People v. Gutierrez

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Appellate Court Date: 2017.02.10

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People v. Gutierrez, 2016 IL App (3d) 130619

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption RICARDO GUTIERREZ, Defendant-Appellant.

District & No. Third District

Docket No. 3-13-0619

Filed December 7, 2016

Decision Under Appeal from the Circuit Court of Will County, No. 07-CF-2219; the

Review Hon. Carla Alessio-Policandriotes, Judge, presiding.

Judgment Reversed and remanded with directions.

Counsel on Kathleen T. Zellner and Nicholas N. Curran, of Kathleen T. Zellner &

Appeal Associates, P.C., of Downers Grove, for appellant.

James Glasgow, State’s Attorney, of Joliet (Thomas D. Arado, of

State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the

People.

Panel JUSTICE LYTTON delivered the judgment of the court, with opinion.

Justice McDade specially concurred, with opinion.

Justice Schmidt dissented, with opinion.

OPINION

¶1 Defendant, Ricardo Gutierrez, appeals the denial of his motion to quash arrest and suppress

evidence, arguing that he was arrested without probable cause when several police officers

entered his residence in the early hours of the morning, woke him, handcuffed him, and did not

tell him that he was free to leave. We reverse and remand with directions.

¶2 FACTS

¶3 Defendant was charged by indictment with two counts of first degree murder (720 ILCS

5/9-1(a)(1), (2) (West 2006)) with codefendant Gabriela Escutia. The indictment alleged that

defendant and Escutia shot Javier Barrios with a handgun, causing Barrios’s death on

October 28, 2007.

¶4 Defendant filed a motion to quash arrest and suppress evidence, arguing that he was

arrested in his home at approximately 5:20 a.m. on October 29, 2007, without a warrant or

without probable cause. The motion argued that statements made by defendant while in police

custody following his arrest should be suppressed as the product of an unlawful arrest.

¶5 A hearing was held on defendant’s motion. Officer Robert Plutz of the Plainfield police

department testified for the State. Plutz testified that he assisted in the investigation into the

death of Barrios who was shot in a parking lot near the Meijer gas station in Plainfield.

¶6 Once the officers identified Barrios as the victim, they “ran his information” and learned

that Escutia had an order of protection against him. The officers then “ran the information” on

Escutia and obtained a general description of her and her vehicle. Plutz obtained Escutia’s

address, which he believed was in Plainfield. Plutz requested that a patrol car drive by

Escutia’s residence to see if her vehicle was parked outside. An officer drove by Escutia’s

residence but did not observe her vehicle there.

¶7 Sergeant Troy Kivisto asked Plutz to make exigent circumstances requests on Barrios’s

and Escutia’s cell phone numbers. Plutz requested cell phone records from Escutia’s cell

phone company. Plutz sent a fax to the phone company at approximately 11:25 p.m. on

October 28 stating, “Per our phone conversation today, the reason we needed the phone

records were [sic] to quickly follow up on any leads, identification on owners and persons of

interest in our homicide case.” Plutz testified that a person of interest could include a witness,

someone with knowledge, or a suspect. Plutz sent a second fax to the phone company

requesting Escutia’s records, including incoming and outgoing calls, cellular tower pings,

texts, and voicemails. Plutz also requested that the phone company “put a freeze on” Escutia’s

voicemails.

¶8 After Plutz requested the records, Kivisto informed him that they were going to Chicago to

meet Secret Service agents who were going to help them locate Escutia’s cell phone. Three

Plainfield officers and several Kendall County officers met the Secret Service agents at the

District 9 police station in Chicago. The Plainfield and Kendall County officers drove around

with the Secret Service agents for two to three hours while the agents tried to locate Escutia’s

cell phone. Several Chicago officers joined them as well. The Secret Service agents learned

that Escutia’s alternative billing address was a residence in Chicago.

¶9 Plutz and approximately seven other officers arrived at the residence of the alternative

billing address at approximately 5:20 a.m. The Chicago officers went up to the front door and

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knocked. The Plainfield officers were behind the Chicago officers. A Chicago officer had a

conversation in Spanish with the individual who answered the door. A female resident let the

officers in. One of the Chicago officers spoke with the female resident and filled out a

permission to search form with her.

¶ 10 Plutz was told by another officer that Escutia and defendant had come out of the back

bedroom, where they had been sleeping when the officers arrived. Plutz spoke with defendant.

Plutz introduced himself and asked if defendant would come to the police station to answer

some questions. Defendant asked Plutz where he was from, and Plutz said he was from the

Plainfield police department. Defendant then said, “yeah, sure.” A Chicago police officer

handed Plutz a cell phone and a 9-millimeter bullet that the officer found in a drawer in

defendant’s bedroom. Plutz put the items in his pocket.

¶ 11 Plutz testified that he believed the officers wanted to question defendant because he was

found sleeping in a bed with Escutia, who was a person of interest. Plutz stated that the officers

did not take defendant into custody because of the 9-millimeter bullet that was located in his

room. Plutz testified that the first time he heard defendant’s name was at the residence in

Chicago. Plutz did not put defendant in handcuffs before he left nor did he physically restrain

defendant in any way. Plutz did not see anyone else put defendant in handcuffs. Plutz was

armed while in the residence, but he never removed his weapon from its holster. Plutz did not

observe any other officers display their weapons or yell. Plutz testified that defendant was

“absolutely” free to stay at the residence if he had chosen to do so.

¶ 12 When the officers left the residence, all the squad cars were full. The Chicago officers

drove defendant to the Chicago police station where the Plainfield and Kendall County officers

had parked their cars. Plutz was still in the residence when defendant got into the car with the

Chicago officers. Plutz rode to the Chicago police station with several Kendall County

officers. When Plutz got to the Chicago police station, defendant was not in handcuffs.

Defendant got into the front passenger seat of Plutz’s squad car, and Plutz drove to the

Plainfield police station. Defendant was not in handcuffs while in Plutz’s vehicle. Defendant

did not make any statements regarding Barrios’s death during the car ride. Plutz did not recall

saying anything to defendant during the car ride that would have indicated that defendant was

free to leave.

¶ 13 When they arrived at the Plainfield police department, defendant asked to use the restroom,

which Plutz allowed him to do. Plutz then led defendant to a small interview room with chairs

and a table. Plutz told defendant to knock on the door if he needed anything, and Plutz left the

room. Plutz learned that Escutia, while she was in another officer’s car being driven to

Plainfield, had stated that she and defendant shot Barrios. At that point, Plutz did not believe

that defendant was free to leave. Plutz eventually returned to the interview room with another

detective. They led defendant to another small interview room for recording purposes. Shortly

before 12 p.m. on October 29, the detectives went over defendant’s Miranda rights. Defendant

waived his Miranda rights and answered their questions. Defendant signed a written statement

typed by Plutz after he had read the statement. The statement contained admissions regarding

defendant’s involvement in Barrios’s murder. A videotape of defendant’s communications

with Plutz was entered into evidence.

¶ 14 Plutz testified that defendant was not arrested prior to making a statement at the Plainfield

police department. Plutz stated that the officers had no reason to arrest defendant at the

residence. Plutz acknowledged that he later stated in an affidavit attached to a complaint for a

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search warrant that a Nokia cell phone was seized as evidence when defendant was arrested.

Plutz testified that the statement in his affidavit was incorrect; Plutz put the Nokia cell phone in

his pocket at the residence before defendant was arrested. Plutz stated someone from the

State’s Attorney’s office drafted the affidavit, but Plutz signed it.

¶ 15 On November 8, 2007, Plutz sent a fax to Escutia’s cell phone company stating, “The

reason we needed phone records was to locate possible offenders in a homicide that might be a

threat to other individuals.” Plutz testified that someone from the cell phone company asked

him to phrase it that way. Plutz stated that when he initially requested Escutia’s cell phone

records on October 28, 2007, he believed it was possible that Escutia was an offender.

¶ 16 Detective Carianne Siegel of the Plainfield police department testified that she was

assigned on October 28, 2007, to investigate the death of Barrios. Siegel and other officers

learned that Escutia had an active order of protection against Barrios. Siegel testified that

another Plainfield officer sent an “exigent circumstances request” regarding Escutia’s cell

phone number to Escutia’s cell phone company, requesting “subscriber information” about

Escutia, including her billing address.

¶ 17 Siegel contacted a Secret Service agent because the Secret Service has the ability to ping

cell phones. Siegel told the Secret Service agent about the events leading up to the homicide,

what happened at the scene, and that they were trying to locate Escutia’s cell phone. Siegel,

two other Plainfield officers, and several Kendall County officers went to the Chicago police

station to meet the Secret Service agents. Three Chicago officers joined as well. The officers

drove around Chicago for approximately one hour trying to locate the ping from Escutia’s cell

phone. Eventually, a representative from Escutia’s cell phone company gave a Secret Service

agent an alternate billing address for Escutia at a residence in Chicago.

¶ 18 At approximately 5:20 a.m., all the officers drove to the alternate billing address to look for

Escutia. Siegel did not know whose residence it was. Three Chicago police officers, three

Plainfield police officers, four Kendall County officers, and approximately four members of

the Secret Service went to the residence. The three Chicago officers were in uniform, but the

others were in plain clothes. While the Secret Service agents stayed outside, Siegel thought

that the other 10 officers may have all entered the residence.

¶ 19 One of the officers knocked on the front door, and four people from inside the residence

came to the door, including the homeowner and three young men. The individuals who

answered the door were cooperative with the police. The residence was crowded when the

officers entered; Siegel believed that there were approximately 16 people in the residence

including the officers and residents. Neither the police nor the individuals inside the residence

yelled or screamed during the encounter. No police officer drew a weapon inside the residence

at any point. One of the members of the household consented to a search of the residence.

¶ 20 One of the residents told the officers that Escutia and defendant were sleeping in the

residence. The officers located defendant and Escutia in a back bedroom. An officer asked

Escutia if she would come to the Plainfield police department to speak with the officers, and

Escutia said yes. Siegel left the residence with Escutia and Kivisto. The three of them rode in a

car to the Plainfield police department. Before they arrived, Escutia told the officers that she

and defendant shot Barrios.

¶ 21 Siegel believed defendant left the residence with the Chicago officers and was initially

taken to the Chicago police station. Siegel did not overhear any Plainfield officers tell any

Chicago officers that defendant was free to leave if he chose to do so. Siegel did not know

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whether the Chicago officers handcuffed defendant because she did not see them transport

him. Siegel testified that, at the time the officers arrived at the residence, defendant was not a

suspect in the murder of Barrios. Siegel stated that the officers had not developed probable

cause to believe defendant was responsible for the crime.

¶ 22 A few days after the officers encountered defendant and Escutia at the residence, Siegel

obtained a court order for the information they received from Escutia’s cell phone company

pursuant to the exigent circumstances request. In her application for the order, Siegel stated

under oath: “At that point, officers made an exigent circumstances request with T-Mobile for

above cellular phone information, which led to the arrest of Gabriela Escutia and [defendant].

Both suspects later confessed to the murder that is the subject of said homicide investigation.”

Siegel testified at the hearing that neither Escutia nor defendant were under arrest at the time

they confessed to the murder.

¶ 23 Sergeant Kivisto of the Plainfield police department testified that he was involved in the

investigation of Barrios’s death on October 28, 2007. Kivisto and other officers investigating

the case learned that Escutia had an order of protection against Barrios, and they wanted to

speak to Escutia regarding Barrios’s death. The officers sent an exigent circumstances request

to Escutia’s cell phone company to obtain her subscriber information. They did not have a

court order at that time. The officers attempted to locate Escutia using the subscriber

information they obtained from her cell phone company, but she was not at her residence.

¶ 24 Kivisto, the other Plainfield officers investigating the case, and officers from the Kendall

County major crimes task force went to the Chicago police station to meet Secret Service

agents to discuss tracing Escutia’s cell phone. The Secret Service agents received information

that Escutia’s cell phone may have been pinging in the City of Chicago. Sometime after 12

a.m. on October 29 the Plainfield officers, Kendall County officers, and Secret Service agents

drove around Chicago trying to locate Escutia’s cell phone. Three Chicago officers were with

them as well. At approximately 5 a.m., the Secret Service agents were informed by Escutia’s

cell phone company that Escutia had an alternative billing address in Chicago. The officers

then went to the residence at the alternative billing address at approximately 5:20 a.m.

¶ 25 Kivisto testified that three Plainfield officers, several Kendall County officers, three

Chicago officers, and approximately three Secret Service agents went to the residence. The

officers identified a black Nissan vehicle parked outside the residence as being registered to

Escutia. Only the Chicago officers were in uniform. The Chicago officers may have had

marked police vehicles, but the other officers were in unmarked squad cars. When the officers

arrived at the residence, they did not turn on their sirens or police lights. Two officers went to

the back of the residence, where there was a door, due to officer safety concerns and so they

could make contact with anyone exiting the residence to determine if Escutia was inside.

¶ 26 The remaining officers went to the front door and knocked. Two of defendant’s brothers

initially opened the door. The officers identified themselves and asked to enter the residence.

They were permitted to enter and went inside. Kivisto believed that approximately six officers

entered the residence. Kivisto spoke with defendant’s mother, Maria Garcia. One of the

Chicago officers acted as a translator for Kivisto, as Maria only spoke Spanish. Kivisto told

Maria they wanted to speak with Escutia. Maria told the officers that Escutia and defendant

were sleeping in the back bedroom, and she led three officers to the back bedroom.

¶ 27 The officers knocked on the door and announced their presence. Escutia and defendant

opened the door. The officers identified themselves and said they wanted to speak with

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Escutia. Kivisto asked Escutia to come to the Plainfield police department to speak with the

officers regarding an incident that happened in Plainfield earlier that night. Escutia said she

would come.

¶ 28 Escutia got dressed and left the residence with Kivisto and Siegel in Kivisto’s squad car.

The officers did not place Escutia in handcuffs. The officers drove Escutia to the Plainfield

police department. Escutia began talking approximately 10 minutes into the car ride. She

eventually told the officers that she shot Barrios. At that point, Escutia was no longer free to

leave. Kivisto testified that prior to confessing to the murder, Escutia would have been free to

leave if she had chosen to.

¶ 29 Kivisto never drew his weapon at the residence, but stated that his weapon may have been

visible. Kivisto did not see any other officers draw their weapons. Kivisto testified that none of

the officers raised their voices or told any of the occupants of the residence to go to any

particular location.

¶ 30 Kivisto testified that he was at the residence to speak to Escutia, but after they arrived, the

officers decided they also wanted to interview defendant. The Chicago officers transported

defendant to the Chicago police station because the Plainfield and Kendall County officers did

not have enough cars on the scene to transport defendant directly to Plainfield. Kivisto did not

see the manner in which the Chicago officers transported defendant.

¶ 31 Officer Hermogenes Del Toro testified that he worked for the Chicago police department.

On October 29, Del Toro and two other Chicago police officers were given instructions to join

Kendall County task force officers at the Chicago police station. The Chicago officers were

asked to ride with the task force as an assist unit. Del Toro believed he and the other Chicago

officers were wearing plain clothes and riding in an unmarked vehicle.

¶ 32 The officers went to a residence with the task force. When asked what he knew at the time

he arrived at the residence, Del Toro testified: “[T]hey told us they were doing a follow-up on

a homicide in the suburbs. That’s about it.” Before arriving at the residence, Del Toro was told

that the officers wanted to talk to defendant. Del Toro did not recall hearing Escutia’s name

before they arrived at the residence. When the officers arrived at the residence, someone

knocked on the front door. The “mother of the house” came to the door and indicated that she

did not speak English but spoke Spanish. Del Toro believed he was the only officer who spoke

Spanish, so he talked to the mother in Spanish. Del Toro asked her if defendant was home, and

she indicated that he was in the back bedroom sleeping. She then let the officers in. When they

entered the residence, some officers went to the back and brought defendant and a woman to

the front of the residence with them.

¶ 33 An officer asked Del Toro to translate a consent to search form for the mother. Del Toro

orally translated the form, and the mother signed it. Del Toro then went to the back bedroom to

assist the other Chicago officers in searching it. Del Toro recovered a 9-millimeter bullet and a

cell phone from a drawer in the back bedroom. Del Toro gave the items to a member of the task

force.

¶ 34 Del Toro testified that the task force officers asked the Chicago officers to transport

defendant back to the Chicago police station because they did not have enough room in their

vehicles. The Chicago officers handcuffed defendant for officer safety and placed defendant in

the backseat of their car. Del Toro testified that defendant was not given a choice as to whether

he would be handcuffed. Del Toro did not speak to defendant and did not hear any other officer

speak to defendant before he was placed in the car. If defendant had requested to go back to the

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residence while the Chicago officers were driving him to the Chicago police station, the

Chicago officers would have contacted the task force to see what they wanted to do. Del Toro

would not have let defendant go unless the task force indicated he could do so. Del Toro

estimated that it took approximately five to seven minutes to drive from the residence to the

Chicago police station.

¶ 35 When the Chicago officers arrived at the police station, they turned defendant over to the

task force. Del Toro could not recall whether defendant was still handcuffed when they turned

him over to the task force. Del Toro stated that he did not prepare a report of the incident

afterward. Prior to testifying, Del Toro received a packet of reports from an assistant State’s

Attorney which caused Del Toro to remember “the name of the accused” and the “items

recovered.” After Del Toro testified, the prosecutor stated that the State would not be calling

any additional witnesses.

¶ 36 Manuel Garcia testified for the defense. On October 29, Manuel lived in an apartment with

his mother, Maria Garcia, and his brothers, Daniel Gutierrez, Gabriel Renteria, and defendant.

Manuel testified that Escutia was also there on October 29. At 5 a.m., Manuel was asleep on a

sofa bed with Daniel. Manuel heard a knock at the front door that woke him up. Manuel heard

walkie-talkie radios and told Daniel to open the door because he thought it was the police.

Daniel opened the door, and a plain clothes officer with his gun drawn told Daniel to put his

hands up. The officer patted Daniel down and walked into the apartment. Manuel did not hear

the officer ask for permission. Eight or nine officers dressed in plain clothes entered after the

first officer. The other officers were holding their weapons at their sides. An officer asked

Manuel who was in the residence, and Manuel responded his mom and his brothers were there.

The officer then asked Manuel who owned a black car, and Manuel replied that no one owned

a black car.

¶ 37 The officers then went to Maria’s bedroom. Maria came into the front room and showed

the officers where Gabriel’s room was. The officers then retrieved Gabriel from his room. The

officers then went to defendant’s room and defendant and Escutia came out. The officers

brought Escutia into the room where Manuel was standing. Escutia was wearing her pajamas

and no shoes. Manuel saw defendant with four officers. Defendant was handcuffed and

wearing his pajamas.

¶ 38 The officers removed Escutia and defendant from the residence. Two officers spoke with

Maria in English and Spanish. Del Toro told Maria, in Spanish, to sign a paper. Manuel told

Maria not to sign it because she did not know what she was signing. Manuel testified that no

one explained to Maria in Spanish what she was signing. Another officer told Del Toro that if

Maria did not sign the paper “they were going to turn the fucking house inside out.” Del Toro

repeated in Spanish what the other officer said. Maria then signed the paper. Manuel stated that

Maria looked “scared and confused.”

¶ 39 Gabriel testified that on October 29, he lived with his mother, Maria, and his brothers,

Daniel, Manuel, and defendant, in an apartment in Chicago. At 5 a.m., Gabriel was sleeping in

his bedroom. Gabriel heard someone come into his bedroom heard loud voices saying, “[G]et

up, put your hands up, keep ’em up.” Gabriel opened his eyes and saw flashlights and

approximately four plain clothes officers pointing their weapons at him. An officer asked

Gabriel if he was the owner of the black Nissan, and Gabriel said no. The officers then brought

Gabriel out to the kitchen area outside his bedroom.

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¶ 40 The lead officer asked Gabriel where his brother was, and Gabriel said his brother “should

be in his bedroom.” Gabriel described where his brother’s bedroom was located.

Approximately four or five officers approached defendant’s bedroom and entered without

knocking. The officers were holding their flashlights and weapons. The first two officers held

their weapons out in front of their bodies and the others held their weapons at their sides. The

officers loudly told defendant and Escutia to get up and put their hands up. Escutia walked out

of the bedroom wearing shorts, a T-shirt, and shoes. Escutia was escorted by officers to the

front room.

¶ 41 Defendant was then brought out of his bedroom by approximately four officers. The

officers were not holding their weapons. Defendant was wearing a T-shirt and shorts and was

handcuffed. Some officers talked to defendant in the kitchen while other officers searched

defendant’s bedroom. The officers brought several items out of defendant’s bedroom,

including plastic bags and approximately four bullets. The officers told defendant, “Come on,

you’re taking a ride, let’s go, we have to talk.” Defendant then left the residence. Defendant

remained handcuffed from the time he walked out of his bedroom until the time he left the

residence.

¶ 42 Maria Garcia testified that at approximately 5 a.m. on October 29, she was sleeping in her

bedroom. Law enforcement officers came to her residence brandishing weapons and ordered

her to come out of her room. When Maria came out of her bedroom, there were approximately

six to eight officers in the living room. The officers asked Maria to sign a consent to search

form. Initially, Maria did not want to sign the form. Then her “son said sign it, because [the

officer] said in bad words that he was going to mess up the house.” On cross-examination,

Maria testified that defendant was on parole on October 29.

¶ 43 Escutia testified that at approximately 5 a.m. on October 29, she and defendant were

sleeping in defendant’s bedroom when she was woken up by the sound of walkie-talkie radios.

She opened her eyes and saw a flashlight shining in her face and a police officer holding a gun.

The officer said, “[P]ut your hands up.” The officer then asked what their names were, and

defendant and Escutia told him their names. The officers asked whether Escutia and defendant

were dressed. Escutia said she was dressed; she was wearing a tank top and sweatpants. There

were approximately four officers in the room at that time. Most of them were in plain clothes,

but one Chicago police officer was wearing a uniform. An officer escorted Escutia to the front

of the residence. An officer told Escutia that he needed her to come down to the police station

and answer some questions. Escutia said she would go, but she testified she did not feel she had

a choice to decline. Escutia testified she did not feel free to leave. Escutia left the residence

with the officers. The defense rested.

¶ 44 The State called Victor Markowski as a rebuttal witness. Markowski testified that in

October 2007, he was a Master Sergeant with the Illinois State Police. He was a member of the

Kendall County major crimes task force. Markowski became involved in the investigation into

the death of Barrios on October 28. Markowski went to a residence in Chicago with other

members of the task force, Plainfield police officers, and Chicago police officers. When

Markowski entered the home, he saw defendant and Escutia. A search of the residence was

conducted at some point after Markowski entered. Markowski gave Kivisto a Kendall County

major crimes task force consent to search form, which was presented to an “older female

subject” seated at the kitchen table. Markowski did not see any police officer draw a weapon

inside the residence.

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¶ 45 Markowski testified that he learned defendant was on parole during a discussion at the

Plainfield police department before the officers left Plainfield to go to Chicago. Markowski

testified that the meeting at the Plainfield police department was led by Kivisto and Detective

Sergeant Zimmerman from the task force. Markowski could not remember who gave him the

information. The meeting occurred between 10 p.m. on October 28 and 2 a.m. on October 29.

Markowski testified that it was his recollection that the officers had two named subjects prior

to going to Chicago. Markowski believed that Escutia was identified as a person of interest

because she had an order of protection against Barrios, and defendant was somehow identified

through that information. Markowski did not know how defendant had been identified.

¶ 46 The State introduced documentation from the Illinois Department of Juvenile Justice

regarding defendant’s parole.

¶ 47 The defense recalled Siegel, Kivisto, and Plutz. They all testified that they did not recall

defendant or his parole status being discussed by the officers at the Plainfield police

department before they left for Chicago. Siegel testified that she did not have any knowledge

of defendant’s name prior to leaving for Chicago. Siegel and Plutz testified that they were not

present for the entire meeting, but Kivisto believed he was present for the entire meeting unless

he left briefly to use the restroom or take a phone call. The defense rested.

¶ 48 The trial court issued a written order denying defendant’s motion to quash arrest and

suppress evidence. The trial court found that the testimony of the occupants of the Chicago

residence was not credible. The trial court also found:

“That various officers were assigned certain duties and had various responsibilities

but that not all officers knew what another knew at any given time of the investigation;

but that any known information of one officer in the investigation may be relied upon to

support the actions of another officer; including the names of [defendant and Escutia]

and that defendant *** was on parole.”

¶ 49 The trial court further found:

“That law enforcement entry into the residence and its presence to remain and

ultimately its search was without any show of force, no yelling, no removal of weapons

from its holsters, without complaint or resistance by any of the occupants, without

physical restraint.”

¶ 50 The trial court also found that defendant’s “interaction with law enforcement was without

show of force sufficient to characterize it anything but concentual [sic].” The trial court found

that defendant agreed to leave the residence but was not under arrest or in custody. The trial

court also found that defendant was on parole when the officers arrived at his residence and a

9-millimeter bullet was found in the room he was sleeping in. The trial court found that the

Chicago officers handcuffed defendant during the 10-minute drive to the Chicago police

station without direction from any other officer “solely because of the policy of the Chicago

police that they handcuff any unknown individual who is transported in their vehicle.” The trial

court found “there [was] no evidence that the presence alone of the police at [Maria’s]

residence had any adverse affect on [defendant’s] decision to agree to accompany the police

particularly because he did not have contact with the majority of the officers.” The trial court

concluded that defendant “was not under arrest at the time he accompanied [the] police to the

station to assist in [their] investigation.” Alternatively, the trial court found that the officers

had probable cause to arrest defendant because he was on parole and occupying a room that

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contained ammunition.

¶ 51 ANALYSIS

¶ 52 I

¶ 53 On appeal, defendant argues that the trial court erred in denying his motion to quash arrest

and suppress evidence. We apply a two-part standard of review when reviewing a ruling on a

motion to quash arrest and suppress evidence. People v. Hopkins, 235 Ill. 2d 453, 471 (2009).

“While we accord great deference to the trial court’s factual findings, and will reverse those

findings only if they are against the manifest weight of the evidence, we review de novo the

court’s ultimate ruling on a motion to suppress involving probable cause.” People v. Jackson,

232 Ill. 2d 246, 274 (2009).

¶ 54 An arrest without probable cause or a warrant violates the fourth amendment of the United

States Constitution. U.S. Const., amend. IV; People v. Melock, 149 Ill. 2d 423, 436 (1992). For

fourth amendment purposes, a “seizure” is synonymous with an “arrest.” Melock, 149 Ill. 2d at

436. “A person has been arrested when his freedom of movement has been restrained by means

of physical force or a show of authority.” Id. (citing United States v. Mendenhall, 446 U.S.

544, 553 (1980)). In determining whether an arrest has occurred, we consider whether “ ‘the

circumstances are such that a reasonable person, innocent of any crime, would conclude that he

was not free to leave.’ ” People v. Lopez, 229 Ill. 2d 322, 346 (2008) (quoting In re D.G., 144

Ill. 2d 404, 409 (1991)).

¶ 55 In Mendenhall, the United States Supreme Court articulated four factors that may be

indicative of a seizure, including: (1) “the threatening presence of several officers”; (2) “the

display of a weapon by an officer”; (3) “some physical touching of the person of the citizen”;

and (4) “the use of language or tone of voice indicating that compliance with the officer’s

request might be compelled.” Mendenhall, 446 U.S. at 554; see also People v. Murray, 137 Ill.

2d 382, 390-91 (1990), abrogated on other grounds by People v. Luedemann, 222 Ill. 2d 530

(2006). The Mendenhall factors “are not exhaustive and that a seizure can be found on the basis

of other coercive police behavior that is similar to the Mendenhall factors.” Luedemann, 222

Ill. 2d at 557.

¶ 56 Additionally, Illinois courts have considered the following factors in determining whether

a defendant was under arrest:

“(1) the time, place, length, mood, and mode of the encounter between the defendant

and the police; (2) the number of police officers present; (3) any indicia of formal arrest

or restraint, such as the use of handcuffs or drawing of guns; (4) the intention of the

officers; (5) the subjective belief or understanding of the defendant; (6) whether the

defendant was told he could refuse to accompany the police; (7) whether the defendant

was transported in a police car; (8) whether the defendant was told he was free to leave;

(9) whether the defendant was told he was under arrest; and (10) the language used by

officers.” People v. Washington, 363 Ill. App. 3d 13, 24 (2006).

¶ 57 In this case, defendant was arrested at his residence prior to leaving for the Chicago police

station. First, a significant number of police officers entered the residence. See Mendenhall,

446 U.S. at 554 (holding that “the threatening presence of several officers” is a factor

indicative of a seizure). The testimony of the State’s witnesses established that approximately

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6 to 10 armed police officers entered defendant’s residence. Detective Siegel testified that the

residence was crowded when the police officers entered.

¶ 58 Second, as to the time, place, and mood of defendant’s encounter with the police, the

officers entered defendant’s residence shortly after 5 a.m., after being let in by other occupants.

The officers knocked on defendant’s bedroom door and woke him up. The early hour of the

encounter and the fact that it occurred in the privacy of defendant’s residence while he was

sleeping render it particularly intrusive. See United States v. Jerez, 108 F.3d 684, 690 (7th Cir.

1997) (“Because our law and legal traditions long have recognized the special vulnerability of

those awakened in the night by a police intrusion at their dwelling place, our Fourth

Amendment jurisprudence counsels that, when a knock at the door comes in the dead of night,

the nature and effect of the intrusion into the privacy of the dwelling place must be examined

with the greatest of caution.”).

¶ 59 Third, there was no evidence at the hearing that defendant was ever told that he could

refuse to accompany the police officers or that he was free to leave. Officer Plutz proceeded to

ask defendant to come to the police station to answer some questions, and defendant said,

“yeah, sure.” Defendant was transported in the back of a police car.

¶ 60 Fourth, the officers’ use of handcuffs when defendant was transported to the Chicago

police station is particularly significant. While not dispositive, “[u]se of handcuffs is generally

indicative of an arrest.” (Emphasis added.) People v. Marcella, 2013 IL App (2d) 120585,

¶ 31. Though there was some evidence that defendant was handcuffed for officer safety,

Officer Del Toro testified he did not believe that he or the other officers told defendant he was

free to leave. In fact, Del Toro testified that the Chicago officers would not have released

defendant during the drive to the Chicago police station unless they obtained permission from

the task force officers. While the ride to the Chicago police station may have lasted only a few

minutes and defendant’s handcuffs were removed before he was driven to Plainfield, we find

that a reasonably innocent person in defendant’s position would not have felt free to leave at

that point in light of the prior use of handcuffs and the other circumstances discussed above.

¶ 61 We expressly reject the cases cited by the State in support of the proposition that the “mere

fact” that defendant was handcuffed did not mean he was under arrest. The cases cited by the

State all involve situations where police officers used handcuffs on individuals who had been

detained by the police, either pursuant to a Terry stop or during the execution of a search

warrant. See People v. Colyar, 2013 IL 111835, ¶ 46 (“[H]andcuffing does not automatically

transform a Terry stop into an illegal arrest.”); People v. Nitz, 371 Ill. App. 3d 747, 754 (2009)

(Terry stop); United States v. Smith, 3 F.3d 1088, 1095 (7th Cir. 1993) (investigative

detention); United States v. Esieke, 940 F.2d 29, 36 (2d Cir. 1991) (investigative detention);

United States v. Kapperman, 764 F.2d 786, 790 n.4 (11th Cir. 1985) (investigative detention);

Muehler v. Mena, 544 U.S. 93 (2005) (use of handcuffs on individual lawfully detained

incident to execution of a search warrant was permissible under the circumstances).

¶ 62 Here, defendant was not lawfully detained by the officers, either pursuant to an

investigative detention or incident to the execution of a search warrant. Rather, the State

contends that the handcuffing of defendant occurred during a consensual encounter between

defendant and the police during which defendant was not detained. None of the State’s cases

support the use of handcuffs in such a situation. We further note that even in cases involving an

investigative detention for which officers had reasonable suspicion, the use of handcuffs is

permissible only “in the ‘rare’ case wherein common sense and ordinary human experience

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convince us that an officer believed reasonably that an investigative stop could be effectuated

safely only through the use of handcuffs.” Smith, 3 F.3d at 1094; United States v. Glenna, 878

F.2d 967, 972 (7th Cir. 1989).

¶ 63 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.”).

¶ 64 Contrary to the dissent’s statements (see infra ¶¶ 86, 95), we agree with the trial court’s

findings of fact in reaching our conclusion that a reasonable person would not have felt free to

leave. The court rightly found that multiple police officers went to defendant’s residence at

approximately 5:20 a.m., residents other than defendant gave the officers permission to enter

and search the residence, defendant said yes when an officer asked him to accompany the

officers to the Plainfield police department, and defendant was handcuffed by Chicago officers

for the drive to the Chicago police station. However, for the reasons discussed above, we reject

the trial court’s legal conclusions that defendant’s “interaction with law enforcement was

without show of force sufficient to characterize it anything but concentual [sic]” and that

defendant was not under arrest when he left the residence.

¶ 65 We note that the trial court found “there [was] no evidence that the presence alone of the

police at [Maria’s] residence had any adverse affect on [defendant’s] decision to agree to

accompany the police particularly because he did not have contact with the majority of the

officers.” We agree that the presence alone of multiple police officers at the residence did not

establish that defendant was under arrest. See Washington, 363 Ill. App. 3d at 24. However,

when the presence of the officers is weighed together with the other facts indicative of arrest, a

reasonable innocent person in defendant’s position would not have believed he was free to

leave.

¶ 66 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 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

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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.

¶ 67 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.”).

¶ 68 In order to sustain defendant’s arrest on the basis that he was on parole and was found

occupying a room containing ammunition we would have to find that the officers knew

defendant was on parole at the time of his arrest. See Sims, 192 Ill. 2d at 614 (“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.” (Emphasis

added.)). The trial court’s factual finding that the officers knew defendant was on parole before

they arrived at the residence was not supported by the record and was against the manifest

weight of the evidence. See People v. Harris, 2015 IL App (1st) 133892, ¶ 20.

¶ 69 Here, the trial court’s factual finding was based on Markowski’s testimony that he learned

at a meeting at the Plainfield police department prior to leaving for Chicago that defendant was

on parole. Markowski stated that he could not remember who told him about defendant’s

parole status and he did not know exactly how defendant was identified before the officers left

for Chicago. Plutz, Kivisto, and Siegel, on the other hand, gave detailed testimony establishing

that the officers did not know defendant’s name, much less his parole status, before leaving for

Chicago. Plutz, Kivisto, and Siegel all testified that they identified Escutia as a person of

interest after learning that she had an order of protection against Barrios. They located the

Chicago residence by obtaining an alternate billing address from Escutia’s cell phone

company. Siegel testified that when the officers arrived at the residence, she did not know

whose residence it was. Plutz stated that the first time he heard defendant’s name was at the

residence, and he believed the officers wanted to interview defendant because he was found

sleeping in a bed with Escutia. Plutz, Kivisto, and Siegel testified that there was no discussion

of defendant or his parole status at the Plainfield police department prior to leaving for

Chicago. Given the detailed testimony given by Plutz, Siegel, and Kivisto, Markowski’s

conflicting, uncertain, and vague testimony that defendant had been identified at all, much less

as a parolee, was not well grounded.

¶ 70 Although Del Toro testified that he recalled hearing defendant’s name, he testified that:

“[T]hey told us they were doing a follow-up on a homicide in the suburbs. That’s about it.”

Del Toro also testified that he did not recall defendant’s name prior to reading police reports

sent to him by the prosecutor. It was Plutz, Siegel, and Kivisto, however, who investigated

Barrios’s death and filed their reports on their encounters with Escutia and defendant.

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¶ 71 Accordingly, we find that the evidence at the hearing on the motion to quash arrest and

suppress evidence did not establish that the officers had identified defendant or learned of his

parole status prior to leaving for Chicago. Defendant’s arrest cannot be upheld based on that

the officers had probable cause to believe that defendant was occupying a room containing

ammunition while on parole.

¶ 72 II

¶ 73 However, our finding that defendant was arrested without probable cause does not end the

suppression inquiry. Rather, the statements made by defendant subsequent to his illegal arrest

may be admissible at trial “if they were obtained ‘by means sufficiently distinguishable to be

purged of the taint of the illegal arrest.’ ” Washington, 363 Ill. App. 3d at 26 (quoting People v.

Barlow, 273 Ill. App. 3d 943, 952 (1995)). When determining whether a confession was

sufficiently attenuated from the unlawful arrest, courts consider the following factors: “(1) the

proximity in time between the arrest and the confession; (2) the presence of intervening

circumstances; (3) the purpose and flagrancy of the police misconduct; and (4) whether the

defendant received Miranda warnings.” Id.

¶ 74 Because the trial court found that defendant was lawfully arrested at the residence, it did

not reach the attenuation issue. Though defendant argues that we may reach the issue on

appeal, citing People v. Elliot, 314 Ill. App. 3d 187, 193 (2000), in light of the particular facts

of this case, we believe it is appropriate for the trial court to make factual findings as to this

issue allowing for a more complete record to be developed.

¶ 75 Therefore, we remand this cause to the trial court to determine whether sufficient

attenuation exists to purge the taint of defendant’s illegal arrest from defendant’s subsequent

statements and for any factual findings necessary to such a determination. See People v. Bates,

218 Ill. App. 3d 288, 298 (1991). On remand the trial court may hold any further evidentiary

hearings as necessary. If sufficient attenuation is found to exist, the trial court is directed to

reinstate the judgment of conviction. See id. If the trial court does not find that sufficient

attenuation exists, it should suppress the statements and conduct further proceedings consistent

with this order. See id.

¶ 76 Defendant also argues that the trial court refused to allow him to call Escutia as a witness

and refused to admit the order of protection Escutia filed against Barrios. In light of our above

holding, we need not address this issue.

¶ 77 CONCLUSION

¶ 78 The judgment of the circuit court of Will County denying defendant’s motion to quash

arrest is reversed. We remand this matter to the circuit court to determine whether sufficient

attenuation exists to purge defendant’s subsequent statements from the taint of the illegal arrest

and further proceedings in accordance with this opinion.

¶ 79 Reversed and remanded with directions.

¶ 80 JUSTICE McDADE, specially concurring.

¶ 81 I believe the trial court’s denial of defendant’s motion to quash arrest and suppress

evidence was improper. The record clearly establishes that defendant was placed under arrest

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at his residence prior to leaving for the Chicago police station. The record also clearly

establishes that the arrest was made without probable cause. Accordingly, I concur in Justice

Lytton’s opinion reversing defendant’s conviction and remanding the matter for further

findings on attenuation.

¶ 82 I write separately to explain that my concurrence is for the sole procedural purpose of

creating a majority opinion. While Justice Lytton does not reach this issue, I believe the record

also clearly establishes that the statements made by defendant, subsequent to his illegal arrest,

were not sufficiently attenuated from the unlawful arrest. Taking such a position, however,

would leave us without a majority opinion: (1) Justice Lytton would remand for an attenuation

hearing; (2) I would reach the question of attenuation here on appeal, answer it in the negative,

and remand the matter for the limited purpose of allowing the State to decide whether to retry

defendant without the illegally obtained statements; and (3) Justice Schmidt would affirm

outright. Therefore, to avoid such a non-decision, I join Justice Lytton’s position.

¶ 83 Finally, I would be remiss if I did not call attention to the fact that the sole basis for the

actions of the police that night, according to the clear and certain testimony of Plutz, Siegel and

Kivisto, was that Escutia was “a person of interest” because she had an order of protection

against the decedent, Javier Barrios. The reasonable inferences to be drawn from the existence

of this order are that (1) Escutia believed herself to be in danger from Barrios and sought

protection against him through the court, and (2) the court agreed Barrios posed a threat to her

and entered an order for her protection. If, hypothetically, Escutia had been the murder victim

here, the existence of the order of protection might provide some basis for suspecting Barrios

and finding him to be a person of interest.

¶ 84 The converse is, however, not true. The mere existence of an order protecting Escutia from

Barrios simply cannot justify: (1) the warrantless “exigent circumstances requests” (whatever

they are) for the records of cell phone companies; (2) the enlistment of Secret Service agents to

drive around the streets of Chicago in a search for cell phone “pings”; (3) the warrantless

invasion of a private home at 5 a.m. by 6 to 10 law enforcement agents from 4 law enforcement

agencies, some or all of whom were armed; or (4) the illegal arrest of defendant—who the

police were not even aware existed and who, to their knowledge, at the time they took him into

custody, had done nothing other than share a bed with Escutia in that private home. The police

conduct is, literally, unwarranted and legally unjustified such that any “fruit” derived from it

should be barred.

¶ 85 This is still America, where federal and state constitutional principles inform and direct

law enforcement activities. We do not live in a police state where law enforcement agents can

descend en masse in the wee hours of the morning to awaken private citizens in their homes

and take two people into custody—all without benefit of either a warrant, demonstrable

exigent circumstances, or probable cause.

¶ 86 JUSTICE SCHMIDT, dissenting.

¶ 87 The trial court did not err in denying defendant’s motion to quash arrest and suppress

evidence. After an evidentiary hearing, the trial court found defendant was not under arrest

when he agreed to accompany officers to a police station. Supra ¶ 50. The foundation for the

trial court’s legal conclusion was the factual determinations that, under the circumstances, the

following were not indicative of arrest: (1) the number of officers in the residence; (2) the time,

place, and mood of defendant’s encounter with the officers; (3) that defendant was never

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explicitly told he was free to be uncooperative with the officers; and (4) that defendant was

briefly handcuffed during a segment of transport after he voluntarily agreed to accompany

officers. Alternatively, police had probable cause to arrest defendant for violating the terms of

his parole. Supra ¶ 50.

¶ 88 We must give deference to factual issues resolved by the trial court. People v. Almond,

2015 IL 113817, ¶ 55; see also Ornelas v. United States, 517 U.S. 690, 699 (1996) (noting that

“a reviewing court should take care both to review findings of historical fact only for clear

error and to give due weight to inferences drawn from those facts by resident judges and local

law enforcement officers”). Instead, the majority resolves the factual issues in this case in

direct contradiction to the trial court’s findings (supra ¶¶ 57-60) concluding that, in its opinion,

“a reasonable innocent person in defendant’s position would not have felt free to leave.”

Supra ¶ 63. A reasonable innocent person in defendant’s position would have felt free to

decline the officer’s request.

¶ 89 Police are free to ask citizens for their cooperation in a variety of settings, so long as they

do not communicate that compliance is required. See generally, Florida v. Bostick, 501 U.S.

429, 435 (1991). There is no evidence that the police were coercive or implied defendant’s

presence at the police station was mandatory. In spite of this, the majority finds that the police

violated the fourth amendment, illegally seizing defendant when he accepted their request to

assist them in a murder investigation. The majority reaches the opposite conclusion of the trial

court by inserting its own interpretation of the facts into its analysis.

¶ 90 There is no established threshold for the number of officers on scene that creates an arrest.

See Almond, 2015 IL 113817, ¶¶ 57-58. The mere presence of officers cannot invalidate

someone’s consent. See People v. Leon, 311 Ill. App. 3d 624, 633 (2000) (citing two cases

from this court (People v. Spriegel, 233 Ill. App. 3d 490, 494 (1992), and People v. Denwiddie,

50 Ill. App. 3d 184, 191 (1977)), noting that “the presence of several armed, uniformed

officers, in and of itself, does not give rise to such intimidation as to override a person’s free

will or render [them] incapable of giving valid consent to search”). Both determinations are

based on the totality of the circumstances. Almond, 2015 IL 113817, ¶ 57.

¶ 91 The majority concludes that because “6 to 10 armed police officers entered defendant’s

residence” and it was “crowded,” he was under arrest. Supra ¶ 57. Putting aside the fact that all

police officers are generally armed while on duty, the presence of 6 to 10 officers in a house

with at least 5 other unknown subjects does not, per se, create a threatening or coercive

presence. At most, this created a 2 to 1 ratio between police and citizens. In this instance, there

were at least five unknown subjects in the residence while officers were conducting a consent

search. Under the circumstances, the presence of 6 to 10 officers—dispersed throughout the

residence, not all in one room with the defendant—is entirely reasonable. Police were

investigating a homicide, not an ordinance violation.

¶ 92 Contrary to the majority’s implicit assertion, there is no per se rule that a defendant is

under arrest when awakened in bed to speak with the police. Supra ¶ 58. While this factor can

weigh in favor of an arrest, it should also be viewed in light of the totality of the circumstances.

See Jerez, 108 F.3d at 690. Here, the officers were working diligently to solve a murder that

happened less than 12 hours earlier. The officers did not intentionally wait until dawn and

abruptly enter defendant’s residence in order to gain a tactical advantage. Rather, the record

supports the notion that they arrived at defendant’s residence as soon as practically possible in

the course of their investigation. According to the trial court, the encounter was amicable. By

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ignoring the trial court’s factual findings—namely, that the officers knocked on doors and

engaged in voluntary discussions with the occupants—the majority creates an immunity shield

for criminal defendants during sleeping hours. The majority characterizes police as an arm of

the state purposely lying in wait to pounce upon prey at a vulnerable moment. Supra ¶ 58;

supra ¶ 85 (McDade, J., specially concurring).

¶ 93 Police officers need not always inform citizens they are free to leave during encounters

outside the context of arrests and Terry stops (Terry v. Ohio, 392 U.S. 1 (1968)). The Supreme

Court has explicitly rejected such notions in the context of obtaining consent to search. United

States v. Drayton, 536 U.S. 194, 206 (2002) (citing Ohio v. Robinette, 519 U.S. 33, 39-40

(1996), and Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)). The majority ignores this.

Supra ¶¶ 12, 21, 59, 60. Again, the fact that police did not explain this legal nuance to the

defendant can weigh in favor of an arrest, but it is not a bright line rule. See Drayton, 536 U.S.

at 206-07 (citing Schneckloth, 412 U.S. at 227). The trial court did not deem the warning

necessary under the circumstances, and this court should not make it a de facto requirement.

¶ 94 Further, the fact that someone is in handcuffs does not mean they are ipso facto under

arrest. Supra ¶ 60 (quoting Marcella, 2013 IL App (2d) 120585, ¶ 31). Several Chicago police

officers accompanied investigating Plainfield officers to the Chicago residence. Plainfield

officers intended to transport only one person, Escutia, back to Plainfield for questioning. As

such, a logistical hurdle emerged when they learned defendant had been with Escutia all night

and he, too, was willing to go to Plainfield for questioning. Unbeknownst to the Plainfield

officers and after defendant agreed to go to Plainfield, a Chicago police officer handcuffed the

defendant—strictly for safety purposes—during transport for approximately five miles in a

cageless squad car. This act safely and efficiently resolved a significant dilemma without

violating the defendant’s rights. After transport, the Chicago officer removed the handcuffs.

The defendant proceeded to voluntarily walk down the sidewalk and then sat in the front seat

of a squad car, unhandcuffed, for the length of time it takes to drive from Chicago’s District 9

headquarters to the Plainfield police department, a distance of approximately 35 miles. These

circumstances do not render the brief use of handcuffs an arrest.

¶ 95 A salient feature of the majority opinion is that it punishes law enforcement for doing

excellent investigative work. Assuming, arguendo, there was a fourth amendment violation in

this case, it was incidental and the exclusionary rule should not be triggered. The exclusionary

rule exists to deter police misconduct that is purposeful or flagrant and should be applied by

courts as a “last resort” not the “first impulse.” (Internal quotation marks omitted.) Utah v.

Strieff, 579 U.S. ___, ___, 136 S. Ct. 2056, 2061 (2016). Instead, the majority has run astray of

the exclusionary rule’s purpose by engaging in a hyper-technical analysis in order to exclude

reliable, condemning evidence.

¶ 96 Here, there was no purposeful or flagrant misconduct by the police. Their actions were in

good faith and nothing about them shocks the conscience. The exclusionary rule “simply

cannot be applied to a situation where it offers little or no deterrent benefit and where there is

not the least bit of culpability that can be charged to the officer’s conduct.” People v. LeFlore,

2015 IL 116799, ¶ 51. Such is the case here.

¶ 97 The trial court’s findings are supported by the record and the manifest weight of the

evidence. Given the factual determinations of the trial court and the prevailing case law, this

court should not reach a contrary legal conclusion. The trial court’s factual findings cannot be

ignored in our de novo review of its legal conclusion. The majority should be wary of

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substituting its judgment for that of the trial court. See People v. Alexander, 239 Ill. 2d 205,

213-15 (2010) (noting in the context of sentencing that this court cannot substitute its judgment

for that of the trial court merely because it would have weighed factors differently).

¶ 98 Moreover, the majority’s emphasis on law enforcement’s use of Escutia’s phone records in

locating defendant is misplaced. Supra ¶¶ 7-8, 15-17, 22-24; supra ¶ 84 (McDade, J., specially

concurring). Defendant cannot vicariously assert an alleged violation of anyone else’s

constitutional rights. People v. McCarty, 223 Ill. 2d 109, 155 (2006); Plumhoff v. Rickard, 572

U.S. ___, ___, 134 S. Ct. 2012, 2022 (2014).

¶ 99 Assuming, for the sake of argument, that defendant was seized when he voluntarily left his

residence, the police had probable cause to arrest him for violating the terms of his parole. The

trial court found that officers had probable cause to arrest the defendant before he voluntarily

left his residence with the police. Supra ¶ 50. Officer Markowski’s knowledge that defendant

was on parole imputes that information to all of the other officers involved. People v. Wallace,

2015 IL App (3d) 130489, ¶ 38; People v. Ortiz, 355 Ill. App. 3d 1056, 1065 (2005).

¶ 100 The majority concludes that Markowski’s testimony regarding his knowledge of the

defendant’s status as a parolee was “vague” and unsupported and, therefore, “not well

grounded.” Supra ¶ 69. In so doing, the majority finds that the investigating officers were

unaware of defendant’s parole status prior to leaving his residence and the trial court,

therefore, erred in finding probable cause to arrest defendant at that time. Supra ¶ 71. Once

again, the majority does not give due deference to the trial court’s factual findings as required.

Ornelas, 517 U.S. at 699. The majority clearly makes a credibility finding with regard to

Markowski’s testimony contrary to that made by the trial court. Unless its conclusion is

unreasonable, the trier of fact, not the appellate court, makes credibility determinations. People

v. Cunningham, 212 Ill. 2d 274, 283 (2004). We should affirm. The record does not support a

finding that police illegally seized defendant. Rather, it shows very effective police work

involving cooperation between law enforcement agencies.

¶ 101 I must also comment on Justice McDade’s special concurrence. The fact that my colleague

is unable to connect the dots between Escutia and the victim (supra ¶¶ 83-84), as were the

police, does not render the police action unconstitutional. Neither the fourth amendment, nor

any other amendment prohibits police use of logic and commonsense. I would affirm and,

therefore, dissent.

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