People v. Lawson

THIRD DIVISION
August 19, 1998

No. 1-97-2943

IN THE APPELLATE COURT
OF ILLINOIS
FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellant,

v.

GERALD L. LAWSON,

Defendant-Appellee.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

No. 96CR7332

Honorable
Leo E. Holt,
Judge Presiding.


JUSTICE GORDON delivered the opinion of the Court:
The People of the State of Illinois appeal from an order of
the Circuit Court of Cook County granting the motion of
defendant, Gerald Lawson, to quash his arrest and suppress
evidence. For the reasons given below, we affirm.
FACTS
In March 1996 defendant Gerald Lawson was charged by an
eighteen-count information with one count of robbery (720 ILCS
5/18-1(a) (West 1994)); one count of armed robbery (720 ILCS
5/18-2 (West 1994)); six counts of aggravated battery (720 ILCS
5/12-4(a), 5/12-4(b)(1), 5/12-4(b)(2), 5/12-4(b)(10) (West
1994)); one count of aggravated battery of a senior citizen (720
ILCS 5/12-4.6(a) (West 1994); one count of aggravated battery
with a firearm (720 ILCS 5/12-4.2(a)(1) (West 1994)); seven
counts of armed violence (720 ILCS 5/33A-2 (West 1994)); and one
count of attempted first degree murder (720 ILCS 5/8-4 (720 ILCS
5/9-1) (West 1994)). In May 1997 defendant filed a "motion to
quash arrest and suppress evidence." He argued that his arrest
in February 1996 was made without a warrant and his conduct
before his arrest "was such as would not reasonably be
interpreted by the arresting officers as constituting probable
cause that [defendant] had committed or was about to commit a
crime." He requested that the circuit court quash his arrest and
suppress from introduction into evidence any physical evidence,
statements (written, oral or "gestural"), witnesses, and any
other "knowledge and the fruits thereof" which had been obtained
as the direct or indirect product of his arrest.
The cause came before the circuit court for a hearing on
defendant's motion in May 1997. The sole witness to testify at
the hearing was Chicago Police Officer John Griffin. Officer
Griffin testified that he was on duty in his marked squad car on
February 17, 1996 at approximately 2:00 p.m. At that time, while
in the general area of the intersection of 71st and St. Lawrence
Streets, he received a radio message to the effect that a robbery
had just occurred at a dry-cleaning store at 6445 Cottage Grove
and a man had been shot. He received a description of a "male,
black six fee [sic] tall, wearing a dark coat and blue jeans" who
had left the scene of the crime headed west on 65th Street from
Cottage Grove. He also learned from the broadcast that the
offender "had fought with one of the victims and was possibly
injured."
Griffin testified that upon receiving the radio message he
immediately activated his emergency lights and drove north on St.
Lawrence "at a high rate of speed" in order to cut the suspect
off on 65th Street. Griffin testified that he arrived at the
intersection of 65th and Champlain Streets within a minute or a
minute and a half from the time that he heard the message. When
he arrived at that intersection he turned east onto 65th Street.
As Griffin turned onto 65th Street, he observed an
approximately six foot tall black male wearing blue jeans and a
dark coat, walking westbound on 65th Street nearing Langley
Avenue (one block east of him). Griffin identified defendant in
court as the person he saw. Where Griffin first saw defendant,
he estimated that defendant was no more than 800 feet from the
scene of the crime, between one and two minutes after the crime
had occurred. When Griffin saw defendant, defendant looked at
him and made a "sudden" right turn onto Langley. Griffin turned
onto Langley, drove past defendant, exited his vehicle, and told
defendant to stop.
Defendant stopped as Griffin requested. Almost
simultaneously, a police tactical unit drove up and stopped
behind defendant. As Griffin approached defendant, he noticed
that defendant had what appeared to be a cut on his forehead,
from which he was bleeding, as well as a cut and scratches on his
hand, "as if he had been in a fight." The tactical team
performed a protective pat-down of defendant, because they had
been led to believe that the offender had a weapon. The tactical
officers recovered two twenty-dollar bills from defendant's
pocket, which had what appeared to be blood on them. After the
tactical officers had a conversation with defendant, the nature
of which Officer Griffin did not recall, they placed defendant in
their squad car and transported him back to the scene of the
crime. Griffin followed in his own car. He was not certain
whether defendant was handcuffed before being placed in the car,
but stated that defendant was not free to leave custody. At the
scene of the crime the victims identified defendant.
Griffin admitted that he did not see defendant violate any
laws and he did not have an arrest warrant for defendant. He
admitted that no weapon had been found on defendant, nor a mask
or hat. Griffin admitted having received information over the
radio that the offender was possibly wearing a mask; he was
uncertain whether he had heard that the offender was wearing a
hat. He admitted the incident occurred during the winter, and
that before defendant was stopped Griffin had received no
information about the coat the offender was wearing other than
its color. Griffin was not certain whether the tactical officers
questioned defendant about the marks on his head or hands before
they placed him in their squad car. He admitted that the
apparent blood stains on the money recovered from defendant were
one of the reasons that defendant was detained and returned to
the scene of the crime.
With the testimony of Officer Griffin defendant rested; the
State presented no evidence. The court stated that it was
"bothered" by the fact that there was no evidence as to the basis
for the radio broadcast. It noted that "[w]arrantless searches
and seizures are presumptively unreasonable and the State bears
the burden of showing that warrantless seizure comes with[in] one
of [the] exceptions to the warrant requirement." The court
stated that it was "unquestionable" that officer Griffin had a
"reasonable and articulable basis for stopping" defendant and
subjecting him to a pat-down search, in light of the facts that
he was approximately two blocks away from the scene of an armed
robbery and met the "broad general description" of the offender.
The court stated that it did not "have any problem with this
policeman patting the defendant down."
However, the court stated that this analysis was different
from an "in pocket search. And it is ludicrous to suggest that
he did not go in his pockets. That he felt something and thought
it was a weapon that [sic] because of course there is no
testimony to that effect. And so he searched him. And utilizing
the fruit of that search, one might conclude that he arrested
him." The court also noted that although the police can rely on
radio broadcasts, "that does not mean that Courts can rely upon
it without anything else. *** [T]he suppression record must
show, the basis of reliability, in some way, other than it came
across the radio." The court took the motion under advisement
and requested the State to submit authority for the proposition
that the arrest could be upheld without proof of the reliability
of the underlying broadcast description "even to the extent of a
Terry stop. *** I want to know whether or not this suppression
record must show, the reliability, the basis of knowledge of
[the] person, who supplied that information."
The cause was continued to May 9, then to May 16. The
record does not contain any written brief the State may have
filed. On May 16 the court sustained defendant's motion "with
reluctance" on the basis that (1) there was no evidence in the
record to establish "who it was that informed the source officer
of the information that was subsequently broadcast," and (2)
there was no "basis, at all, for determining the reliability of
that person or the adequacy or sufficiency of the description
given."
The State's motion for reconsideration was denied, and the
State appealed. It argues that the circuit court misconstrued
the law and that the arrest was proper because the arresting
officer had probable cause to arrest. In the alternative, it
argues that defendant's "temporary detention" and transport to
the crime scene was "a reasonable seizure that did not violate
defendant's Fourth Amendment rights." We affirm.
ANALYSIS
On a motion to suppress the defendant bears the burden of
proof that the search and seizure were unlawful. People v.
Williams, 164 Ill. 2d 1, 12, 645 N.E.2d 844, 848 (1994).
However, "[w]arrantless searches are per se unreasonable; thus,
when respondent challenges a warrantless search and demonstrates
that he was doing nothing unusual at the time of the search, the
State must demonstrate the legal justification for the search."
In re C.K., 250 Ill. App. 3d 834, 836, 620 N.E.2d 569, 571
(1993). Accord People v. Rushing, 272 Ill. App. 3d 387, 390, 649 N.E.2d 609, 611 (1995) ("[o]nce a defendant challenges a
warrantless search, it becomes the State's burden" to show that
the search is constitutional); People v. Crowell, 94 Ill. App. 3d
48, 50, 418 N.E.2d 477, 478 (1981) ("when the evidence
demonstrates that the defendant was doing nothing unusual at the
time of the arrest and that the arresting officer neither
possessed a warrant for the arrest of the defendant nor observed
the defendant violate any law, the burden of proving the validity
of the arrest shifts to the State"). Trial court rulings with
respect to motions to quash arrest and suppress evidence are
generally subject to reversal only if manifestly erroneous,
although de novo review is appropriate when the only question on
review is whether the circuit court correctly applied the law to
uncontroverted facts. People v. Krueger, 175 Ill. 2d 60, 675 N.E.2d 604 (1996).
The State's primary argument is that the circuit court erred
in its understanding of the law. It argues that Officer Griffin
was entitled to arrest the defendant because "the totality of the
facts and circumstances within Officer Griffin's knowledge was
sufficient to warrant a reasonable man to believe that defendant
committed the armed robbery at the dry cleaning establishment,
thereby providing probable cause for defendant's arrest." We
disagree, as the State's premise does not support its conclusion.
The State is correct in its assertion that an officer will
be found to have probable cause to perform a warrantless arrest
if "'a reasonable and prudent man, having the knowledge possessed
by the officer at the time of the arrest, would believe the
defendant committed the offense.'" People v. Tisler, 103 Ill. 2d 226, 236-37, 469 N.E.2d 147, 153 (1984). However,
notwithstanding that probable cause for an arrest may be based on
information of which the arresting officer does not have personal
knowledge, including information received via radio transmission,
when the State attempts to justify a warrantless arrest on the
basis of a radio bulletin it must establish that the officer who
issued the bulletin had probable cause to effect an arrest.
People v. Bascom, 286 Ill. App. 3d 124, 127-28, 675 N.E.2d 1359,
1362 (1997) ("arresting officers may rely upon dispatches to make
arrests even if they are unaware of the specific facts that
established probable cause to make the arrest. [Citation.] In
such a case, however, the State must demonstrate that the officer
who directed the dispatch to be issued possessed facts sufficient
to establish probable cause to make the arrest"); People v.
Crane, 244 Ill. App. 3d 721, 724-25, 614 N.E.2d 66, 69 (1993)
("[a]lthough an arresting officer may rely upon a dispatch to
make an arrest even if he is unaware of the specific facts that
established probable cause to make the arrest, the State must
demonstrate that the officer who directed the dispatch to be
issued possessed facts sufficient to establish probable cause to
make the arrest"); People v. Rimmer, 132 Ill. App. 3d 107, 113,
476 N.E.2d 1278, 1282 (1985) ("[p]olice officers are entitled to
act in reliance upon information received in official police
communications. [Citations.] To predicate an arrest, however,
the communication must be based upon facts sufficient to
constitute probable cause for arrest"); Crowell, 94 Ill. App. 3d
48, 50, 418 N.E.2d 477, 478 ("the State must demonstrate that the
circumstances known to other, non-arresting officers, whose
report or directions were relied upon by the officer in making
the arrest, were sufficient to establish probable cause to arrest
the defendant"). See also People v. Aguilar, 286 Ill. App. 3d
493, 496, 676 N.E.2d 324, 326 (1997) ("[p]robable cause may
derive from information received from official police
communications [citation], as well as from an informant's tip, as
long as the information is justified by indicia of reliability");
Tisler, 103 Ill. 2d at 237, 469 N.E.2d at 153 ("[i]f facts
supplied in a particular tip are essential to a finding of
probable cause, the tip must meet standards of reliability before
the magistrate may consider it in his determination" of probable
cause). Only if the officer issuing a radio bulletin has
probable cause to effectuate an arrest himself, will an arrest by
another officer in reliance on the radio bulletin be upheld. As
one leading authority has observed, if the rule were otherwise,
"an officer or agency possessed of facts insufficient to
establish probable cause could circumvent the Fourth Amendment by
the simple device of directing or asking some other officer or
agency to make the arrest and search." 2 LaFave, Search and
Seizure 3.5(b), at 255-56 (3d ed. 1996).
The above cases all directly or indirectly rely upon the
seminal case of Whiteley v. Warden of Wyoming State Penitentiary,
401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031 (1971), which the
circuit court cited in its ruling. In that case a patrolman
arrested defendant in reliance on information he had received via
a radio bulletin advising police departments that a warrant had
been issued for the arrest of defendant and a companion.
Whiteley, 401 U.S. at 563, 567, 28 L. Ed. 2d at 310, 312, 91 S. Ct.
at 1034, 1036. The United States Supreme Court stated that it
did not
"question that the Laramie police were entitled to act
on the strength of the radio bulletin. Certainly
police officers called upon to aid other officers in
executing arrest warrants are entitled to assume that
the officers requesting aid offered the magistrate the
information requisite to support an independent
judicial assessment of probable cause. Where, however,
the contrary turns out to be true, an otherwise illegal
arrest cannot be insulated from challenge by the
decision of the instigating officer to rely on fellow
officers to make the arrest." Whiteley, 401 U.S. at
568, 28 L. Ed. 2d at 313, 91 S. Ct. at 1037.
The Court held that the arrest violated the Fourth and Fourteenth
Amendments (U.S. Const. Amend. 4, 14) because "the complaint on
which the warrant issued here clearly could not support a finding
of probable cause by the issuing magistrate." Whiteley, 401 U.S.
at 568, 28 L. Ed. 2d at 313, 91 S. Ct. at 1037. The Court
subsequently clarified that "Whiteley supports the proposition
that, when evidence is uncovered during a search incident to an
arrest in reliance merely on a flyer or bulletin, its
admissibility turns on whether the officers who issued the flyer
possessed probable cause to make the arrest." (Emphasis in
original.) United States v. Hensley, 469 U.S. 221, 231, 83 L. Ed. 2d 604, 613, 105 S. Ct. 675, 681 (1985).
The State attempts to distinguish Whiteley on the basis that
in that case the radio broadcast contained information that a
warrant had been issued, unlike the present case. However,
Hensley did not involve a warrant nor did it limit the Whiteley
rule to cases where information regarding warrants had been
broadcast; we also note that the standards to be applied in
determining whether an officer had probable cause to make a
warrantless arrest are "at least as stringent as those that guide
a magistrate in deciding whether to issue a warrant." Tisler,
103 Ill. 2d at 236-37, 469 N.E.2d at 153. Accordingly, we find
the State's distinction unconvincing.
As the State did not meet its burden of establishing that
the officer issuing the bulletin on which Officer Griffin relied
was possessed of facts sufficient to establish probable cause to
make an arrest, the court acted correctly in quashing the arrest
and suppressing the evidence. It is this failure in proof which
distinguishes this case from People v. Follins, 196 Ill. App. 3d
680, 554 N.E.2d 345 (1990), upon which the State relies. In
Follins, analogously to this case, an arresting officer testified
at a pre-trial hearing on a motion to quash arrest that he
stopped defendant because he matched a radio broadcast of a
general description (black male offender 5 feet 9 inches tall,
weighing 170 pounds, wearing a blue sweat suit). Follins, 196
Ill. App. 3d at 684, 554 N.E.2d at 348. The officer stopped the
defendant, within minutes after a robbery, a few blocks of the
scene of the crime, as defendant was walking away from the scene.
Follins, 196 Ill. App. 3d at 692, 554 N.E.2d at 353. However, in
Follins, unlike this case, both the officer who issued the radio
broadcast and the victim of the crime testified at the hearing on
the motion to quash arrest; the officer testified that he made
the broadcast based on the victim's description of the offenders
and the victim testified as to what he had told the officer.
Follins, 196 Ill. App. 3d at 683-84, 554 N.E.2d at 347-48. It is
this latter testimony which differentiates Follins from the
instant case.
The State also argues that even if we affirm the circuit
court's ruling regarding probable cause, we should reverse its
order granting the motion to quash and suppress because "the
temporary detention of defendant on the street and the subsequent
transporting him to the crime scene was a reasonable seizure that
did not violate defendant's Fourth Amendment rights." With this
contention we also disagree.
A suspect may be transported a short distance for purposes
of a showup identification incident to a "Terry [v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] stop" even absent
probable cause. Follins, 196 Ill. App. 3d at 693, 554 N.E.2d at
354, citing People v. Lippert, 89 Ill. 2d 171, 432 N.E.2d 605
(1982). The circuit court's ruling in this case was still
correct, however. First, although the State of course need not
establish "probable cause" to justify an investigatory Terry stop
(as opposed to an arrest), the State must still establish
"'enough indicia of reliability [of information on which an
arresting officer relies] to justify the officer's forcible
stop.'" 4 LaFave 9.4(i), at 233, quoting Adams v. Williams,
407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972). The State
has failed to justify even a Terry stop because it did not
present any facts from which it might be inferred that the police
who issued the radio bulletin possessed facts which would have
justified a stop.
"[I]f a flyer or [radio] bulletin has been issued on
the basis of articulable facts supporting a reasonable
suspicion that the wanted person has committed an
offense, then reliance on that flyer or bulletin
justifies a stop[.] *** If the flyer has been issued
in the absence of a reasonable suspicion, then a stop
in the objective reliance upon it violates the Fourth
Amendment." (Emphasis added.) Hensley, 469 U.S. at
232, 83 L. Ed. 2d at 614, 105 S. Ct. at 682 (upholding a
Terry stop because the officer making the stop relied
upon a bulletin which had been issued on a sufficient
basis).
See also People v. Brown, 88 Ill. App. 3d 514, 519, 410 N.E.2d 505, 509 (1980) (investigatory stops "must be justified with
specific facts which, taken together with rational inferences
from those facts, reasonably warrant the intrusion"; this may
include "information received in official police communications,"
but only "if the requesting agency possessed facts which would
warrant the stop"); 4 LaFave 9.4(i), at 233-34 (to allow a
police bulletin to be accepted "at face value," without any
inquiry into the facts underlying it, "could lead to ludicrous
results; an officer could not make a stop on the basis of
assertions from an anonymous informant made to him, but could
bring about a lawful stop by the simple expedient of passing
those assertions on to another officer").
Moreover, even if the State had established that the police
were justified in conducting a Terry stop of defendant, the
circuit court clearly found that the two twenty-dollar bills
which were recovered from defendant had to have been found as the
result of a full search, not a "pat-down,"[fn1] and the officer
admitted that the discovery of the money with what appeared to be
blood thereon formed part of the basis for the decision to return
defendant to the scene for the show-up. Thus even if the State
had shown that a Terry stop was justified, the show-up was based
on the unlawful search, and it therefore cannot be condoned as a
mere continuation of a valid Terry stop.
Finally, the State contends that "the trial court's holding
would result in unrealistic police practices; in effect, police
would never be able to rely on radio communications in conducting
criminal investigations." We disagree. As is clearly
established by the authority upon which our result is based,
there is no bar to police reliance on radio communications in
conducting criminal investigations or in making warrantless stops
or arrests. See Whiteley, 401 U.S. at 568, 28 L. Ed. 2d at 313, 91 S. Ct. at 1037 (the "police were entitled to act on the strength
of the radio bulletin"); Bascom, 286 Ill. App. 3d 124, 127-28,
675 N.E.2d 1359, 1362 (1997) ("arresting officers may rely upon
dispatches to make arrests even if they are unaware of the
specific facts that established probable cause to make the
arrest"); Crane, 244 Ill. App. 3d at 724-25, 614 N.E.2d at 69
("an arresting officer may rely upon a dispatch to make an arrest
even if he is unaware of the specific facts that established
probable cause to make the arrest"); Rimmer, 132 Ill. App. 3d at
113, 476 N.E.2d at 1282 ("[p]olice officers are entitled to act
in reliance upon information received in official police
communications"). As LaFave observes, under Whiteley the police
are entitled to act on communications through official channels
in the sense that "the arresting officer is himself not at fault
and thus should not be held personally responsible in a civil
action or disciplinary proceedings if it turns out that there was
no probable cause at the source." 2 LaFave 3.5, at 255.
However, as LaFave further states,
"when the question arises in the context of an effort
to exclude evidence obtained as a consequence of action
taken pursuant to the communication, then the question
legitimately is whether the law enforcement system as a
whole has complied with the requirements of the Fourth
Amendment, which means that the evidence should be
excluded if facts adding up to probable cause were not
in the hands of the officer or agency which gave the
order or made the request." 2 LaFave 3.5, at 255.
We concur in and support the dichotomy urged by LaFave, which
vindicates police reliance on radio dispatches without ultimately
eliminating the State's burden to establish probable cause at the
source level in a warrantless arrest. This approach recognizes
the need to facilitate prompt police action without giving the
police license to effectively eliminate the constitutional
prerequisite of probable cause by the mere interposition of a
radio dispatch. The shortcoming in this case was not in Officer
Griffin's actions, as the circuit court took pains to make clear,
and not necessarily in any procedure the police department
employed. What was lacking was the required proof by the State
at the suppression hearing of the basis of the radio bulletin to
which Officer Griffin responded.
CONCLUSION
For the reasons above stated, we affirm the order of the
circuit court granting defendant's motion to quash arrest and
suppress evidence resulting therefrom.
Affirmed.
LEAVITT, P.J. and BURKE, J., concur.

[fn1] The State has not argued on appeal that this conclusion
was error, nor would we be inclined to reverse the circuit court
if the State had so argued. See People v. Blake, 268 Ill. App.
3d 737, 740, 645 N.E.2d 580, 583 (1995) ("the continued
exploration of a suspect's pocket after the officer concludes
that it does not contain a weapon exceeds the scope of a proper
Terry frisk"); People v. Creagh, 214 Ill. App. 3d 744, 748, 574 N.E.2d 96, 98 (1991) (a Terry stop and frisk "may not be used as
a general search for evidence of criminal activity"; once an
officer had determined that the defendant was not carrying a
weapon and that the bulge in defendant's pocket was soft,
"seizure of the contents of defendant's pocket was beyond the
limited scope of the search and was an unlawful intrusion").