of the neighborhood and its inhabitants. Fitzgerald's decision to arrest the petitioner was not mere speculation or suspicion of criminal conduct (cf. Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902-03, 20 L.Ed.2d 917, 934-35), nor was it based on subjective factors. See United States v. McDowell, 475 F.2d 1037, 1039-1040 (9th Cir. 1973). Instead, it followed from the Because the warrantless arrest was legal, we need not consider whether the connection between the arrest and petitioner's subsequent confession and his lineup identification was sufficiently attenuated as to cleanse those evidentiary items of taint. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416.

specific characteristic of the defendant with regard to his personal...