¶1dissenting:
¶2I dissent because the constitutional requirements for a showing of probable cause have not been satisfied here. Instead, the majority’s rationale introduces to Illinois an innovative concept of appellate review. In determining whether there has been a showing of probable cause, reviewing justices may now speculate as to what they would have done had they been the investigating officers, leaving for defendants the task of proving that the real-life police did otherwise. That type of review makes it easier to justify a warrantless arrest than it is to obtain an arrest warrant: for a warrant to issue the State must allege sufficient facts to establish probable cause, while in the case of a warrantless arrest such facts may, under the majority’s sanction, merely be presumed. To avoid discouraging the use of arrest warrants, however, the Supreme Court has said that the standards applicable to judging warrantless arrests must be “at least as stringent as the standards applied with respect to the magistrate’s assessment.” (Whiteley v. Warden (1971), 401 U.S. 560, 566, 28 L. Ed. 2d 306, 312, 91 S. Ct. 1031, 1036.) The majority’s standard of review is irreconcilable with that admonition.
¶3Disregarding the State’s admission during oral argument before this court that “it is not in the record what police offieer[s] actually knew at the time [they] arrested the defendant,” the majority substitutes as a basis for its decision what the officers might have known. It thus ignores the fundamental rale of warrantless arrests, that the existence of probable cause must be proved by facts within the arresting officers’ knowledge at the time the defendant was seized.
“Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it— whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [defendant] had committed or was committing an offense.” (Beck v. Ohio (1964), 379 U.S. 89, 91, 13 L. Ed. 2d 142, 145, 85 S. Ct. 223, 225; see People v. Wright (1968), 41 Ill. 2d 170, 174.)
¶4In so doing, the majority rebuffs the previously well-established rule that in cases of warrantless arrest the State carries the burden of establishing probable cause (People v. Kraman (1981), 96 Ill. App. 3d 390; People v. Moncrief (1971), 131 Ill. App. 2d 770; see United States v. Allen (D.C. Cir. 1980), 629 F.2d 51; United States v. Guana-Sanchez (7th Cir. 1973), 484 F.2d 590; State v. Edwards (1974), 111 Ariz. 357, 529 P.2d 1174; People v. Tufts (Colo. 1986), 717 P.2d 485; Palmigiano v. Mullen (1977), 119 R.I. 363, 377 A.2d 242; Roberts v. State (Tex. Crim. App. 1977), 545 S.W.2d 157), and it requires defendants to produce evidence in the trial court to disprove a theory of probable cause which is only revealed after resolution by the reviewing court.
¶5The defendant claims that there was no probable cause for his arrest because all that the arresting officers knew at the time of his arrest was that the defendant had been in the company of another man who used Mr. Keena’s. (the victim’s) checks to purchase clothing. The trial court found from one of the arresting officer’s misleading testimony (that the defendant was “involved” in using the stolen check) that the defendant passed Mr. Keena’s check; but Derrick Moore, assistant sales manager at the Different Circle, contradicted that officer's testimony. (The other arresting officer’s testimony contained no additional information tending to éstablish probable cause.) Moore testified at trial that the defendant came into his store with two other men, and that the defendant browsed through clothing while one of the other two made the purchase at issue. Moore’s testimony has been accepted by the State as an accurate account; thus the State now agrees that prior to the defendant’s arrest there was no reason to believe that he had made a purchase with, or engaged in a transaction concerning, the victim’s check.
¶6According to the majority, however, the defendant mischaracterizes the issue because the police had “other significant information” (116 Ill. 2d at 485-86) tending to establish probable cause. First, the majority finds significance in Moore’s identification of the defendant after viewing some 200 photographs and in Moore’s description of a scar which the identifying photograph did not depict. True, that information bolsters the certainty of Moore’s identification, so the court is able to conclude with greater assurance that the defendant was the man whom Moore observed in his store while somebody else made a purchase with the victim’s check. But the defendant has never contested the sufficiency of Moore’s identification. Whether the defendant’s presence alone provides probable cause is the question presented, a question for which the certainty of Moore’s identification is hardly “significant.”
¶7The crux of the majority opinion is not what the police could infer from Moore’s identification, but what they might make of the identifying photograph. From the existence of defendant’s mug shot the majority reaches for a conclusion which the record does not support: that the police were aware of the defendant’s earlier burglary convictions. The majority opinion first states — without support in the record — that from the mug shot police could locate defendant’s “rap sheet” between the time that Moore identified the defendant’s picture and the time of the defendant’s arrest. Next it presumes — also without benefit of evidence — that since police officers could review the defendant’s criminal history, they in fact did so. “It is apparent that the police, from the defendant’s mug shot …, were able to examine the Chicago police department reports regarding the defendant and could ascertain his record and address … and that from the mug shot [the arresting officers] ascertained the information appearing in the Chicago police department records regarding the defendant.” (Emphasis added.) 116 Ill. 2d at 487.
¶8In this manner the majority conjures up additional evidence to support a conclusion which the known facts do not. But the illusion is transparent, particularly as the majority calls upon two equally flawed assumptions to detract from the absence of any supportive evidence.
¶9The first is that police arrested the defendant at the address supplied on his rap sheet, thereby demonstrating that they had read the rap sheet and were familiar with its contents and the defendant’s criminal conduct recounted therein. In its brief the State claims: “The last entry on this document [defendant’s criminal history] lists defendant’s address at 5523 North. Kenmore, which is exactly where the police went to arrest defendant.” Accepting the State’s crude misstatement of the record, the majority reasons: the police were able to ascertain the defendant’s address from his record, and “[t]hus, they were able to arrest him at his apartment at 5523 North Kenmore Avenue in Chicago.” 116 Ill. 2d at 487.
¶10The flaw in this reasoning is that prior to the defendant’s arrest for this crime, his record did not indicate an address on Kenmore Avenue, so the officers’ knowledge of defendant’s address does not by inference or in any other way establish their knowledge of his burglary record. The defendant’s criminal history (appended to this dissent as it appears in the record) indicates for all entries save the last an address of “1230 W. Argyle.” The last entry does indicate “5523 N. Kenmore,” but what the State’s argument and majority opinion have overlooked is that the last entry was made in connection with the arrest at issue in this case.
¶11The second assumption is that because one of the arresting officers testified to having written a police report regarding Moore’s identification prior to the defendant’s arrest, “[h]e certainly would have examined the Chicago police department records of the defendant.” (Emphasis added.) (116 Ill. 2d at 487.) That presumption is also baseless. The fact that a report was written about the identification proves nothing itself; its relevance to the question of what the arresting officers knew can only be uncovered by knowing what information the report contains. Since the State never offered the report in evidence, an inference arises that its contents are not beneficial to the prosecution. See Massa v. Department of Registration & Education (1987), 116 Ill. 2d 376, 386.
¶12By stating that police officers would “certainly” examine the defendant’s criminal history, the majority imagines what an experienced detective would investigate and that detectives in this case performed their investigation in accordance with the majority’s hypothetical standard. Considering the arresting officer’s own lack of precision in testifying as to the defendant’s “involvement” in using the victim’s traveler’s checks, and the extent to which that imprecision has been the cause of this protracted search for probable cause, there is no reason to blindly rely upon the unproved assumption that he took care to examine the defendant’s criminal record before making his arrest. More disturbing, however, is the implication that in every future case the court will assume that the actual investigation was a model of good police work, and since unlawful arrests are inconsistent with good police work, probable cause must exist.
¶13Contrary to the majority’s opinion, the record here suggests that prior to the defendant’s arrest, the arresting officers knew that the victim had been murdered sometime on the 11th or 12th of February, that one of the victim’s traveler’s checks had been used on February 11 to purchase merchandise from the Different Circle store in Chicago, that the defendant had been identified as one of two individuals who accompanied a third man to the Different Circle when the third man passed that check, but nothing more. Derrick Moore described those three men to police, but other than the identification of the defendant the record does not indicate what descriptions Moore gave, their depth of detail, or whether the victim matched Moore’s description of the man who actually used the traveler’s check. Therefore, from what the record shows to have been within the arresting officers’ knowledge at the time of the defendant’s arrest, the victim himself might have been alive and in the company of the defendant at the Different Circle store, only to be murdered later that night in an unrelated occurrence.
¶14Even stepping beyond the evidence of record to presume that Moore’s initial description of the person who negotiated the victim’s traveler’s check excluded that possibility, all that the arresting officers knew was that the defendant had been in the company of a man for whom probable cause to arrest existed by virtue of his possession of the victim’s property. That information was insufficient to justify the defendant’s arrest; “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause” for his arrest. (Ybarra v. Illinois (1979), 444 U.S. 85, 91, 62 L. Ed. 2d 238, 245, 100 S. Ct. 338, 342; Sibron v. New York (1968), 392 U.S. 40, 62-63, 20 L. Ed. 2d 917, 934-35, 88 S. Ct. 1889, 1902-03.) From what the officers knew prior to his arrest, the defendant’s conduct was, like that of the appellant in United States v. Di Re (1948), 332 U.S. 581, 92 L. Ed. 210, 68 S. Ct. 222, insufficient to justify an arrest because his mere presence while the check was negotiated did not establish his connection to any crime.
“The argument that one who ‘accompanies a criminal to a crime rendezvous’ cannot be assumed to be a bystander, forceful enough in some circumstances, is farfetched when the meetingjs not secretive or in a suspicious hideout but in broad daylight, in plain sight of passers-by, in a public street of a large city, and where the alleged substantive crime is one which does not necessarily involve any act visibly criminal. If Di Re had witnessed the passing of papers from hand to hand, it would not follow that he knew they were ration coupons, and if he saw that they were ration coupons, it would not follow that he would know them to be counterfeit.” 332 U.S. 581, 593, 92 L. Ed. 210, 219-20, 68 S. Ct. 222, 228.
¶15Notwithstanding the majority’s attempt to bolster the record with presumptions of good police work, the evidence supports but a single conclusion: that the defendant was arrested solely for having been in the company of another who possessed and used the victim’s property. The case is thus similar to People v. Creach (1980), 79 Ill. 2d 96, where this court found probable cause lacking for the arrest of Thomas Ruppert. Though he had traveled in the victim’s car with Creaeh to Ohio shortly after the murder, Ruppert’s arrest was found to have been made unlawfully, regardless of the legality, of Creach’s arrest, because “probable cause to arrest a particular individual does not arise merely from the existence of probable cause to arrest another person in the company of that individual.” 79 Ill. 2d 96, 102-03; see People v. Carnivale (1975), 61 Ill. 2d 57.
¶16The majority appears to distinguish Creach on the basis of “other significant information” supposedly known by the arresting officers. Since the record, as I have demonstrated, does not lend support to the majority’s rationale, the distinction is invalid, and I do not see how Creach can survive the holding in this case. Neither do I believe that the majority opinion is consonant with constitutional safeguards. Moore’s identification might have ignited suspicion of the defendant’s involvement, but “suspicion is not enough for an officer to lay hands on a citizen.” Henry v. United States (1959), 361 U.S. 98, 104, 4 L. Ed. 2d 134, 139, 80 S. Ct. 168, 172.
¶17There can be little doubt that “guilt by association” is a fallacious notion which can never legitimate an arrest made without other specific information providing probable cause. (People v. Fletch (1971), 174 Colo. 383, 387, 483 P.2d 1335, 1337 (an “arrest based upon the theory that birds of a feather flock together, cannot be sustained”); Smith v. State (Okla. Crim. App. 1975), 525 P.2d 1251, 1253.) The majority is in apparent agreement, finding it necessary to draw upon matters not of record to uphold the legality of the defendant’s arrest, but the majority never explains whether or why “propinquity” plus supposed knowledge of prior convictions forms probable cause.
¶18The prosecutors were given ample opportunity to offer evidence in the trial court supporting the legality of the defendant’s arrest, and misleading testimony by the arresting officers was the best they could produce. That deception revealed, the majority’s opinion tries to uphold the arrest by its own sleight of hand. It succeeds, but only to a degree. Although the arrest has been approved, it has not been legitimated.
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