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Hruby v. Bd. of Fire & Police Comm'rs

SEPTEMBER 16, 1974.

ROBERT HRUBY ET AL., PLAINTIFFS-APPELLANTS,

v.

THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF BERWYN ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

Achilles Chiapetta and Robert Hruby were police officers (patrolmen) of the City of Berwyn. They and police officers Charles Honsik and Charles Estes investigated a break-in at a Sears store and were subsequently charged, in substance, with improperly removing a color TV, a stereo tape player and some toys, thereby engaging in "conduct unbecoming a police officer." After a full hearing, the Board of Fire and Police Commissioners found them guilty and discharged them from their said civil service offices.

Chiapetta and Hruby sought judicial review of said administrative decision and Honsik and Estes also sought similar relief in a separate action. The two actions were consolidated and heard together.

As to Honsik and Estes, the trial court remanded the matter to the Board for a limited hearing and their case is not before us. As to Chiapetta and Hruby, the trial court affirmed the Board's findings and decision and they have appealed, contending in substance:

(1) That the Board's findings and its decision discharging them from their offices, are not supported by and are contrary to the manifest weight of the evidence; and that the trial court therefore erred in affirming said decision.

(2) That they were denied a fair trial by the Board (a) in refusing to sever their trial from that of Officers Honsik and Estes; (b) by not having a more specific Bill of Particulars furnished them; and (c) by allowing the hearing to go on for some four months and over 1000 pages of transcripts; and that the trial court therefore erred in affirming the Board's decision.

• 1 We conclude: (1) that the Board's findings and decision are supported by and are not contrary to the manifest weight of the evidence; and (2) that the contention that, for various reasons, the Board did not give them a fair trial not only was not presented below but is without merit. We therefore affirm.

The Facts

Chiapetta, Hruby, Honsik, and Estes were police officers (patrolmen) of the City of Berwyn and all were on duty on the 11 P.M. to 7 A.M. shift on October 30-31, 1969. Chiapetta was driving squad car 68, which was being used as car 63, with Hruby as his partner and they had never been teamed up before. Between 4:30 and 4:35 A.M., they had not given or received any radio transmission although the operator had tried several times to contact them. Chiapetta and Hruby explain this hiatus by testifying that at about 4:30 A.M. they left their squad car at Home Avenue near 24th Street to investigate a couple kissing in a parked car, which took a few minutes. No names or license numbers were taken or report made and, as they returned to their squad car they heard the call from the station, to which they responded. At the trial there was testimony that they should not have left their car unattended without reporting that they were doing so and where and why.

When they responded, Ochsner told them to go to Dunkin Donuts at East Avenue and 22nd (Cermak) and pick up coffee and doughnuts for the station. According to Chiapetta and Hruby, they started north on Home Avenue and were stopped for a traffic light at 22nd (Cermak) when they noticed, to their right, that the wire gate in the cyclone fencing which surrounded the outdoor garden section of Sears store in the Cermak Shopping Plaza was open and swinging in the wind. They backed up and parked next to that fence. It was then about 4:50 A.M. and Chiapetta turned off the lights and the radio and removed the ignition key which he put in his belt. Both got out and went in to investigate the Sears area, without advising the radio operator at the station that they were leaving their squad car unattended. According to testimony at the trial, this was not proper police practice.

They then went through the open gate into the open air garden station, which was full of trees and bushes and a trailer. After checking it out, they noticed that a wood door into a lean-to addition had been pried open. This lean-to was 5 feet deep and some 40 feet long and 7 feet high at the door. It had a slanting roof and an overhang. The door was about 4 feet wide. According to their testimony at the trial, an 18-inch Sears color television and a Sears stereo tape player with two extension speakers were in the doorway, half in and half out, being rained on and blocking the passage. Their subsequent handwritten reports of the incident state, however, that the TV and tape player were found inside the door. This lean-to was piled some 6 feet high with Christmas trees and ornaments, with a passageway about 3 feet wide through it.

Five feet beyond the wood door was a set of double glass doors some 6 feet wide, leading to the toy section. According to Chiapetta and Hruby, the lower half of the right door was broken and they drew their service revolvers and climbed through the door into the toy section. Again, they did not, as yet, go back and let the radio operator at the station know what they had seen or what they were doing, which would have been the better police procedure. According to Chiapetta and Hruby, they then checked out the toy section, which was about 50 feet by 200 feet and they noticed that a second set of glass doors, leading into the main store, was also smashed and they crawled through it into the main store, some 250 by 500 feet. Another television set was standing in the aisle in front of them and Hruby picked it up and moved it out of the way, contrary to usual police practice. After some 3 to 5 minutes checking, they concluded that those who had broken into the store were probably still in there and Chiapetta started back to call the station, leaving Hruby in the toy section.

According to Chiapetta, as he went out through the two doors and the wood door, he came across the TV and the tape player in the door of the lean-to and picked up the TV and carried it out to his squad car and put it in the back seat, because it was wet and blocking the passage and could not be put elsewhere.

In the meanwhile, Detective Russ was patrolling the area and shortly before 5 A.M. was going east on Cermak Road and came to the Shopping Plaza and the Sears store, where he saw squad car 68 parked near the fence without lights. According to his testimony, he saw Chiapetta coming out of the Sears garden section carrying three boxes, which he put down next to his squad car. Russ also testified that Chiapetta then saw him and got into the squad ...


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