Opposition Brief — Illinois v. Crane

QUESTIONS PRESENTED FOR REVIEW

1. Whether this Court lacks jurisdiction to hear

petitioner's argument because the decision below rests upon

adequate and independent state grounds.

2. Whether, where there is no conflict among the state and

federal courts regarding the "collective knowledge” doctrine,

this Court should decline to grant the petition for writ of

certiorari. The Illinois Appellate Court in this case, and the

courts in every case cited by petitioner, followed the clear and

simple guidelines of Whiteley v. Warden, 401 U.S. 560 (1971), and

United States v. Hensley, 469 U.S. 221 (1985): Every warrantless

arrest must be premised upon probable cause, and the arresting

officer(s) need not personally be aware of all the specific facts

that establish probable cause to arrest, as long as the

officer(s) who directed the arrest be made possessed probable

cause to make the arrest.

3. Whether this Court should decline to adopt the good

faith exception to the exclusionary rule requested by petitioner

where, in doing so under the facts of this case, it would

effectively eliminate the constitutional requirement that every

warrantless arrest must be based upon probable cause.

4. Whether, where the state is free to develop its own

rules governing the admission of evidence and burden of proof at

suppression hearings, and where petitioner has consistently

insisted that the record in this case is more than adequate in

determining whether respondent's statements were attenuated from

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his illegal arrest, this Court should decline to hold that the

State is entitled as a matter of right to have the case remanded

for an attenuation hearing.

TABLE OF CONTENTS

Page

Questions Presented for Review. . .... +. ++ © «© «© «© « |

Beble of Contents .. + «see e eevee eveee ee es 3

Teble of Authorities. ...+.«+s«seeeeveevree eve evs 4

Statement of Lack of Jurisdiction ......+54+++++s+s 6

Statement of the Case... ++ ee eee eevee ee eevee F

Reasons for Denying the Writ. ......+ +++ «© «© «© «© « 1

I.

THERE IS NO CONFLICT AMONG THE STATE AND FEDERAL COURTS

REGARDING THE "COLLECTIVE KNOWLEDGE" DOCTRINE. THE ILLINOIS

APPELLATE COURT IN THIS CASE, AND THE COURTS IN EVERY CASE

CITED BY PETITIONER, FOLLOWED THE CLEAR AND SIMPLE

GUIDELINES OF WHITELEY V. WARDEN, 401 U.S. 560 (1971), AND

UNITED STATES V. HENSLEY, 469 U.S. 221 (1985): EVERY

WARRANTLESS ARREST MUST BE PREMISED UPON PROBABLE CAUSE, AND

THE ARRESTING OFFICER(S) NEED NOT PERSONALLY BE AWARE OF ALL

THE SPECIFIC FACTS THAT ESTABLISH PROBABLE CAUSE TO ARREST,

AS LONG AS THE OFFICER(S) WHO DIRECTED THE ARREST BE MADE

POSSESSED PROBABLE CAUSE TO MAKE THE ARREST ..... + 10

Bae

THIS COURT SHOULD DECLINE TO ADOPT THE GOOD FAITH EXCEPTION

TO THE EXCLUSIONARY RULE REQUESTED BY PETITIONER WHERE, IN

DOING SO UNDER THE FACTS OF THIS CASE, IT WOULD EFFECTIVELY

ELIMINATE THE CONSTITUTIONAL REQUIREMENT THAT EVERY

WARRANTLESS ARREST MUST BE BASED UPON PROBABLE CAUSE .. 19

III.

WHERE THE STATE IS FREE TO DEVELOP ITS OWN RULES GOVERNING

THE ADMISSION OF EVIDENCE AND BURDEN OF PROOF AT SUPPRESSION

HEARINGS, AND WHERE PETITIONER HAS CONSISTENTLY INSISTED

THAT THE RECORD IN THIS CASE IS MORE THAN ADEQUATE IN

DETERMINING WHETHER RESPONDENT'S STATEMENTS WERE ATTENUATED

FROM HIS ILLEGAL ARREST, THIS COURT SHOULD DECLINE TO HOLD

THAT THE STATE IS ENTITLED AS A MATTER OF RIGHT TO HAVE THE

CASE REMANDED FOR AN ATTENUATION HEARING . ...+ + + + 22

TABLE OF AUTHORITIES Page

Cases:

Whiteley v. Warden, 401 U.S. 506 (1971) ....+ ++ «© «© « « 4

United States v. Hensley, 469 U.S. 221 (1985) .......+-. 10

Olson v. Commissioner of Public Safety, 371 N.W.2d 552

(Minn. 1 85) . . . e — >. > . >. . >. .* >. . . . 7 >. . . ll

State v. Black, 80 Or. APP 12, 721 P.2d 842

(Or.App. Cee 1986) . . . . . . . . . . . >. * . >. . . >. >. . . ll

State v. Bruce, 779 P.2d 646 (Utah 1989) ....+4 + «+ «© «© « « 12

State v. Holmes, 28 Ohio App. Ct. 3d 12, 501 N.E.2d 629

[ee a Gee ce ee 8 ° a ee coe Be

People v. Fenner, 191 Ill. App. 3d 801, 548 N.E.2d 147

( d Dist. 1 89) . . . . . . . . 7 . . . > >. > . . . > . . . . 12

United States v. Lomas, 706 F.2d 886 (9th Cir. 1983) .... 12

Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 433 N.E.2d

4 (Mass.App.Ct. 1982) . . . . . . . . . * . * . . . . . . 12

United States v. Dento, 382 F.2d 361 (3rd Cir. 1967) .... 12

Polk v. Williams, 565 So.2d 1387 (Fla.App. 5th Dist. 1990) . 13

United States v. Nieto, 510 F.2d 1118 (5th Cir. 1975) .... 13

People v. Hazelhurst, 662 P.2d 1081 (Colo. 1983) ....+ + 23

United States v. Woods, 554 F.2d 242 (6th Cir. 1976) .... 13

United States v. Edwards, 885 F.2d 377 (7th Cir. 1989) ... 14

Colorado Dept of Revenue v. Kirke, 743 P.2d 16 (Colo. 1987) . 14

People v. Baca, 198 Colo. 399, 600 P.2d 770 (1979) ..... 14

Williams v. United States, 308 F.2d 326 (D.C. Cir. 1962) .. 14

Smith v. United States, 358 F.2d 833 (D.C. Cir. 1966) .... 14

People v. Crane, 244 Ill. APP. 3d ee: 614 N.E.2d 66

(ist Dist. 1993) .... cee i a 15

People v.

Crowell, 94 Ill. App. 3d 48, 418 N.E.2d 477

(3d Dist.

People v.

1981) . . « . : o . . . . . . . . . . . . . . . °

Adams, 131 Ill. 2d 387, 546 N.E.2d 561 (1989) .

People v.

Bean, 84 Ill. 2d 64, 417 N.E.2d 608 (1981)

People v.

Stout, 106 Ill. 2d 77, 477 N.E.2d 498 (1985).

United States v. Leon, 468 U.S. 897 (1984) .... -

Beck v. Ohio, 379 U.S. 89 (1964) ... + « « «

Ker v. California, 374 U.S. 23, 10 L.Ed.2d 726 (1963)

People v.

(list Dist.

Statutes:

Ill. Rev.

Statham, 209 Ill. App. 3d 352, 568 N.E.2d 183

B99a) ec ec eevee veeeeveeee eee @

Stat. ch. 38, paras. 107-1 through 107-14; 108-1

through 108-14; 114-12 (1989)

15,16

17

17

18

19

20

22

22

22

STATEMENT OF LACK OF JURISDICTION

This Court lacks jurisdiction to hear petitioner's argument

because the decision below rests upon adequate and independent

state grounds. The state court decision does not fairly appear

to rest primarily on federal law. Michigan v. Long, 463 U.S.

1032, 1040 (1983). The state court did not cite the Fourth

Amendment to the United States Constitution or any federal cases

in its opinion. Rather, the court relied exclusively on state

cases to support its conclusion that the police lacked probable

cause to arrest respondent. The court held that where a

dispatcher directed the arresting officers to look for

respondent, and where the state at the suppression hearing failed

to demonstrate the source of the dispatcher's information, the

officers lacked probable cause to arrest. People v. Crane, 244

Ill. App. 3d 721, 614 N.E.2d 66, 69 (lst Dist. 1993). The court

further held that where the officers allegedly arrested

respondent for possession of cocaine, and where the officer who

allegedly observed the cocaine in plain view did not testify, the

state failed to demonstrate whether the cocaine was, in fact, in

plain view when it was seized. Crane, 614 N.E.2d at 70. Thus,

because the opinion does not rely on the federal constitution or

federal case law, and essentially holds that the state failed in

its burden of proof at the suppression hearing, the state court

decision indicates clearly that it is based on bona fide

separate, adequate, and independent grounds. Michigan v. Long,

463 U.S. at 1041.

STATEMENT OF THE CASE

The petition contains numerous distortions and

misrepresentations of the facts, which are crucial to this

Court's decision as to whether to grant the petition for writ of

certiorari.

Petitioner correctly points out that the two arresting

officers, Sepulveda and Graeber, received an assignment from a

dispatcher to "look for" 4 man named "Tony" who was “wanted for

robbery and possibly murder arson." (R. 55) However, then

petitioner erroneously states that the information that

respondent was wanted had been developed by Detective Timothy

O'Meara. (Petition at 4) As the appellate court correctly

noted, there is no evidence in the record as to the source of the

dispatcher's information. People v. Crane, 244 Ill. App. 3d 721,

614 N.E.2d 66, 69 (lst Dist. 1993). While O'Meara had developed

some information regarding respondent's possible involvement in a

robbery, the record affirmatively shows that O'Meara was not the

source of the dispatcher's information. O'Meara testified that

he did not tell anyone in the entire Chicago Police Department

that he wanted respondent brought in for questioning (R. 112-

113), and he had no communication with any other officer

regarding the robbery. (R. 118-119) Thus, the record

demonstrates that the dispatch received by the two arresting

officers did not originate with O'Meara.

Petitioner distorts the information developed by O'Meara,

which he did not disseminate to any law enforcement official,

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regarding respondent's possible involvement in a robbery.

O'Meara spoke with Raymond Kurecki about a robbery that occurred

at the bar owned by the decedent, William McHugh, two days before

McHugh was killed in a fire at the bar. According to petitioner,

Kurecki told Detective O'Meara that McHugh said Anthony Crane was

one of the people who committed the robbery. (Petition at 4)

In fact, Kurecki was not so positive in his belief that it

was Anthony Crane who McHugh identified to him as one of the

robbers. O'Meara testified that Kurecki told him that one of the

people who McHugh said robbed him was "Tony, the fellow that he

[McHugh] used to work for--or worked for him [McHugh] rather."

(R. 90, 93) Kurecki "thought" that the person McHugh was

referring to was Anthony Crane. (R. 90) Thus, the information

O'Meara developed, which was not the basis of the dispatcher's

order, was hearsay information from a person who was not a victim

or an eyewitness to the robbery.

In the most egregious example of misrepresentations of the

record, petitioner completely distorts the testimony regarding

the seizure of a packet of cocaine from respondent's wallet at

the time of his arrest. Petitioner fails to mention that only

one of the two arresting officers testified at the suppression

hearing, Officer Sepulveda. Officer Graeber, who was the officer

who actually made the seizure, never testified. Petitioner

states that when respondent opened his wallet "“Graeber observed,

in plain view, a small folded packet of cocaine. .. . Graeber

responded to this observation by reaching into the wallet and

removing the drugs.” (Petition at 5) Because Graeber did not

testify, the record is in fact devoid of any evidence of whether

the packet was in Graeber's plain view when it was inside the

wallet or what led Graeber to believe that the packet contained

cocaine. Officer Sepulveda did not see the packet until after

Graeber removed it from the wallet. (R. 59-60, 76-79) Sepulveda

testified that Graeber "just took the packet out of

[respondent's] wallet." (R. 77) When asked whether he could see

what was inside the wallet, Sepulveda responded, "I never really

looked in his wallet." (R. 77) Thus, Sepulveda's testimony

regarding what the packet looked like was based on his

observation of the packet after it was removed from the wallet.

(R. 59-60, 75-79)

Petitioner mischaracterizes the appellate court's opinion

regarding Sepulveda's testimony. Petitioner contends that the

appellate court held that Sepulveda may not offer “hearsay

evidence” as to what Graeber saw. (Petition at 6) In fact, the

appellate court held that "Sepulveda was not competent to testify

about what the seizing Officer Graeber observed at the time of

the seizure." Crane, 614 N.E.2d at 70. Sepulveda did not offer

any hearsay testimony regarding what Graeber told him he saw

before he seized the packet from respondent's wallet.

Based on petitioner's distortions and mischaracterizations

of the record, this Court should deny the petition for writ of

certiorari.

REASONS FOR DENYING THE WRIT

I. THERE IS NO CONFLICT AMONG THE STATE AND FEDERAL COURTS

REGARDING THE "COLLECTIVE KNOWLEDGE” DOCTRINE. THE ILLINOIS

APPELLATE COURT IN THIS CASE, AND THE COURTS IN EVERY CASE

CITED BY PETITIONER, FOLLOWED THE CLEAR AND SIMPLE

GUIDELINES OF WHITELEY V. WARDEN, 401 U.S. 560 (1971), AND

UNITED STATES V. HENSLEY, 469 U.S. 221 (1985): EVERY

WARRANTLESS ARREST MUST BE PREMISED UPON PROBABLE CAUSE, AND

THE ARRESTING OFFICER(S) NEED NOT PERSONALLY BE AWARE OF ALL

THE SPECIFIC FACTS THAT ESTABLISH PROBABLE CAUSE TO ARREST,

AS LONG AS THE OFFICER(S) WHO DIRECTED THE ARREST BE MADE

POSSESSED PROBABLE CAUSE TO MAKE THE ARREST.

Petitioner contends that an “alarming conflict has

manifested" among the state and federal courts regarding the

scope of the "collective knowledge" doctrine. (Petition at 8)

Petitioner cites thirteen cases in support of its argument that a

majority of courts take an unnecessarily "restrictive" approach

in defining the collective knowledge doctrine, and cites five

cases that it contends take a "moderate" approach in defining the

doctrine. (Petition at 8-15)

In fact, a carefu) reading of all the cases leads to the

ineluctable conclusion that the cases do not take a "restrictive"

or a “moderate” approach; they all say the same thing. The cases

simply follow the clear guidelines of Whiteley v. Warden, 401

U.S. 506 (1971), and United States v. Hensley, 469 U.S. 221

-10-

(1985); not one case expresses any confusion regarding the

application of Whiteley and Hensley. Each of the cases holds

that an arrest must be premised on probable cause. Each of the

cases further holds that an arresting officer need not personally

be aware of all the specific facts that establish probable cause

to arrest, as long as the officer(s) who directed the arrest be

made possessed probable cause to make the arrest. Furthermore,

in those cases where there is no evidence in the record regarding

the source of the information upon which the arrest allegedly is

made, the arrest is not upheld.

In the following cases cited by petitioner, the arrests were

not upheld where the source of information relied on to make the

arrest was not reliable: Olson v. Commissioner of Public Safety,

371 N.W.2d 552, 556 (Minn. 1985) (where police received anonymous

call reporting that caller observed a possibly drunk driver,

arrest of driver not upheld where no evidence was presented

regarding specific facts in caller's knowledge to support bare

allegation of criminal activity); and State v. Black, 80 Or. App.

12, 721 P.2d 842, 843-844 (Or.App.Ct. 1986) (where police

received anonymous tip that had no indicia of reliability

regarding car allegedly speeding and weaving on highway, and

trooper spotted car but it was not driving erratically, tip and

trooper's observation did not justify stop).

In the following cases cited by petitioner, the arrests were

upheld where it was established that the source of information

relied on to make the arrest was reliable, even though the

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arresting officer(s) may not have had full knowledge of the

specific facts that established probable cause: State v. Bruce,

779 P.2d 646, 648-650 (Utah 1989) (police could rely on broadcast

regarding suspected robber driving orange car, where eyewitness

to robbery notified police about the man who robbed her and who

drove off in orange car); State v. Holmes, 28 Ohio App. Ct. 3d

12, 501 N.E.2d 629, 635 (Ohio App. 1985) (officers could rely on

bulletin to arrest defendant for smoking marijuana where officer

who sent out bulletin was officer who observed defendant smoking

marijuana); People v. Fenner, 191 Ill. App. 3d 801, 548 N.E.2d

147, 151 (2d Dist. 1989) (state established grounds for stopping

defendants’ car where police department received call from

private citizen regarding suspicious behavior of three men in a

specifically-described car, one police officer found car and

dispatched direction of car, and second officer found car,

noticed its license expired and stopped car); United States v.

Lomas, 706 F.2d 886, 892 (9th Cir. 1983) (where DEA agents were

surveilling defendant and observed certain suspicious behavior,

agents’ supervisor could rely on his subordinates’ observations

to order arrest); Commonwealth v. Wooden, 13 Mass. App. Ct. 417,

433 N.E.2d 1234, 1237-1238 (Mass.App.Ct. 1982) (where two

officers working together observed two defendants engage in

certain suspicious behavior, the knowledge of both officers

combined could establish probable cause to arrest); United States

v. Dento, 382 F.2d 361, 364-365 (3rd Cir. 1967) (where Harrisburg

police spoke with two trustworthy witnesses regarding defendant's

-12-

alleged criminal activity, New Jersey state police could rely on

Harrisburg dispatch to arrest defendant); Polk v. Williams, 565

So.2d 1387, 1389-1390 (Fla.App. 5th Dist. 1990) (where one

officer listened to bug placed on informant while second officer

observed informant's activities, each officer could rely on the

other's information to establish probable cause for warrant); and

United States v. Nieto, 510 F.2d 1118, 1120 (5th Cir. 1975)

(arrest upheld where tip was passed from reliable informer to

agent to arresting agent).

In the following cases cited by petitioner, the courts held

that the arrest could not be upheld where the officer who ordered

the arrest did not have probable cause to arrest, oz where an

investigating officer who may have known about the defendant's

criminal activity was not the officer who ordered the arrest:

People v. Hazelhurst, 662 P.2d 1081, 1085-1087 (Colo. 1983)

(arrest upheld where arresting officer was told to arrest

Hazelhurst by lead investigator who had evidence that supported

probable cause to arrest; however, where arresting officer was

not told to arrest Hazelhurst's companion, and investigating

officer did not have sufficient reason to suspect companion,

arrest of companion not upheld); United States v. Woods, 554 F.2d

242, 260 (6th Cir. 1976) (when group of agents in communication

with one another determines that it is proper to arrest an

individual, the knowledge of the group that made the decision may

be considered in determining probable cause; however, where one i

agent's order to arrest was not the basis to arrest two of the

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defendants, his knowledge cannot be considered in determining

probable cause); and United States v. Edwards, 885 F.2d 377, 382-

383 (7th Cir. 1989) (detective's reliance upon informant would be

imputed to officers who arrested defendant; however, supervising

officer's knowledge about defendant could not be relied upon to

provide probable cause to arrest where there is no evidence that

such knowledge was communicated to any agent who made or ordered

arrest).

Finally, the following so-called "“moderate-approach" cases

cited by petitioner take the same approach in determining whether

there was probable cause to arrest as the so-called "restrictive-

approach" cases: Colorado Dept of Revenue v. Kirke, 743 P.2d 16,

17-19 (Colo. 1987) (where first officer who arrived on scene of

car accident told second officer who arrived that defendant was

driver of one of the cars, and second officer conducted sobriety

test, second officer could rely on first officer's communication wi

that defendant was driver to arrest defendant); People v. Baca,

198 Colo. 399, 600 P.2d 770, 771 (1979) (where officer arrested

defendant following receipt of three broadcasts, probable cause

—

was established where it was shown that officer who issued

broadcasts had probable cause to arrest); Williams v. United

States, 308 F.2d 326 (D.C. Cir. 1962) (where arresting officer

acted on orders based on information that would support probable

cause, arrest upheld); and Smith v. United States, 358 F.2d 833,

834-836 (D.C. Cir. 1966) (where agent in Baltimore obtained

reliable information from informant to support defendant's

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arrest, agent in Washington D.C. could rely upon information to

effectuate arrest).

In the present case, the appellate court took the approach

taken by all the above-cited cases in finding that the record

failed to establish that the arrest was based on probable cause.

The record shows that Officers Sepulveda and Graeber received an

assignment from a dispatcher to "look for" "Tony" at a certain

address, who was driving a specifically-described car, because he

was "wanted by the police for robbery and possibly murder

arson.” (R. 54-55, 62-63) It first should be noted that the

dispatcher did not direct the officers to arrest respondent, or

indicate that there was a warrant for his arrest. Thus, under

the facts of this case, the officers did not even have the

authority to arrest Mr. Crane as a result of the dispatch.

Furthermore, the appellate court correctly held that the

police lacked probable cause to arrest Mr. Crane on the basis of

the dispatch because the state failed to place any evidence in

the record as to the source of the dispatcher's information.

People v. Crane, 244 Ill. App. 3d 721, 614 N.E.2d 66, 69 (list

Dist. 1993). The court rejected the state's argument that the

information Detective O'Meara had gathered could be used by the

state to establish probable cause because O'Meara did not tell

any other officers in the entire Chicago police force about the

information he possessed regarding Mr. Crane's possible

involvement in a robbery. (R. 112-113, 118-119); Crane, 614

N.E.2d at 69. Citing People v. Crowell, 94 Ill. App. 3d 48, 418

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es

fo

N.E.2d 477 (3d Dist. 1981), the court held that although an

arresting officer may rely upon a dispatch to make an arrest even

if he is unaware of the specific facts that established probable

cause, the state must demonstrate that the officer who directed

the dispatch to be issued possessed facts sufficient to establish

probable cause to make the arrest. Crane at 69. In this case,

the state simply failed to present any evidence at the

suppression hearing as to the source of the dispatcher's

information, and whether the person who ordered the dispatch

possessed probable cause to order an arrest.

Petitioner contends that O'Meara had facts within his

knowledge that established probable cause. (Petition at 17-18)

As previously noted, since he did not send out the dispatch to

look for respondent, and since it was not his information upon

which the arrest was based, it is irrelevant that he may have had

probable cause to arrest respondent.

Moreover, the facts within O'Meara's knowledge did not

establish probable cause. O'Meara testified that Kurecki told

him about a conversation Kurecki had with the victim of the

robbery, McHugh, on the day before McHugh was killed. McHugh

allegedly told Kurecki that one of the people who stole a cash

register from him was "Tony, the fellow that he used to work for-

-or worked for him rather." (R. 93) O'Meara testified that

Kurecki told him that Kurecki "thought" the person McHugh was

referring to was Anthony Crane. (R. 90)

Illinois courts hold that an officer may rely on a private

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citizen's tip without independently verifying the citizen's

reliability, where that citizen was a victim or eyewitness to the

crime. People v. Adams, 131 Ill. 2d 387, 546 N.E.2d 561, 565

(1989); People v. Bean, 84 Ill. 2d 64, 417 N.E.2d 608, 610

(1981). Here, Kurecki was neither a victim nor an eyewitness to

the crime, and he based his belief that Mr. Crane was the

perpetrator on an ambiguous conversation he had with the victim.

There is no evidence in the record as to what led Kurecki to

conclude that "Tony" was Anthony Crane, other than McHugh's non-

specific description. There is no evidence to show whether

~- Kurecki believed that McHugh, who frequently drank and may have

been intoxicated at the time of the robbery, provided him with

reliable information. O'Meara never spoke with McHugh, so he

could not have judged McHugh's reliability. The information

McHugh supplied Kurecki and Kurecki passed on to O'Meara, at

most, raised a suspicion of Mr. Crane's involvement in the

robbery. Accordingly, even assuming O'Meara's knowledge can be

used as a basis to validate Mr. Crane's arrest, O'Meara's

knowledge was insufficient to establish probable cause to arrest

Mr. Crane for robbery.

Petitioner also argues that respondent's arrest for

possession of cocaine should have been upheld even though Officer

Graeber, who allegedly observed the cocaine in plain view, did

not testify. (Petition at 19-21) In making this argument,

petitioner completely mischaracterizes the testimony of Officer

Sepulveda. Petitioner argues, “According to Officer Sepulveda,

-~l17-

when respondent opened his wallet, Officer Graeber saw in plain

view, a small folded packet of cocaine. .. . Officer Sepulveda's

testimony, which was based primarily on direct observations and

partially on hearsay testimony, sufficiently provides probable

cause to arrest respondent." (Petition at 21)

As the appellate court correctly found, the record contains

no evidence as to whether the packet was in Graeber's plain view

since he did not testify. Sepulveda did not see the packet until

after Graeber removed it from respondent's wallet. (R. 59-60,

76-79) Citing People v. Stout, 106 Ill. 2d 77, 477 N.E.2d 498

(1985), which holds that what constitutes probable cause for a

seizure must be determined from the standpoint of the officer who

made the seizure, the Crane court held that Sepulveda was not

competent to testify about what the seizing officer Graeber

observed at the time of the seizure. Crane, 614 N.E.2d at 70.

Furthermore, contrary to petitioner's contention, Sepulveda did

not offer any “hearsay testimony" regarding Graeber's

observations. (Petition at 21) Sepulveda never testified about

any conversation he had with Graeber or anything Graeber said

regarding the packet he removed from respondent's wallet.

Accordingly, where there is no conflict among the state and

federal courts regarding the operation of the "collective

knowledge" doctrine, and where the appellate court in this case

properly xound that the state failed to demonstrate probable

cause to arrest respondent, this Court should deny the petition

for writ of certiorari.

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II. THIS COURT SHOULD DECLINE TO ADOPT THE GOOD FAITH EXCEPTION

TO THE EXCLUSIONARY RULE REQUESTED BY PETITIONER WHERE, IN

DOING SO UNDER THE FACTS OF THIS CASE, IT WOULD EFFECTIVELY

ELIMINATE THE CONSTITUTIONAL REQUIREMENT THAT EVERY

WARRANTLESS ARREST MUST BE BASED UPON PROBABLE CAUSE.

In United States v. Leon, 468 U.S. 897 (1984), this Court

created a good faith exception to the exclusionary rule for

situations in which officers acted in reasonable reliance on a

search warrant issued by a detached and neutral magistrate, but

the warrant is ultimately found to be unsupported by probable

cause. Now petitioner is asking this Court to create a "good

faith” exception to the exclusionary rule for situations, like

the present case, where a dispatcher sends out a message to "look

for" the defendant, the defendant is arrested by the officers who

relied on the dispatch, but the record is devoid of any evidence

that would show the source of the dispatcher's information and

that the warrantless arrest was based on probable cause. If

adopted, such an exception would allow the police to effect

warrantless arrests without probable cause by simply having a

dispatcher order an arrest be made. Petitioner is essentially

asking this Court to create a rule that would allow it to

circumvent the fundamental Fourth Amendment requirement that

every warrantless arrest must be based upon probable cause.

The Leon Court specifically refused to extend the good faith

exception to situations like the present case. In fact, the Leon

Court reaffirmed Whiteley v. Warden, 401 U.S. 560 (1971), and

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” *

‘

} )

found that the good faith exception would not apply where an

officer obtains a warrant on the basis of a "bare bones"

affidavit and then, in an attempt to circumvent the requirements

of the Fourth Amendment, relies on colleagues who are ignorant of

the circumstances under which the warrant was obtained to conduct

the search. Leon, 468 U.S. 923, n. 24.

Moreover, citing Beck v. Ohio, 379 U.S. 89 (1964), the Leon

Court specifically found that the good faith exception to the

exclusionary rule does not extend to situations where the record

fails to show the basis for a warrantless arrest. Leon at 915,

n. 13. In Beck, the officer made a warrantless arrest of the

—_

defendant and the record failed to show what information the

officer had received that would establish probable cause to

arrest. Beck, 379 U.S. at 93-94. This Court found:

It is possible that an informer did in fact relate

information to the police officer in this case which

constituted probable cause for the petitioner's arrest. But

when the constitutional validity of that arrest was

challenged, it was incumbent upon the prosecution to show

with considerably more specificity than was shown in this

case what the informer actually said, and why the officer

thought the information was credible. We may assume that

the officers acted in good faith in arresting the

petitioner. But “good faith on the part of the arresting

officers is not enough.” (citation omitted) If subjective

good faith alone were the test, the protections of the

Fourth Amendment would evaporate, and the people would be

“secure in their persons, houses, papers, and effects," only

in the discretion of the police. Id. at 97.

In the present case, the dispatcher did not even order that

Officers Sepulveda and Graeber "arrest" Anthony Crane. The

dispatcher ordered that the officers "look for" "Tony" because he

was "wanted by the police for robbery and possibly murder arson."

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(R. 55) This Court should decline to adopt a good faith

exception to the exclusionary rule where the arresting officers

rely on a dispatch that does not even order an arrest.

Furthermore, it is possible, as this Court noted in Beck,

that the officer who ordered the dispatch had information that

constituted probable cause. Nevertheless, it was incumbent on

the state to present evidence to show the source of the

dispatcher's information and that the information constituted

probable cause.

At the suppression hearing the prosecutors failed to present

the testimony of Officer Graeber, whom they knew to be the

officer who allegedly made the "plain view" observation of the

cocaine packet, and they argued that the knowledge of Detective

O'Meara, whom they knew did not order the dispatch, could be used

as 4 basis to establish probable cause. The conduct of the

prosecutors in standing on such a meager record indicates that

they simply could not establish that the individual who ordered

the dispatch possessed sufficient knowledge to establish probable

cause to arrest Mr. Crane.

Petitioner is asking this Court to establish an exception to

the exclusionary rule that would effectively eliminate the

fundamental constitutional requirement that every warrantless

arrest must be based on probable cause. This Court should

decline to create such an exception.

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III. WHERE THE STATE IS FREE TO DEVELOP ITS OWN RULES GOVERNING

THE ADMISSION OF EVIDENCE AND BURDEN OF PROOF AT SUPPRESSION

HEARINGS, AND WHERE PETITIONER HAS CONSISTENTLY INSISTED

THAT THE RECORD IN THIS CASE IS MORE THAN ADEQUATE IN

DETERMINING WHETHER RESPONDENT'S STATEMENTS WERE ATTENUATED

FROM HIS ILLEGAL ARREST, THIS COURT SHOULD DECLINE TO HOLD

THAT THE STATE IS ENTITLED AS A MATTER OF RIGHT TO HAVE THE

CASE REMANDED FOR AN ATTENUATION HEARING.

States may develop workable rules governing arrests,

searches, and seizures, provided that the rules do not violate

the constitutional proscription of unreasonable searches and

seizures. Ker v. California, 374 U.S. 23, 10 L.Ed.2d 726, 738

(1963). Illinois, by statute and case law, has developed its own

rules governing arrests, searches, and seizures, and the conduct

of suppression hearings. See, Ill. Rev. Stat. ch. 38, paras.

107-1 through 107-14; 108-1 through 108-14; 114-12 (1989); People

v. Statham, 209 Ill. App. 3d 352, 568 N.E.2d 183, 190 (lst Dist.

1991) (at suppression hearing, burden is placed on defendant to

prove seizure unlawful; once defendant meets burden, burden of

going forward with evidence shifts to state to prove validity of

arrest).

In this case, once the appellate court held that Mr. Crane

had been arrested illegally, it clearly did not violate his

Fourth Amendment rights by reviewing the record of the

suppression hearing and holding that the record was sufficient to

demonstrate that his statements were not attenuated from his

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illegal arrest. People v. Crane, 244 Ill. App. 3d 721, 614

N.E.2d 66, 70 (lst Dist. 1993). The court noted that the

prosecution gave no indication of what additional evidence could

be adduced on remand to establish that the statement was

attenuated. The court also found that the "state insists that

the record here is more than adequate to establish attenuation.”

Id., 614 N.E.2d at 70. In fact, the prosecution in its direct

appeal brief did not alternatively request an attenuation

hearing; rather, it insisted that the record was sufficient to

determine attenuation without remand for a hearing. Furthermore,

in its petition for rehearing in the appellate court and in its

petition for leave to appeal to the Illinois Supreme Court, the

prosecution wrote, "The People should not be bound by the

existing record (although the People maintain that it is more

than adequate).”

The appellate court in this case merely followed state-

created procedural rules regarding the conduct of suppression

hearings and held that the record was sufficient to determine the

attenuation issue, and, in any event, the petitioner consistently

insisted that the record was adequate to establish attenuation.

Under the circumstances of this case, this Court has no

jurisdiction to interfere with the state court's right to create

otherwise constitutional rules regarding the conduct of

suppression hearings, and should decline to hold that the

petitioner is entitled as a matter of right to have the case

remanded for an attenuation hearing.

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CONCLUSION

For the foregoing reasons, Anthony Crane, respondent,

respectfully requests that this Court deny the petition for writ

of certiorari.

Respectfully submitted,

MICHAEL J. PELLETIER

Deputy Defender

Office of the State Appellate Defender

James R. Thompson Center

100 West Randolph - Suite 5-500

Chicago, IL 60601

(312) 814-5472

COUNSEL OF RECORD FOR RESPONDENT

Of Counsel:

Patricia Mysza

Assistant Appellate Defender

Office of the State Appellate Defender

James R. Thompson Center

100 West Randolph - Suite 5-500

Chicago, IL 60601

(312) 814-5472 =

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