# Opposition Brief — Illinois v. Crane

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1170

## Text

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,

-9-

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

-ll-

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

-13-

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

-14-

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

-15-

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

-16-

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.

-18-

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

-19-

” *
‘

} )

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1077%3A2. Public record. Not legal advice.