Defendant was arrested without probable cause for murder at 5:20 am by officers standing in his bedroom who handcuffed him and took him away. The evidence derived from the arrest from the room should have been suppressed. People v. Gutierrez, 2016 IL App (3d) 130619, 2016 Ill. App. LEXIS 829 (Dec. 7, 2016):
[*P63] We find that a reasonable innocent person in defendant’s position would not have felt free to leave. The facts indicate that the defendant was under arrest: (1) the encounter occurred at defendant’s residence in the early hours of the morning; (2) the police awoke defendant from his sleep in his bedroom; (3) the number of police officers at the residence; (4) the officers searched defendant’s bedroom; (5) defendant was not told he was free to leave; and (6) defendant was handcuffed when transported in a police car to the Chicago police station. See Melock, 149 Ill. 2d at 437 (“The relevant inquiry in determining whether a suspect has been arrested is whether, under the circumstances, a reasonable person would conclude that he was not free to leave.”). While none of the foregoing facts standing alone would establish that defendant was under arrest, the cumulative effect of these facts is that a reasonable innocent person in defendant’s position would not have felt free to leave. See Washington, 363 Ill. App. 3d at 24 (“No factor is dispositive and courts consider all of the circumstances surrounding the detention in each case.”).
. . .
[*P66] The State does not dispute that the officers lacked probable cause to arrest defendant for his involvement in the death of Barrios at the time he was handcuffed and placed in the Chicago officers’ police car. Our review of the record confirms that the officers lacked probable cause to arrest defendant at that time. “Probable cause to arrest exists where the facts and circumstances known to the police officer at the time of the arrest are sufficient to warrant a person of reasonable caution to believe that an offense had been committed and that the offense was committed by the person arrested.” People v. Sims, 192 Ill. 2d 592, 614 (2000). Plutz, Kivisto, and Siegel testified that they went to [**35] defendant’s residence in the early morning hours of October 29 because they were looking for Escutia. All three testified that they did not discuss defendant prior to leaving for Chicago. Plutz testified that the first time he heard defendant’s name was at the residence in Chicago. Plutz believed the officers wanted to talk to defendant because he was found sleeping with Escutia. Kivisto testified that the officers decided at the Chicago residence that they wanted to talk to defendant as well as Escutia. Plutz testified that the officers had no reason to arrest defendant at the residence. Similarly, Siegel testified that when the officers arrived at the residence, defendant was not a suspect and the officers had no probable cause to arrest him. Thus, we find that the arrest was improper.
[*P67] The trial court found that the officers had probable cause to arrest defendant because he was on parole and was occupying a room that contained ammunition. A police officer need not subjectively rely on the correct offense for an arrest to be valid and the officer’s subjective reliance on the wrong offense “does not foreclose the State from later justifying the arrest by proving probable cause on another basis.” People v. Mourecek, 208 Ill. App. 3d 87, 94 (1991). But see People v. James, 255 Ill. App. 3d 516, 524-25 (1993) (“However, the law is clear that a court, judging the propriety of an arrest after the fact, cannot validate an unconstitutional arrest on the theory that probable cause existed for another offense which was not contemplated by the police at the time of the arrest.”).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)