text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN STATHAM, Defendant-Appellant.
    First District (3rd Division)
    No. 1-89-2133
    Opinion filed January 23, 1991.

      Walsh & Neville, Ltd., of Chicago (Ronald F. Neville and Anne B. Kokoris, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Jean T. McGuire, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Defendant, John Statham, was found guilty after a bench trial of possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2).) Defendant was sentenced to six years and six months’ imprisonment and was fined $1,000. Defendant argues on appeal that: (1) the trial court erred in denying his motion to quash the arrest and to suppress the evidence because the trial court erroneously ruled that defendant had the burden to prove coercion and also ruled that the initial stop and the detention of defendant’s suitcase were not seizures; and (2) the trial court erred in finding that the State proved defendant’s knowing possession of a controlled substance beyond a reasonable doubt.

Defendant moved to quash his arrest and the search warrant and to suppress the evidence obtained as a result of the search of his suitcase.

Drug Enforcement Agency (DEA) Special Agent Larry Johnson testified at the hearing on the motion to suppress that on September 18, 1985, he and DEA Agent Bob Fulkerson were assigned to O’Hare airport to watch arriving passengers for the purpose of narcotics interdiction. He did not receive any specific information prior to monitoring defendant’s arriving flight from Denver. Denver was a “transshipment city,” which he defined as a large city through which a large quantity of narcotics is moved to smaller areas. He first observed defendant probably three or four minutes after defendant left the plane and approximately one-half hour before he approached defendant in the baggage claim area. His attention was first attracted to defendant as he walked by because of the manner in which he looked for one or two seconds at Johnson and Fulkerson, who were sitting in the concourse.

Johnson and Fulkerson followed defendant to the baggage claim area, and defendant twice turned around and looked in their direction. Defendant met a man at the end of the concourse, shook his hands, and conversed with him for 5 or 10 seconds. Both men rode the escalator down, and as they stepped off the escalator, the other man motioned towards the baggage claim area. He left, and defendant walked to the baggage claim area, where he picked up a maroon Samsonite brand suitcase.

At approximately 1 p.m., Johnson and Fulkerson walked along with defendant as he walked out of the baggage claim area, and when they reached the vestibule area, they identified themselves as Federal officers. They were dressed casually, and they did not display weapons. They showed defendant their credentials and asked if they could speak with him. They stood in a vestibule area about 12 by 12 feet between a double set of automatic doors that opened when one stepped on the mats. They did not stand between defendant and the exit doors, and defendant stood eight feet from the exit door.

Defendant stopped walking through the exit doors after the officers approached him. The officers’ voices were not raised above conversational tones. Fulkerson asked defendant if he had identification, and defendant produced a plastic card in the name of John C. Statham. Fulkerson asked defendant if he had a driver’s license, and defendant said he left it at home. Fulkerson asked him if he had an airline ticket, and defendant said that he had left it on the “airport.” Fulkerson asked defendant what he was doing at the airport, and defendant said he had flown in from Phoenix, Arizona.

Fulkerson looked at the identification sticker on defendant’s suitcase and noticed that it stated Jeff Driscol and that it had an address in Phoenix. Fulkerson asked defendant why the name on the sticker was different, and after a moment of hesitation, defendant said he had the wrong suitcase. Fulkerson then suggested that they go back to the baggage area and try to find defendant’s baggage.

As defendant was picking up the suitcase to return to the baggage claim area, Fulkerson observed an airline ticket in the outside pocket of defendant’s carry-on bag. Fulkerson asked defendant if he could see the ticket, and defendant handed the ticket to him. The name on the ticket was Jesse Drisco. Johnson observed that the ticket was for one-way travel from Phoenix to Denver to Chicago and was purchased -with $155 cash on the same day of travel. The ticket was returned to defendant, and defendant was told he was free to leave at that point. Fulkerson would not have followed defendant. Defendant was told on two different occasions that he was free to leave, but if defendant had wanted to leave, the officers would have had to decide whether to detain the suitcase.

Fulkerson left the vestibule to see if he could speak with the man who had met with defendant. He had a suspicion that the bag contained illegal narcotics because of the untruthfulness of defendant’s answers and because defendant had arrived from the southwest.

Johnson testified that he remained with defendant when Fulkerson left. Defendant was still free to leave but he did not ask to leave. Johnson asked defendant if he had some additional identification, and defendant removed from his wallet an Elinois driver’s license with an Illinois address, a social security card, and a western telephone company credit card. Defendant now stated that someone in Phoenix had given him the suitcase to bring to Chicago. Johnson asked defendant about the bulge in his pants pocket, and defendant said it was his keys. Upon his request, defendant showed him the keys and later removed a Samsonite suitcase key. The key and the suitcase appeared new, and Johnson believed that the key might belong to the suitcase.

Fulkerson explained to defendant that he did not have to allow them to search his luggage. Defendant allowed them to search his shoulder bag, but he did not let them search his suitcase. Fulkerson searched the shoulder bag but did not find any contraband. Fulkerson told defendant that they had reason to believe that there were narcotics in the suitcase and that it was being detained until a drug-detecting dog could sniff it. Ten minutes elapsed from the time they first spoke to defendant and until the time they detained the suitcase. Defendant then left the airport.

A narcotics dog sniffed suitcases in a lineup and barked at defendant’s suitcase. Johnson obtained a warrant for the search of the suitcase, which was opened with defendant’s key. Inside the suitcase was a box which contained a plastic bag of cocaine that had been placed inside other plastic bags along with coffee grounds. The suitcase contained no clothing.

Fulkerson’s testimony was similar to Johnson’s testimony. In addition, he testified to the following. Fulkerson’s curiosity was aroused by the suitcase, by defendant’s glance over his shoulder, and by defendant’s arrival from Denver, a transshipment point. He had arrested numerous people who carried new medium hard shell Samsonite suitcases that contained drugs. Defendant was told that the officers were conducting a drug investigation but that he was not under arrest. Defendant did not appear nervous and did not express a desire to stop the conversation and leave. The vestibule area where they stopped contained an elevator to the upper level and an automatic door that led into the terminal. Fulkerson stood 2xlz feet to 4 feet away from defendant. Defendant’s movement was not blocked.

Fulkerson observed a sticker on the suitcase that had the name Jeff Driscol and a Phoenix address. He asked defendant if he was traveling under his name, and defendant stated that he often used other names when traveling. He asked defendant from where he was traveling, and defendant stated Phoenix. Defendant denied talking to someone on the escalator. The suitcase was detained because of the previously mentioned factors and because defendant had lied.

Defendant testified that when he arrived on September 19, 1985, he did not meet anyone at the airport except Fulkerson and Johnson, who stopped him and said they would like to ask him a couple of questions. Fulkerson stood between defendant and the exit door that was in front of defendant. Johnson stood to defendant’s left and faced defendant. The doors on the second mat were wide open. Fulkerson and Johnson were taller and larger than defendant, and one of them had handcuffs on his belt. Neither one of the officers touched defendant. Six or seven people walked past defendant during his conversation with Fulkerson. Defendant asked Fulkerson what he wanted to know and why was he being stopped. Fulkerson replied that they were doing a Federal drug investigation and that he would like to ask defendant a few questions. He pointed down to his belt, which had a United States stamp on it, and defendant believed that Fulkerson was a law enforcement officer.

Fulkerson asked defendant what he was doing in Chicago, and defendant said that he was going to visit his son. Fulkerson asked defendant if he had a driver’s license, and defendant said no. Defendant pulled out his wallet and found an Illinois State identification card which he handed over to Fulkerson. He also had a social security card and a Mountain Bell telephone card in his wallet, but he did not produce a driver’s license. Fulkerson asked defendant if he had an airline ticket, and defendant said that he thought he had left it on the airplane. Fulkerson asked defendant why the name on the suitcase did not match the name on the identification card, and defendant said that he took the suitcase to Chicago for a friend. He did not recall Fulkerson asking him to go back to the baggage claim area to get the right bag.

Defendant testified that Fulkerson again asked defendant to look for his airline ticket, and defendant again stated that he did not have it and that he thought he had left it on the airplane. Johnson reached into the pouch of defendant’s shoulder bag without permission and found the ticket, which could not be seen from outside the pouch. He asked defendant why the ticket had a different name on it, and defendant said that someone had given it to him. The suitcase sticker had the name of Jeff Driscoll, and the airline ticket was under the name of Jesse Driscoll. Defendant did not purchase the ticket, but it was given to him by the friend who asked him to take the suitcase.

Fulkerson tried to open the suitcase and asked defendant to pull the car keys out of his pocket. After defendant did so, Fulkerson took a luggage key that opened defendant’s own Samsonite luggage. At one point Fulkerson left, and defendant then asked Johnson if he was free to leave. Johnson said that he had to wait until the other agent returned, which was about three to four minutes later. When Fulkerson returned, defendant was informed that they were taking the suitcase and that if any narcotics were found, “he” was “coming after” defendant. Defendant did not feel that he was free to leave while talking with the two men. Defendant had been stopped for between 20 to 30 minutes.

The trial court denied the motion to suppress. The trial court ruled that: (1) whether or not the agents blocked the path or stopped defendant from leaving, the court took the officers’ testimony “above” defendant’s testimony; (2) defendant had “the burden of proof in this case;” (3) the officers’ testimony was at least as credible as defendant’s testimony; (4) the officers did not block his path; (5) the encounter was not a seizure; (6) there were reasonable and articulable facts allowing the officers to take and detain the suitcase; and (7) the initial encounter was consensual although it was not based on a reasonable suspicion.

It was stipulated to that: (1) the chain of custody of the clear plastic bag containing white powder found in defendant’s suitcase was proper; (2) if called, Gerald Skowronski would testify that he was a DEA chemist who analyzed the white powder and he was qualified to give an expert opinion that the powder was 476.43 grams of cocaine; (3) defendant’s fingerprints were not on the bags of cocaine; (4) defendant gave Johnson a key that was used to open the suitcase; and (5) if the Secretary of State of Illinois were called, he would testify that an Illinois driver’s license number existed for defendant with the number S33546361026.

Johnson testified at trial to substantially the same facts he testified to at the hearing on the motion to suppress. In addition, Johnson testified that defendant did not state the friend’s name who had given him the suitcase or where he was going to take the suitcase, and the number of defendant’s Illinois driver’s license he recorded was S33546361026.

Defendant testified on his own behalf at the trial that in September 1985 he came from Arizona, where he worked, to Chicago to attend the wedding of Brad Ghezzi in South Holland, Illinois. He stayed with his brother, who asked him if he could stay for the anniversary party, but defendant said he could not take that much time off from work. His brother also asked if defendant could come back, but defendant said he doubted if he could afford to come back.

Ghezzi, who was also from Arizona, called defendant on September 18 and asked defendant if he was still interested in going back to Chicago for the anniversary. He told defendant that his friend was planning to take a suitcase back to his brother in Chicago but could not make it and that defendant could use the ticket which had been purchased in the name of Jeff Drisko. Defendant accepted the offer. The suitcase could not be checked at the airport without an address identification. Defendant wrote Jeff Drisko’s name on the suitcase identification sticker because that was the name on the ticket. He did not look at the ticket and did not know that the name on the ticket was “Jess [sic] Drisko.” He did not know Jeff Drisko.

Defendant testified that Ghezzi had told defendant to look out for either his brother or for a Rolls Royce which would be parked at the airport to pick him up. When he got to the baggage claim area, he saw Ghezzi’s brother whom he had met at the wedding. He motioned to defendant that he was going to get the automobile. When the two officers approached defendant, Ghezzi’s brother drove the automobile away. He did not recall if he told the officers that he was traveling under his right name, but he did tell them that he was bringing the suitcase to Chicago for a friend. He did not tell the officers that he had just seen the person to whom he was to give the suitcase. The Illinois identification card that he showed the officers contained his driver’s license and social security numbers. He did not have an Illinois driver’s license on September 14, 1985. He had owned Samsonite luggage for three or four years, and his Samsonite key did not fit the suitcase he carried. The officers offered him a receipt for the suitcase but he did not take it because the suitcase was not his.

Defendant left Chicago the next day because he was angry and wanted to contact Ghezzi to find out why he had been stopped. Defendant had tried to telephone him but could not reach him. Ghezzi told him not to worry. He did not know that Ghezzi was involved in narcotics trafficking. He found out later that the Ghezzi brothers were convicted of narcotics offenses and were in the penitentiary.

It was stipulated to that if Brad Cohen were called, he would testify that he was a technician who serviced Samsonite luggage and that one key would open 98% of Samsonite luggage except extremely old or brand new models.

The trial court found that the evidence of defendant’s guilt was overwhelming. Defendant filed a motion for new trial in which he argued, inter alia, that the State did not prove him guilty beyond a reasonable doubt and the trial court erred in denying his motion to quash the arrest and to suppress the evidence. The motion for new trial was denied.

Defendant first argues that the trial court erred in denying the motion to suppress because the trial court allegedly indicated in its oral ruling that it placed the burden on defendant to prove the existence of coercion and because the State did not meet its burden of proof that he voluntarily stopped to speak with the officers.

An unlawful seizure under the fourth amendment occurs only when an officer restrains one’s liberty by physical force or by show of authority. (People v. Jones (1989), 190 Ill. App. 3d 416, 421, 545 N.E.2d 1332.) An officer can approach a person who has deboarded an airplane and ask him questions if that person’s freedom is not restrained. (People v. Brett (1984), 122 Ill. App. 3d 191, 195, 460 N.E.2d 876.) The test for determining whether a person was seized is whether a reasonable person would have believed that he was free to leave. (Jones, 190 Ill. App. 3d at 421.) If the stop was not consensual because there was either force or threatened force (People v. Jordan (1976), 43 Ill. App. 3d 660, 662, 357 N.E.2d 159), then the stop must have been warranted by specific and articulable facts (Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880). At a suppression hearing, the burden to prove that the seizure was unlawful is placed on defendant by statute:

“The motion shall be in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were unlawful shall be on the defendant.” (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 12(b).)

The trial court’s finding on a motion to suppress evidence will not be disturbed unless it was manifestly erroneous. People v. Long (1983), 99 Ill. 2d 219, 231, 457 N.E.2d 1252.

Defendant argues that the State had the burden of proving that he voluntarily stopped to speak with the officers.

In United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, defendant arrived at Detroit airport on a flight from Los Angeles, and two DEA agents approached defendant as she was walking through the concourse, identified themselves as Federal agents, and asked to see her identification and airline ticket. After defendant produced her driver’s license, which was in her name, and her ticket, which was issued in another name, the agents questioned her briefly. After returning the ticket and driver’s license to her, one of the agents asked defendant if she would accompany them to the DEA airport office for further questions and defendant did so. In the office defendant consented to a search of her person and property. Heroin was seized during the search. The decision in the case was that the evidence was sufficient to support findings that defendant was not seized, that she voluntarily accompanied agents from the concourse to the DEA office, and that defendant voluntarily consented to a search of her person. (Mendenhall, 446 U.S. at 555, 558-60, 64 L. Ed. 2d at 510, 512-13, 100 S. Ct. at 1877, 1879-80.) The court stated:

“We adhere to the view that a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but ‘to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.’ ” United States v. Mendenhall, 446 U.S. at 553-54, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.

Defendant relies upon the statement in Mendenhall (446 U.S. at 557, 64 L. Ed. 2d at 511, 100 S. Ct. at 1879), that the State had the burden of proving the voluntariness of defendant’s consent to accompany agents to their office for further questioning (after an initial encounter which did not constitute a seizure). But Mendenhall did not decide the issue whether the State had the burden of proving that defendant voluntarily stopped when he was approached by the agents at the airport. People v. Jones (1989), 190 Ill. App. 3d 416, 422, 545 N.E.2d 1332, which was also relied upon by defendant, nevertheless cited Mendenhall as authority for the statement that the State has the burden of proving whether an encounter was consensual. Two of the other cases cited by defendant are distinguishable because they held only that the State has the burden of proving that statements were made voluntarily. People v. Sickley (1983), 114 Ill. App. 3d 167, 172, 448 N.E.2d 612 (the State has the burden of showing that a statement was made without compulsion); People v. Genus (1979), 74 Ill. App. 3d 1002, 1007, 393 N.E.2d 1162 (defendant has the burden of proving that a statement was not given incident to a lawful arrest while the State has the burden of proving the statement’s voluntariness if defendant seeks to suppress it as involuntarily given).

In contrast to Jones, at least one authority has stated that the United States Supreme Court has not determined who has the burden of proof in motions to suppress in situations other than consent to searches. (4 W. La Fave, Search & Seizure, §11.2(b), at 232 (2d ed. 1987) (“the Supreme Court has held, albeit without any extended discussion of the issue, that the burden of proof must be on the prosecution when it is claimed that the evidence was obtained in a search by consent ***. However, the Court has not spoken in such direct terms about allocation of the burden in other situations).”) (Emphasis in original.) In Illinois, by statute the burden is placed on defendant to prove that the seizure was unlawful (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 12(b)), but the burden of going forward with evidence of legality is on the State after defendant proves that a search was warrantless (see, e.g., People v. Burton (1985), 131 Ill. App. 3d 153, 156, 475 N.E.2d 583 (the burden of going forward with evidence to demonstrate legal justification shifts to the State once defendant proves that a warrantless search has occurred and that defendant was doing nothing unusual at the time of the search)).

It is unclear whether the trial court was referring in its oral ruling to the burden of proving that an initial encounter was consensual or to the ultimate burden to prove that a seizure was unlawful. But even if the State did have the former burden and the trial court erroneously imposed that burden on defendant, the State met its burden. The officers testified that they asked whether they could speak with defendant and that defendant did not show a desire to stop the conversation and to leave. The trial court specifically found the officers’ testimony to be more credible than defendant’s testimony.

Defendant next argues that his was the only credible account of his initial encounter with the officers. Defendant argues that: (1) the officers’ versions were “patently coordinated and developed to comport with their understanding” of the law; (2) the officers’ testimony that defendant was not nervous in their presence was necessary to show that defendant was not coerced; (3) the testimony that implied that he was nervous as he walked in the concourse was designed to depict him as someone who knew he was committing a crime; (4) it contradicts human experience that a nervous individual would appear calm when confronted by police; and (5) incredible was the officers’ testimony that: (a) the airline ticket was sticking out of the bag when defendant said he left it on the airplane; (b) the officers repeatedly told defendant that he was not under arrest and was free to go; and (c) only 10 minutes elapsed between the initial encounter and the last conversation.

There is no indication that the officers invented testimony in order to defeat defendant’s motion to suppress. It is not inherently incredible that a person whose checked baggage contained illegal drugs could appear calm when confronted by officers or that an airline ticket sticking out of a carry-on bag could be detected by a Federal narcotics officer. It is also not incredible that Federal narcotics officers should tell a person being questioned that he was not under arrest and could leave because such a statement would be evidence that defendant was not seized. It is not incredible that the events could have occurred within 10 minutes, and furthermore, an error in calculating the elapsed time would not necessarily make questionable the other testimony of the officers concerning the consensuality of the encounter with defendant.

Defendant also argues that his testimony established that he had been seized because: (1) he was physically restrained and confined in a small area; (2) he was intimidated by Fulkerson’s voice of authority; (3) he was not advised that he was free to leave; (4) he felt compelled to remain; and (5) he was stopped for 20 to 30 minutes.

The trial court could properly have found the officers’ testimony more credible: (1) they told defendant that he was not under arrest and that he could leave; (2) weapons were not displayed; (3) they asked his consent to speak with him; (4) they did not stand between defendant and the exit doors; and (5) defendant’s movement was not blocked. Defendant cites People v. Kiser (1983), 113 Ill. App. 3d 501, 447 N.E.2d 858, in which an investigatory stop was held to be a seizure. But it is distinguishable because defendant was physically grabbed prior to being asked to speak to a Federal agent and because the exit doors were blocked by two officers.

The trial court did not err in relying on the following cases in determining that the encounter was consensual. In United States v. Notorianni (7th Cir. 1984), 729 F.2d 520, defendant was not seized where a DEA officer obtained defendant’s consent to ask him some questions without touching defendant or displaying his weapon. In United States v. Espinosa-Alvarez (7th Cir. 1988), 839 F.2d 1201, it was held that there was no seizure of a defendant who was approached by two detectives who identified themselves, where defendant was willing to speak with them, and where the detectives did not display weapons, raise their voices, threaten defendant, or interfere with defendant’s freedom to leave. In People v. Forrest (1988), 172 Ill. App. 3d 385, 526 N.E.2d 616, no seizure was found of a defendant who consented to speak with a police officer after leaving the airport terminal and who was told that he was free to leave.

The trial court could properly have found credible the officers’ testimony that defendant consented to speak with them and that defendant was free to leave. The trial court therefore did not err in relying on the above cases and in finding that the initial encounter was not a seizure. See People v. Menendez (1990), 199 Ill. App. 3d 612, 618-19, 557 N.E.2d 462 (defendant agreed to answer questions, defendant’s movement was not restricted through physical contact or by words, defendant was not threatened, officers did not display weapons, defendant was informed that he was free to leave, and defendant agreed to cooperate); People v. Price (1990), 195 Ill. App. 3d 701, 707, 552 N.E.2d 200 (defendant agreed to speak to officers who did not block his movement and who asked if they could speak with defendant).

Defendant next argues that the information learned by the officers did not provide them with a reasonable and articulable suspicion that his suitcase contained narcotics so that its detention was unlawful.

Luggage may be briefly detained to conduct a canine sniffing test if the officer’s observations led him reasonably to believe that the luggage contained narcotics. (United States v. Place (1983), 462 U.S. 696, 706, 77 L. Ed. 2d 110, 120, 103 S. Ct. 2637, 2644.) The exposure of airline passenger luggage to such a canine sniffing test is not a search within the meaning of the fourth amendment. Place, 462 U.S. at 707, 77 L. Ed. 2d at 121, 103 S. Ct. at 2645.

Defendant relies upon People v. Nelson (1989), 188 Ill. App. 3d 619, 544 N.E.2d 1111, in which it was held that there was a lack of reasonable and articulable suspicion that defendant’s luggage contained narcotics where defendant: (1) purchased a one-way train ticket for Florida in his own name; (2) answered truthfully that he boarded the train in Washington, D.C., where he changed trains; (3) looked around the Chicago station, where he was required to change trains to Portland, Oregon; (4) changed reservations several times and did not leave a call back number; and (5) occupied a sleeping compartment. Nelson and the other cases decided after Place demonstrate that each factor must be examined in the particular context and that a particular behavior such as looking over one’s shoulder upon arrival will not always be indicative of narcotics possession. See United States v. Edwards (7th Cir. 1990), 898 F.2d 1273; United States v. Skidmore (7th Cir. 1990), 894 F.2d 925; United States v. White (8th Cir. 1989), 890 F.2d 1413; United States v. Nurse (D.C. 1989), 723 F. Supp. 830; People v. Menendez (1990), 199 Ill. App. 3d 612, 557 N.E.2d 462.

Defendant here argues that his glances over his shoulder could have been to search for a person he was to meet. Defendant argues that Fulkerson’s claim that he had arrested numerous persons who had similar Samsonite suitcases containing drugs was “irrelevant” on the basis that he did not testify as to how many persons he had arrested for transporting drugs in other types of luggage or as to how many people he would guess that carry Samsonite luggage. Defendant argues that Fulkerson did not successfully explain the significance of defendant’s arrival from Denver because a transshipment city was any city with a large airport hub. Defendant argues that anyone could mistakenly believe that his ticket was left on the airplane and that the different versions of the name were attributable to defendant’s unfamiliarity with the name.

Although there could have been innocent reasons for the type of conduct exhibited by defendant, including the possession of a certain type of suitcase, the circumstances as a whole provided the officers with a reasonable suspicion that defendant was transporting contraband so that the detention of the suitcase for a canine sniffing test was justified. Among the factors that were the most significant in providing a reasonable suspicion were defendant’s denial that he spoke to another man, defendant’s conflicting stories about his ownership of the suitcase, his statement that someone gave him the suitcase to bring to Chicago, and the initial lie that defendant had picked up the wrong suitcase. The denial of the motion to suppress was proper.

Defendant next argues that his guilt was not proved beyond a reasonable doubt because the State presented no direct evidence that he had knowledge of the presence of the cocaine in the suitcase while he presented evidence that established a reasonable hypothesis of his lack of knowledge.

The trial court disbelieved defendant’s testimony that he innocently was transporting a suitcase which he did not know contained cocaine. Defendant possessed a new key that fit a new suitcase. Defendant’s testimony was inconsistent with the version told to the officers, according to the officers’ testimony. Knowledge of the presence of cocaine was inferred from defendant’s conflicting versions concerning the ownership of the suitcase, together with all the other circumstances.

The judgment of the trial court is affirmed.

Affirmed.

RIZZI and WHITE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant, v. JAMES SANDERS, Petitioner-Appellee.
    First District (4th Division)
    No. 1-87-3178
    Opinion filed January 24, 1991.

      Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Walter P. Hehner, Assistant State’s Attorneys, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Petitioner, James Sanders, and his codefendants, Clarence Underwood and James Talbert, were convicted of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(a)(1), (a)(2)) following a jury trial in the circuit court of Cook County. The trial judge sentenced Sanders to the penitentiary for a term of 20 years. On direct appeal, this court affirmed the conviction and sentence in a Rule 23 order (107 Ill. 2d R. 23). People v. Underwood (1985), 137 Ill. App. 3d 1156.

Sanders subsequently petitioned for relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq.). The trial court granted the petition. The court found that Sanders did not receive effective assistance of counsel due to defense counsel’s joint representation of both Sanders and his codefendants. Accordingly, the court vacated Sanders’ conviction and sentence and ordered that he receive a new trial.

The State assigns manifest error to the trial court’s order. The State contends: (1) defense counsel was not under an actual conflict of interest manifested at trial, and (2) Sanders received effective assistance of counsel at all stages of the litigation. The State also contends that the use of the murder and voluntary manslaughter instructions at Sanders’ trial does not require Sanders to receive a new trial.

We reverse the order of the trial court.

Background

The record contains the following pertinent facts. Defendants were indicted for murder and armed violence. Prior to trial, the State entered a nolle prosequi on the armed violence count. Defendants were tried to a jury for murder.

The trial began on January 26, 1984. Immediately prior to the opening statements, the trial judge addressed the conflict of interest issue with defense counsel and defendants. The following colloquy occurred:

“THE COURT: [Counsel], I have been told by yourself that you have discussed the issue of potential conflict between these three defendants and representation by one attorney. And you have discussed that with them in the past. And you have some observation on that point?
[Defense Counsel]: Earlier on, when this case was first in the preliminary hearing, your Honor, I talked with the defendants and with the mother, to have more than one lawyer represent these young men. Going over the facts, I myself have never found any inconsistency or any conflict wherein either of the defendants would be entitled to a severance, based on antagonistic defense or conflict of interest.
All three gentlemen have indicated, and continuously indicated to me that they want me to represent them. They are happy with my representation, and they feel that there is no conflict in the testimony, as to each of them.
Is that correct, gentlemen?
THE COURT: Clarence Underwood?
DEFENDANT UNDERWOOD: Yes, sir.
THE COURT: John Talbert?
DEFENDANT TALBERT: Yes sir.
THE COURT: And James Sanders?
DEFENDANT SANDERS: Yes, sir.”

The State’s case is summarized as follows. Eldora Stockley and Robert Hilliard each testified that they were with the victim, William Taylor, on August 26, 1982. They left Stockley’s home to look for Taylor’s bicycle, which defendant Talbert had borrowed earlier that day. Stockley drove them to a tavern at 1637 North Clybourn Avenue in Chicago, Illinois. They saw defendants, with Taylor’s bicycle, outside of the tavern.

Stockley double-parked her station wagon in the street and they exited the automobile. Taylor approached Talbert and demanded the bicycle. Talbert refused. Taylor grabbed the bicycle and placed it in the back of Stockley’s car. Taylor, Stockley, and Hilliard reentered the automobile. As they began to drive away, Talbert reached into the station wagon, removed the bicycle, and threw it on the ground. Stockley further testified that Talbert additionally stepped on and kicked the bicycle.

Taylor again exited the automobile and told Talbert to stop damaging the bicycle. The argument between Taylor and Talbert escalated. Hilliard further testified that Taylor also began to argue with defendant Underwood. At this point, Underwood produced a knife and began to swing it at Taylor. Underwood stabbed Taylor several times under the left arm; Talbert approached Taylor from behind and stabbed Taylor in the back. Sanders then hit Taylor in the face with a gin bottle, and Taylor fell to the ground. As police arrived at the scene, Talbert dropped his knife and fled. Underwood and Sanders repeatedly kicked Taylor and then fled. As they ran, Underwood threw his knife against the tavern building.

Chicago police officers William Cordes and Renaldi Guevara testified essentially that Underwood’s knife bounced off of the tavern wall and landed in the street. Underwood retrieved the knife and, after a brief struggle, was apprehended with it. A second knife was found two feet from Taylor’s body. Talbert was arrested when he subsequently returned to the scene to retrieve the bicycle. Sanders was arrested a few days later.

The deputy medical examiner who performed an autopsy on the victim stated that the cause of death was multiple stab wounds. The victim’s blood contained an alcohol level equivalent to seven or eight drinks. However, the autopsy did not yield any evidence of drug use.

A Chicago police department laboratory microanalyst testified that the knife that Talbert allegedly used to stab Taylor showed no traces of human blood; however, Talbert’s shirt had human bloodstains on it. Underwood’s jacket and the knife identified as his weapon also had bloodstains on them. Blood was also found on the glass bottle retrieved from the murder scene. No suitable fingerprints were found on the knives.

During opening statements, defense counsel stated that all three codefendants would assert self-defense. Venore Stockley, Eldora’s sister, testified that, on the day of the murder, Eldora and defendants drank alcohol, and defendants additionally smoked marijuana. Hilliard and the victim also smoked marijuana and took other drugs.

Robert Smith and defendant Underwood testified essentially that they were standing outside of the tavern talking to the other defendants when Taylor arrived in Eldora’s car. Taylor was under the influence of narcotics and alcohol and was angry at defendants. Talbert placed the bicycle in the automobile. Underwood asked Taylor to leave with the bicycle, but Taylor refused. Taylor pushed Underwood a few times; Underwood attempted to persuade Taylor to leave.

Taylor eventually displayed a knife and began to approach Sanders. Underwood then produced a knife and argued with Taylor. After the two drew near, Taylor rushed Underwood and both fell to the ground. Taylor struck his face on the side of Stockley’s car as he fell; Sanders did not strike Taylor in any way. Taylor was stabbed during the scuffle on the ground. Talbert attempted to break up the fight and did not stab Taylor. Underwood raised himself after Taylor made a sound; he saw the police and ran.

At the close of defendant’s case, defense counsel stated as follows:

“[Defense counsel]: At this time the defense will officially rest. I have talked to Mr. Talbert and Mr. Sanders, and asked them if it was their desire to take the stand. They *** asked my advice, and it was my advice at that time that they not testify, so at this time when the case is called, I will officially rest in front of the jury.”

At closing argument, the State argued that each defendant was accountable for the acts of the others. Therefore, all were equally culpable. Defense counsel argued that none of the defendants were accountable for Underwood’s acts because Underwood acted in self-defense and in defense of Sanders.

The trial judge’s instructions to the jury included instructions on the offenses of murder and voluntary manslaughter (Illinois Pattern Jury Instructions, Criminal, Nos. 7.01, 7.02, 7.05, 7.06 (2d ed. 1981) (hereinafter IPI Criminal 2d)), the doctrine of accountability (IPI Criminal 2d No. 5.03), and the defenses of self-defense and defense of others (IPI Criminal 2d No. 24 — 25.06).

On January 30, 1984, the jury convicted defendants of murder and the trial judge entered judgments on the verdicts. At the sentencing hearing, the trial judge denied defendants’ post-trial motion. At the close of the hearing, the trial judge sentenced Sanders to a prison term of 20 years; Underwood received 28 years and Talbert received 24 years.

Sanders, Underwood, and Talbert filed a joint appeal. They contended the State failed to prove them guilty beyond a reasonable doubt of murder. They claimed also that the trial court erred by admitting irrelevant evidence regarding the victim’s family, and by denying their request to have a State’s witness disclose his drug use. They contended lastly they were denied a fair trial as a result of the trial court’s evidentiary rulings and the prosecutor’s improper remarks during closing argument. This court affirmed the convictions and sentences in a Rule 23 order (107 Ill. 2d R. 23). People v. Underwood (1985), 137 Ill. App. 3d 1156.

On August 11, 1986, Sanders filed, pro se, a post-conviction petition, and the State filed a motion to dismiss. The trial court subsequently appointed counsel for Sanders. With counsel’s assistance, Sanders filed a supplemental post-conviction petition with supporting affidavits. Sanders alleged essentially that: (1) he was denied effective assistance of counsel as a result of the joint representation of him and his codefendants by a single attorney and that he did not knowingly waive this right, and (2) he was denied effective assistance of counsel due to inadequate representation both at trial and on direct appeal.

On September 17, 1987, at the close of a hearing, the trial court— the same judge that presided at Sanders’ trial — granted the petition. The court found that Sanders did not receive effective assistance of counsel due to defense counsel’s joint representation of both Sanders and his codefendants. The court stated:

“THE COURT: All right. We have heard arguments on this. I’m not going to order a hearing because I have a very clear recollection of the facts in this case. Very heated trial between the state and defense counsel. And very clear recollection of the quality of the trial and the facts of the case.
It is my firm belief that Mr. Underwood, Mr. Talbert stand in one legal position and James Sanders in another legal position. In relationship to the arguments of defense counsel, motion to vacate jury verdict of guilty will be allowed. Verdict of guilty signed by the jury will be set aside and vacated.”

The trial court vacated Sanders’ conviction and sentence, and ordered that he receive a new trial.

The trial court subsequently denied the State’s motion to reconsider. The State timely appeals.

Opinion

An action brought under the Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq.) is not an appeal; rather, it is a collateral attack on a judgment of conviction. The purpose of the proceeding is to resolve allegations that constitutional violations occurred at trial, when those allegations were not, or could not have been, adjudicated previously. People v. Jackson (1987), 161 Ill. App. 3d 573, 576-77, 515 N.E.2d 219, 222.

The petitioner in a post-conviction proceeding is not entitled to an evidentiary hearing as of right; rather, the Act permits summary dismissal of a nonmeritorious petition. (Jackson, 161 Ill. App. 3d at 577, 515 N.E.2d at 222.) The petitioner has the burden to establish a substantial deprivation of constitutional rights (People v. Griffin (1985), 109 Ill. 2d 293, 303, 487 N.E.2d 599, 603); the petition must set forth facts that show the denial. (Jackson, 161 Ill. App. 3d at 577, 515 N.E.2d at 222.) This court will not disturb the trial court’s determinations absent manifest error. (Griffin, 109 Ill. 2d at 303, 487 N.E.2d at 603.) Error, to be “manifest,” must be clearly evident, clear, plain, and indisputable. Ruggiero v. Public Taxi Service, Inc. (1973), 16 Ill. App. 3d 754, 760, 306 N.E.2d 567, 572; see Black’s Law Dictionary 867 (5th ed. 1979).

I

Sanders contends that his sixth amendment right to conflict-free representation was abridged when his trial counsel simultaneously represented him and his codefendants. The sixth and fourteenth amendments to the United States Constitution guarantee the right of effective assistance of counsel. (Cuyler v. Sullivan (1980), 446 U.S. 335, 343, 64 L. Ed. 2d 333, 343, 100 S. Ct. 1708, 1715; People v. Vriner (1978), 74 Ill. 2d 329, 337, 385 N.E.2d 671, 674.) The assistance of counsel means “assistance which entitles an accused to the undivided loyalty of his counsel and which prohibits the attorney from representing conflicting interests or undertaking the discharge of inconsistent obligations.” People v. Washington (1984), 101 Ill. 2d 104, 110, 461 N.E.2d 393, 396.

However, the joint representation of criminal codefendants by a single attorney does not, by itself, violate this right because it is always possible that the interests of codefendants may diverge. (Cuyler, 446 U.S. at 348, 64 L. Ed. 2d at 346, 100 S. Ct. at 1718; Vriner, 74 Ill. 2d at 340, 385 N.E.2d at 675.) Therefore, to prevail on a claim of ineffective assistance of counsel based on joint representation of criminal codefendants by a single attorney, a defendant must show an actual conflict of interest manifested at trial. Cuyler, 446 U.S. at 350, 64 L. Ed. 2d at 348, 100 S. Ct. at 1719; Vriner, 74 Ill. 2d at 341, 385 N.E.2d at 676, quoting People v. Berland (1978), 74 Ill. 2d 286, 299-300, 385 N.E.2d 649, 655.

In the instant case, the trial court correctly noted that Underwood and Talbert stood “in one legal position” and Sanders stood “in another legal position.” At trial, the State argued that Underwood and Talbert were culpable based on their acts, but Sanders was culpable based on accountability. Although codefendants are entitled to separate counsel if their positions are antagonistic, such antagonism is not necessarily present in every instance where the same attorney represents two or more codefendants. (People v. Durley (1972), 53 Ill. 2d 156, 160, 290 N.E.2d 244, 246; People v. Jovicevic (1978), 63 Ill. App. 3d 106, 116-17, 379 N.E.2d 665, 673.) Thus, the fact that Sanders’ culpability was based on a different legal theory than that of Underwood and Talbert did not automatically constitute a conflict of interest. Rather, the issue is whether the joint representation of Underwood, Talbert, and Sanders involved defenses so antagonistic as to create an actual conflict of interest. See People v. Nelson (1980), 82 Ill. 2d 67, 72, 411 N.E.2d 261, 264.

As discussed above, Underwood testified essentially that he stabbed the victim in self-defense and in defense of Sanders. However, Sanders now argues that he had a defense that was not available to Underwood and Talbert — nonaccountability. In other words, Underwood and Talbert stabbed the victim and not Sanders; therefore, Sanders was not responsible for Underwood’s acts. However, each defense concedes that Underwood stabbed the victim. Sanders’ defense essentially is that, based on his nonparticipation, he is exceedingly less culpable than Underwood. A conflict of interest is not established where a single attorney represents one codefendant who is allegedly more culpable than another codefendant. (Jovicevic, 63 Ill. App. 3d at 117, 379 N.E.2d at 673.) We hold that the defense of Sanders was not antagonistic to the defense of Underwood and Talbert.

Sanders further alleged in his petition that defense counsel’s failure to call him (Sanders) as a witness, so that he could offer evidence of his nonaccountability, demonstrated a conflict of interest. However, merely showing that this trial strategy was available to defense counsel does not establish an actual conflict of interest. Rather, “a positive basis must be found for concluding that an actual conflict of interests existed.” (Vriner, 74 Ill. 2d at 342, 385 N.E.2d at 676.) Further, our courts have “refused to find hostility between the interests of criminal co-defendants based on the mere possibility that one strategy available to defense counsel would have helped one defendant at the expense of another.” People v. Echols (1978), 74 Ill. 2d 319, 327-28, 385 N.E.2d 644, 648.

Thus, although an independent attorney might possibly have presented the defense of nonaccountability on behalf of Sanders, the mere existence of that possibility does not establish the presence of an actual conflict of interest. (See People v. Howard (1988), 166 Ill. App. 3d 328, 332-34, 519 N.E.2d 982, 985; People v. Martinez (1982), 104 Ill. App. 3d 990, 994, 433 N.E.2d 981, 985.) We hold that Sanders’ defense counsel did not labor under an actual conflict of interest in jointly representing Sanders, Underwood, and Talbert. Consequently, Sanders’ contention that he did not waive his right to conflict-free representation is of no avail.

II

Sanders contends he was denied effective assistance of counsel based also on inadequate representation both at trial and on direct appeal. To establish a claim for ineffective assistance of counsel based on inadequate representation, a defendant must prove that: (1) counsel’s representation fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel’s unprofessional errors, the result would have been different. People v. Scott (1987), 159 Ill. App. 3d 459, 462-63, 512 N.E.2d 836, 838, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

Sanders claims that defense counsel failed to obtain his (Sanders’) waiver of the right to conflict-free representation. He contends that this failure constituted inadequate representation. We cannot accept this contention, since we concluded that Sanders did receive representation that was free of an actual conflict of interest.

Sanders next claims that defense counsel refused to allow him to testify on his own behalf to protect the defense of Underwood. Sanders contends that this refusal was another example of inadequate representation.

The record does not support this claim. At the close of defendants’ case, defense counsel stated that he advised Sanders not to testify. Additionally, counsel made this statement in Sanders’ presence, yet Sanders was silent. A defendant in a criminal action has a constitutional right to testify in his own defense. However, as with any other right, the right to testify may be waived. (People v. Knox (1978), 58 Ill. App. 3d 761, 764-67, 374 N.E.2d 957, 960-62.) If Sanders wanted to testify on his own behalf, he could have voiced his desire or requested new counsel. However, he sat silently throughout the entire trial. Indeed, Sanders raised this issue only after he was convicted. As a result, we conclude that Sanders’ failure to testify was a matter of trial strategy with which he agreed. See People v. Berry (1988), 172 Ill. App. 3d 256, 261, 526 N.E.2d 502, 506; Knox, 58 Ill. App. 3d at 767-68, 374 N.E.2d at 962.

Sanders next claims that he received inadequate representation at trial due to several alleged errors by defense counsel at trial. However, a reviewing court need not determine whether a defense counsel’s performance was unreasonable prior to examining the prejudice that a defendant allegedly suffered. A court should dispose of a claim of ineffective assistance of counsel based on a lack of sufficient prejudice if it is easier to do so. Scott, 159 Ill. App. 3d at 463, 512 N.E.2d at 838.

In the case at bar, we conclude that defendant did not suffer any prejudice. On the direct appeal of this cause, we held that Sanders’ conviction of murder was “well supported” by the evidence. (People v. Underwood (1985), 137 Ill. App. 3d . 1156, (unpublished Rule 23 order).) Consequently, the errors that Sanders alleged would not have changed the outcome.

Sanders also claims that he received inadequate representation on direct appeal from his conviction. He assigns error to his appellate counsel for failing to raise the issue of ineffective assistance of counsel.

We cannot accept this argument. Counsel is not obliged to brief every conceivable issue on appeal. It is not incompetence for counsel to refrain from raising those issues which, in his judgment, are without merit, unless his appraisal of the merits is patently wrong. (People v. Barnard (1984), 104 Ill. 2d 218, 230, 470 N.E.2d 1005, 1009; People v. Frank (1971), 48 Ill. 2d 500, 505, 272 N.E.2d 25, 28.) The two-part Strickland analysis is appropriate to test the adequacy of appellate counsel's representation as well as that of trial counsel, so a defendant must show that he was prejudiced by the defense. Barnard, 104 Ill. 2d at 237-38, 470 N.E.2d at 1012-13.

In the instant case, appellate counsel was not ineffective for choosing not to raise the issue of trial counsel’s competence. We have concluded above that Sanders received effective assistance of counsel at trial. Thus, appellate counsel’s appraisal of the merits of that issue was not patently wrong and Sanders was not prejudiced. (See People v. Purifoy (1988), 172 Ill. App. 3d 980, 991, 527 N.E.2d 654, 662.) We hold that Sanders received more than adequate representation both at trial and on direct appeal.

Ill

For the first time in this post-conviction action, Sanders contends that the jury instructions on murder and voluntary manslaughter given at trial were erroneous under People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141. He contends that the alleged Reddick violation justifies a new trial. We cannot accept this contention, because our supreme court has recently held that Reddick does not apply retroactively to cases on collateral review. People v. Flowers (1990), 138 Ill. 2d 218, 237-42, 561 N.E.2d 674, 681-84.

In terms of the Post-Conviction Hearing Act, we find that Sanders’ supplemental post-conviction petition did not set forth facts that show a denial of constitutional rights. Thus, Sanders is not entitled to a new trial. Further, we conclude that our finding is clear, plain, and indisputable. Accordingly, we reverse the trial court’s order granting Sanders a new trial.

For the foregoing reasons, the order of the circuit court of Cook County is reversed.

Reversed.

McMORROW, and JOHNSON, JJ., concur.


author: JUSTICE JOHNSON

text:
    PETER POULAKIS, Plaintiff-Appellant, v. TAYLOR RENTAL CENTER, INC., Defendant-Appellee.
    First District (4th Division)
    No. 1-89-1398
    Opinion filed January 24, 1991.
    Rehearing denied March 25, 1991.

      Lindner, Speers & Reuland, of Chicago (Jonathan K. Gray, of counsel), for appellant.
    Roderick J. Bergin, of Chicago (Karin Kepler, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Peter Poulakis, plaintiff, appeals from certain orders of the circuit court and a jury verdict in favor of Taylor Rental Center, Inc., defendant. Plaintiff sought to recover damages for injuries he allegedly sustained as a result of a defective trailer he rented from defendant. On appeal, plaintiff raises the following issues: (1) whether the trial court properly denied his motion for directed verdict; (2) whether the “expert testimony” was properly stricken from his evidence deposition; (3) whether the trial court properly denied his motion to consolidate this case with another personal injury case; and (4) whether the jury verdict was against the manifest weight of the evidence.

We affirm.

The record discloses that on August 12, 1982, plaintiff rented a 4-by 8-foot steel frame trailer from defendant. Plaintiff testified that he went to defendant’s premises and told the defendant’s manager that he intended to use the trailer to carry several railroad ties to his home for landscaping purposes. Defendant’s manager, however, testified that plaintiff informed him that he was going to use the trailer to haul an unspecified amount of “firewood.” Defendant’s manager told plaintiff that if he intended to haul a substantial amount of “firewood” that he should not attempt to load all of it in the trailer at the same time.

Prior to “hitching” the trailer to plaintiff’s car, another of defendant’s employees inspected the trailer for defects. It was reported that the trailer was free of defects at that time.

After leaving defendant, plaintiff drove approximately 30 miles to a railroad yard. He and his 14-year-old nephew loaded six or seven ties into the trailer. They then proceeded to plaintiff’s house via one of the expressways. En route to plaintiff’s house, the hitch disconnected and the trailer became dislodged. Part of the trailer then collided with plaintiff’s automobile.

Christopher Colon, who was travelling behind plaintiff in a tow truck, witnessed the incident. After plaintiff’s vehicle came to a rest, Colon approached plaintiff and asked whether he needed any assistance. Plaintiff did not appear to have sustained any injuries. However, when plaintiff attempted to lift the ties that had fallen out of the trailer, he experienced some back pain. According to Colon each of the ties weighed approximately 200 to 275 pounds. Plaintiff then allowed his nephew and Colon to load the remaining ties into Colon’s tow truck. Colon then attached the. trailer to his truck and drove to plaintiff’s house, where he assisted plaintiff in removing the ties from the truck.

Dr. Jacob Bernstein testified, at his evidence deposition, that plaintiff had a preexisting lumbar condition that was aggravated by this incident. Plaintiff was treated for injuries sustained to his back, shoulder, and neck.

Plaintiff filed a complaint seeking damages from defendant on October 22, 1982. On July 11, 1988, plaintiff moved to consolidate this case with another personal injury case against Sears Roebuck and Co. in which he allegedly sustained injuries to his back. The motion to consolidate these causes of action was denied by the court. On July 6, 1989, the jury, after hearing all of the evidence, found defendant not guilty.

The first issue plaintiff raises for our review is whether his motion for a directed verdict on the issue of his contributory negligence was properly denied. Defendant, in its affirmative defense, alleged that plaintiff had negligently overloaded the trailer in question. Defendant also alleged that because plaintiff had misused the trailer by overloading it, he assumed the risk of injury.

Plaintiff, on the other hand, reasons that because defendant had not produced any evidence concerning the trailer’s load capacity, defendant could not prove that plaintiff had overloaded or misused the trailer.

In Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, the Illinois Supreme Court set forth the following rule for determining whether a directed verdict must be entered:

“[Vjerdicts ought to be directed *** only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick, 37 Ill. 2d at 510.

Conflicts in evidence must be resolved in favor of the party opposing the motion for the directed verdict. (Hick v. Hendricks (1975), 33 Ill. App. 3d 486, 489.) However, it is not incumbent upon the nonmoving party to introduce evidence in its own behalf. As the court in Athey v. City of Peru (1974), 22 Ill. App. 3d 363, held:

“The rule for directing verdicts does not require that verdicts be directed merely because a defendant has failed to introduce evidence in his own behalf or has failed to dispute facts presented by the plaintiff. Facts may be undisputed or a defendant may have failed to introduce evidence, but it does not follow that issues are therefore uncontroverted. Undisputed facts may give rise to different reasonable inferences.” (Athey, 22 Ill. App. 3d at 370.)

Therefore, defendant’s alleged failure to produce any definitive evidence on the load capacity of the trailer is not fatal to its affirmative defense of contributory negligence nor does it warrant a verdict directed in plaintiff’s favor. Athey, 22 Ill. App. 3d at 370.

Moreover, the facts in the instant case are in dispute. Plaintiff concedes that the ties were heavy, but alleges that he was not told what would be considered an overload. Defendant, on the other hand, alleges that plaintiff was told that if he was going to carry a substantial amount of firewood, more than one trip would be necessary. This leads to the inference that plaintiff was in fact told what would be considered an overload. Since the factual allegations of the parties are conflicting, a directed verdict would not be appropriate. Sunseri v. Puccia (1981), 97 Ill. App. 3d 488, 491.

Plaintiff also alleges that there was no basis for defendant’s affirmative defense of contributory negligence due to the misuse of the trailer, as there was no evidence the trailer was overloaded. However, as defendant correctly argues, questions of negligence, due care, and proximate cause are questions of fact for the jury to determine. (See Thomas v. Northington (1985), 134 Ill. App. 3d 141.) After viewing the evidence in a light most favorable to defendant, we do not find that the trial court erred in denying plaintiff’s motion for a directed verdict.

The second issue plaintiff raises is whether the trial court erred in striking certain portions of Christopher Colon’s evidence deposition. Colon was an eyewitness to the accident. Specifically, plaintiff refers to Colon’s testimony that he observed that the coupler, which attaches the trailer to the car, had broken away from the trailer. Colon speculated that the reason for the break was due to rotted welding. The trial court struck this portion of Colon’s testimony on the basis that Colon did not qualify as an expert nor had Colon been disclosed to defense counsel as an expert pursuant to Supreme Court Rule 220 (134 Ill. 2d R. 220).

Plaintiff, however, argues that pursuant to Altszyler v. Horizon House Condominium Association (1988), 175 Ill. App. 3d 93, a lay witness may give opinion testimony even if it embraces an ultimate issue to be decided by the jury. In Altszyler, the plaintiff sustained injuries when he fell from his bicycle. The plaintiff’s bicycle went over a grade differential in a sidewalk causing the front wheel to dislodge, resulting in the collapse of his bicycle.

A janitor employed by one of the defendants was allowed to testify as to the cause of the deterioration in the grade of the sidewalk slabs. The court allowed this testimony, even though the janitor was not an engineer or an expert witness. The court found that his testimony was rationally based and helpful to a determination of a fact in issue. Altszyler, 175 Ill. App. 3d at 100.

Altszyler, as defendant argues, is distinguishable because the janitor’s testimony was based upon his observations over a period of 16 years. In the instant case, Colon’s testimony was based upon his observation at the time of the incident. Colon had not seen the weld prior to the incident. He merely speculated as to what he felt was the cause of the accident.

A lay witness must state the facts and not draw conclusions; any inferences to be drawn from the evidence presented is the duty of the trier of fact. (Cunningham v. Central & Southern Truck Lines, Inc. (1968), 104 Ill. App. 2d 247, 264-65.) Opinion testimony that is based purely on guess, surmise or conjecture is inadmissible and is tantamount to no evidence at all. (Paul Harris Furniture Co. v. Morse (1956), 10 Ill. 2d 28, 38.) We find that Colon’s testimony was properly restricted. Any inferences as to the cause of the accident must be drawn by the trier of fact.

The next issue plaintiff raises is whether the trial court erred in denying his motion to consolidate this case with a later case in which he sustained personal injuries. Plaintiff claims that the injuries sustained from both of these incidents were indivisible and, therefore, the jury should have been allowed to determine which incident contributed to these allegedly indivisible injuries.

A joinder of multiple defendants depends upon the right to relief arising out of the same transaction or transactions and the existence of a question of law or fact that is common to the parties. (Sommers v. Korona (1964), 54 Ill. App. 2d 425, 432.) In Schwartz v. Swan (1965), 63 Ill. App. 2d 148, the court stated:

“Unless it can be determined with reasonable certainty to which occurrence plaintiff’s alleged injuries are attributable, the nature and severity of plaintiff’s injuries, and the extent to which each [incident] contributed thereto is a common question of fact.” Schwartz, 63 Ill. App. 2d at 157-58.

In Denzel v. County of Cook (1978), 65 Ill. App. 3d 286, the appellate court set forth two situations in which a joinder of separate causes is permissible: (1) where the separate acts of the defendants in question produce a single indivisible injury, or (2) where one defendant causes the injury and the other defendant exacerbates that same injury. Denzel, 65 Ill. App. 3d at 288-89; see also Yanan v. Ewing (1990), 205 Ill. App. 3d 96.

However, plaintiff does not cite to any authority which mandates a new trial because two cases in which indivisible injuries were alleged were not consolidated. Further, plaintiff has not shown that if these cases had been consolidated the verdict would have been different. Moreover, plaintiff concedes that the issue of consolidation would only arise in the event a new trial is ordered by this court. As we do not find that plaintiff is entitled to a new trial, we need not address the propriety of the trial court’s denial of plaintiff’s motion for consolidation.

The last issue plaintiff raises is whether the verdict was against the manifest weight of the evidence. Plaintiff properly cites to Thiele v. Ortiz (1988), 165 Ill. App. 3d 983, for the following standard to be used in determining whether the verdict is against the manifest weight of the evidence:

“A jury verdict is contrary to the manifest weight of the evidence only if wholly unwarranted by the evidence or if clearly a result of passion or prejudice. [Citation.] A jury verdict should not be set aside merely because the jury could have drawn different inferences and conclusions from conflicting testimony.” Thiele, 165 Ill. App. 3d at 996.

After carefully reviewing the record in the instant case, we do not find the jury’s verdict to be against the manifest weight of the evidence. The jury found that defendant was not liable. Plaintiff failed to prove that the trailer was defective when driven from defendant’s premises. We do not find, based on the presented evidence, that his verdict was wholly unwarranted.

Accordingly, the orders of the trial court are affirmed.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES BOOKER, Defendant-Appellant.
    First District (5th Division)
    No. 1-89-0519
    Opinion filed January 25, 1991.

      Michael J. Pelletier and Leslie Wallin, both of State Appellate Defender’s Office, of Chicago, for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Jane E. Loeb, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant Charles Booker (Booker) was tried before a jury for the August 7, 1987, murder of his girl friend, Lucy Williams. He was found guilty and subsequently sentenced to 30 years’ imprisonment in the Illinois Department of Corrections. He now brings this appeal, raising these issues: (1) whether the trial court erred when it denied his motion to quash his arrest and suppress the inculpatory statements he made to police, (2) whether the trial court improperly admitted evidence at trial which it had previously ordered suppressed, and (3) whether he was denied a fair trial because of the improper admission of an inflammatory photograph depicting the victim. For reasons we shall discuss, we reverse Booker’s conviction, but remand for further proceedings.

Booker filed two pretrial motions, one to quash arrest and another to suppress statements. Evidence was taken at two hearings, and the trial court considered all of the evidence received when it ruled on the two motions. At the hearings on these motions, Booker contended that he was illegally detained or “arrested” prior to the time of his formal arrest. Alternatively, he argued that there was no probable cause to arrest even at the time of his formal arrest. Additionally, he argued that the inculpatory statements he made to the police subsequent to his illegal arrest were tainted and must be suppressed.

The State responded by arguing that Booker had not been illegally detained prior to his formal arrest and that there had been probable cause for his arrest at that time. As the hearings progressed, however, the State indicated that it would attempt to show that Booker’s inculpatory statements need not be suppressed even if the court should find that the arrest had been made without probable cause. However, the trial court interjected a finding of probable cause for Booker’s arrest and the State abandoned its alternative argument.

The testimony given and evidence presented at the pretrial hearings are as follows:

At about 8:30 a.m. on August 7, 1987, while working at the Red Star Laundromat, Booker received a telephone call from a woman who asked him if he knew the whereabouts of Lucy Williams, since she was not at her place of employment. Booker then telephoned Lucy’s home and spoke to Lucy’s son, Curtis, who informed him that Lucy had been raped and murdered. Booker left the laundromat, drove the one block to 7108 S. Cottage Grove, where Lucy lived, and proceeded to the back of the apartment building. There he was stopped by police investigating the crime scene. Booker then went upstairs to Lucy’s third-floor apartment, where he introduced himself as Lucy’s boyfriend to a female police officer. This officer asked him a few preliminary questions, including where he worked and how long he knew the victim.

Booker claimed that shortly after arriving he attempted to leave the apartment in order to purchase cigarettes, but that he was prevented from doing so by the female police officer. He then made some coffee and conversed with Lucy’s friends and relatives who had gathered at the apartment. Shortly thereafter, at about 10 a.m., Detectives Owens and Lewis arrived at the apartment. Booker informed these detectives that he was Lucy’s boyfriend and that he was willing to help the investigation in any way that he could. Thus, when asked to accompany them to the police station, Booker readily agreed.

As they left Lucy’s apartment, Booker and Detective Owens walked to a nearby store, where they purchased some cigarettes. Booker then rode with the detectives in their vehicle to Area One Headquarters at 51st and Wentworth, arriving at about 11:30 that morning. Booker sat in the large processing room, where he drank coffee while the two detectives went about their business.

Booker testified that, at some point after his arrival at Area One, he asked the detectives why he was being held. He was informed that he was not being held but that the detectives in charge of the investigation were not back from the crime scene yet and that they wished to speak to him. Booker accepted this explanation and did not refuse to remain at the station. He expressed no desire to leave and did not ask if he could come back at some later time. Booker was not kept in a closed or locked room, he was not handcuffed or restrained in any way and he was not restricted from using the telephone, which he used to call his brother.

While waiting at Area One, Booker was asked if he would allow one of the detectives to inspect his hands, fingernails, shoes, feet and ankles, but he was not questioned about the killing. Booker permitted the inspection, which apparently revealed nothing noteworthy. Despite this fact, when Detectives Kelly and Ward, who were in charge of the investigation, arrived at Area One sometime after 1 p.m., they apparently had some suspicions concerning Booker’s involvement in the murder. Detective Kelly explained that a friend of Lucy’s, who was at the scene, had told him that Booker was a heavy drinker who often could not account for his actions and that he was “the jealous type.” For this reason, at about 2 p.m., when Detectives Kelly and Ward questioned Booker for the first time concerning his relationship with Lucy and his whereabouts on the previous night, they advised him of his Miranda rights before questioning him.

The questioning took place in a conference room on the second floor of Area One station. Booker was not handcuffed or told that he was under arrest. He acknowledged his rights and agreed to speak with them. He told the detectives that on the previous night he had gone to the home of Matilda Clark, another girl friend, at about midnight and had remained there until 7:40 that morning, at which time he left for work.

Following this conversation, Booker agreed to be fingerprinted and to submit to a polygraph test. At about 3 p.m. he went with the detectives to a station at 11th and State, where his fingerprints were taken and a polygraph test was administered. The polygraph test lasted from about 3:20 to 4:20 p.m., after which the detectives and Booker were informed that he had failed the test and that the examiner believed that he had given false answers to questions he had been asked. At this point Booker admitted to the examiner that he had lied, but indicated only that he had driven past Lucy’s house a couple times on the previous evening and that he had chosen not to inform the detectives of this fact because he did not want to become involved in the investigation. The examiner relayed this information to the detectives and, at about 5 p.m. as the detectives left the station at 11th and State, they informed Booker that he was under arrest.

Booker was returned to Area One Headquarters and then Detectives Ward and Kelly continued their investigation of the murder by checking Booker’s alibi. They went to the home of Matilda Clark and learned from her that Booker had not been at her apartment the entire time between midnight and 7:30 a.m., as he had indicated earlier. After the detectives left Clark’s residence, at about 8:30 p.m., they received a message on the police radio notifying them that Booker had made an inculpatory statement. They then returned to Area One to resume questioning Booker.

We note that at this point in the hearing, the trial court indicated that there appeared to have been absolutely no probable cause to arrest Booker for murder. The State then asked to be allowed to present evidence for .an alternative method of finding the statements admissible. The trial court declined, interjecting that it would deny the motion to quash, “but not for the reason anybody assumes.” The trial court then held that there had been “ample probable cause” to arrest Booker for providing false information to the police and that the motion to quash would be denied on that basis. The trial court did agree, however, to hear additional evidence with respect to the motions.

Subsequently, Detective Glynn testified that he became involved in the murder investigation at about 6:30 p.m. on August 7, 1987, and that he began questioning Booker at about 8 p.m. that same evening. He advised Booker of his rights and, after Booker acknowledged his rights and agreed to speak with him, he questioned Booker about his whereabouts on the previous night. During this questioning, Booker initially admitted, contrary to his previous statements, that he had seen Lucy on the previous night and that she had given him $260. Shortly thereafter, Booker stated that he wanted to “tell the truth about the entire incident.” He then confessed that he met with Lucy sometime after 2 a.m. on August 7, 1987, that they had argued and that he beat her to death with a pipe. After receiving this information, Detective Glynn terminated the questioning and notified Detectives Kelly and Ward of the admissions Booker had made.

Detective Ward testified that, after becoming aware of the admissions Booker had made, he and Detective Kelly resumed their questioning of Booker at approximately 11 p.m. on August 7, 1987. At that time, they readvised Booker of his Miranda rights, and he again acknowledged these rights and agreed to speak with them. The conversation lasted for approximately 45 minutes, after which the detectives contacted Assistant State’s Attorney Inge Fryklund and relayed the information they had received. Fryklund arrived at the station at about 12:15 a.m., and at about 1 a.m. on August 8, 1987, she interviewed Booker in the presence of Detectives Kelly and Ward. She, too, informed Booker of his rights, and he agreed to speak with her, first giving her an oral statement. Following this conversation, he agreed to give his statement to a court reporter. Soon thereafter, a court reporter arrived at the station and Booker made a statement in his presence.

At the close of the court-reported statement, the following colloquy took place between Assistant State’s Attorney Fryklund and Booker:

“Q. Are you giving this statement voluntarily to me now?
A. Whatever.
Q. Yes or no.
A. I can’t really say. You are asking me what happened and I have told you. So I can’t really say. Let me talk with a lawyer and then I will let you know.
Q. Were there any threats or promises made to you?
A. No.
Miss Fryklund: I have no further questions. The time is about three minutes before 4:00 o’clock.”

Detective Ward testified that this was the first and only time that Booker ever mentioned an attorney in any manner. Detective Ward also admitted, however, that no effort was made to obtain an attorney for Booker at that time and that, after the court-reported statement was typed, Assistant State’s Attorney Fryklund returned to the conference room where Booker was being held and asked if he would read the statement, review it for accuracy and sign it. Although Booker read the statement and orally agreed that it was accurate, he refused to sign it. This refusal was indicated on the statement, and it was noted to have occurred at 5:25 a.m. on August 8, 1987. Miss Fryklund also testified at the hearing, and her testimony was consistent with that of Detective Ward.

At the conclusion of all of the evidence, the trial court denied Booker’s motions to quash the arrest and suppress statements. The court did not specifically address the question .of whether Booker was actually under arrest prior to his formal arrest, but rather, merely found that there existed, at the time of Booker’s formal arrest after the polygraph exam, sufficient probable cause to arrest for obstruction of justice. The court noted that the fact that Booker had not been charged on that basis was insignificant.

The trial court then went on to specifically note that it was not determining whether there had been probable cause to arrest for the charge of murder, finding that such a ruling was unnecessary under the circumstances. The trial court also denied Booker’s motion to suppress his statements, up to the point that he made the request for counsel at the close of the court-reported statement. The court ordered that the statement be redácted to eliminate any reference to Booker’s response to the assistant State’s Attorney’s questions or comments which may have occurred after that request for counsel.

After a jury trial, which commenced on January 23, 1989, Booker was found guilty of first-degree murder. The only alleged errors with respect to this trial are: (1) that, contrary to its prior ruling, the trial court allowed Assistant State’s Attorney Fryklund to testify that Booker read and found accurate the court-reported statement and then allowed the entire, unredacted copy of the court-reported statement to be sent to the jury, and (2) that the trial court allowed the jury to view a gruesome police photograph depicting Lucy Williams’ bloody and beaten head.

We shall first address the question of whether the trial court erred when it ruled on Booker’s pretrial motions. This inquiry actually involves three issues: (1) whether Booker was placed “under arrest” prior to his formal arrest; (2) whether probable cause to arrest existed at the time of Booker’s formal arrest; and (3) whether Booker’s statements should have been suppressed as the fruit of an illegal arrest. The trial court implicitly, if not specifically, found that Booker was not “under arrest” or illegally detained prior to the time of his formal arrest. The trial court also found that there had been probable cause to arrest Booker for obstruction of justice, whether or not there had been probable cause to arrest for the offense of murder. Consequently, the trial court denied the motions to quash Booker’s arrest and suppress his statements.

After reviewing the record, this court does not believe that Booker was illegally seized or “under arrest” when he first accompanied the detectives to the police station. However, we do find that his detention became unlawful at some point prior to his formal arrest. Furthermore, we find that, at the time of Booker’s arrest, probable cause did not exist.

Initially, we note that a reviewing court may not disturb the ruling of a trial court on a motion to suppress unless the decision is against the manifest weight of the evidence. (People v. Holloway (1981), 86 Ill. 2d 78, 426 N.E.2d 871; People v. Vega (1990), 203 Ill. App. 3d 33, 560 N.E.2d 983.) Evidence may be suppressed if it is the fruit of a seizure and custodial interrogation which violates the fourth amendment, i.e., where the intrusion or detention was unsupported by probable cause. (Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.) The salient question when deciding whether a seizure has taken place for fourth amendment purposes is not whether the officer’s conduct was reasonable, but whether a reasonable, innocent person would have considered himself arrested or not free to leave under the circumstances. (Hicks v. United States (1967), 382 F.2d 158; People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.) In the present case there appears to be no dispute that the police did not possess probable cause to arrest Booker at the time that he was transported from Lucy’s apartment to the police station. Thus, the question is whether a seizure took place at this time.

In several cases, courts have held that when the police seek out a possible suspect and, essentially, enforce his presence at the police station for questioning, an arrest has taken place, whether or not the suspect was informed that he was under arrest. (See People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103; People v. Sturdivant (1981), 99 Ill. App. 3d 370, 425 N.E.2d 1046.) However, these cases are inapposite to the present case.

Here, it is clear that the police did not seek out Booker, but that Booker, completely voluntarily, appeared at the residence of Lucy Williams, made his presence known to the police, informed them of his relationship to Lucy, and then offered his assistance in their investigation. Although Booker was not merely questioned briefly at Lucy’s residence, but was transported in a police car to the police station, these factors, though relevant, are not dispositive of the question of whether Booker was seized. More important is the question of whether, under the totality of the circumstances, it appears that the person’s presence at the station was truly voluntary or was compeUed. To hold otherwise would effectively prohibit any in-station questioning of a potential suspect, whether voluntary or not, and would severely hamper a police officer’s ability to conduct an investigation.

In this case there was sufficient evidence presented at the pretrial hearing to support the notion that Booker’s accompaniment of the police to the station was voluntary. Under these circumstances it seems unlikely that a reasonable person, innocent of a crime, would have believed that he was under arrest. Therefore, we do not find it to be against the manifest weight of the evidence to find that a seizure did not occur at the time Booker left Lucy’s apartment.

In further support of this conclusion, we note Booker’s treatment during his transport and upon his arrival at the police station. In this case Booker was not handcuffed or restrained. He was allowed to go to a store to purchase cigarettes and, upon arrival at the station, was not placed in a small, locked interrogation room, but rather, sat in the large processing room while the detectives went about their normal activities. He was not subjected to repetitious interrogation, and he was allowed to use the telephone, which was readily available to him. Consequently, under the totality of circumstances, we do not believe that Booker, at least initially, was unlawfully seized.

However, just as a lawful stop of a suspect may be transformed into an unlawful seizure if the detention lasts for an unreasonable length of time (People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605) so, too, we believe, in this case, Booker’s voluntary cooperation with the police investigation progressed into an unlawful detention and involuntary seizure with the passage of time. As stated in our recent case, People v. Young (1990), 206 Ill. App. 3d 789, 801, “the fact that a defendant initially accedes to a police request to accompany them to the police station does not legitimize the treatment of defendant after he arrived at the station.”

Booker was taken to the police station ostensibly so that he could provide the investigative detectives with information concerning Lucy, as well as her habits and friends, to aid in the investigation. However, as Booker was required to wait at the station from 11:30 a.m. until approximately 2 p.m., it became evident that his presence at the station was not for that stated purpose and the voluntariness of his stay became more questionable. Booker was not told that he could leave or given the option of returning at a time when the detectives in charge would be available. It appeared that Booker became the focus of the investigation at some point in time since he was asked to aEow an inspection of his hands and feet. In fact, Booker testified that after a period of time, he asked some detectives at the station why he was being held. This indicates Booker’s subjective belief that he was no longer free to go and that he was being retained at the police station against his will. While it is true that an individual’s subjective belief as to his arrest status is not dispositive, when ascertainable, it is a legitimate consideration (People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870), and we, too, must conclude that there was a certain “ ‘quality of purposefulness’ ” to Booker’s continued retention, which made it appear to be an “ ‘expedition for evidence’ ” that would supply sufficient probable cause. (See People v. Townes, 91 Ill. 2d at 37, quoting Dunaway v. New York, 442 U.S. at 218, 60 L. Ed. 2d at 839, 99 S. Ct. at 2259.) For this reason, we find that Booker was seized within the meaning of the fourth amendment prior to his formal arrest.

We further find that probable cause did not exist for Booker’s arrest at this time or at the time of his formal arrest. Probable cause for arrest exists when facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. (People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605.) Mere suspicion that the person arrested has committed the offense is insufficient. (People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.) Furthermore, a probable cause determination may not be based upon the results of a polygraph examination. People v. Jones (1987), 157 Ill. App. 3d 1006, 511 N.E.2d 1215.

In this case, even if we were to overlook our ruling that Booker was seized prior to his formal arrest, at no time prior to the formal arrest did the police obtain sufficient evidence to link Booker to the crime of Lucy’s murder. Detective Kelly testified only that he was informed that Booker was a heavy drinker, that he sometimes could not account for his actions and that he was the jealous type. While these facts may have provided the detective with a reason to suspect Booker, they fall short of probable cause.

Also, the circumstances of the murder did not suggest any particular perpetrator. Lucy was found in an alley behind her home, beaten to death, with her purse missing. These facts do not even lead one to conclude that the perpetrator was someone Lucy knew and, since there were no known witnesses to the murder, the list of possible suspects was limitless. Additionally, Booker’s answers to preliminary questioning did not implicate him in any way. The inspection of his hands and feet, his fingerprints and even his polygraph results did not provide any substantive evidence that would provide a basis for finding probable cause to arrest for the crime of murder.

Furthermore, we reject the trial court’s finding that Booker’s arrest was supported by probable cause to arrest for obstruction of justice. There are three reasons: (1) because we found that Booker was illegally seized prior to his submission to the polygraph test, which the court used as the basis for finding probable cause to arrest for the crime of obstruction of justice, (2) because we find that there was insufficient evidence to support a finding of probable cause to arrest for obstruction of justice since Booker’s false statement about being in the vicinity of Lucy’s apartment did not go beyond the limits of denying involvement and, thus, were merely an exculpatory denial (see People v. Brooks (1977), 51 Ill. App. 3d 800, 367 N.E.2d 236), and (3) because we do not believe that a court may find, in retrospect, that probable cause may have existed for another offense, uncontemplated by the police at the time of arrest, to support the arrest for which no probable cause existed (see People v. Nash (1979), 78 Ill. App. 3d 172, 397 N.E.2d 480).

Having found that Booker’s arrest was unlawful, the next consideration is whether the subsequent inculpatory statements made by Booker must be suppressed as the fruit of his unlawful arrest. In this appeal Booker argues that his statements are a direct result of the illegal detention and, as such, should have been suppressed. The State, on the other hand, argues that, if this court finds Booker’s arrest to have been illegal, this court should still find Booker’s statements admissible. This is because the fact that an illegal seizure took place does not automatically require the exclusion of a subsequent confession. (People v. Vega (1990), 203 Ill. App. 3d at 44.) If a confession is not obtained as a result of an exploitation of the illegal arrest, the admissions or statements may be sufficiently attenuated from the arrest so as to be purged of the taint of that arrest. Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407; People v. Vega, 203 Ill. App. 3d 33, 560 N.E.2d 983.

As noted earlier, the State attempted to make this same argument to the trial court below but was prevented from doing so by the court’s ruling. It is unclear, therefore, whether the State could have presented any additional evidence concerning this matter. For this reason, this court chooses not to rule on the admissibility of the inculpatory statements until the lower court has had the opportunity to hear any such additional evidence that may be proffered by the State and it considers whether any attenuating circumstances occurred which would have acted to break the causal link between the statements and the illegal arrest. Consequently, we reverse Booker’s conviction and remand so that further proceedings may be had for that purpose.

Because of our decision to reverse Booker’s conviction, we find it unnecessary to discuss the remaining two issues on appeal, which question the fairness of the trial Booker received, based on the admission of certain evidence.

Reversed and remanded.

LORENZ, P.J., and GORDON, J., concur.