THIRD DIVISION September 20, 2006
No. 1-04-2172
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court Plaintiff-Appellee, ) of Cook County ) v. ) ) MARIANO LOPEZ, ) Honorable Michael B. Bolan ) and Honorable Clayton J. Crane, Defendant-Appellant. ) Judges Presiding.
JUSTICE KARNEZIS delivered the opinion of the court:
Following a bench trial, defendant Mariano Lopez was found guilty of first degree
murder, armed robbery, home invasion, attempted aggravated arson and aggravated
unlawful restraint and was sentenced to concurrent prison terms of 23 years, 20 years,
20 years, 5 years and 3 years, respectively. 1 On appeal, defendant contends: (1) the
trial court erred when it denied his motion to quash arrest and suppress evidence; and
1 The Honorable Michael B. Bolan presided over defendant=s pretrial motions
before retiring. The Honorable Clayton J. Crane presided over defendant=s trial. 1-04-2172
(2) defendant's written statement should have been suppressed pursuant to Missouri v.
Seibert, 542 U.S. 600, 159 L. Ed. 2d 643, 124 S. Ct. 2601 (2004). We affirm.
Defendant was convicted of killing Hector Andrade. Andrade was discovered on
the morning of July 14, 1998, in his apartment with his arms, legs and mouth bound with
duct tape. He had been stabbed 12 times. Defendant, William Andrade 2 and Jose
Leal 3 were arrested and charged with the murder. Defendant, who was 15 years old at
the time of the murder, implicated himself in the murder during questioning by police
officers. Defendant's first statement, given at approximately 6 p.m. on July 21, 1998,
was suppressed by the trial court. Defendant's second statement, which was
2 William Andrade and the victim are not related. William Andrade's conviction
was affirmed in part and vacated in part on appeal. People v. Andrade, No. 1-01-1719
(2003)(unpublished order under Supreme Court Rule 23).
3 Jose Leal's conviction was affirmed on appeal. People v. Leal, No. 1-03-2226
(2005)(unpublished order under Supreme Court Rule 23).
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memorialized in writing at approximately 10 p.m. that evening, was not suppressed and
is the subject of this appeal.
Initially, we note that defendant's contentions on appeal relate solely to the trial
court's rulings on defendant's pretrial motions to quash arrest and suppress evidence.
Yet, defendant failed to include the actual motions that were filed in the trial court in the
record on appeal. Illinois Supreme Court Rule 321 (155 Ill. 2d R. 321) provides, in
pertinent part:
"The record on appeal shall consist of the judgment appealed from,
the notice of appeal, and the entire original common law record * * *. The
common law record includes every document filed and judgment and
order entered in the cause * * *." 155 Ill. 2d R. 321.
Nevertheless, we will review defendant's claims of error as supported by the transcripts
from the hearing that defendant did include in the record on appeal. We note that it is
appellant's burden to present a sufficiently complete record to support his claims of
error. Foutch v. O=Bryant, 99 Ill. 2d 389, 391 (1984). Any doubts that may arise from
the incompleteness of the record will be resolved against the appellant. Foutch, 99 Ill.
2d at 392.
Defendant first contends that the trial court erred in denying his motion to quash
arrest and suppress evidence. Defendant maintains that he was under arrest when
police officers took him from his home and, because the officers lacked probable cause
to arrest him at that point in time, his arrest was illegal. Defendant therefore maintains
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that because his arrest was illegal, his written statement should be suppressed "as the
fruit of his illegal arrest."
At the hearing on defendant's motion to quash arrest, defendant testified that
three police officers came to his home at about 1:15 p.m. on July 21, 1998. Two of the
officers were inside and one was waiting in the hallway. The officers told defendant that
he was going to go with them to the police station so they could ask him some
questions. The officers told defendant to put his shoes on and one of the officers
"pushed or grabbed" defendant and told defendant he was to go with them. The officers
did not tell defendant's mother that she could accompany defendant. Defendant
testified that he went with the officers because he thought he had no other choice. The
two officers inside had guns but did not have them drawn. The third officer, in the
hallway, had his gun out of its holster but then put it back. All of the officers were
dressed in plain clothes. Defendant was placed in the backseat of the officers' police
car and transported to the station. Upon arriving at the police station, defendant was
brought into a room and questioned. He was in the room for about three to four hours.
The officers would interrogate defendant and then leave the room for approximately two
minutes and then return to question him again. The door to the room remained closed,
and when officers left the room, they locked the door from the outside. None of the
officers told defendant he could leave and he did not feel he was free to leave. Neither
of defendant's parents was at the station nor was a youth officer present. Defendant
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admitted that he never told the officers that he wanted to go home and that he never
asked for his parents. The officers did not tell defendant that they wanted to talk to him
about a homicide investigation; they told him they wanted to talk about gangs.
Defendant stated that he was allowed to go to the bathroom whenever he needed to
and he was offered food but was not hungry. Defendant was not handcuffed at any
time and was fingerprinted only after his written statement was completed, at
approximately 10 p.m. that night.
Defendant's mother, Maria Luisa Garcia, testified that when the officers came to
her door, one of them asked for defendant and told her, AI'm going to take him." The
officer later pushed defendant and told defendant, "let's go."
Lydia Villanueva, a friend of defendant=s family, testified that she made several
telephone calls to the police station to find out about defendant. She called the
telephone number that was on the card that the officers had given to defendant's
mother. She first spoke with Detective Bautista at about 3 p.m. that day. Detective
Bautista told her that they were going to ask defendant some questions and then bring
him home. She made several subsequent telephone calls, the last one at about 8 p.m.
Defendant=s home phone records were introduced into evidence and showed that
on July 21, 1998, between the hours of 2:30 p.m. and shortly after 7 p.m., there were
five telephone calls placed from defendant=s home to the number on the card that
officers had given to defendant's mother.
Detective Alfonso Bautista testified that on July 21, 1998, he learned that
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defendant was a possible witness in the murder investigation. He and his partner,
Detective Dennis Keane, went to defendant=s home at about 12 p.m. that day. He
denied the presence of a third officer. Detective Bautista spoke to defendant=s mother
in Spanish and told her that they wanted to talk to defendant. He told her that they were
conducting a homicide investigation and defendant=s name had been mentioned by
some people they had spoken with and they wanted to talk to defendant. Detective
Bautista then introduced himself and his partner to defendant and told defendant that
they were investigating a homicide. He told defendant that his name had been
mentioned by some people they had spoken with and they wanted to ask defendant
some questions. He further told defendant that he would prefer to ask defendant
questions at the police station if defendant would agree. Defendant agreed to
accompany them to the police station. Detective Bautista told defendant=s mother
where the police station was located, but she declined to go with them. Detective
Bautista denied touching or pushing defendant as they left the apartment. They drove
defendant to the police station in an unmarked car and defendant was not handcuffed.
Detective Bautista testified that, upon arriving at the police station, defendant
was placed in an interview room. He stated that defendant was a possible witness, not
a suspect at that time. He and Detective Keane had a conversation with defendant at
about 1 p.m., but did not give defendant his Miranda rights. The conversation lasted
about 15 to 20 minutes. The detectives informed defendant that they needed to verify
the information he had provided and advised defendant that if he needed anything while
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they were gone, he should knock on the door and another detective would come to the
door. The detectives left the room and closed the door but did not lock it. They were
gone for about 11/2 to 2 hours. When they returned, the door to the interview room was
closed and unlocked. The detectives were also interviewing Jose Leal, who was at the
station in a different interview room. At about 5:30 p.m., Leal implicated defendant in
the murder. Shortly before 6 p.m., the detectives confronted defendant with Leal's
statement and defendant made an inculpatory statement. Detective Bautista stated that
they terminated the interview, gave defendant his Miranda rights and placed him under
arrest. He stated that after Leal implicated defendant, defendant would not have been
free to leave the police station.
Detective Bautista stated that they did not arrange for a youth officer when
defendant arrived at the police station because he was a witness at that time and it was
not common practice to have a youth officer present to interview a juvenile witness. He
further stated that defendant never asked to leave the police station. Sergeant Dennis
Keane 4 also testified at the hearing. His testimony was consistent with Detective
Bautista=s testimony.
4 Sergeant Keane testified that, at the time of defendant's arrest, he had not yet been promoted to sergeant and was a detective.
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The trial court denied defendant's motion to quash arrest finding that defendant
voluntarily accompanied the detectives to the police station. The court noted that
defendant was 15 years old at the time of his arrest and did not have any prior contacts
with the police. The court also noted that defendant's mother was given a card with
Detective Bautista's telephone number and was told where the police station was
located. Defendant was not handcuffed at any time and defendant's mother was told
she could accompany defendant to the police station. The court acknowledged the
discrepancy in testimony regarding whether the detectives grabbed or pushed or
touched defendant as they were leaving the apartment, but stated there was no way to
substantiate that it occurred. The court concluded that considering all of the
circumstances involved, defendant was not under arrest when he was brought to the
police station.
On appeal, defendant contends that the trial court's finding that he was not under
arrest until approximately 6 p.m. on July 21, 1998, was manifestly erroneous. He
argues that he was under arrest when the officers took him from his home.
The standard of review applicable to a ruling on a motion to quash an arrest and
suppress evidence is twofold. The trial court's factual findings and credibility
determinations are upheld unless they are against the manifest weight of the evidence.
People v. Jones, 215 Ill. 2d 261, 267-68 (2005). A finding is against the manifest weight
of the evidence only if the opposite conclusion is clearly evident. People v. Luedemann,
357 Ill. App. 3d 411, 417 (2005), appeal allowed, 216 Ill. 2d 713 (2005). After the trial
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court's factual findings are reviewed, the court's ultimate legal rulings are reviewed de
novo. Jones, 215 Ill. 2d at 268.
To quash an arrest as violative of the fourth amendment, the burden is on the
defendant to show that an illegal seizure has occurred. People v. Graham, 214 Ill. App.
3d 798, 806 (1991). The defendant must first establish that a seizure occurred and,
second, that the seizure was illegal. Graham, 214 Ill. App. 3d at 806. Pursuant to the
fourth amendment, a seizure occurs when, "in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not free
to leave." United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100
S. Ct. 1870, 1877 (1980). Factors to consider include: (1) the time and place of
confrontation; (2) the number of officers; (3) the presence or absence of family or
friends; (4) the presence of conduct normally involved in a formal arrest procedure, such
as physical restraint, the show of weapons or force, booking or fingerprinting; and (5)
the manner by which the individual is transported to the police station. Graham, 214 Ill.
App. 3d at 807.
Here, we find that the evidence presented at the hearing on the motion to quash
arrest supports the trial court=s finding that defendant voluntarily accompanied the
detectives to the police station. Detectives Bautista and Keane confronted defendant in
his home and told him that they were investigating a homicide and wanted to ask him
some questions at the police station, to which defendant agreed. The detectives
testified that they were the only two officers at defendant=s home, and they specifically
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denied the presence of a third officer. Defendant=s mother and sister were at home with
defendant when the detectives arrived. Detective Bautista conversed with defendant=s
mother in Spanish, telling her where the police station was located and giving her a card
with his telephone number. Defendant was neither physically restrained by the
detectives nor was he handcuffed. The testimony at the hearing indicated that
defendant walked out of his home with the detectives. Defendant was transported to
the police station in an unmarked car and was not fingerprinted or read his Miranda
rights. Defendant was brought to an interview room where the door was closed but not
locked. Although some of defendant=s testimony conflicted with the detectives'
testimony, the trial court believed the detectives= testimony rather than that of
defendant. We find no evidence to the contrary. The trial court=s findings are supported
by the record and are not against the manifest weight of the evidence. The trial court
did not err in denying defendant's motion to quash his arrest and suppress evidence.
Defendant relies on People v. Vega, 203 Ill. App. 3d 33 (1990). In Vega, this
court found that the defendant had been seized without probable cause. This court
noted that: the defendant was not questioned briefly in his home where he was found,
despite his mother=s inquiry as to why he could not be questioned at home; the
defendant was searched before being placed into the back of a locked squad car and
transported to the police station; the defendant was placed in an interrogation room at
the police station and was only let out to speak with his mother on the telephone
because officers had encouraged her to convince the defendant to take a polygraph
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test; and police officers transported the defendant in a police car to a crime laboratory
for a polygraph examination without his consent. Vega, 203 Ill. App. 3d at 42-43. This
court found that, considering all of the above circumstances, a reasonable person in the
defendant=s situation would not have considered himself free to go. Vega, 203 Ill. App.
3d at 43.
Here, unlike in Vega, the detectives told defendant that they wanted to bring him
to the police station to ask him questions about a homicide. Neither defendant=s mother
nor his sister asked the detectives whether defendant could be questioned at home.
Also, defendant was not searched prior to being transported to the police station.
Further, there was no testimony that officers attempted to pressure or coerce defendant
to submit to a polygraph examination as in Vega. We are not persuaded by defendant's
reliance on Vega. Accordingly, we find the trial court=s denial of defendant=s motion to
quash his arrest and suppress evidence was proper.
Next, defendant contends that his written statement should be suppressed
because it violates the "question first-warn later" interrogation technique found
unconstitutional in Missouri v. Seibert, 542 U.S. 600, 159 L. Ed. 2d 643, 124 S. Ct. 2601
(2004). In Seibert, a plurality of the United States Supreme Court held that Miranda
warnings given mid-interrogation, after the defendant had given a confession, were
ineffective, and the confession, which the defendant repeated after Miranda warnings
were given, was inadmissible at trial. In Seibert, the interrogating officer admitted that
he intentionally employed an interrogation technique he had been taught in which he
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questioned the defendant without providing Miranda warnings first and obtained a
confession and then provided Miranda warnings and repeated the questions to obtain
the same answers Alegally.@ The Supreme Court found that the threshold inquiry to
determine whether a confession was voluntary was whether it would be reasonable to
find that, under these circumstances, the warnings could function effectively as Miranda
required. Seibert, 542 U.S. at 611-12, 159 L. Ed. 2d at 655, 124 S. Ct. at 2610. The
plurality determined that it was likely that postconfession Miranda warnings would be
ineffective in preparing a suspect for successive interrogation close in time and similar
in content because a suspect who had just admitted guilt would hardly think he had a
genuine right to remain silent. Seibert, 542 U.S. at 613, 159 L. Ed. 2d at 655-56, 124 S.
Ct. at 2610-11.
Prior to Seibert, the Supreme Court's analysis in Oregon v. Elstad, 470 U.S. 298,
84 L.Ed. 2d 222, 105 S. Ct. 1285 (1985), governed interrogations in which the
defendant had first made inculpatory statements without the benefit of Miranda
warnings, and then repeated those statements after Miranda warnings were given. In
Elstad, the police went to the defendant's home to arrest him on a charge of burglary.
As one of the officers spoke with the defendant's mother to explain why the defendant
was being taken into custody, another officer detained the defendant in another room,
informing him that the officers believed he was involved in a burglary. The defendant
then acknowledged that he had been at the scene. After being taken to the police
station, the defendant received full Miranda warnings, waived his rights and gave a
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confession. The Supreme Court held that the failure to give the defendant his Miranda
warnings before his initial inculpatory statement did not require suppression of his
subsequent warned confession. The Supreme Court stated:
AIt is an unwarranted extension of Miranda to hold that a simple failure to
administer the warnings, unaccompanied by any actual coercion or other
circumstances calculated to undermine the suspect=s ability to exercise his
free will, so taints the investigatory process that a subsequent voluntary
and informed waiver is ineffective for some indeterminate period. Though
Miranda requires that the unwarned admission must be suppressed, the
admissibility of any subsequent statement should turn in these
circumstances solely on whether it is knowingly and voluntarily made."
Elstad, 470 U.S. at 309, 84 L.Ed. 2d at 232, 105 S. Ct. at 1293.
We find the Seventh Circuit=s guidance in its recent opinion in United States v.
Stewart, 388 F.3d 1079 (7th Cir. 2004), helpful. The opinion analyzes the interplay
between Seibert and Elstad. In Stewart, the Seventh Circuit determined:
AAt least as to deliberate two-step interrogations in which Miranda
warnings are intentionally withheld until after the suspect confesses, the
central voluntariness inquiry of Elstad has been replaced by a presumptive
rule of exclusion, subject to a multifactor test for change in time, place,
and circumstances from the first statement to the second. * * * Where the
initial violation of Miranda was not part of a deliberate strategy to
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undermine the warnings, Elstad appears to have survived Seibert."
Stewart, 388 F.3d at 1090.
Here, we examine whether there was any evidence that the detectives
intentionally employed the two-step interrogation technique of question first, warn later
when defendant was interviewed at the police station. We find no evidence in the
record to support such a finding. Detective Bautista testified that defendant was a
witness and not a suspect when he was brought to the police station. He stated that it
was only later in the afternoon, sometime after Jose Leal implicated defendant in the
murder, that defendant would not have been free to leave. There is no indication that
the detectives intentionally withheld Miranda warnings in order to first secure a
confession, only to have defendant repeat it after being given Miranda warnings.
Defendant specifically argues that his written confession violates the holding in
Seibert and should be suppressed because Athe interrogation from the incriminating oral
statement to the incriminating oral and written statements [is] one continued
interrogation.@ As stated above, courts should depart from the Elstad analysis of
voluntariness only where the police set out deliberately to withhold Miranda warnings
until after a confession has been secured. There is no evidence that this occurred. We
reject defendant=s contention that his written statement should be suppressed because
it violates the "question first-warn later" interrogation technique found unconstitutional in
Seibert.
Accordingly, we affirm the judgment of the circuit court.
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Affirmed.
THEIS, P.J., and GREIMAN, J., concur.