dissenting:
I respectfully dissent. While I concur in the majority’s holding that the State proved the defendant guilty beyond a reasonable doubt, it is my belief that the evidence by which this burden was sustained was the fruit of an illegal seizure of the person of defendant Mata. Consequently, I disagree with the majority that Mata’s warrantless arrest was an “investigative detention” approved by the goals of Terry or that his arrest was supported by probable cause. Accordingly, I dissent from the majority’s decision that the conviction should be affirmed.
“The requirement of probable cause has roots that are deep in our history.” (Henry v. United, States (1959), 361 U.S. 98, 100, 4 L. Ed. 2d 134, 137, 80 S. Ct. 168, 170.) The motivating force leading to the adoption of the fourth amendment was antagonism towards seizures predicated on a mere suspicion. I respectfully suggest that the police officer in the case at bar was armed only with a mere suspicion and had insufficient facts upon which to base a full-fledged arrest.
I feel it is incongruous for the majority to state that the act of restraint, i.e., handcuffing the defendant and transporting him to the police station, was on the one hand not an arrest but merely an investigative detention pursuant to Terry and on the other hand to say that it was an arrest based on probable cause. The issue in this case is whether the handcuffing and transporting of the defendant to the police station constitutes an arrest and, if so, whether there was probable cause for the arrest.
The fourth amendment, applicable to the States through the fourteenth amendment (see Mapp v. Ohio (1961), 367 U.S. 643, 655, 6 L. Ed. 2d 1081, 1090, 81 S. Ct. 1684, 1691), provides: “The right of the people to be secure in their persons *** against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ***.” (U.S. Const., amend. IV, quoted in Dunaway v. New York (1979), 442 U.S. 200, 207, 60 L. Ed. 2d 824, 832, 99 S. Ct. 2248, 2253.) It is clear that the defendant was “seized” when he was handcuffed and placed in the squadrol and transported to the 12th district police station. Because this seizure took place prior to verification that a crime had been committed, and in the absence of sufficient evidence of a criminal offense, I believe that there was no probable cause to arrest defendant as a perpetrator, since such a seizure is proscribed by the fourth and fourteenth amendments.
As noted by the majority, the difference between an arrest and a stop lies not in the permissible restraint of the person but rather in the length of time the person may be detained and the scope of the investigation which may follow the initial encounter. (People v. Hardy (1986), 142 Ill. App. 3d 108, 114, 491 N.E.2d 493, 498.) In determining whether a detention is unreasonable, the court must consider the brevity of the detention, the purposes served by the stop and the time reasonably needed to effectuate those purposes as well as whether the police diligently pursued a meaningful investigation that was likely to confirm or dispel their suspicions quickly. People v. Runnion (1986), 150 Ill. App. 3d 879, 884, 502 N.E.2d 439, 443.
I believe that the evidence indicates, and the trial court properly found, that when the defendant was removed from the squad car, handcuffed and placed into the police wagon the investigatory phase blossomed into a full-fledged arrest requiring probable cause. However, it was not until the defendant had been handcuffed, placed into the patrol wagon and was en route to the police station that the officer learned that a burglary had taken place. Even then, the officer was not informed that a TV set had been involved in the burglary. At that point the defendant’s detention resembled a traditional arrest and a reasonable man, under those circumstances, would not believe that he was free to go. The officer arrested the defendant with absolutely no evidence that a crime had been committed. Had he proceeded back to the defendant’s home with defendant in the patrol car, free of handcuffs, he no doubt would have learned of the burglary during the return drive to Halsted Street and could have made inquiries while en route to determine if a 19-inch Sony TV had been stolen. Unfortunately, he arrested the defendant prematurely. While I agree with the majority that the police had sufficient reason to detain the defendant for investigation, the officer’s actions exceeded the limits of a Terry stop. The arresting officer had a number of minimally intrusive investigative alternatives available to him that he did not utilize which could have been performed in the vicinity of Newberry Street and which did not require the transportation of the defendant in handcuffs to a police station. He could have interrogated the defendant, confirmed his identity and investigated his background or attempted to verify, whether a crime had been committed. (See People v. Vena (1984), 122 Ill. App. 3d 154, 161-62, 460 N.E.2d 886, 892.) Had a minimum of investigation been performed, the officer might have learned of the outstanding warrant on the defendant and most probably would have learned that a burglary had taken place. This record is devoid of any evidence that suggests the police officer had knowledge of any outstanding warrant. In fact, the only reference in the record to the warrant occurred at the sentencing hearing. In light of the fact that no effort was made to expeditiously confirm or dispel the officer’s suspicions on Newberry Street, I believe that the handcuffing and transporting of the defendant was no longer a permissible detention pursuant to Terry, but rather a seizure requiring probable cause.
Accordingly, I disagree that the police had probable cause to arrest the defendant at that point. Probable cause to arrest exists when the facts and circumstances within the knowledge of the arresting officer are sufficient for a man of reasonable caution to believe that an offense has been committed and that the person arrested has committed it. (People v. Reynolds (1983), 94 Ill. 2d 160, 165-66, 445 N.E.2d 766, 769.) An arrest based on a hunch or mere suspicion of the officer, before the commission of a crime is verified, cannot be sanctioned. (People v. Rodriquez (1987), 153 Ill. App. 3d 652, 659, 505 N.E.2d 1314.) Nor can an illegal arrest be justified by the subsequent discovery of incriminating evidence, and any evidence seized pursuant to such an arrest must be suppressed. People v. Sanchez (1982), 107 Ill. App. 3d 240, 248, 437 N.E.2d 744, 751.
In the present case, at the time the defendant was placed under arrest, the officer had no knowledge that a crime had been committed. There is no evidence that he had knowledge of a series of crimes having been recently committed in the area, nor was there evidence that the particular area was a high crime area. Not only had the defendant not fled from the police, but had voluntarily accompanied them. They knew his identity and knew where he lived. At that point, the only facts in the possession of the officer were that defendant was carrying a TV set to his home at 2:40 a.m., that he had allegedly borrowed the set from a friend, that no one answered the door of the house defendant took him to on Newberry and the officer’s belief that no one had entered or left the house because he saw no footprints in the snow. A fact totally ignored both by the trial court and the majority was that the evidence indicates that the snow had “commenced about two hours before” the officer saw the defendant, and “it was snowing pretty hard — it was a pretty nasty night out.” The officer further testified that when he observed the defendant he was wet. Although the trial court made no specific findings of fact that the snowfall was continuing during the occurrence in question, the logical inference from the testimony was that it was snowing at the time of the officer’s encounter with defendant, and hence, would explain why there were no footprints in the walkway at 1718 Newberry. In support of its finding that the detention of Mata in the case at bar was proper, the majority cites People v. Vena (1984), 122 Ill. App. 3d 154, 460 N.E.2d 886, which held that detention and transportation to the station of suspects before verification of a specific crime is not contradictory to the rationale of the United States and Illinois Supreme Courts regarding Terry stops. That case is distinguishable from the instant case in that the three suspects there were trespassing through a residential backyard and upon seeing the police they fled. In this case the defendant was at a place where he had a right to be, he voluntarily accompanied the officer, he attempted to cooperate with him, he did not flee nor did he attempt to flee, the officer knew or could have easily determined his identity and he knew the location of defendant’s residence.
In People v. Hobson (1988), 169 Ill. App. 3d 485 (Rizzi, J., specially concurring), another case cited by the majority, the factual matrix is equally as distinguishable from the facts herein. In that case the officers had within a 20-day period recovered two stolen and stripped vehicles near defendant’s residence in Chicago and trails of antifreeze had been found leading from the recovered automobiles to the garage behind defendant’s residence. In addition, they observed defendant back a car into the garage, they ran a computer check on the license plate number of that car and determined it was registered to a residence in Evanston, saw the car within 15 minutes of arrival sitting on milk crates minus two tires and hub caps, and most importantly, the defendant, when he saw the officers, attempted to get past them, but they grabbed him. These two cases cited by the majority are totally distinguishable from the case at bar.
Based upon the foregoing facts, I conclude that the officer was acting on no more than a hunch or a bare suspicion that a crime had been committed, that a hunch is insufficient to constitute probable cause and that the officer acted prematurely in arresting defendant. Therefore, I would hold that the trial court’s denial of the motion to quash and suppress evidence was manifestly erroneous.
Accordingly, I would reverse the judgment of the trial court.