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FIRST DIVISION
June 7, 2004

JUSTICE McNULTY delivered the opinion of the court:

A jury found defendant, Jerry Clay, guilty of a first degreemurder and an armed robbery that occurred at a currency exchange. On appeal defendant argues that the trial court should havesuppressed his confession because police lacked probable cause toarrest him. We hold that the discovery of a wallet containingdefendant's identification on the sidewalk outside the currencyexchange did not give police probable cause to arrest him. Weremand for a hearing to determine whether interveningcircumstances make the confession admissible despite the illegalarrest. Defendant also argues that the trial court erred byallowing a witness to testify about an armed robbery at adifferent currency exchange five months before the robbery atissue. We find the similarities between the two crimesinsufficient to earmark the crimes as the work of the same man. We reverse and remand for a new trial.

On December 22, 1998, around 10 a.m., three men entered acurrency exchange together. One asked for change for a dollar. After receiving the change that man picked up the receiver of apay phone in the exchange. The other two men left the exchange,and the one who received change left shortly thereafter. One ofthe three men returned a few minutes later. He asked a differentemployee for change. He received change and went to the payphone.

Terry Madden, an employee of United Armored, carried a greenbag with various papers and cash from an armored truck into theexchange. The man who had gotten change met Madden at the doorand fired a bullet point-blank through Madden's forehead. Theman took the green bag and left in a blue compact car. Maddendied minutes later.

Although several employees of the exchange saw the shooting,and one gave the shooter change, none could remember much abouthis appearance. Witness described him only as "a male blackabout 25 to 30 years in age, between five-foot-seven to six-footin height" wearing "a waist length jacket with blue jeans and ***a ski mask." They described the men who entered the exchangewith him only as "male blacks."

Police found a wallet on the sidewalk near the exchange. Inside, an officer found identification for defendant and atemporary permit for a Chevy van registered in the name ofTheotis Coleman. At the police station officers traced theaddress listed on the registration for the van. Several officersset up surveillance near that address.

A white Mustang stopped near the address. Two men and awoman got out of the car. Around 2:30 p.m., defendant, with awoman and a child, left the address and got into a car. Officersstopped the car nearby and asked defendant his name. When hetold them, they escorted him to a police department vehicle,which brought him to the police station. At the station theyfound that defendant had more than $2,000 in cash and a set ofkeys. Officers also arrested Roosevelt Clay as he drove awayfrom the same address in a different car. At the time of thearrest, Roosevelt had more than $8,000 in cash sewn into thelining of his jacket and bill of sale for a car.

After 9 p.m. that day, a state trooper found a blackbackpack on an expressway ramp. Inside the backpack he found agreen bag and some papers belonging to the currency exchangewhere the murder occurred. He also found a letter addressed toVeronica Clay.

Police found the door to Veronica's apartment ajar. Whentheir knock elicited no answer, they entered. They foundMadden's keys inside. They spotted a blue compact car parkednear the building. An officer contacted the registered owner ofthe vehicle, who told the officer she sold the car to RooseveltClay, and she intended to send him title once he completed thepromised payments for the car.

Fifteen hours after the murder and eleven hours after thearrests, defendant admitted his involvement in the robbery. Henamed Tony Williams as the murderer and Roosevelt as the getawaycar driver. Police arrested Williams on February 1, 1999, andWilliams admitted his involvement in the robbery, but he nameddefendant as the shooter.

Williams, Roosevelt and defendant agreed to simultaneoustrials. One jury decided the case against Williams and aseparate jury decided defendant's case, while Roosevelt opted fora bench trial.

Before trial defendant moved to quash arrest and suppresshis statements. The prosecution conceded that police arresteddefendant when they took him from his car to the police vehiclefor transport to the police station. The arresting officeradmitted that he did not see defendant violate any laws orordinances prior to the arrest. The officer testified that hefound the wallet with defendant's identification on the streetnear the currency exchange shortly after the murder. Theprosecutor asked:

"Did you determine *** at that time that he fitthe general description of one of the four male blacksthat entered into that currency exchange at 10:00 inthe morning?"

The officer said he so determined. On cross-examination heclarified that witnesses described the men who entered thecurrency exchange as "three male blacks." The officer did nottestify to any further detail for any of the men other than theshooter. The officer did not describe the clothing defendantwore when arrested, and he did not testify that defendant or hisclothing matched the description of the shooter or the shooter'sclothing.

The trial court held that the discovery of defendant'sidentification in a wallet outside the currency exchange gavepolice probable cause to arrest him. Accordingly, the courtdecided to permit the prosecution to introduce evidence ofstatements defendant made to police while in custody.

The prosecution moved for leave to admit evidence of asecond robbery at another currency exchange. At the hearing onthe motion, the prosecutor told the court that the prosecutionwould present evidence that on July 31, 1998, around 11 a.m., acurrency exchange about two miles away from the exchange at issuereceived a cash delivery from United Armored. Several minuteslater three black males walked into the exchange. One brandisheda gun and announced a stick up. They obtained cash from thecurrency exchange and escaped in a waiting car. Ana Orona, anowner of the currency exchange, would identify defendant as theman who brandished the gun. The court decided to allow thetestimony into evidence as proof of defendant's modus operandi.

Veronica testified that she stayed at her mother's home fromDecember 17 through December 23, 1998, because she could not findher keys to her apartment. She had last seen them during a visitat her mother's home, shortly before defendant came to the home. She identified the keys found when police arrested defendant asher missing keys. Defendant called Veronica from the jail andsaid he could go to jail if Veronica testified against him.

The detective who spoke with defendant at the police stationtestified that defendant said that on December 22, 1998, he andRoosevelt agreed with Williams and another man to commit arobbery. Williams showed defendant one gun and gave defendant adifferent gun. They took Roosevelt's car. Williams directedthem to the currency exchange. Defendant went into the exchangewith Williams and the other man and made a phone call. Defendantleft before the United Armored truck pulled up. When he heard ashot he ran back to Roosevelt's car, dropping his wallet when hetripped on the sidewalk. Williams gave defendant $6,500 and hegave Roosevelt $5,000 for driving the getaway car.

Orona testified that five months before the robbery in thiscase, on July 31, 1998, an armored truck from United Armoreddelivered cash to her currency exchange before 11 a.m. A fewminutes later, one of her employees arrived for work. When hearrived, four customers were waiting in line. One customer was aHispanic male, a second was a Hispanic female, and the other twowere black men. As Orona went to unlock the door to the area foremployees only, one of the black men grabbed the employee, pulleda gun and said, "[O]pen up, mother fucker, or I'll blow his headoff." The black man pushed the employee into the employees' areaand said, "[G]ive it up, mother fucker, give it up." He thenpointed the gun at Orona and said, "[H]urry up, mother fucker, orI'll blow her head off." The employee loaded a bag with cash. The robber took the money and left. Following defendant's arrestin December 1998, Orona saw his picture on television. Sherecognized him as the man who robbed her. She identified himagain in court as the robber.

The court instructed the jury on legal accountability foracts of another. The jury found defendant guilty of murder andarmed robbery.

The court held a joint sentencing hearing for the threedefendants. Defendant had one prior conviction for misdemeanorassault. The trial judge sentenced defendant and Williams to 50years in the custody of the Department of Corrections and 30years for armed robbery, with the sentences to run concurrently. The judge imposed on Roosevelt concurrent sentences of 30 yearson each of the charges. Although the judge discussed the evil ofthe murder, he gave no reason for the differences in thesentences imposed.

On appeal defendant argues that the trial court erred byfinding that police had probable cause to arrest him. We reviewthe trial court's findings of fact only for clear error, but wereview de novo the ultimate determination of probable cause basedon those facts. People v. Boomer, 325 Ill. App. 3d 206, 209(2001). Police have probable cause to arrest a defendant whenthe available evidence would lead a reasonable person to believethat a crime occurred and the defendant committed it. People v.McCoy, 238 Ill. App. 3d 240, 247 (1992).

The officer found the wallet with defendant's identificationoutside of the exchange. The wallet also held a temporary permitfor a van. At the address listed on the van's registration, theofficer "saw the defendant who fit the description" of one of thepersons at the currency exchange. On that factual basis thecourt concluded that the officer had probable cause to arrestdefendant.

The wallet found outside the exchange provided evidenceleading a reasonable person to believe that defendant had beennear the exchange. Because a wallet probably would not long lieunmolested on the sidewalk, police had cause to believe defendanthad been near the currency exchange near the time of the murder. Police also found several other persons who had been on thestreet near the exchange at the time of the murder, and some ofthose persons testified about what they saw. Evidence ofproximity to the scene of a crime - especially on a public street- does not generally provide police probable cause to arrest. People v. Haymer, 154 Ill. App. 3d 760, 768 (1987); comparePeople v. Summers, 100 Ill. App. 3d 170, 174-75 (1981) (evidencethat the defendant was in the victim's apartment near the time ofthe murder in that apartment, along with evidence that thedefendant knew the victim and the apartment showed no sign offorced entry, gave police probable cause to arrest thedefendant).

The arresting officer testified that defendant also matchedthe description of one of the offenders. He clarified on cross-examination that witnesses described the offenders with theshooter only as "three male blacks." The prosecution claims thatdefendant matched the description of the shooter and that vaguedescription at least included some minimal indication of theoffender's clothing. But the officer never testified thatdefendant matched that description, and the officer neverdescribed the clothing defendant wore at the time of the arrest. Most notably, while witnesses described the getaway car, policedid not find that car when they arrested defendant, and no carmatching its description was on the street where officersconducted surveillance waiting to see who went to the addresslisted on the van's registration.

Thus, at the time of the arrest police had evidence thatthree black men entered a currency exchange and committed arobbery and murder there, and defendant, a black man, probablypassed on the sidewalk near the currency exchange around the timeof the murder, at midmorning on a busy street. While police knewa crime occurred, reasonable persons would not find the evidenceenough to support a belief that defendant committed it. We holdthat police lacked probable cause to arrest defendant. SeePeople v. Washington, 269 Ill. App. 3d 862, 866-67 (1995); Peoplev. Williams, 53 Ill. App. 3d 266, 272-73 (1977).

The prosecution suggests that the court committed onlyharmless error by admitting into evidence the statementsdefendant made implicating himself in the murder. Becauseconfessions frequently constitute the most persuasive evidenceagainst a defendant, "the admission of an unlawfully obtainedconfession rarely is harmless error." People v. St. Pierre, 122Ill. 2d 95, 114 (1988). No witness could identify defendant as aperpetrator. Apart from defendant's statements, only equivocalcircumstantial evidence tied him to the crime. If the courterred by permitting defendant's statements into evidence, wecannot find the error harmless under the circumstances of thiscase.

The prosecution asks us to remand for an attenuationhearing. Because several events intervened between the illegalarrest and defendant's statements, we agree that the trial courtshould hear evidence to determine whether to admit defendant'sstatements into evidence. The court should consider the evidencein light of our supreme court's recent opinion on attenuation,People v. Morris, No. 87645 (March 18, 2004).

Next, defendant argues that the trial court committedreversible error by allowing Orona to testify concerning therobbery of a different currency exchange. The prosecutioncounters that the trial court properly admitted the evidenceunder the modus operandi exception to the general principledisallowing evidence of other crimes. People v. Jackson, 331Ill. App. 3d 279, 285-86 (2002).

"The modus operandi or 'method of working' exceptionrefers to a pattern of criminal behavior so distinctthat separate offenses are recognized as the work ofthe same person. [Citation.] Between the offenseoffered to prove modus operandi and the offensecharged, there must be a clear connection which createsa logical inference that, if defendant committed theformer offense, he also committed the latter.[Citation.] This inference arises when both crimesshare peculiar and distinctive features not shared bymost offenses of the same type and which, therefore,earmark the offenses as one person's handiwork.[Citation.] The offenses need not be identical butmust share features which, although common to similarcrimes in general, are distinctive when consideredtogether." People v. Berry, 244 Ill. App. 3d 14, 21(1991).

We will not reverse the trial court's decision to admit evidenceunless the court abused its discretion. People v. Illgen, 145Ill. 2d 353, 364 (1991).

Defendant argues that we should compare Orona's testimony attrial with the testimony concerning the robbery charged todetermine whether Orona's testimony shows a modus operandi. Theprosecution insists that we must ignore the actual testimony andevaluate the court's decision on the basis of the representationsmade to the court at the pretrial hearing on the motion to admitother crimes evidence. That is, we should compare only theevidence the prosecution said it would present concerning theother crime with the evidence the prosecution said it wouldpresent about the crime charged. Neither party cites pertinentauthority on the issue of what evidence or representations weshould consider.

Although we found no case discussing the precise issuebefore us, we find some guidance in cases concerning the evidenceto consider on review of motions to suppress statements. InPeople v. Brooks, 187 Ill. 2d 91 (1999), the defendant arguedthat the evidence introduced at trial showed that the trial courtshould have suppressed his statements. In support of hisreliance on trial evidence, the defendant cited People v. Braden,34 Ill. 2d 516 (1966), and People v. Reese, 92 Ill. App. 3d 1112(1981). Our supreme court responded:

"[i]n these cases, the courts relied on trial testimonyto affirm the trial court's denial of a motion tosuppress. Defendant is asking us to overturn the trialcourt's ruling on the motion to suppress based onevidence that came out at trial.

The analysis is different in this situation. Whena reviewing court affirms a trial court's suppressionruling based on evidence that came out at trial, it isakin to a harmless error analysis. The reviewing courtis essentially saying that whether the court's decisionwas supported by sufficient evidence at the suppressionhearing becomes irrelevant when evidence to support thetrial court's decision is introduced at trial. Onereason this is so is that the pretrial ruling on amotion to suppress is not final and may be changed orreversed at any time prior to final judgment.[Citation.] We do not believe that this reasoningapplies equally when a defendant is asking us to relyupon trial evidence to reverse a trial court's decisionon a pretrial suppression ruling, particularly when thedefendant fails to object when the relevant evidence isintroduced. *** By not asking the court to reconsiderits ruling on the motion to suppress when that evidencewas introduced at trial, defendant has waived his rightto argue it on appeal." (Emphasis in original.) Brooks, 187 Ill. 2d at 127-28.

Here, too, the court could have changed its pretrial ruling,especially in light of the differences between Orona's actualtestimony and the prosecutor's pretrial representations about theevidence the prosecution would introduce at trial. Defendanthere, like the defendant in Brooks, failed to requestreconsideration of the pretrial ruling after the testimony attrial. Thus, defendant waived argument that the evidence attrial showed that the court should not have admitted the evidenceof the other crime. Of course, the waiver constrains defendant,but it does not bar this court from considering the issue ifnecessary to reach a just result. People v. Hicks, 181 Ill. 2d541, 544-45 (1998); People v. Bailey, 159 Ill. 2d 498, 506(1994).

At the pretrial hearing the prosecutor sought leave topresent evidence at trial concerning a robbery that occurredabout five months before the robbery charged, at a currencyexchange about two miles away. The prosecutor claimed theevidence would show that three black men entered the currencyexchange shortly after United Armored completed a cash deliverythere. One of the men announced a stick up and brandished a gun,while the two others remained in the exchange looking out forpolice. Orona would identify defendant as the man with the gun. The men then fled to a waiting car the prosecutor did notdescribe.

For the crime charged the prosecution promised to show thatdefendant and two other black men entered the exchange some timebefore United Armored delivered cash to the exchange. The menleft and one returned to stand by the telephone as though makinga call. When Madden entered with the cash delivery the man bythe telephone went to the door and shot Madden without saying aword. He took the bag of cash and left in a blue car.

Thus, on the prosecutor's representations, the crimesappeared somewhat similar. Both occurred at currency exchangesaround the time of a delivery from United Armored, in the samepart of the city. The prosecutor said both crimes involved fouroffenders, with two lookouts and a getaway driver assisting theone who used a gun to rob someone. However, the crimes hadstriking differences. In the first robbery, the offendersentered after the deliveryman successfully completed thedelivery, leaving the money with the exchange's owner. Therobbers then announced a stickup to get the money. In the secondrobbery the robbers said nothing to the victim. One shot him andtook the cash. The victim worked for United Armored, not thecurrency exchange. In the first robbery the two lookouts stayedin the exchange, according to the prosecutor; in the secondrobbery, all but the robber left the exchange before the robbery. The prosecutor did not say that any witnesses described the gunsor cars in ways that would lead to the conclusion that therobbers used the same guns or cars in the two robberies.

In People v. Tate, 87 Ill. 2d 134 (1981), a man tried toshoplift meat from a supermarket by putting it inside his coat. When a security guard confronted him, he threw the meat down, andin the ensuing struggle, he grabbed the guard's gun. Threemonths later, a man tried to shoplift meat from a nearbysupermarket by hiding it inside his coat. A police officerfollowed the man out of the store. When the officer confrontedhim the man threw the meat down, and during the ensuing strugglehe grabbed the officer's gun. Our supreme court held that theevidence did not show a modus operandi:

"[P]utting meat inside one's clothes is a standardshoplifting technique, as is grabbing for a gun duringa struggle. Contrary to the above cases, there are nodistinctive features to serve as a link between the twooffenses, such as using similar weapons, dressing thesame, acting with the same number of people, or even adistinctive method of committing this particularoffense. Although the similarities need not be uniqueonly to the two offenses being compared, there must bepresent some distinctive features that are not commonto most offenses of that type in order to demonstratemodus operandi." Tate, 87 Ill. 2d at 142-43.

Just as the similarities in Tate did not sufficientlysupport an inference that the same man committed the two crimes,the similarities here do not earmark the two robberies as thework of the same individuals. The use of guns and cars in bothcrimes does not identify the two robberies because offenderscommitting offenses of this type commonly use guns and escape incars. See Tate, 87 Ill. 2d at 142; Jackson, 331 Ill. App. 3d at287. Lookouts and getaway drivers also commonly assist inrobberies of commercial establishments. E.g., People v. Massa,271 Ill. App. 3d 75, 79 (1995). The five-month lapse between thetwo crimes here exceeds the three-month gap in Tate. The onlysignificant similarity is the fact that both crimes occurredaround the time of a delivery from United Armored. But salientdifferences offset that similarity: one crime occurred afterdelivery and the robber announced a stickup of persons workingfor the exchange, while the other occurred before delivery andthe robber shot the deliveryman without saying a word to him. Wefind that the trial court abused its discretion by permittingOrona to testify concerning the prior crime.

The evidence presented at trial showed the crimes were muchless similar than the prosecution told the court. Although theprosecutor told the court four persons participated in the firstrobbery, Orona testified that one man, acting alone, robbed hercurrency exchange. The prosecutor presented no evidence that theman who robbed Orona's currency exchange used a getaway car. Also, the man who robbed that exchange effectively took Orona'semployee hostage to get her to turn over the cash. The robberycharged involved no words at all, let alone hostages. We couldaddress the issue waived by defense counsel, of the manydissimilarities reflected by the evidence adduced at trial,either to reach a just result or as an indication of ineffectiveassistance of counsel. But we find no need to resort to theevidence at trial. The prosecutor's pretrial representationsabout the evidence the prosecution would present reflected enoughsignificant dissimilarities that the court should not haveadmitted the evidence of the other crime as proof of a modusoperandi.

The prosecution suggests the evidence could be admissible toprove defendant's intent, motive, knowledge, or absence of aninnocent state of mind. The defense did not place the robber'sintent, motive or knowledge at issue and did not suggest themurderer had an innocent state of mind. See People v. Thigpen,306 Ill. App. 3d 29, 37 (1999). The evidence concerning themurder completed proof of all those issues; the evidence of theother crime added only considerable prejudice against defendant,without probative value. See People v. Biggers, 273 Ill. App. 3d116, 122 (1995). The prosecution also adds, perfunctorily, thatthe evidence of the earlier crime helps identify defendant as theperpetrator of the crime at issue. The prior crime shows nothingabout defendant's presence in the area or his use of the blue carseen at the murder scene. See People v. Hayes, 319 Ill. App. 3d810 (2001). The only basis for the use of the prior crime toidentify defendant as the perpetrator here is the supposed proofof modus operandi. The crimes lack sufficient similarity towarrant the inference that the same person must have committedboth crimes.

Finally, the prosecution contends that any error in the useof other crimes evidence was "harmless beyond a reasonabledoubt." But "erroneously admitted other crimes evidence carriesa high risk of prejudice and ordinarily calls for reversal." People v. Howard, 303 Ill. App. 3d 726, 732 (1999). No witnessidentified defendant as appearing in the vicinity of the crime,and no forensic evidence tied him to any of the documents takenfrom the currency exchange. While defendant's confession mayprovide highly persuasive evidence, we cannot conclude that theconfession, if it is admissible, will render the evidence ofother crimes harmless.

We choose not to address other issues defendant raisesbecause we expect them not to arise again on remand. The trialcourt should appropriately circumscribe the life and deathevidence to eliminate highly prejudicial and irrelevant personalinformation concerning the victim. See People v. Lewis, 165 Ill.2d 305, 330 (1995). The court must likewise restrict theprosecutor's closing argument to remarks based on the evidence. People v. Kliner, 185 Ill. 2d 81, 151 (1998).

The discovery of a wallet with defendant's identification onthe sidewalk near the currency exchange may have provided groundsfor police to question him, but it did not provide probable causeto arrest, even when combined with the fact that defendant was,like all of the offenders, a black man. We remand for adetermination of whether intervening circumstances served toattenuate defendant's statements from the illegal arrest. Theprior robbery of a currency exchange some miles away from therobbery here did not bear sufficient similarity to the crimecharged to show modus operandi. We cannot say that the evidenceof the other crime had no effect on the outcome of the trial. Therefore, we reverse the convictions. Because defendant doesnot challenge the sufficiency of the evidence, we remand for anew trial.

Reversed and remanded.

GORDON and McBRIDE, JJ., concur.