Petition — Bean v. Illinois

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ALEXAN: i. S'sVAa¥y

IN THE VET

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980

JIMMY BEAN,

Petitioner

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

BROWN, GOODMAN AND CARPER, LTD.

ONE NORTH LASALLE STREET

CHICAGO, ILLINOIS 60602

(312) 236-5582

J. CHRIS GOODMAN

Counsel For Petitioner Bean

QUESTION PRESENTED FOR REVIEW

Whether the forceful entry of a private

home eight days after an offense to arrest a

suspect without a warrant and in the absence

of exigent circumstances is an illegal seizure

of a person in violation of the Fourth A-

mendment to the United States Constitution.

PARTIES OF PROCEEDING IN THE

SUPREME COURT OF ILLINOIS

Petitioners and their respective counsel

were:

A. Jimmy Bean

Attorney: Brown, Goodman and Carper, Ltd.

One North LaSalle Street

Chicago, Illinois

B. Jesse Byrd and Frank Byrd

Attorney: James Doherty

Public Defender of

Cook County, Illinois

Daley Center

Chicago, Illinois

Respondent: People of State of Illinois

Attorney: Hon. Tyrone Fahner

Attorney General of Illinois

188 W. Randolph

Chicago, Illinois

TABLE OF CONTENTS

Question Presented For Review 1

Parties To Proceeding in the

Illinois Supreme Court 2

Table of Contents 3

Table of Authorities 4

Opinion Below 6

Jurisdiction 7

Constitutional Provisions

Involved 7

Statements of Facts 8

Reasons For Granting Writ 13

Conclusion 33

Appendices:

People v. Bean, 84 Ill. 2d 64 Al-Al8

People v. Bean, 73 Ill. App. 3d 918

'A18-A41

=-3-

TABLE OF AUTHORITIES

cog tage v. New Hampshire, 403 U.S. 443 at

Cited herein at page, 13

Dorman v. United States,435 F 2d 385 (1970)

Cited herein at page, 61, 20, 21,

23, 24, 25, 27, 28

Payton v. New York, 63 L. Ed. 2d 639 (1980)

Cited herein at page, 14, 15, 30,

31, 32

United States v. Reed, 572 F 2d 412 (1978)

Cited herein at page, 26, 31

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980

NO.

JIMMY BEAN - - - - Petitioner

vs.

PEOPLE TO THE STATE

OF ILLINOIS - - - Respondent

PETITION POR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

Petitioner JIMMY BEAN respectfully

prays that a writ of certiorari issue to

review the order of the Supreme Court of

Illinois, affirming the order of the

Appellate Court of Illinois, First District

reversing the order of the Circuit Court

of Cook County, Illinois,quashing the arrest

of the Petitioner and suppressing statements

made subsequent to the arrest.

-5-

OPINION BELOW

The opinion of the Supreme Court of

Illinois affirming the judgment and order

of the Appellate Court of Illinois, First

District, is reported at 84 Ill. 2d 64

and a copy of said opinion is attached

hereto as Appendis "A." The opinion of

the Appellate Court of Illinois, First

District reversing the order of the Cir-

cuit Court of Cook County, Illinois,

quashing the arrest of Petitioner herein

and suppressing as evidence statements made

subsequent to the quashed arrest is re-

ported at 73 Ill. App. 3d 918, and a copy

of said opinion is attached hereto as

Appendix "B." The order of the Circuit

Court of Cook County, Illinois, quashing

the arrest of Petitioner and suppressing

as evidence statements subsequently made

was an oral order and the decision is

unreported.

JURISDICTION

This Honorable Court's jurisdiction

is invoked under 28 U.S.C. § 1257 (3).

The judgment of the Supreme Court of

Illinois was entered on February 20,

1981, and this Petition for Writ of

Certiorari was filed within 60 days of

that date.

CONSTITUTIONAL PROVISIONS UPON WHICH

PETITIONER RELIES

Amendment 4 To The United States Consti-

tution:

The right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated, and

no Warrants shall issue, but upon probable

cause, supported by oath or affirmation,

and particularly describing the place to

be searched, and the persons or things

to be seized.

Amendment 14 Section 1 to the United States

Consitution: 7

Section 1. Citizens of the United States

all persons born or naturalized in the

United States, and subject to the juris-

diction thereof, are citizens of the United

States and of the State wherein they reside.

No State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United States;

nor shall any State deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person

within its jurisdiction the equal protec-

tion of the laws.

STATEMENTS OF FACTS

On March 13, 1975, the home of Jimmy

Bean, the Petitioner herein, was forcibly

searched and the Petitioner seized by

plain clothes detectives, who did not pos-

sess an arrest warrant nor a search warrant.

The officers arrested the Petitioner for an

offense on March 13, 1975, for an offense

which was occurred on March 5, 1975.

Mrs. Lillie Mae Bean, the mother of

the Petitioner, Jimmy Bean, answered a

knock on the door at approximately 8:00 a.m.,

on March 13, 1975, at their home at 4211

West Gladys, Chicago, Illinois. Upon

Opening the door, Mrs. Bean was confronted

by two (2) plain clothes police officers

that said to her, "Police Officers, we

want to see Jimmy." Mrs. Bean admitted

the two (2) officers into the vestibule

just inside the door and asked them to

wait there until she obtained a robe to

cover her nightgown. Upon returning with

her robe, in response to one (1) officer's

demand to see Jimmy, Mrs. Bean told the

officers to wait and that she would go

and get him.

At that point, one of the officers

Mrs. Bean described as the shorter of the

two (2) officers at her front door and

having sandy hair and a sandy mustache

rushed past Mrs. Bean with his service

oe

revolver drawn. Thereupon, Mrs. Bean told

the officers, "he was going nowhere," how-

ever the officer beat Mrs. Bean to the

Petitioner's bedroom and told the Petitioner

to get out of bed.

Prior to the arrest of the Petitioner

on March 13, 1975, an armed robbery had

occurred on March 5, 1975 and on March 5,

1975, an alleged witness, purporting to

be Lucinda Birmingham, informed officers

arriving at the scene that she has seen

Jimmy Bean run from the vicinity of the

offense after two (2) other persons exited

from the premises where the offense is

purported to have occurred.

On March 6, 1975, Officer Lahn spoke

by telephone with a person he assumed to

be Lucinda Birmingham and it was related

to him that Jimmy Bean had been observed

leaving the vicinity where the offense

occurred. Subsequent to this conversation,

Officer Lahm checked the "Alpha File"

-10-

of the Chicago Police Department to

determine what if any information was

available concerning Jimmy Bean. From

the "Alpha File," Officer Lahm did

obtain certain date concerning Mr. Bean

including an address.

By March 13, 1975, Officer Lahm had

not obtained an arrest warrant for Jimny

Bean nor had he obtained a search warrant

for the home of Jimmy Bean at 4211 West

Gladys, Chicago, Illinois, to arrest

Jimmy in his home.

The Constitutional question raised

herein was raised in the trial court,

namely the Circuit Court of Cook County,

Illinois, prior to trial by a Motion To

Quash Arrest and Suppress Fvidence filed

by the Petitioner. The Trial Court

conducted an evidentiary hearing on the

Petitioner's motion and at the conclusion

of the evidence sustained the motion and

quashed the arrest and suppressed as

-Lll-

evidence the subsequent in-custody state-

witha. 02 the Petitioner.

The issue was thereafter presented to

the Appellate Court of Illinois, First

District, by the Respondent, the People

of the State of Illinois, filing a direct

appeal of the order of the Trial Court

quashing the arrest and suppressing as

evidence statements of the Petitioner

made subsequent to the arrest. As here-

tofore indicated the Appellate Court of

Illinois, First District, reversed the

order of the Trial Court and remanded the

cause with instructions.

Thereafter, within the time allowed,

the Petitioner herein presented the issue

to the Supreme Court of Illinois by filing

a Petition for Leave to Appeal and leave

to appeal was allowed by the Supreme Court

of Illinois and ultimately said Court

affirmed the judgment of the Appellate

Court of Illinois.

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REASONS RELIED UPON FOR

ERTIORARI

The principal issue in the case at

bar is the Constitutional validity of the

Petitioner's arrest and the focus of the

inquiry is upon the propriety of the

arresting officer's entry into the

Petitioner's home and his seizure from

that home without a warrant.

The Fourth Amendment to the United

States Constitution provides as follows:

"The right of the people to

be sucure in their home, houses,

papers and effects, against un-

reasonable searched ans seizures,

shall not be violated, and no

Warrants shall issue, but upon

probable cause, supported by

oath of affirmation, and par-

ticularly describing the place

to be searched, and the persons

or things to be seized.”

In Coolidge v. New Hamsphire, 403 U.S.

443 at 477-478. 91 S.CT. 2022, Justice

White observed:

"It is clear, then, that the

notion that the warrantless entry

of a man's house in order to

arrest him on probable~cause is

~13-

per se ligitimate is in ©

fundamental conflict with

the basic principle of the

Fourth Amendment Law that

searches and seizures inside

’ a man's house without warrant

are per se unreasonable in

the absence of some one of

a number of well defined

‘exigent circumstances'."

More recently, this Honorable Court

in Payton v. New York, 63 L.Ed. 2d 639

(1980) held that police are prohibited

by the Fourth Amendment to the United

States Consitution from making a warrant-

less and nonconsenual entry into a

suspect's home in order to make a routine

felony arrest. The court also reiterated

previous interpretations of the Fourth

Amendment that its protections are

applicable to the seizure of persons from

a home as well as the seizure of tangible

objects, and in so holding expressly

rejected the contention of the People of

New York that there was a significant

distinction to be drawn between an entry

into a home to search for tangible objects

-l1a-

and an entry into a home to search for

a person. The language of Us Fourth

Amendment does not distinguish between

"persons" and "things" in windentebion

the right to be secure agaisnt un-

reasonable searches and seizures. The

Amendment by its own terms requires

that whether persons or things are

to be seized the warrant must describe

the place to be searched. In the case

at bar the testimony of Officer Lahm

Clearly demonstrated that he went to the

residence of the Petitioner to seize the

person of the Petitioner. For Officer

Lahm states that, "I was there to arrest

him." (R.V.1-44), and unquestionably the

officer possessed no arrest warrant.

This Honorable Court's opinion in

Payton v. New York did not undertake to

decide whether or not exigent circumstances

wer justification for a warrantless arrest

in a person's home, however, in the humble

opinion of this author this Court recognized

-15-

in Wardent v. Hayden, 87 S.Ct. 1642, 19

L.Ed. 2d 782 (1967) hot pursuit as a

justification for the entry of law en-

forcement officers into a home without

warrant. An as previously pointed out,

in the case at bar, the officers arrested

the Petitioner in his home eight days

after the offense even though the officers

knew they were seeking Petitioner on the

day of the offense.

Since this Honorable Court's re-

cognition of hot pursuit as a justification

for a warrantless entry of a home by law

enforcement officers, inferior couts have

developed a doctrine of "exigent circum-

stances" that embodies a series of seven

factors to be considered in determining

whether exigent curcumstances exist which

justify a warrantless intrusion into a

citizen's home. Dorman v. United States,

140 U.S. App. D.C. 312, 435 F.2d 385 (1970)

articulates the seven factors as follows:

(1) whether a violent crime is involved;

(2) that the suspect is reasonable

believed to be armed; (3) that there

exists not merely the minumum of proba-

ble_cause that is requisite even when a

warrant has been issued, but beyond that

a clear showing of probable cause, in-

cluding reasonable trustworthy information,

to believe that the suspect committed the

crime; (4) a strong reason to believe

that the suspect is in the premises entered;

(5) a likelihood that the suspect will es-

cape if not swiftly apprehended; (6) the

circumstances that the entry though not

consented is made peaceable; (7) the time

of entry.

Applying the considerations that are

material in determining if the circumstances

of a situation exigent circumstances to

the case at bar, it is abundantly clear

that exigent circumstances which would

excuse the Fourth Amendment requirements

of a warrant were not present here.

Conceding the offense-charged, armed

robbery, is a grave one, as to the second

consideration, namely, whether the Petitioner

was armed, contrary to the conclusion

reached by the Supreme Court of Illinois,

Officer Lahm did not believe the Petitioner

to be armed, for the officer knew from

his conversation with a witness that the

person at the scene thought to be Petitioner

was not armed.

The third consideration to be applied

in @etermining whether there are exigent

circumstances to justify an invasion into

a citizen's home is whether there exists

not merely the minimum probable cause

that is required even when a warrant has

been issued but beyond that a clear showing

of probable cause including "reasonably

trustworthy information", to believe

that the suspect committed the offense. In

the case at bar there does not even exist

"mere probakte cause"-for an arrest. The

-18-

officer effecting the arrest has no personal

knowledge of facts which would tend to

connect the Petitioner with the offense.

Officer Lahm merely called a telephone

number he obtained from a police report.

The record is clear that he did not even

know the address to which the telephone

number he dialed correspond nor did he

even ‘attempt to check.

Even more shocking is the fact that

the officer is not even certain that the

person he spoke with on the telephone was

Lucinda Bermingham, the purported informant.

Not only did he not know that address at

which the telephone number was located

but he didn't even know and didn't even

attempt to learn to whom the telephone

was listed. The only link between the

telephone number and the same Lucinda

Birmingham is a voice that the officer

has never heard before saying that it is

Lucinda Birmingham. But the lack of

-19-

trustwothiness does not stop there because

unlike what a reasonable person would have

done, Officer Lahm never personally inter-

view the person purported to be Lucinda

Birmingham, never checked to determine if

in a fact there was a Lucinda Birmingham,

never checked to determine if a Lucinda

Birmingham lived at the address listed

on the police report and never asked the

person he spoke with on the telephone how

old she was, where she lived, who her

parents were, what her occupation was,

whether she had ever furnished the police

information previously or even how long

it had been since she had seen the Petitioner

prior to his alleged involvement with an

offense on March 5, 1976.

Obviously, evidence which does not

support a finding of mere probable cause

does not meet criteria of Dorman which

provided that more than the minimum

of probable cause is required when an

ex -20-

arrest without a warrant is effected in

a home. Under such circumstances, a

clear showing of probable cuase is

required, including reasonable trustworthy

information to believe the suspect committed

the crime. In the case at bar, the pro-

secution failed to establish probable

cause for arrest outside of a.bome and

therefore, having failed the lesser standard,

failed to fulfill the stricter requirement

of Dorman with respect to probable cause

for an arrest without warrant in a home.

The Fourth consideration that is

material in determining whether an arrest

of a suspect in his home without a warrant

is whether there is strong reason to

believe that the suspect is in the premises

being entered. This consideration in the

case at bar is easily resolved in favor

of the Petitioner by the testimony of

Officer Lahm. Defense counsel posed the

following question to Officer Lahm and

-2l-

elicited the following answers:

Q. "Now, Officer, on the morning

of March 13th when you approached the

Bean residence, did you know that Jimmy

Bean was in the house at that time?

A. No.

Q. Where you making a general inquiry

or was your purpose in going there to make

an arrest?

A. I was there to arrest him.

Q. So that when you knocked on the

door, your intention was to effect an arrest

if he was home?

A. Yes, Sir." (R.V. 1-44-45)

The answer of the officer to the

inquiry of whether he knew Jimmy Bean was

on the premises is unqualified and the

record is barren of any other evidence

that would establish a strong reason to

believe that Jimmy Bean was in te premises

being entered on March 13, 1975. Clearly

the officer was doing nothing more than

‘

5

-22-

checking out a lead obtained from old

police (R.V. 1-32) and school records

(R.V.1-112) and the testimony of an

alleged informant witness, that she has

once known the vicinity of his address

when she had attended school with ¢he

Petitioner (R.V.1-38). However, the

ebisencs adduced by the prosecution did

not establish the age of the alleged

witness at the time of the telephone con-

versation (R.V. 1-38) nor did it establish

how long ago the alleged witness had

attended school with the Petitioner. How-

ever, since according to Officer Lahm's

testimony the witness used the past tense

of the verb so one can reasonable conclude

that at the time of the offense the alleged

witness was not going to school with the

Petitioner. :

Certainly, old records and conversations

which indicates a person's last know address

do not satisfy the Dorman standard of

"strong reason to believe the suspect is

in the premises being entered." Reason to

believe that a person was at a location

a year or two years ago is now insufficient

reason to enter a home in violation of the

Fourth Amendment. Such an interpretation

would emasculate the protection sought to

be afforded by the Fourth Amendment. The

Petitioner humbly assets that "strong

reason" not only means trustworthy and

reliable reasons but also fresh evidence

that at the moment of the entry by law

enforcement officers that the suspect

is on the premises.

The fifth consideration of Dorman is

the likelihood that the suspect will escape

if not swiftly apprehended. In the case

at bar, the record is barren of any evidence

that the Petitioner might escape apprehension

unless the home was forcibly invaded

without a warrant for arrest of the Petitioner.

On the Contrary the evidence indicated

that the Petitioner was still occupying

a residence he had occupied for eight (8)

years (R.V. 1-8) and even more significantly

he was found there some eight (8) days

after the offense, not making hasty pre-

paration for an escape but sleeping.

The sixth Dorman consideration is

the circumstances of the entry; whether

the entry by law enforcement officers was

peaceable or forceful. In the case at

bar, the officers never gave Jimmy Bean

an opportunity to surrender himself by

merely stating their business and requesting

that he be summonded to the door. Mrs.

Bean testified credibly and reliable on

both direction (R.V. 1-5) and cross (R.V.

1-t6) examination as to the forcible nature

of the entry and arrest. Mrs. Bean asked

the officers to wait at the vestibule just

inside the entrance while sha went to get

Jimmy Bean. At that time the officer she

describes as short, sandy hair and mustache

rushed past her with his gun drawn and

-25-

into the bedroom where Jimmy-Bean was

sleeping, (R.V. 1-5-6) Mrs. Bean's testimony

relating the incident is detailed and

relates the events chronologically.

In United States v. Reed, 572 F 2d

412, 422 (1975) the Second Circuit Court

of Appeals reviewed the authorities concerning

one's expectation of privacy in teir home

and the gravity of a governmental intrustion

into one's home and having viewed the

authorities at page 423 found that invasion

by law enforcement was an invasion of one's

expectation of privacy and noted that

merely being arrested for most persons is

an “awesome and frightening experience."

In the case at bar, the conduct of the

police was an abomination. The shock of

the police invading and rushing into the

Petitioner's bedroom without first announcing

their purpose was visibly and readily

apparent in the sobbing of Mrs. Bean (R.V.

1-6) but certainly the shock of the police

-26-

conduct was no less to be youthful

petitioner.

The seventh and final ocnsideration

set out in Dorman to be taken into con-

sideration in determining if "exigent

circumstances" exist which would justify

a warrantless intrusion into a home in

violation of the Fourth Amendment is the

time of the entry. In the case at bar,

the entry was at approximately 8:00 a.m.

While on its face, it may not appear

patently unreasonable, in the circumstances

of this case, it was unreasonable. It

must be remembered that this was a warrant-

less arrest and seizure of an offense

that has occurred eight (8) days previous

and:on the very day of the offense the

name Jimmy Bean came to the attention of

the police. The following day the police

undertook a cause of conduct which ultimately

resulted in gaining knowledge of the last

known address for a Jimmy Bean. The

opportunities for the police to obtain

a warrant during thase eight (8) days

were so great and innumerable, especially

considering the magnitude of the criminal

court system existing in the city of Chicago.

That it is what makes this violation of

the Fourth Amendment so intolerable in

this instance. The Court in Dorman, 435

2a 385 (1970) upheld an arrest without

a warrant in a home but the situation

differed drastically form the situation

in the case at bar. In Dorman, the arrest

was in close proximity to learning of the

identification of offender, the efforts

by law enforcement officials to obtain a

warrant were diligent and from a practical

standpoint, exhaustive and the offense had

recently occurred. Those factors are not

present in the case at bar, especially the

efforts which were expended as in Dorman

to obtain an warrant.

Further, in the case at bar, the

-28-

presecution cannot be heard--to complaint

that the hour of the day prevented the

obtaining of a warrant for at that time

or shortly thereafter a judge would be

easily located and due to the delay between

the arrest and the offense any argument

that the suspect might flee the jurisdiction

would be firvolous. In Chappell vs. United

States, 342 F. 2d 935, 938, 119 U.S. App.

D.C. 356 (1953) the Court noted, "That

delay may be encountered, however, is not

controlling on whether a warrant is required;

securing a warrant always requires some ad-

ditional time."

The Supreme Court of Illinois avoided

the holding of this Court in Payton and

also avoided the teaching of Dorman, although

admittedly, the doctrine of exigent circum-

stances is not a Constitutional requiremant.

However, it is significant to note that

the Supreme Court of Illinois has created

its own exception to the Constitutional

-29-

requirement established by this Court is

Payton. The Supreme Court of Illinois

concluded that when police officers are

conditionally admitted into a foyer and

instructed to wait in the foyer by the

Petitioner's mother until she puts on her

bathrobe but rather than waiting as

instructed, the police officers draw their

guns and forcibly rush past Petitioner's

mother to search other rooms of the home

for the Petitioner herein, then in that

instance, an arrest warrant is not required,

although the arrest is taking place eight

days after the offense in the Petitioner's

home. The Supreme Court of Illinois im-

plicitly concludes without reasoning or

other comment that police officers charging

through @ home with guns drawn to make an

arrest is a consensual entry. The Court

also cites that for an entry to be

consensual it must be voluntary. A conclusion

that the entry was voluntary where Petitioner's

mother instructed the officers to remain at

-X-

the foyer but instead the police officers

draw guns and rush into other rooms to

effect an arrest is clearly contrary to

the evidence adduced.

It is significant to note that the

factual situation contained in United

States v. Reed, 572 F. 2d 412, is similar

in may respects to the case at bar. In

_Reed, the entry and arrest into the defen-

dant's home was a sonsensual entry allowed

by the defendant herself and thereupon the

defendant was arrested. The Second Circuit

Court of Appeals concluded that Reed was

arrested in a plees which she was entitled

to a reasonable expectation of privacy and

a place protected by the Fourth Amendment.

At page 423 of the opinion the Second

Circuit also concluded that Reed's privacy

interest was invaded by government agents.

In Payton, this Honorable Court con-

curred in the conclusion reached in Reed

at page 423, that

-31-

"To be arrested in the home

involves not only the invasion

attendant to all arrests but

also an invasion of the sanctity

of the home. This is simply

too substantial an invasion

to allow without a warrant, at

least in the absence of exigent

circumstances, even when proba-

ble cause is clearly present.”

The Petitioner, Jimmy Bean, respect-

fully disagrees with the Supreme Court of

Illinois that in the absence of exigent

circumstances that the holding of Payton

need not be followed in Illinois. The

Constitutional issue raised by this Petii:ion

is of such significance that the matter

be considered by this Honorable Court.

In an urban society the question of the

legality of arrest by police agencies in

private homes is one which arises with

resurring frequency. Until it is es-

tablished that the Illinois Courts cannot

erode and avoid the holding of this Court's

holding in Payton the Constitutional

right of Illinois citizens to be secure

in their homes from unreasonable searches

-32-

seizures by police agencies will continue

to be violated.

CONCLUSION

Wherefore, Petitioner, Jimmy Bean,

respectfully prays of this Honorable

Court that certiorari be granted and

that a Writ of Certiorari issue to the

Supreme Court of Illinois and thereafter

that this Honorable Court of Illinois

and remand the cause to the Supreme

Court of Illinois and affirm the order

of the Circuit Court of Cook County,

Illinois, quashing the arrest of the

Petitioner, Jimmy Bean, and suppressing

evidence.

Respectfully submitted,

J. Chris Goodman

One of the Attorneys for

Petitioner, Jimmy Bean

BROWN, GOODMAN AND CARPER, LTD.

ATTORNEYS AT LAW

SUITE 1101

ONE NORTH LASALLE STREET

CHICAGO, ILLINOIS 60602

(312) 236-5582

-34-

No. 52385

IN THE

SUPREME COURT OF ILLINOIS

PEOPLE OF THE

STATE OF ILLINOIS,

Plaintiff-

Appelle, Appeal from

Appellate Court

vs. First District

JIMMY BEAN,

JESSE BYRD and

FRANK BYRD,

Defendant-

Appellant,

ee ee ee ee ee ee ee ee ee ee ee ee ee

Opinion Entered February 20, 1981

MR. JUSTICE MORAN delivered the opinion

of the Court:

Defendants, Jimmy Bean, Jessie Byrd,

and Frank Byrd, were charged by indictment

with two counts of armed robbery. The

Circuit Court of Cook County quashed the

arrest and suppressed statements of Jimmy

Bean, and quashed the arrest and suppressed

the identification evidence of Jessie and

Frank Byrd. Upon appeal, the appellate

court reversed and remanded both causes.

73 Ill. App. 3d 918.

All three defendants contend that

their arrests violated their rights guaran-

teed by the fourth amendment to the

United States Consitution. Defendant

Bean argues (1) his arrest was without

probable cause and (2) the circumstances

surrounding the arrest in his apartment

required a warrant. Defendants Jessie

and Frank Byrd assert that (1) their arrest

was invalid, having occurred as a direct

result of Bean's illegal arrest, and

(2) in any event, the circumstances

surrounding their own arrest required

a warrant.

On March 5, 1975, two men, armed

with a sawed-off shotgun and pistol,

entered a cleaning store and took money

@2-

and phonograph records. On-March 6, the

investigating officer, Thomas Lahm,

telephoned Lucinda Birmingham, whose name,

address and telephone number had appeared

on a police report of the March 5, incident.

Ms. Birmingham told Offier Lahm that while

she was standing across the street she

observed two men come out of the clearners

and join two other men who were outside.

She then saw all four run from the scene.

She told Lahm that one of the men who had

been outside the cleaners was Jimmy Bean,

with whom she had previously gone to

school. She further told Lahm that Bean

was 17 or 18 years old and that he lived

in the vicinity of Keeler and Gladys

Streets (4200 West) in Chicago.

Subsequent to this conversation, Lahm

checked the police alphabetic file and

discovered that a Jimmy Bean had been

arrested by Oak Park police in June £974

and had given his address as 4211 West

@3o

Gladys and learned that a Jimmy Bean went

to school at Van Buren and Keeler Streets

and had listed his address as 4211 West

Gladys Street.

On March 13, at approximately 8:00

a.m., Lahm and Officer Korte accompanied

by two other policemen arrived at 4211

WEst Gladys without a warrant. The

accompanying officers went to the rear

of the residence while Lahm and Korte

approached the front door and knocked

The mother of defendant, Mrs. Bean, testified

that when she opened the door the officers

showed her their badges and said, "Police

officers, we want to see Jimmy." Mrs. Bean

then asked them into the vestibule area;

once inside, she requested the officers

to wait while she left to put on a robe.

The officers complied with this request.

Upon here return, the officers again

stated they wanted to see defendant.

Mrs. Bean again asked them to wait while

she went to get defendant. At this point,

-4-

Korte went past her with his gun drawn.

Mrs. Bean also testified that the officers

we t into defendant's Hedroom and told

him to get dressed.

Cificer Lahm testified that while

they were in the apartment the defendant

emerged from a bedroom. Lahm stated that

he walked as far as the bedroom doorway,

but did not enter the bedroom, although he

could not recall whether Korte entered.

Lahm informed defendant he was under arrest

and then searched him for weapons. There-

after, defendant was taken to the police

car where he was advised of the constitutional

rights.

Lahm furhter testified that five

minutes after the arrest the defendant

made an oral statement concerning the robbery.

This statement was substantially the same

as a written statement later made at

the police station. the statements in-

dicated that Frank and Jessje Byrd partici-

-5-

next page is no. 7

pated in the robbery with him. Following

defendant's oral statement to the police,

the four officers and defendant proceeded

to 4132 West Van Buren, where defendants

Frank and Jessie Byrd were arrested.

Later that day, the Byrds tood part ina

lineup and were identified as being par-

ticipants in the armed robbery.

The trial court allowed Beans's

motion to quash his arrest on the basis

that no probable cause existed. One

week later, the trial court entered an

order to suppress both of Bean's statements

as fruits of the illegal arrest. The

court continued the hearing as to the

voluntariness of the statements. On

October 27, the trial court allowed a

motion to quash the Byrd's arrests and

a motion to suppress the identification

evidence. This action was founded on the

ground that the illegal arrest of Bean

led to the arrest and identification of

@Jo

the Byrds. The appellate court reversed

and remanded both causes, noting that

. the police has probable cause to arrest

Bean. In Bean's case, the appeallate court

directed the trial court to conduct a

hearing on the voluntariness of his in-

custody statements. With respect to Jessie

and Frank Byrd, the appellate court directed

a hearing on the circumstances of their

arrests. Defendants now appeal that decision.

We first consider defendant Bean's

contention that probable cause did not

exist for his arrest. He argues that

Lahm's telephone conversation with a person

who identified hereself as Lucinda Birmingham,

the eyewitness to the crime, failed to

provide trustworthy information upon which

probable cause could be based.

Birmingham's name appeared as a witness

on the original police report. When Lahm

called her, she indentified hereself and

identified Bean as one of the men who

waited outside the cleaners and fled with

-R-

with the other three men. She told Lahm

she had attended school with Bean and

gave an approximate address of his home.

The information as to Bean's school and

residence was verified by a search of

police files and school records. As an

ordinary citizen (the record indicates no

evidence that she was paid, professional

informant), as well as an eyewitness to

the offense, the officer was justified

in relying upon Birmingham's information.

(People v. Hoffman (1970), 45 Ill. 2d

221, 225-26; People v. Hester (1968), 39

Ill. 2d 489, 513-14.) Although Lahm did

not personally interview Birmingham, this

Court has held that a phone conversation

can be the basis for establishing probable

cause to arrest. (People v. Parks (1971),

48 Ill. 2d 232, 236; People v. Lucus (1968),

41 Ill. 2d 370, 375.) Under the facts and

law stated, we conclude that Lahm had

probable cause at the time he arrested

defendant Bean.

-4-

Having ascertained the existence of

probable cause, we must determine if the

arrest of Bean without a warrant in his

apartment violated his rights under the

fourth amendment. Bean contends, under

Payton v. New York (1980),--- U.S.---, 63

L. Ed. 2d 639,100 S. Ct. 1371, that even

if probable cause is present, an arrest

cannot be made in a person's dwelling with-

out a warrant in the absence of exigent

circumstances. In Payton, however, the

Supreme Court specifically excluded from

its consideration entries accompanied by

consent. (445 U.S. 573, 583, 63 L. Ed.

24 639, 649, 100 S. Ct. 1371, 1378.) In

the instant case, the State contends the

officer's entry was made with consent.

We agree that generally an arrest

warrant is the desired means by which

an individual's right to privacy is pro-

tected. (Payton v. New York (1980), 445

U.S. 573, 590, 63 L. Ed. 2d 639, 653, 100

S. Ct. 1371, 1381-82; McDonald v. United

-10-

States (1948), 335 U.S. 451, 453, 93 L.

Ed. 153, 157, 69 S. Ct. 191, 192.) How-

ever, when voluntary consent is given

to enter one's residence and an atyvest

is effected based on probable cause, the

suspect's rights under the fourth amend-

ment are not violated, even in the absence

of exigent circumstances. The standard

for valid consent applied by the Supreme

Court in a variety of circumstances is

whether that consent is voluntarily given.

(Sthneckloth v. Bustamonte (1973), 412

U.S. 218, 248-49, 36 L Ed. 2d 854, 875, 93

S. Ct. 2041, 2058-59; Bumper v. North

Carolina (1968), 391 U.S. 543, 548, 20 L.

Ed. 2d 797, 802, 88 S. Ct. 1788, 1791.

See Johnson v. United States (1948), 333

U.S. 10,13, 92 L. Ed. 436,440, 68 S. Ct.

367, 368-69.) When a warrantless entry is

justified by voluntary consent, that consent

need not be given by defendant; it may

be obtained from a third party who has

control over the premises. United States

-1l-

v. Matlock (1974), 415 U.S. 164, 171, 39

L. Ed. 2d 242, 249-50, 94 S. Ct. 988, 993;

People v. Heflin (1978), 71 Ill. 2d 525,

541.

Here , the entry unlike in Payton, was

in no way forceable. (In Payton, the

police used crowbars to break down the

door and in Riddick v. New York, decided

with Payton, defendant's three-year-old

son answered the door, whereupon the

police entered, 445 U.S. 573, 583, 63 L.

Ed. 2d 639, 100 S. Ct. 1371, 1378.) Nor

was the entry obtained by means of de-

ception. Compare Bumper v. North Carolina

(1968), 391 U.S. 543, 20 L. Ed. 2d 797,

88 S. Ct. 1788 (consent obtained from

defendant's grandmother, the owner of

the home, after policeman claimed that

police has a search warrant, the existence

of which was not shown).

According to Mrs. Bean's own testimony,

upon the officers identifying themselves

and asking to see Jimmy Bean, Mrs. Bean

' #12-

invited them to come inside the apartment.

The officers then waited until Mrs. Bean

returned with her robe. The testimony of

all parties established that Mrs. Bean

voluntarily invited the officers into the

apartment. After she returned, and then

started to leave to get the defendant,

Korte went past her with his gun drawn,

Whether Bean was found inside or outside

his bedroom is not controlling. When

officers are given consent to enter an

apartment to arrest a suspect who was

involved in an armed robbery, they should

not be veeeiees to wait for that person

(who might be armed) to approach them or

possibly attempt to escape. We-hold that

Bean's arrest, based on probable cause

and with consent to enter his apartment,

was legal.

Defendants Jessie and Frank Byrd

contend that their arrests occurred only

as a result of Bean's oral statemnet

obtained after his illegal arrest.

-13-

Consequently, they argue, their arrests

and identifications also were illegal

as the fruits of Bean's arrest. Having

held Bean's arrest to be legal, this

contention must fail.

The Byrds also argue that the circum-

stances surrounding their own arrest

violated their fourth amendment rights.

At the hearing on motions to quash their

arrests and suppress their identifications,

the State and the Byrds stipulated as to

the following facts: (1) at the point of

Bean's arrest, the police investigation

had not yet focused on the Byrds, (2)

within minutes of Bean's arrest, he made

an oral statement naming the Byrds as

participants with him in the armed robbery,

(3) acting upon this statement the police

then traveled to 4132 West Van Buren and

there made the arrests of Jessie and Frank

Byrd at approximately 8:00 a.m., and (4)

the Byrds were identified in a lineup that

day. The record, however, does not indicate

~14-

if the above arrest were in the Byrds’ home,

if the police entered the building, or

if the police did enter the Byrds' home,

whether such entry was with consent. Like

the appellate court, we are unable to

determine from the record the circumstances

surrounding the Byrds’ arrest.

We agree with the appellate court

that these causes must be remanded to the

trial court for further hearings as to

the voluntariness of Bean's statements

and the circumstances surrounding the

arrests and identifications of Jessie and

Prank Byrd.

Por the reasons stated, the judgment

of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE SIMON took no part in

the consideration or decision of this case.

MR. JUSTICE RYAN, concurring in

part and dissentingin part: |

I concur in the majority opinion

-15-

insofar as it relates to the defendant

Jimmy Bean, but I dissent from that part

of the opinion of my colleagues which

remands the case of Jessie and Frank Byrd

to the trial court for a determination

of the circumstances surrounding their

arrest.

The burden was on the Byrds to prove

the illegality of their arrest. They

relied, in the trial court and in our

caurt, on the fact that Bean was illegally

arrested and that Bean's statement could

not supply probable cause for their

warrantless arrest. The opinion dispose

of this contention by finding that Bean's

arrest was legal~

Whatever other reason there may be

for holding the arrest of the Byrds to

be illegal, the burden was on them to

establish facts in support of such a

determination in the trial court. The

opinion of my colleagues states that we

are unable to determine from the record

-16-

the circumstances surrounding the Byrds'

arrest. To me, this says that the Byrds

have not proved that they were illegally

arrested and thus’ they have not sustained

their burden of proof. I can see no

reason for giving them another opportunity

to do so. I would therefore reverse the

holding of the appellate court as to the

Byrds and remand their cause to the trial

court for trial on the question of guilt.

MR. JUSTICE UNDERWOOD joins in this

partial concurrence and partial dissent.

-17-

Fifth Division

June 29, 1979

78-875 ) .

) Consolidated

78-876 )

PEOPLE OF THE STATE

OF ILLINOIS,

Plaintiff- Appeal From The

Appellant, Circuit Court

Cook County.

vs.

HONORABLE

Albert Green,

Judge Fresiding.

JIMMY BEAN, JESSIE

BYRD and FRANK BYRD,

Defendants-

Appellees,

ee ee ee ee ee et ee ee ee ee ee ee

MR. JUSTICE WILSON delivered the opinion

of the Court:

This is an appeal by the State, pur-

suant to Supreme Court Rule 604 (A) (I11l.

Rev. Stat. 1973, ch. 110A, par. 604 (a)),

of the trial court's quashing of the

arrest and suppressing of the statements

of defendant, Jimmy Bean, and the quashing

of the arrests and suppressing of the

identifications of defendants. Frank and

Jesse Byrd. The State contends that the

trial court erred when it found that

A 18

there was no probable cause to arrest

Bean in his apartment and when it based

its ruling with respect to the Byrds

‘on this erroneous finding. We reverse

and remand.

On April 29, 1977, the trial court

conducted a hearing on a motion to quash

the arrest of defendant, Jimmy Bean.

Officer Thomas Lahm testified that he had

been assigned to investigate an armed

robbery of a cleaning store which had

occurred on March 5, 1975. Two men had

gone into the cleaners with a sawed-off

shotgun and a pistol and had taken records

and money. On March 6, Lahm telephoned

Lucinda Birmingham, whose name, address,

and telephone number had appeared on a

police report of the March 5 incident,

and spoke to her about what had happend.

She told him that while she was standing

across the street from the cleaners,

she saw two men run from the clearners,

join two other men who were outside the

Al9

the cleaners, and then saw all of them

run from the scene. After they had gone,

she went into the cleaners and found out

that an armed robbery had been committed.

She told Lahm that one of the men who had

been outside the clearners was defendant

with whom she had previously go to

school. She told him that defendant

was 17 or 18 years old and that he lived

in the vicinity of Keeler(4200 West) and

Gladys.

Sometime between March 6 and March 13,

Lahm checked the police "alpha file" and

discovered that a person with defendant's

name had been arrested for burglary by

the Oak Park Police in June of 1974 and

had given his address as 4211 West Gladys.

Although Lahm could not recall precisely

when he checked the alpha file, he stated

that it normally takes anywhere from a

couple of minutes to a couple of hours

to.make the check. Also, between March 6

and March 13, Lahm visited schools in the

A 20

area of 4211 West Gldays and he learned

that defendant had gone to a school at

Van Buren and Keeler and had listed his

address as 4211 West Gladys.

At approximately 8 a.m., on March 13,

Lahti and three other officers arrived

at 4211 West Gladys without a warrant.

Lahm said that he went there to arrest

defendant, but he also said that he was

not sure if defendant would be there.

He went to the front of the house with

one of the officers and the other officers

went to the rear. After he had knocked

on the door and announced his office,

defendant's mother came to the door.

Lahm asked here if her son lived there

and if he could talk to him. She per-

mitted Lahm and the other officer to

enter the apartment after she had dressed.

When they entered the apartment, neither |

of them had his gun drawn. Lahm said

that he never did draw his gun while he

WAS: in the apartment because he never knew

A21

that defendant would be armed. He first

testified that defendant's mother told

him that defendant was in the bedroom.

Later, he testified that he was not sure

if she told him that defendant was in

the bedroom. In either event, he did

say that defendant did come out of the

bedroom. He told defendant that he was

under arrest for the robbery of the

cleaners. Lahm stated that he never entered

the bedroom to make the arrest.

Lillie Bean, denfendant's mother,

testified that she only permitted the

plain clothes police officers to enter the

vestibule to her apartment and told them

to wait there until she put on her robe.

After she had put her robe on, she told

them that she would go and get her son.

At that point, one of the officers ran

past her with his gun in hand. She

asked him where he was going, and when

hedid not stop, she began crying. She

asked the officers what they wanted with

A 22

her son, but they offered no explanation.

The officers then went into defendant's

bedroom and told him to get out of bed.

They then brought defendant into the

living room and told Mrs. Bean that they

were arresting him for armed robbery.

After hearing the testimony, the trial

court found no probable cause and sustained

the motion to quash the arrest.

On May 6, 1977, the trial court held

a hearing on a motion to suppress certian

statements given by defendant after his

arrest. Officer Lahm testified that

give minutes after the arrest, defendant

gave him an oral statement. After he

had taken him to the police station,

defendant gave a written statement con-

taining substantially the same information

as was contained in the earlier oral

statement.

At the close of the May hearing,

the trial court entered an order sus-

taining the motion to suppress the

A 23

statements as fruits of the illegal arrest.

The court continued; however, a question

concerning the voluntariness of the

statements.

On October 27, the trial court

commenced a hearing on a motion to quash

the arrest and suppress the identification

of defendants, Frank and Jesse Byrd. At

the hearing, it was stipulated that

when the police arrested defendant, Jimmy

Bean, their investigations had not yet

focused on Frank and Jesse Byrd. After

Bean's arrest, he gave a statement that

the Byrds participated in the armed

robbery with him. The Byrds were arrested

at 4132 West Van Buren ten minutes after

this statement had been given. Later

in the day, the Byrds took part in a

lineup and were identified as being

participants in the armed robbery.

After this stipulation was read,

the trial court sustained the motion

to quash the arrests and suppress the

A24

identifications on grounds that the

illegal arrest of Bean led to the arrest

and identification of the Byrds.

OPINION

The State contends that the trial

court erred when it quashed Bean's arrest

and suppressed his statements because

there was probable cause to arrest him

in his apartment. It also contends that

since there was probable cause to arrest

Bean, the trial court's ruling sustaining

the Byrds' motien to quash and suppress

should be reversed since it was based on

the erroneous ruling that Bean's arrest

was illegal. We agree with both of the

State's contentions.

1 °

The State's contention actually

raises two separate questions: (1) whether

the police had probable cause to arrest

Bean on March 13; and (2) whether proba-

ble cause is sufficient to make an arrest

in one's private dwelling place. A

A25

police officer has probable cause for an

arrest when he "has reasonable grounds

to believe that the person is committing

or has committed an offense." (I11.

Rev. Stat. 1973, ch. 38, par. 107-2(c).)

In determining whether there are reasonable

grounds to believe that a person has

committed an offense, a court must consider

all of the circumstances known to the

police officer at the time of the arrest.

(People vs. Clay (1973), 55 Ill. 2d 501,

304 N.E. 2d 280.) In considering these

circumstances, a court must not be unduly

technical because the question of proba-

ble cause involves probabilities and

not certainties. Clay.

At the time of Bean's arrest, Officer

Lahm knew from his conversation with

Brimingham that a Jimmy Bean had fled

the scene of the armed robbery with —

three other men. He also knew from his

conversation that this Jimmy Bean was 17

or 18 years old, lived in the vicinity of

A 26

Keeler (4200 West) and Gladys, and had

gone to school with Brimingham at one

time. He had discovered form the police

alpha file that a Jimmy Bean had gone to

a school at Van Buren and Keeler and had

listed 4211 West Gladys as his address.

We believe that on the basis of all of

this information, Lahm had probable ‘cause

to arrest the Jimmy Bean living at 4211

West Gladys.

Defendants claim that the information

provided by Birmingham was no a sufficient

basis for a finding of probable cause in

this instance. They argue that the

information provided by Birmingham was

not reasonably trustworthy because it

was obtained by telephone and there was

no proof that Lahm was actually speaking

to Birmingham and because there was no

proof of her reliability. We reject this

claim. Although Officer Lahm did not

check a telephone directory to make

A 27

certain that the number which he called

was actually listed to Brimingham, we

do not believe that his failure to do

so detracts from the sufficiency of the

information obtained for probable cause

purposes. As we have already noted, the

question of probable cause involves pro-

babilities. Information recevied over

the telephone has :in the past been found

sufficiently reliable to form some of the

basis for a finding or probable cause.

(People v. Lucus (1968), 41 Ill. 2d 370

243 N.E. 2d 228.) In the instant case,

the information received over the tele-

phone came from a person who had winessed

the flight from the scene of the armed

robbery. This person clearly identified

hereself to the police, giving her name,

address, and telephone number. She told

Lahm that she had gone to school with one

of the men fleeing the scene and she knew

that he lived in the vicinity of Keeler

and Glayds. She said that the man

A 28

was Jimmy Bean. Afterwards, Lahm

corroborated some of this information

by checking the police alpha file and

visiting schools in the area. This

corroboration supported the reliability

of the earlier acquired information.

We conclude that the information provided

by Birmingham, being strong and positive

and being corroborated in certain

respects, was more than sufficient basis

for the finding of probable cause.

In answer to defendants’ argument that

there was no proof that Birmingham was

not a professional informat, needing more

corroboration, we simply note that there

is nothing in the record to indicate the

Birmingham was nothing but an ordinary

citizen. (People v. Padilla (1979), 70

Ill. App. 3d 406, 387 N.E. 2d 985.) Asa

ordinary citizen, her prior reliability

need not be established. People v.Hoffman

(1970), 45 I11. 2d 221, 258 N.E. 2d 326.

The second part of the State's first

A 29

contention is whether probable cause

alone is sufficient to make an arrest in

one's private dwelling place. The police

in this case entered Bean's apartment

and made the arrest without a warrant.

The law with respect to this question

is in a state of uncertainty due to the

fact that the United State's Supreme Court

has yet to directly answer this question.

(See People v. Wolgemuth (1977), 69 Ill.

2d 154, 370 N.E. 2d 1067, 1069-70,

for a listing of Supreme Court cases

1

specifically reserving this question.)

1

There are presently two cases before

the Supreme Court involving this question.

(Payton v. New York, Docket NO. 78-5420

and Riddick v. New York, Docket No. 78-5421.)

Although arguments were heard on March 26

- 1979, the Court has rodered the cases on

March 26, 1979, the Court has ordered the

cases to be reargued, perhaps in the next

term.

A 30

Several Federal courts of appeal, however,

have indicated that warrantless arrests

within one's private dwelling place may

be unconstitutuional absent exigent

circumstances. (See Wolgemuth, 69 Ill.

2d at 159-60, 370 N.E. 2d at 1070, for

a listing of the cases.) In Illinois,

the supreme court has seemingly indicated

that it will only require probable cause

in cases involving arrests in private

Gwellings. (See e.g., People v. Clay

(1973), 55 Ill. 2d 501, 304 N.E. 2d 280;

People v. Johnson (1970), 45 Ill. 2d 283,

259 N.E. 2d 57), but even inthose cases

exigent circumstances were arguably present,

(See People v. Abney (1978), 50 Ill. App.

3d 54, 55-56, 373 N.E. 2d 861, 862, appeal

allowed (1978), 71 Ill. 2a 603, for a

listing of the exigent circumstances present

in the leading supreme court cases.)

Illinois appellate court cases indicate

a number of different approached to the

A 31

problem. Some cases have indicated that

mere probable cause is requied, although

the factual context of the cases indicates

that exigent circumstances also are

arguably present. (See e.g., People v.

‘Bailey (1978), 60 I11. App. 3d 1046, 377

N.E. 2d 273; People v. Addison (1977),

56 Ill. App. 3d 92, 371 N.E. 2d 1025.)

Some cases have indicated that the area

is uncertain, and, although the factual

contexts of these cases contain exigent

circumstances, these cases have not stated

that a warrantless arrest will only be

justified when exigent circumstances are

present (See e.g., People v. Taylor (1979),

68 Ill. App. 3d 776, 386 N.E. 2d 555;

People v. Denwiddie (1977), 50 °I1l. App.

3d 184, 365 N.E. 2d 978.) Some cases have

recognized the uncertainty but have required

more than mere probable cause. (See e.g.,

People v. Trull (1978), 64 Ill. App. 3d 385

380 N.E. 2d 1169; People v. Abney (1978) 58,

A 32

IIl. App. 3d 54, 373 N.E. 2d 861,

appeal allowed (1978), 71 Ill. 2d 603.)

Absent any clear guideline form the United

States or Illinois Supreme Court, we agree

with the appellate court for the fourth

district that "the law must develop on

a case basis.” Abney, 58 Ill. App. 3d at

56, 373 N.E. 2d at 862.

In evaluating the arrest in this case,

we think it helpful to utilize the factors

which were originally suggested in Dorman

v. United States (D.C. Cir. 1970), 435

F. 2d 385, as factors to be considered

in determining whether exigent circum-

stances existed. In so doing, however,

we point out that we are not stating that

exigent circumstances are a constitutional

requirement. The factors suggested by

Dorman include a consideration of (1) the

quality of the information which formed

the probable cause for the arrest; (2)

the nature of the offense charged; (3) the

A 33

danger that the suspect might be armed;

(4) the strength of the belief that the

suspect is in the premises being entered;

(5) the nature of the entry into the

building; (6) the time of entry; and

(7) the likelihood that the suspect will

escape.

The quality of the information which

formed the probable cause for Bean's

arrest was very high. Lucinda Birmingham,

a clearly identified citizen and a former

classmate of Bean, recognized him running

from the cleaners with two men who had

come form the cleaners, only moments after

the armed robbery had occurtZed. Although

she did not know exactly where Bean lived,

she was able to tell officer Lahm that

he lived in the vicinity of Keeler and

Gladys. Subsequent investigation by

Officer Lahm revealed that a Jimmy Bean

who had gone to school in the area was

listed as residing at 4211 West Gladys,

which could not have been more than six

A 34

houses from the corner of Glayds and

Keeler.

The offense charged was a violent

crime. There was testimony at one of

the hearings that the two individuals

who actually went into the cleaners

carried a sawed-off shotgun and a pistol.

Although the danger that Bean was armed

might appear to be slight in the light

of Lahm's testimony that he did not draw

his gun in the apartment because he did

not know if Bean would be armed, the guns

had not been accounted for at that time.

Also, Lahm never indicated whether

his partner had 4rawn his gun and, in

fact, Mrs. Bean had testified that one

of the officers did drawn his gun in the

apartment. Although there is no testimony

that the police officers had checked with

neighbors to see if Bean was still

living at 4211 West Gladys, we think

that there was sufficient reason to

believe that he was in fact living there.

A 38

Lahm had acquired information that a Jimmy

Bean had been listed as living at 4211

West Gladys and that he was either 17

or 18 years of age. We particularly think

that the information that Bean was 17 or

18 suggests that he would still be living

at home. Also we believe that the early

hour of entry by the police gives them

reason to believe that Bean would be home.

(People v. Trull (1978), 64 Ill. App. 3d

385, 380 N.E. 2d 1169.) Moreover, we

observe that Mrs. Bean told the police

that he was there after she had allowed

them into either her apartment or the

vestibule of her apartment.

The police officers entered the

apartment only after they knocked,

announced their presence, and were invited

in by Mrs. Bean. An invitation into a

private dwelling, of course, eliminates

any problem with the legality of the entry.

(People v. Johnson (1979), __T11. App. 3d

, 388 N.E. 24 1320.) Although it is

A 36

true that there is a dispute as to the

extent of the invitation, this case does

not present facts which indicate the

type of entry which has been criticized

elsewhere. (Abney.) Also, the time of

entry was 8 a.m. Although an argument

can be made that an 8 a.m., entry is as

reprehensible as a nightime entry, a

number of cases would seem to indicate

that there is a significant difference

between entry during the daytime hours

and entry at night. Compare People v.

Addison (1977), 56 Ill. App. 3d 92, 371

N.E. 2d 1025, and People v. Denwiddie (1977),

50 Ill. App. 3d 184, 365 N.E. 2d 978,

to Abney and Dorman.

The last factor to be considered is

the likelihood that Bean would flee.

There is no evidence indicating that

Bean ever resisted his arrest or attempted

to flee. In fact, if he had attempted

to flee, he probably would have been un-

A 37

successful since there were police officers

stationed in the rear of the apartment.

Nonetheless, even conceding that there

was no likelihood of Bean fleeing, we

believe that on balance the Dorman factors

wuld be satisfied in this case. Denwiddie.

Defendants argue that a warrant should

have been obtained because the police had

time to obtain an arrest warrant. In

People v. Johnson (1970), 45 Ill. 2d 283,

259 N.E. 2d 57, an investigation had

begun to focus on defendant at least one

month before his arrest. Nevertheless,

the police did not have a warrant when

they arrested him in his apartment.

Despite the absence of a warrant, the court

found the arrest to be legal. In the

instant case, Lahm obtained information

from Birmingham on March 6. Although he

conducted some investigation after that

date, it is conceivable that he cauld

have obtained a warrant before March 13.

A 38

Yet, in light of the circumstances of

this case, we do not believe the absence

of a warrant here effects the validity

of the arrest. See generally People v.

Helms (1978), 67 Ill. App. 3d 729, 385

N.E. 2d 127.

We reverse and remand the judgment

of the trial court regarding the legality

of Bean's arrest and statements and

instruct the trial court to conduct a

hearing on the voluntariness of Bean's

statements and then proceed with the

course of the trial.

II

The State's second contention is

that the trial court's ruling on the

Byrds' motion to quash their arrests

and suppress their identifications should

be reversed Since it was based on an

erroneous ruling that Bean's arrest was

illegal. It is clear that the court's

ruling on the Byrds’ motion was predicated

on the ruling in the Bean case. Since

A 39

we reverse the trial court's ruling in

the Bean case, we also must reverse the

court's ruling in the Byrd case. We are

aware, however, that our decision to

reverse the Byrd case does not resolve

the question of whether by Byrds’ arrests

were legal. They claim that their arrests

were illegal because they were made in

their home without a warrant. The

stipulation of the parties did not indicate

that the Byrds were arrested in their

home. It indicated only that the Byrds

were arrested at 4132 West Van Buren.

The parties’ stipulation also did not

mention any of the circumstances sur-

rounding the arrest. Absent some record

of the circumstances, we cannot say

whether the arrests were legal.

Therefore, pending the outcome of

the trial court's proceedings on the

question of the voluntariness of Bean's

statements, we intruct the trial court

A 40

to conduct a hearing 6n the circumstances

of the circumstances of the Byrds'

arrests.

Reversed and Remanded.

LORENZ AND MEJDA, JJ., concur.