dissenting:
Defendant, a 17-year-old educable mentally handicapped young man, was standing on the comer of Main and Poplar Streets in Mount Olive, Illinois, waiting to meet a girl friend when he was picked up by Officer David Lienard of the Mount Olive Police Department and taken to the Mount Olive police station. This was done at the request of Larry Huggins, an Illinois State police officer who later took a statement from the defendant in which defendant admitted committing the crime in question.
Huggins testified that he told the defendant that he was conducting an investigation and asked defendant if he would care to talk to him about the investigation. He said that defendant replied that he would be “glad to talk with me.” Immediately thereafter he advised defendant of his constitutional rights as guaranteed by Miranda. He admitted that at the time he questioned defendant he had no probable cause to arrest him. He also admitted that he untruthfully told the defendant that his fingerprints were found at the scene of the crime. After Huggins told him this defendant gave Huggins a statement confessing to the crime.
Officer David Lienard of the Mount Olive Police Department testified that he picked up the defendant at the comer of Main and Poplar Streets at approximately 2:50 p.m. on August 31, 1976. This was done at the request of Huggins. After defendant got to the police station, defendant said he wanted to talk to his girl friend who was supposed to meet him at the place where he was picked up.
“Q: In fact, how far from where you first apprehended Mr. Boerckel had you walked with him so that he could converse with his girl friend?
A. I didn’t walk with him from where I first apprehended him. I took him from where I first apprehended him to the police station and then from the police station I walked approximately one block on the south side of the street to the intersection of Main and Poplar there and that’s when he conversed with his girl friend.
Q: All right, in other words how did you get from the point that you apprehended him to the police station?
A. I believe the squad car, sir.
Q. He was in the car?
A: Yes, sir.
Q: And you drove down to the police station?
A: Yes, sir.
Q: You went into the police station?
A: Yes, sir.
Q: And then he asked that he wanted to talk to his girl friend?
A: I contacted Detective Huggins — I believe I explained to him first of all.
Q: Okay, what did you do, what did you do once you got back to the police station?
A: Well, I explained to him that Detective Huggins wanted to talk to him.”
The arrest report of this incident filed by Lienard reads in part as follows:
“On 8-31-76 Ptm Lienard of the Mt Olive Police Dept talked to Detective Larry Huggins of the Illinois State Police at District 11-A at 1:30 PM. Det. Huggins informed Ptm. Lienard that he was looking for a Darren Boerckel of Litchfield in Reference to the Rape of [M.D]. Patrolman Lienard advised that if he located Boerckel he would hold him and Contact Det. Huggins.
At 2:45 PM Ptm Lienard seen the Boerckel subject at the comer of Poplar and W Main and picked him up and returned to the Police Station. Ptm Lienard advised the Boerckel subject who identified himself as Darren E Boerckel of 345 S Grant, Litchfield, Ill, white, male, DOB 1/29/59. Ptm. Lienard informed him that Detective Huggins of the Illinois State Police wanted to talk to him in reference to an Investigation going on.
Darren Boerckel requested that Ptm Lienard go with him to the comer of Poplar & Main so he could tell his girl friend not to wait for him. Ptm Lienard complied with this request. Ptm Lienard called District 11-A at 2:55 PM and requested Detective Huggins at which time 11-A contacted him and advised Ptm Lienard he was on his way to Mt. Olive PD.”
Defendant testified that he did not go with Lienard willingly and that he was searched at the station prior to the time that Huggins arrived. His testimony that he was searched was not rebutted.
In spite of the foregoing evidence, the majority holds that the defendant was not under arrest until after he incriminated himself. How the majority can square this holding with their decision in the recent case of People v. Foster (1978), 66 Ill. App. 3d 193,383 N.E.2d 755, is difficult to see. In that case this court said:
“An arrest involves the authority to arrest, an assertion of that authority with intention to effect an arrest, and the restraint of the person to be arrested. [Citations.] All of these elements are present in the instant case notwithstanding the police officers’ statements that respondent was not arrested and was free to leave. We first note that intent, being a state of mind, is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. The officers’ declarations of intent at the hearing are only one factor in considering whether respondent was under arrest. In recognition that such declarations are often self-serving and conclusory, we feel compelled to scrutinize the acts of all the participants as well. The evidence shows that Officer Lively instructed the officers of the DuQuoin Police Department to bring respondent to the police station. This directive was mandatory, not discretionary. When Officer Jackson confronted respondent on Division Street, it was apparent that respondent had no choice but to comply with the request to get in the squad car. The fact that respondent offered no resistance does not lend support to the State’s argument that there was no arrest. Respondent simply recognized that if he failed to comply with Jackson’s demand he still would be taken to the station. Likewise, at the interrogation, respondent had reason to believe that it would be futile to attempt to leave. Although Officer Lively testified that respondent could have left, in light of the intensive interrogation in the courtroom in the presence of two police officers, respondent had no reasonable opportunity to go home until after the termination of the questioning. The State cannot now assert that respondent was free to go when it was apparent that he was being restrained.”
In its opinion in this case the majority says:
“The medical evidence and spontaneous statements of the victim to the McCarts established the occurrence of both the rape and aggravated battery offenses. Defendant’s confession was corroborated in all material respects by the spontaneous declarations of the victim, indicating that he was in fact the perpetrator of these crimes. In addition, defendant’s identity as the offender was also bolstered by the fact that both the rapist and defendant had long hair, type O blood and were secretors. Defendant’s confession was further corroborated by the fact that defendant knew the victim was wearing no undergarments at the time of the attack.”
Did the perpetrator of this crime have long hair? The State took an evidentiary deposition from the victim in this case, part of which was read into evidence by the defense:
“Q: Now you say that you can’t recall the characteristics of the individual, is that correct?
A: Yes.
Q: The individual may have had short hair?
A: I don’t know.
Q: You just don’t recall if it was short hair or long hair?
A: Short hair.
Q: Pardon.
A: If it is the same one I think he had short hair.”
Whether the defendant said he knew the victim was wearing no undergarments at the time of the attack is open to question, since it was not included in the statement taken from him by Huggins.
The result reached by the majority in this case is also in direct conflict with Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, and Wong Sun v. United States (1963), 371 U.S. 471,9 L. Ed. 2d 441, 83 S. Ct. 407.