People v. Townes

JUSTICE UNDERWOOD, dissenting:

I disagree with the result reached by my colleagues.

Assuming, as I do, that an individual’s presence at a police station and responses to questions may still be voluntary even though requested by a police officer (United States v. Mendenhall (1980), 446 U.S. 544 , 64 L. Ed. 2d 497 , 100 S. Ct. 1870 ; Reid v. Georgia (1980), 448 U.S. 438 , 65 L. Ed. 2d 890 , 100 S. Ct. 2752 ; Schneckloth v. Bustamonte (1973), 412 U.S. 218, 225 , 36 L. Ed. 2d 854, 861 , 93 S. Ct. 2041, 2046 ), the fundamental issue in this case is whether defendant’s actions in going to the station and participating in the questioning were voluntarily undertaken. The majority, however, pre-judges that issue by referring to defendant’s journey to the station as a “seizure,” and his presence there as “detention.” Those terms imply the use of force or the exercise of restraint (Terry v. Ohio (1968), 392 U.S. 1 , 20 L. Ed. 2d 889 , 88 S. Ct. 1869 ), and this record simply will not support such inferences.

The Supreme Court has repeatedly recognized police questioning as a necessary tool in the effective enforcement of the criminal laws. (Mendenhall; Schneckloth; Haynes v. Washington (1963), 373 U.S. 503, 515 , 10 L. Ed. 2d 513, 521 , 83 S. Ct. 1336, 1344 .) The question of the circumstances under which, and the extent to which, investigative questioning is permissible in the absence of probable cause is a troublesome one for the courts as the cited cases indicate. Given the volume of disagreement among judges at all levels, the resulting problems for those engaged in investigating crime are obvious. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 250 , 36 L. Ed. 2d 854, 876 , 93 S. Ct. 2041, 2059 (Powell, J., joined by the chief justice and Rehnquist, J., concurring).) It is settled, however, that the police officer need not preface his noncustodial questions or requests with an explanation to the person addressed that he need not answer or comply. Schneckloth so held, and no case since then disclaims that holding. Even the dissenters in Mendenhall acknowledged that the prosecution “need not prove that [defendant] knew she had a right to refuse to accompany the officers ***.” 446 U.S. 544, 577 , 64 L. Ed. 2d 497, 524 , 100 S. Ct. 1870, 1889 (White, J., joined by Brennan, Marshall and Stevens, JJ., dissenting).

In his opinion in Mendenhall announcing the judgment of the court and joined by Justice Rehnquist, Justice Stewart discussed the distinction between “seizures” of the person and encounters which did not intrude upon constitutionally protected interests. Quoting language from earlier cases to the effect that only when an officer has exerted force or shown authority in restraining the liberty of an individual has a seizure occurred, and that policemen are at liberty to ask questions of anyone on the streets, he leaves no doubt that, in his judgment, “[a] s long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.” ( 446 U.S. 544, 554 , 64 L. Ed. 2d 497, 509 , 100 S. Ct. 1870, 1877 .) Justice Powell, with whom the chief justice and Justice Blackmun joined, concurred in the result without joining in part II-A of Justice Stewart’s opinion holding no seizure occurred and that the defendant’s responses were voluntarily made. Justice Powell specifically noted, however ( 446 U.S. 544 , 560 n.1, 64 L. Ed. 2d 497 , 513 n.1, 100 S. Ct. 1870 , 1880 n.1), that the nonjoinder did not necessarily indicate disagreement. In his later concurring opinion, again joined by the chief justice and Justice Blackmun, in Reid v. Georgia (1980), 448 U.S. 438, 442-43 , 65 L. Ed. 2d 890, 895-96 , 100 S. Ct. 2752, 2754-55 , Justice Powell again referred to the Mendenhall concurrence, indicating that the issue whether the questioning in Reid constituted a seizure or was voluntarily submitted to was open for consideration by the State courts. Given the majority positions in Mendenhall and Reid, coupled with the Mendenhall minority’s admission that the Schneckloth holding remained viable, there seems to me no doubt that the absence of an explanation to a possible suspect of his right to remain at home and refuse to answer questions cannot foreclose the possibility that his presence at the police station, even though in response to a police request, may still be voluntary. As noted in Schneckloth the suggestion that an explanation was essential “has been almost universally repudiated by both federal and state courts, and, we think, rightly so.” ( 412 U.S. 218, 231 , 36 L. Ed. 2d 854, 865 , 93 S. Ct. 2041, 2049-50 . See also United States v. Watson (1976), 423 U.S. 411, 424 , 46 L. Ed. 2d 598, 609 , 96 S. Ct. 820, 828 , indicating that the absence of an explanation of the right to refuse a request to consent to a search was not of controlling significance in determining the voluntariness of the subsequent consent.) While others of the cited cases also concern the voluntary nature of consented-to searches, rather than the combination of consented-to questioning and searches presented here, that difference is not consequential. United States v. Mendenhall (1980), 446 U.S. 544, 555-56, 577 , 64 L. Ed. 2d 497, 510, 524 , 100 S. Ct. 1870, 1878, 1889 (Stewart, J., joined by Rehnquist, J., concurring, and White, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting); Schneckloth v. Bustamonte (1973), 412 U.S. 218 , 36 L. Ed. 2d 854 , 93 S. Ct. 2041 .

Nor am I aware of anything in either the State or Federal constitutions which precludes officers investigating a recently committed, serious crime from going to private homes at reasonable hours to ask the occupants questions regarding that crime. Recognition and approval of that practice in the context of a consent to search was indicated by the Supreme Court in quoting with approval from People v. Michael (1955), 45 Cal. 2d 751, 754 , 290 P.2d 852 , 854: “ ‘[I]t is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes.’ ” (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 230 , 36 L. Ed. 2d 854, 864 , 93 S. Ct. 2041, 2049 ; United States v. Mendenhall (1980), 446 U.S. 544, 553 , 64 L. Ed. 2d 497, 508-09 , 100 S. Ct. 1870, 1876-77 .) When one of those occupants resembles a general description by the victim and has a record of similar offenses, I would think good police practice would dictate that an officer with no more specific clues should attempt, in a reasonable manner, to interview him even though probable cause, as such, does not exist. Too, no constitutional guarantees known to me bar asking that individual if he is willing to talk to the officers at the station where, as here, there is not the slightest hint of coercion. Of course, the individual to whom such questions or requests are addressed may refuse. If, however, he elects to cooperate, the simple fact that his cooperation was requested by an officer does not prevent use of its results. (Schneckloth v. Bustamonte (1973), 412 U.S. 218 , 36 L. Ed. 2d 854 , 93 S. Ct. 2041 ; United States v. Watson (1976), 423 U.S. 411, 425 , 46 L. Ed. 2d 598, 609-10 , 96 S. Ct. 820, 828 .) “It may happen that a person makes statements to law enforcement officials that he later regrets, but the issue in such cases is not whether the statement was self-protective, but rather whether it was made voluntarily.” United States v. Mendenhall (1980), 446 U.S. 544, 555-56 , 64 L. Ed. 2d 497, 510 , 100 S. Ct. 1870, 1878 .

It is not contended here that the officers had probable cause to arrest defendant at the time they went to his home on the morning of January 17. They testified they were simply investigating the crime, and that defendant’s name was fifth on a list of “possibles” whom they were interviewing. Some persons on the list had been interviewed the preceding day, found to bear no evidence of injuries, and cleared. Defendant was on the list because he fit, in a general fashion, the description given by the victim of her assailant and had a record of involvement in similar offenses. The officers testified that defendant was not arrested and was free to return home had he so requested on the trip to Danville. In fact, defendant testified that the officers, whom he knew, urged him to drive his car, but his mother needed it so he rode with them. Before they went, defendant left and “washed up” while the officers visited with his mother. Too, defendant admits that he understood and voluntarily waived his Miranda rights when they were later explained to him and that he did not at any time inform any officer that he wanted to return home or stop talking. While he did testify that he told the police he wanted a lawyer, the officers testified to the contrary, and the trial judge found their testimony more worthy of belief, a finding which is obviously not contrary to the manifest weight of the evidence. It is to me entirely clear that defendant voluntarily accompanied the officers to the Danville police station, and that he, therefore, was not “seized” as the majority indicates.

While my colleagues appear to concede that some limited questioning would have been permissible, they conclude, it seems, that at some undetermined point after his arrival at the station, those permissible limits were exceeded. The precise holding is “that defendant’s fourth amendment rights were violated when, without probable cause, he was subjected to a lengthy interrogation at the police station.” (91 Ill. 2d at 39.) Had probable cause been absent during the greater part or all of the questioning, I would agree, but the troublesome part of this holding is that it seems to ignore the fact that while probable cause did not exist at the time of defendant’s arrival at the station, it did arise early in the questioning and defendant could thereafter have been detained without his consent.

Defendant had signed a consent to search his car at 9:37 a.m., almost immediately upon his arrival at the station, and that search produced a tire iron with blood on it. The precise time at which probable cause arose may be debatable, but certainly it arose no later than the discovery of the bloodied tire iron in defendant’s car. At that point defendant’s neck scratches and head and finger wounds, as observed by the officers, corresponded with the victim’s statement regarding her stmggles with her assailant and that she had bitten him on the finger and hit him on the head with the iron bar. Too, the victim had told police her assailant had worn a large ring, and the officers had observed such a ring on defendant’s hand when they arrived at his home. After he “washed up” before leaving home, he was no longer wearing the ring. Given these circumstances, coupled with the fact that defendant’s physical appearance generally fit the description given by the victim, the subsequent detention and interrogation cannot, in my opinion, be said to be without probable cause. (See United States v. Watson (1976), 423 U.S. 411, 417-18 , 46 L. Ed. 2d 598, 605-06 , 96 S. Ct. 820, 824-25 ; Brinegar v. United States (1949), 338 U.S. 160 , 93 L. Ed. 1879 , 69 S. Ct. 1302 ; People v. Robinson (1976), 62 Ill. 2d 273 ; People v. Clay (1973), 55 Ill. 2d 501 ; 1 LaFave, Search and Seizure sec. 3.2 (1978).) The fact that the victim was unable to identify defendant in the lineup later that day did not, it seems to me, eliminate the existing probable cause. The victim had told the officers she did not get a good look at her assailant’s face. The lights were off during the assault except for several brief periods when defendant turned one on after telling her not to look at him. Because of the severe beating she had received, she obeyed. Too, she was without the contact lens which she normally wore because of nearsightedness. Given these circumstances, her inability to identify defendant is not surprising, nor does it, in my judgment, affect the continued existence of probable cause. See 1 LaFave, Search and Seizure sec. 3.2 (1978); see also State v. McClinton (1975), 265 S.C. 171 , 217 S.E.2d 584 (evidence sufficient to sustain defendant’s conviction despite prosecutrix’ inability to identify him as her attacker where corroborative facts included a bitten hand); Jeffers v. State (1980), 268 Ark. 329 , 595 S.W.2d 687 (evidence sufficient to sustain defendant’s convictions despite prosecutrix’ inability to identify him as her masked assailant).

The cases relied on by the court do not require the result it reaches. There is no resemblance between Brown v. Illinois (1975), 422 U.S. 590 , 45 L. Ed. 2d 416 , 95 S. Ct. 2254 , and this case, for there the police broke into the defendant’s apartment without a warrant, searched it, arrested the defendant at gunpoint, handcuffed him, and took him to the station. There is also what seems to me to be a significant difference from Dunaway v. New York (1979), 442 U.S. 200, 203 , 60 L. Ed. 2d 824, 829 , 99 S. Ct. 2248, 2251 , in that the three officers in Dunaway would not have permitted defendant to leave their custody for they had been instructed to “ ‘pick up’ petitioner and ‘bring him in.’ ” (See also People v. Creach (1980), 79 Ill. 2d 96, 101 , cert. denied (1980), 449 U.S. 1010 , 66 L L. Ed. 2d 467, 101 S. Ct. 564 .) Here, on the contrary, the testimony is undisputed that no coercion was used and that defendant was free to refuse to go to the station and would have been permitted to leave, at least in the initial stages of the interrogation.

In my judgment defendant voluntarily accompanied the officers and participated in the initial interrogative stages leading to the discovery of the bloodied tire iron. With that discovery, probable cause arose to believe him guilty of the rape, and the subsequent questioning was justified. The incriminating statements were, accordingly, properly admitted.

I would reverse the judgment of the appellate court and affirm the judgment of the circuit court of Vermilion County.

CHIEF JUSTICE RYAN joins in this dissent.