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People v. Berry, Nos. 1-98-0359, 1-98-0708 (cons.)

1st District, May 30, 2000

FIRST DIVISION

PRESIDING JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Following a simultaneous but severed bench trial, the court found defendant, Allen Berry, guilty of first degree murder andarmed robbery and sentenced him to a 30- year term of prison. The trial court also found codefendant, Bobby Berry, guiltyof first degree murder and sentenced him to a 25-year term of prison. Both defendants appeal the trial court's denial of theirmotions to suppress evidence, namely, their oral and written confessions. In reviewing the motions to suppress we addressthe scope of an electronic search, which is a question of first impression. While the court found that the police had probablecause to arrest Allen, it also found that the police lacked probable cause to arrest Bobby. Following an attenuation hearing,the court, however, ruled that Allen's statements to the police constituted an intervening circumstance that attenuatedBobby's illegal arrest. On appeal, Allen contends that the police illegally arrested him in violation of his fourth amendmentrights and the statements he made should have been suppressed. Bobby contends that his statements were a result of bothdefendants' illegal arrests and should have been suppressed. We affirm.

At the suppression hearing, Detective Hamilton testified that on October 15, 1995, he went to Enrico Perry's apartment andsaw that Perry had been shot to death. Perry's hands were tied behind his back and a sheet covered his head. DetectiveHamilton observed a leather carrying case for a Motorola cellular phone and a cigarette lighter plug-in adaptor for thephone. Hamilton saw these items in the center of the coffee table of Perry's apartment but failed to find the Motorola phonethat matched these cellular phone accessories.

At the crime scene, Detective Hamilton spoke with Perry's cousin, Gregory Carter. Hamilton testified that Carter confirmedthat Perry's cellular phone was missing from Perry's apartment. Carter told Hamilton that the night before the murder he hadvisited Perry's apartment to use Perry's cellular phone adapter and saw the cellular phone in Perry's apartment. Carter statedthat four individuals who frequented Perry's apartment were there at that time. The four individuals discussed the Motorolacellular phone. Specifically, Carter overheard one individual inquire about purchasing it, but another person advised himnot to purchase it. Carter also told Hamilton that he saw one of the individuals pick up a videotape off the television setwith his shirt sleeve over his hands and fingers, trying not to leave any fingerprints. Hamilton obtained the number ofPerry's cellular phone from Perry's brother, Derrick Perry.

On October 19, 1995, Carter told Hamilton he knew the names of the four males who were at Perry's apartment the nightbefore the murder. Carter stated that these four males showed up at Perry's funeral and Carter confronted them. The fourindividuals became argumentative and other family members separated them from Carter. He told Hamilton their nameswere Charles Gardner, Mario, Allen Berry and Bobby Berry, and he told Hamilton where to find the defendants.

On October 29, 1995, Hamilton and three Chicago police detectives went to 6833 South Hamilton, where they believedthey could find and talk with the defendants. The detectives did not have an arrest warrant or a search warrant. Hamiltonand the other detectives spoke with a woman who identified herself as the defendants' mother. Hamilton explained that theywere looking for the defendants, and she replied that "Bobby is right there in that bedroom and Allen is downstairs with hisgirlfriend."

After Bobby came out of his room and started to speak with the detectives, defendants' mother pointed to the basement andsaid "Allen is down there." Hamilton knocked on the door, identified himself, and stated he wanted to talk with Allen. Allentold him to come down to the basement. Hamilton descended the stairs and saw a Motorola cellular phone on a dresser nearAllen that was identical to the phone missing from the victim's apartment. Hamilton asked if it was Allen's phone and Allenstated it was. Hamilton then asked if he could look at the phone and Allen stated, "Go right ahead." Hamilton turned on thephone, pushed recall and pound, and obtained the number of the cellular phone. Hamilton immediately recognized thenumber as the one the victim's brother gave him for the victim's phone. Hamilton asked Allen how long he had the phoneand Allen responded two months. Hamilton advised Allen of his Miranda rights and arrested him. Hamilton then instructedthe other detectives to arrest Bobby.

At the station, police "Mirandized" and questioned both Bobby and Allen. Both initially denied any involvement in thecrime. After the police confronted Allen with the fact that he possessed the victim's cellular phone, Allen gave an oralconfession. Early the next morning, the police detectives told Bobby that his brother Allen had given a statementimplicating Bobby in the murder. Bobby did not believe the detectives. The detectives then brought Allen to the door of theroom where Bobby was being interviewed. Bobby asked Allen if he made a statement. Allen raised his right hand and said,"I'm grandma, man, I'm grandma." At approximately 7 a.m., Bobby gave the police an oral confessions and later a writtenconfession.

The trial court found that the police had probable cause to arrest Allen but did not have probable cause to arrest Bobby. Thetrial court rejected Allen's argument that Hamilton did not have authority to retrieve the phone number of the cellular phoneto determine if it was the victim's cellular phone. The court ruled that because Allen gave permission to Detective Hamiltonto look at the phone, Hamilton could perform a "minimally intrusive" examination of the phone to determine its phonenumber.

The State then filed a motion to demonstrate that independent factors attenuated Bobby's confession from Bobby's illegalarrest. Following a hearing, the trial court found that Allen's confession and Allen's conversation with Bobby, after Bobby'sarrest, were independent factors that led to Bobby's confession and purged it of any taint from the illegal arrest. The trialcourt therefore admitted the confessions of both Bobby and Allen into evidence.

ANALYSIS

Although at trial the defendants called two witnesses to contest the police testimony that defendants' mother consented totheir entrance into the house and that Allen told Detective Hamilton that he could look at the cellular phone, defendants onappeal do not challenge these facts. Defendants argue that, despite the court's factual finding and the police testimony, thepolice had no probable cause to arrest Allen. Defendants further argue that Detective Hamilton had no authority to turn onthe cellular phone and retrieve its telephone number because that action exceeded the scope of the consent given by Allen.

The defendants bring their challenge of the evidence under both the United States and Illinois Constitutions. Both theUnited States and the Illinois Constitutions govern the conduct of police officers in performing warrantless arrests andsearches and prohibit unreasonable searches and seizures. U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I,