Find Legal Information

No. 3--03--0162

(Consolidated with Nos. 3--03--0163 and 3--03--0164)

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

Modified Upon Denial of Rehearing

JUSTICE SCHMIDT delivered the opinion of the court:

The defendants, Juan Burks, Romell Ratliff, and LarryFletcher, were arrested and charged with attempted armed robbery. 720 ILCS 5/8--4(a), 18--2(a) (West 2002). Their cases wereconsolidated for the purpose of a motion to quash the arrests andsuppress the evidence. The trial court granted the motion andsuppressed the evidence on the ground that the officers did nothave probable cause to arrest the defendants. The State appeals,and we reverse.

At the suppression hearing, Illinois State Police SergeantTerry Shaw testified that he had investigated a series of similararmed robberies of patrons of Harrah's Casino in Joliet. Thevictims were robbed by black males who used pepper spray and sometype of blunt object.

The first victim was robbed at her residence on December 18,2001. She had been gambling in the "high stakes area" of thecasino that evening. When she arrived home, she was approachedby black males, sprayed with pepper spray, and robbed of hermoney. The second robbery occurred on December 21, 2001. Likethe first victim, this victim had also been gambling in the "highstakes area" of Harrah's. Before leaving the casino, he placedhis winnings in the pocket of his jacket. Later that evening,the victim was robbed at his residence. The perpetratorsapproached him and asked him for his money and his wallet. Thevictim gave the robber his wallet, but the robbers demanded themoney from the pocket of his jacket.

On February 11, 2002, another robbery occurred. The victimhad been gambling in the "high stakes area" of Harrah's and wasattacked in the driveway of his home. On March 1, 2002, a fourthvictim was robbed in the garage area of his residence in DownersGrove.

Two weeks later, another Harrah's patron, Luisa Tsui, wasrobbed at her home after she had been gambling in the "highstakes area." A Harrah's videotape of Tsui was reviewed toidentify any possible suspects. The tape showed a black femalefollowing Tsui throughout the casino. At one point, the suspect,Cheronder Blanchard, followed the victim into the bathroom. After reviewing the tape, several agencies initiated stationaryand mobile surveillance within the casino to monitor Blanchardand any possible victims.

On the evenings of March 18 and 19, 2001, Blanchard returnedto the casino. The casino monitors indicated that Blanchardpositioned herself so that she could play at different tables orslot machines while she watched the entrance or exit of the "highstakes area." Blanchard followed the potential victims out ofthe "high stakes area." She then went to the parking lot and gotinto a black Nissan with tinted windows. On both evenings, shewaited for the victims to leave the parking garage and followedthem for awhile. She eventually lost sight of their vehicles. Shaw testified that Blanchard appeared to have a passenger withher in the front passenger seat of the car.

On March 22, Blanchard again returned to Harrah's and againwatched as her victim, Dillon Bates, gambled in the "high stakesarea." Shaw testified that after Bates left the casino, he tookan unusual route to his apartment in Bolingbrook. Blanchardfollowed Bates to his apartment. As she drove into the complexparking lot, her vehicle was blocked by police squad cars. Blanchard and the defendants, along with another codefendant,were removed from the car at gunpoint and handcuffed. Blanchard's car was searched after the defendants were arrested. A jack handle and a can of pepper spray were recovered from thepassenger compartment.

On cross-examination, Shaw admitted that he did not knowthere were passengers in the backseat of the car when the vehiclewas stopped. He also stated that there were no warrants toarrest any of the people in the vehicle.

On October 4, 2002, the trial court granted the motion toquash the arrest as to the defendants. However, the court deniedthe motion as to Blanchard. On October 21, 2002, the State fileda motion seeking a statement of facts supporting the ruling. OnOctober 29, 2002, the State filed the first of two motions toreconsider. Pursuant to the State's motions, at a November 22,2002, hearing the judge stated that the officers had not observedthe defendants do anything. They were simply passengers, and noitems had been recovered from their persons. The judge notedthat the jack handle and the pepper spray were recovered frominside the vehicle after the defendants were placed under arrest. The court found that the defendants were arrested withoutprobable cause. The judge found, however, that probable causeexisted to arrest Blanchard since she had been seen on camerafollowing Bates and other intended victims out of the casino. The trial judge also denied the State's motion to reconsider.

The State filed a second motion to reconsider. It arguedthat the pepper spray and jack handle should be admitted at thedefendants' trials under the doctrine of inevitable discoverysince the evidence would have been legally seized as a searchincident to Blanchard's arrest. The trial judge agreed that theevidence was lawfully seized as to Blanchard but found noprobable cause to arrest the defendants. The judge stated, "Itis the arrest that is the problem and not necessarily thesearch." The motion was denied.

On appeal, the State argues that the trial court erred insuppressing the evidence as "fruit of the poisonous tree" becausethe police had probable cause to arrest the defendants. Thedefendants disagree, and also contend that this court lacksjurisdiction to hear the State's appeal. We first address thedefendants' jurisdiction argument.

A. Jurisdiction

The defendants argue that the appeal was not timely filedand, for that reason, we lack jurisdiction.

A motion for reconsideration of a suppression order is anappropriate means for directing the attention of a trial judge toa claim of error and may be filed within 30 days of the entry ofthe order being challenged. People v. Van Matre, 164 Ill. App.3d. 201, 517 N.E.2d 768 (1988). When such a motion forreconsideration has been seasonably filed, the time for appealdoes not commence until that motion has been denied. Van Matre,164 Ill. App. 3d. 201, 517 N.E.2d 768. The State then has 30days to appeal that decision, as specified by Supreme Court Rule606(b) (188 Ill. 2d R. 606(b)).

In this case, the State first moved for reconsideration andfor a statement of facts supporting the October 4, 2002,suppression order within 30 days of its entry. Pursuant to theState's motions, the court stated its findings of fact forgranting the motion and reaffirmed its decision at a November 22,2002, hearing. It was on this date that the clock began to run on any State appeal. See Van Matre, 164 Ill. App. 3d. 201, 517N.E.2d 768. The State failed to file a timely notice of appealprior to the December 22, 2002, deadline prescribed by Rule606(b).⁽¹⁾

That failure did not end the matter, however, as the Statecould still request leave to file a belated appeal. Under theterms of Supreme Court Rule 606(c) (188 Ill. 2d R. 606(c)), anyparty, upon proper showing, may apply by motion in the appellatecourt for leave to file a late notice of appeal. If the motionis made within 30 days of the expiration of the 30-day time limitof 606(b), it need be supported only by a showing of reasonableexcuse for failure to file a timely notice of appeal. If themotion is filed after 30 days but within six months of theexpiration of the time limit of 606(b), the motion must besupported by an affidavit showing that there is merit to theappeal and the failure to file was not due to the appellant'sculpable negligence. 188 Ill. 2d R. 606(c).

The defendants maintain that the State did not timelyexercise this option. They argue that the request should havebeen made within six months after the November 22, 2002, denialof the State's motion to reconsider, or by May 22, 2003. Thedefendants therefore contend that the State's May 30, 2003,request for leave to file a late notice of appeal was untimely. We disagree.

The plain language of Rule 606(c) provides that any suchrequest must be filed within six months of the expiration of theinitial 30-day appeal period, not within six months of the orderappealed from. Thus, in this case the six-month period providedfor in Rule 606(c) did not begin to run until December 22, 2002. As a result, the State had until June 22, 2003, to make such arequest in this court. The State requested such leave on May 30,2003, in a motion supported by an affidavit attesting to the factthat there is merit to the appeal and the failure to file was notdue to the State's culpable negligence. We then exercised ourdiscretion to grant the State's motion on June 23, 2003. TheState's appeal is thus properly before this court, and we turn tothe merits of this appeal.

B. Probable Cause

1. Standard of Review

The ruling of a trial court on a motion to quash an arrestand suppress the evidence frequently presents mixed questions offact and law. A trial court's factual findings concerning themotion will be reversed only if they are manifestly erroneous. People v. Welling, 324 Ill. App. 3d 594, 755 N.E.2d 1049 (2001). However, the trial court's ultimate legal ruling on a motion toquash and suppress is reviewed de novo. Welling, 324 Ill. App.3d 594, 755 N.E.2d 1049.

2. Discussion

A warrantless arrest will be deemed lawful only whenprobable cause to arrest has been proven. People v. Robinson,167 Ill. 2d 397, 657 N.E.2d 1020 (1995). Probable cause existswhen the facts known to the officer at the time of the arrest aresufficient to lead a reasonably cautious person to believe thatthe person arrested has committed a crime. In re D.G., 144 Ill.2d 404, 581 N.E.2d 648 (1991). The existence of probable cause to arrest depends upon the totality of the circumstances at thetime of the arrest. People v. Sims, 192 Ill. 2d 592, 736 N.E.2d1048 (2000).

The trial court found that there was no probable cause toarrest the three male defendants. We disagree. The police knewthat all of the victims had been gambling at Harrah's Casino inthe "high stakes area." The police knew that the victims hadbeen robbed, not by a black female, but by black males. Thepolice were aware that the driver of the car, a female, CheronderBlanchard, had followed several people from the "high stakesarea" of Harrah's on prior occasions. The police knew that Blanchard had followed prior victim Luisa Tsui into a bathroom atthe casino and then later out of the casino, before Ms. Tsui wasultimately robbed by black males. The police knew that thedefendants in this case sat in Blanchard's vehicle, in a parkinglot across from the casino, while Blanchard entered the casinoalone on March 22, 2002. Once inside the casino, Blanchard actedin the same manner as she had on prior occasions, that is, bywaiting for an individual to leave the "high stakes area" of thecasino and follow him or her.

On the night in question, Blanchard followed Dillon Bates. The police knew that Blanchard followed Bates out of the casinoand then Blanchard's vehicle followed Bates to Bolingbrook,despite the fact that the Bates vehicle took a rather circuitousroute from Harrah's to Bolingbrook. The police knew thatBlanchard's vehicle followed Dillon Bates' car into the parkinglot of his residence in Bolingbrook. In light of all of thisevidence, especially in light of the fact that the priorrobberies had been committed by males, the police had reason tobelieve that the male occupants of the Blanchard vehicle wereabout to rob Dillon Bates and that the male occupants were morethan "simply passengers."

On petition for rehearing, defendants argue that ourreasoning is flawed because police did not know the identities ofthe passengers of the Blanchard vehicle until police stopped it. This argument misses the mark. Because the car had been undersurveillance, police knew that whoever was in the car had been init while Blanchard was in the casino. For purposes of thisprobable cause determination, the fact that the police did notknow the identities or even number of occupants in the vehicle isirrelevant. The trial judge found it significant that the pepperspray and jack handle were found inside the vehicle and not takenoff the person of any of the defendants. Since the defendantswere ordered out of the vehicle at gun-point, it hardly seemssurprising that none of them exited with a jack handle or can ofpepper spray in his hands.

Determination of the existence of probable cause is acommonsense determination, not a technical legal determination. The probabilities at issue in a probable cause determination arethe factual and practical considerations of everyday life onwhich reasonable men, not legal technicians, act. People v.Hebel, 174 Ill. App. 3d 1, 527 N.E.2d 1367 (1988). Determinations of probable cause are naturally based onprobabilities, and a finding of probable cause does not requireevidence sufficient to support a conviction, nor even evidencedemonstrating that it is more likely than not that the suspectcommitted a crime. United States v. Funches, 327 F.3d 582 (7thCir. 2003).

Based on all of the evidence available to the police, theyhad probable cause to believe that the occupants of the Blanchardvehicle were about to rob Dillon Bates. Clearly, there wasprobable cause to arrest the defendants. By following Bates fromthe casino to his home, they had taken a substantial step towardcompletion of the intended robbery. Police did not need to waituntil the victim was robbed and possibly injured or killed (ajack handle can be a deadly weapon) before acting. The trialcourt therefore erred when it quashed the arrest of thedefendants and granted the motion to suppress evidence againstthem.

Even had there been no probable cause to arrest defendantsat the scene, the court erred when it suppressed the evidence. The exclusionary rule prevents the government from using evidenceobtained in violation of a constitutional right. See e.g., Mappv. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961). The evidence was not seized as a result of the defendants'arrest. The court had already ruled that the evidence waslegally seized during the search of Blanchard's vehicle pursuantto her lawful arrest. Therefore, it was not the fruit of anunlawful search. It was simply a non-sequitur to then turnaround and suppress the evidence as to these defendants.

For the foregoing reasons, the order of the circuit court ofWill County is reversed and this cause remanded for furtherproceedings consistent with this order.

Reversed and remanded.

LYTTON, J., specially concurs.

McDADE, J., dissents.

I concur with that part of the majority's order that finds thepolice had probable cause to arrest the defendants.

A person commits attempted armed robbery when, "with intent tocommit [armed robbery], he does any act which constitutes asubstantial step toward the commission of that offense." 720 ILCS5/8-4(a) (West 2002). Armed robbery is the taking of property fromanother person by the use of force or threat of force while armedwith a dangerous weapon. 720 ILCS 5/18-1(a), 18-2(a)(1) (West2002). Based on the facts recited in the majority opinion (seeslip op at 6-7), it was reasonable for the police officers toconclude that defendants' next action would be to exit the car androb Mr. Bates. Thus, the officers had probable cause to believethat defendants intended to rob Mr. Bates and had taken asubstantial step toward robbing Mr. Bates, committing the offenseof attempted armed robbery.

JUSTICE McDADE, dissenting

I believe the decision of the Will County Circuit Court wascorrect for the reasons stated by the court and I, therefore,dissent from the contrary decision of the majority.

Following a hearing on the pertinent facts and law, thetrial court quashed the arrest of the three named defendants andsuppressed the use of the jack handle and pepper spray as tothem. In so ruling, the court explicitly found that the policelacked probable cause to arrest them and that the two items of"evidence" were not actually in the possession of thesedefendants.

The investigation team had monitored Cheronder Blanchardwatching the "high stakes area" of Harrah's Casino on March 18and 19, 2001, after having observed her apparently surveillingone of the earlier robbery victims in the casino on or aboutMarch 15. (Although that person was later robbed, the policecould only conjecture that Blanchard was involved in any way.) After Blanchard left the casino on the nights of March 18 and 19,she was followed by police who speculated she had been tracking avictim each night but had lost both of them. The fact is thatneither "victim" Blanchard "followed" on those two nights wasrobbed by her or by anyone else. The officers who were trailingher thought Blanchard had a passenger in her front seat on thosedates. Their testimony provides no indication that they knew orsuspected the presence of additional passengers in the car oneither of those nights.

On March 22, Blanchard was again seen observing persons inthe casino. She then "followed" a man who had been gambling inthe high stakes area of the casino. When she pulled into theputative victim's apartment complex, her vehicle was blocked bythe police and she and her four passengers were removed from thecar at gunpoint and handcuffed. A search of the vehicle aftertheir arrest yielded a jack handle and a can of pepper spray fromthe passenger compartment.

On these facts, the majority finds probable cause to arrestthese defendants for attempted armed robbery despite the fact -as noted by the trial court - that they were not armed. Nor werethey shown to have done anything but sit in the back seat ofBlanchard's car while she allegedly cased the casino and drove tothe possible scene of a possible robbery.

In my opinion, the police did not have probable cause toarrest Burks, Ratliff or Fletcher. There were also no warrantsto either arrest or search any occupants of the car, presumablybecause the police knew that their speculation and conjecture didnot constitute the requisite probable cause. The police hadpreviously followed Ms. Blanchard and had a hunch what she mighthave been up to. They knew they were going to follow her againand that, if they were fortunate, they would catch her or another"in the act." If they had waited for one or more of the passengers to get out of the car and move away from it with aweapon (or even for the car to stop), they might have actuallyhad probable cause to arrest and to search. As it is, they had,at the absolute best, a reasonable suspicion permitting a pat-down, which on our facts would have revealed nothing to createprobable cause.

Nor was probable cause created by the subsequent discoveryof the pepper spray and jack handle. It is not so improbablethat either of these items might be found in a car that one canassume that an innocent or unsuspecting person seeing them (ifindeed the defendants had seen them at all) would leap to theconclusion that they would be used in a robbery and would refuseto ride in the vehicle. Many people, and particularly manywomen, carry pepper spray in their cars and on their persons fordefense. And while it might not be common to find the jackhandle in the front seat area of a car, it is an automotiveimplement and placement inside the car for a proper purpose isnot impossible (or even inherently improbable).

Assuming for purposes of argument that the officers hadprobable cause to arrest Blanchard and that the items wereproperly seized pursuant to her proper arrest, that fact doesnothing to prove either that they were used in the earlierrobberies at all or, if they had been, that any of these threedefendants knew of or participated in that use or that they weregoing to be used by one or more of the defendants in a robbery onMarch 22. These defendants could have done nothing moreegregious than be in the wrong place at the wrong time withsuggestive items in their general vicinity.

I do not believe the State has shown that there was probablecause to arrest these defendants, nor do I believe the jackhandle and pepper spray were shown to be tied to them. I wouldaffirm the decision of the trial judge quashing the arrests andsuppressing the evidence as to them.

1. The defendants are correct in noting that the State'ssecond motion to reconsider was not authorized and did nothing totoll the time for the State to appeal the trial court's decision. People v. Clark, 314 Ill. App. 3d 181, 732 N.E.2d 680 (2000). Therefore, we do not consider it in our analysis here.