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Norek v. Herold

AUGUST 8, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.


Plaintiff brings this appeal from a judgment of the circuit court which affirmed an order of the Board of Fire and Police Commissioners finding him guilty of conduct unbecoming a police officer and immoral conduct, and discharging him from the Police Department of the city of Berwyn, Illinois.

He raises four issues for this court's consideration: (1) whether the Board of Fire and Police Commissioners lacked jurisdiction to hear this matter; (2) whether the search and seizure of motorcycles and motorcycle parts was invalid as no search warrants were admitted into evidence before the Hearing Board; (3) whether the Berwyn Police Department Rules and Regulations were void since adopted by a body not properly empowered to adopt such Rules and Regulations; and (4) whether the decision of the Board of Fire and Police Commissioners was against the manifest weight of the evidence.

Plaintiff, a patrolman on the police force for the city of Berwyn, was charged on July 21, 1971, with participating in eight acts of misconduct constituting violations of rules 2 and 51 of the Revised Rules and Regulations of the Police Department of the city of Berwyn. *fn1 A hearing on said charges was originally scheduled for August 12, 1971. Both parties then obtained numerous continuances and the hearing was ultimately commenced on July 13, 1973. At the beginning of the hearing attorney for complainant stated that no evidence would be presented on any charge other than paragraph eight, which stated:

"That said respondent Donald Norek, at his home at 2532 Gunderson Avenue, Berwyn, Illinois, on or about July 20, 1971, had in his possession to-wit, 3 stolen motorcycles at a value of approximately Two Thousand Dollars ($2,000.00) each and various and diverse motorcycle parts, which said motorcycles and motorcycle parts were not the property of said respondent."

Charles Herold, complainant and chief of police of the city of Berwyn, testified that he ordered the detective division to instigate an investigation of allegations of a motorcycle ring operating in the city of Berwyn, supposedly under the direction of plaintiff.

Dennis Kovarik, a police officer assigned to the detective division, testified that on July 19, 1971, he and Lieutenant Manek obtained a search warrant for the premises located at 2532 Gunderson Avenue where plaintiff resided. He stated that the warrant authorized the officers to search the premises for motorcycles or motorcycle parts. He proceeded to the premises on July 19, 1971, accompanied by an officer of the Cook County sheriff's office, an assistant State's Attorney, and numerous other members of the Berwyn Police Department. Upon their arrival, and finding no one in the residence, the officers proceeded to the entrance of the plaintiff's garage. The officers entered the garage by removing various locks and observed three motorcycles and numerous motorcycle parts. Photographs of the contents of the garage were taken and an inventory indicated the presence of one Harley-Davidson motorcycle, green in color with a white seat and chrome sissy bar, a second Harley-Davidson blue in color, and one Triumph motorcycle. The officers then took the motorcycles from plaintiff's garage to the Berwyn Police Department where they were placed in the custody of detectives Pabst and Wedekind.

On cross-examination, Kovarik testified that he had not observed plaintiff committing any crimes during the period he was investigating the matter, and that there had been no surveillance of the plaintiff's garage or home to observe who was entering or leaving the premises. He stated that the Triumph motorcycle was a stolen vehicle, but admitted that he had not received any information to support this conclusion or from whom it was taken. He further testified that the investigation indicated that the blue Harley-Davidson vehicle was not a stolen motorcycle and that it belonged to Albert Mattson who had left it in the plaintiff's garage.

Kovarik testified on redirect examination that both the Triumph and the green Harley-Davidson motorcycles had altered serial numbers and that the latter also had stolen parts attached to it, including the seat, front end, engine, transmission, rear and front tire, and rear and front rim. On re-cross-examination, Kovarik identified respondent's Exhibit Number Three as a title for a 1959 Triumph motorcycle issued to Dennis Taubery and respondent's Exhibit Number Four as a motorcycle identification card also issued to Dennis Taubery. He further identified respondent's Exhibits Six and Seven as a title to a green Harley-Davidson motorcycle and registration for the same vehicle issued to Richard Russo.

Wayne Jensik was called to testify and stated that in May, 1971, he purchased a custom Harley-Davidson motorcycle from the plaintiff. He described the motorcycle as one with custom handlebars, custom seat, a sissy bar that was poorly welded and a white seat that was torn on the top. He testified that the motorcycle was stolen approximately 2 weeks following the purchase; that he next saw his white seat and sissy bar, with the same identifiable characteristics, 2 months later in the Berwyn Police Station affixed to a different motorcycle. On cross-examination, Jensik admitted that it was not unusual to see a motorcycle with a custom made sissy bar, and that there is nothing unusual about the seat involved and that there are many like it on other motorcycles.

Richard Wedekind testified next and stated his occupation as a special assistant with the National Auto Theft Bureau. It was stipulated that the witness was an expert in identification of motor vehicles, the determination of whether original vehicle numbers have been removed and the restoration of numbers. He stated that he examined several motorcycles in Berwyn on July 19, 1971, at the Berwyn Police Department including a Harley-Davidson that bore the number 64 XL CH 4373. After the examination he concluded that the surface of the metal appeared to have been ground and the number restamped to 64 XL CH 4373. He further testified that examination of a Triumph motorcycle bearing number T 1200 24 682 indicated that the area had been ground and the number T 1200 24 682 had been restamped on the engine. He stated that through the use of a restoration process numbers TR 6 06 813 appeared immediately below the numbers which had been stamped on the motorcycle. He concluded his testimony by stating that in his expert opinion the original numbers on the motorcycles' engines had been ground off and had been restamped with the numbers presently found on the engines. On cross-examination Wedekind testified that there had been no report filed to indicate that the green Harley-Davidson or Triumph had been stolen. He stated that the fact that a number is ground off or a new number restamped does not in and of itself indicate that the vehicle has been stolen; that in some states it is legal to alter numbers, even though it is illegal in Illinois.

Detective Edward Pabst of the Berwyn Police Department was the next witness to testify. He stated that on July 19, 1971, he received three motorcycles from Detective Kovarik that had been taken from the garage at 2532 Gunderson Avenue; that he examined the numbers on the motorcycles and placed them in the evidence room.

Lieutenant Frank Manek of the Berwyn Police Department was called as a witness. He stated that he was present with others on July 19, 1971, as they proceeded to the plaintiff's residence; that he entered the garage and observed a Cadillac vehicle, three motorcycles, and various motorcycle parts. He identified the motorcycles as a green Triumph, a blue Harley-Davidson, and a green Harley-Davidson with a white seat and chrome sissy bar. He stated that in the month prior to July 19, 1971, he had observed plaintiff riding a motorcycle on two occasions. On each occasion Manek described the motorcycle driven by plaintiff as green with a white seat and chrome sissy bar. He stated that he next saw a vehicle with similar characteristics to the one driven by plaintiff in plaintiff's garage on July 19, 1971. On cross-examination, Manek testified that it was late afternoon or early evening on both instances that he observed plaintiff driving the motorcycle; that he did not notice the license plate or the State of issuance. He stated that he distinguished different makes of motorcycles by the size of the vehicle and that the motorcycle he saw plaintiff driving could have been one other than a Harley-Davidson model.

Plaintiff called as his first and only witness Dennis Taubery. Taubery testified that he knew plaintiff; that he was a frequent visitor at plaintiff's garage whether plaintiff was present or not; and that he and other persons, including Al Mattson and Richard Russo, had their own set of keys to the garage. He stated that besides the above mentioned persons who possessed keys, there had also been a set of keys kept outside the garage for the last 3 to 4 years. He testified that he owned a Triumph motorcycle and that the purpose of frequent visits to the plaintiff's garage was to work on the motorcycle. He then observed complainant's Exhibit Number Twelve, a photograph of a Triumph motorcycle taken in plaintiff's garage on July 19, 1971, and identified it as his own motorcycle. He was then shown complainant's Exhibit Number Sixteen, another photograph of a motorcycle, and identified it as one belonging to Richard Russo that he had been working on during a period up to July 19, 1971. He stated that the motorcycle had a white seat and sissy bar attached to it when he was working on it; that he did not know who placed them on the motorcycle; and that he never saw plaintiff working on, nor driving that motorcycle. He concluded his testimony by indicating that he never saw plaintiff, nor anyone else ...

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