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Mobley v. Conlisk

OPINION FILED MAY 1, 1978.

CHARLES MOBLEY, PLAINTIFF-APPELLANT,

v.

JAMES CONLISK, JR., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

The plaintiff, Charles Mobley, was discharged from his position as police officer of the City of Chicago following a hearing before defendant Police Board. Plaintiff sought review in the circuit court of Cook County pursuant to the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.) and the court affirmed the decision of the Police Board. Plaintiff has appealed and argues that the findings and decision of the Police Board are against the manifest weight of the evidence.

The charges brought against plaintiff arose from two incidents which occurred on the evenings of March 9, 10 and 11, 1970. The evidence produced at the hearing concerning the March 9 occurrence consisted of the testimony of Clemon Kimble, Charlie Alexander and Andrew Brown, who testified that plaintiff and his partner Carter stopped and searched them and accepted a $20 bribe from Kimble in return for not placing them under arrest. Plaintiff and his partner testified that they did stop and search the three men but found no contraband and accepted no money from them.

Kimble testified that on the night in question he was in a car with Alexander and Brown parked in front of a restaurant at 21st Street and Pulaski in the city of Chicago. Plaintiff and Carter drove toward them in an unmarked police car, made a "U" turn and pulled alongside their car. The policemen told them to get out and put their hands on their car. Plaintiff searched the witness and found dice in his pocket. The witness saw plaintiff search Brown and find dice in his pocket also. Carter searched the car and found a pocket knife and a tool for cleaning a printing press. The witness testified that plaintiff told him he could go to jail for having dice and that he would let him save his money to pay for his bond. The policemen told the three to get into the police car and they did. Carter then drove around the block. Kimble said he would give them $5 and Mobley said "five wouldn't do, at least ten apiece." Kimble then gave $20 to plaintiff Mobley over the front seat, and the three were released near their car. Alexander noted the police car's license number and, when the three men went home, Alexander called the police and the witness spoke over the phone. On cross-examination, the witness first said he could not remember the denominations of the bills, but then stated he gave plaintiff two $10 bills. The witness had $50 in his pocket when he was searched, but it was not taken when he was searched. The knife was not a switchblade; it was a small pocket knife. Neither Carter nor plaintiff stated they wanted money, but the witness repeated that he had offered $5 and plaintiff said "five wouldn't do, he said ten apiece."

Alexander testified that it was his car that all three men were sitting in. He repeated the way they were stopped and searched and were told to get into the police car. The witness said that nothing was found on his person during the search, but he saw that dice were discovered in the pockets of Kimble and Brown. In the police car, plaintiff said, "Don't you know you could be pulled in for them knives on the bottom of the seat and the dice?" and, "Do you all have any money?" Kimble said they had about $30 or $40, and "gave the money." The witness testified that plaintiff searched his car and discovered the knife, which was a pocket knife two inches long when folded, and the tool, which the witness described as a wood-handled blunt blade about 1 1/2 inches long, which he used at work. After the two policemen told them to get out, Alexander took down the license number. On cross-examination, the witness testified that Carter had the dice and that he didn't know which officer had the knife, but then he said that Carter had the knife.

Brown corroborated Kimble and Alexander on the facts of the stop by plaintiff and Carter, the searches of the men and the car, the finding of dice in the pocket of the witness and Kimble, and the finding of two knives inside the car. The witness testified that while the three men were in the back seat of the police car, plaintiff "asked how much money we have. We said `five dollars.' He said that weren't enough." The witness saw Kimble take $20 out of his pocket and put it into plaintiff's hand. On cross-examination, Brown stated that while he was sitting in the back seat of Alexander's car, he did turn around when the police car went by, but he did not duck down.

Plaintiff testified that a few days before that night the restaurant in front of which Alexander's car was parked had been robbed. While on patrol with his partner Carter, he observed the car parked two doors from the restaurant, with three men seated inside. The headlights were turned off. When the people in the car saw the police car, they "bent over in a position like they were putting something under the seat," in a "suspicious manner." The officers made a "U" turn and double parked next to the car and exited. Neither officer had his gun drawn. Plaintiff saw a "linoleum knife" on the floor of the car and searched Kimble and Brown. Plaintiff testified that he did not confiscate anything, although he found dice in the pockets of Kimble and Brown, which he returned. He denied saying it was illegal to carry dice or that he was going to arrest the three men. Kimble protested to him that "we wouldn't be doing this if it were a white neighborhood, and that we were merely picking on them." Plaintiff searched the car, not his partner Carter; all he found was the linoleum knife. There was no other knife or contraband discovered. Plaintiff testified that he questioned and searched the three men because of the recent robbery at the restaurant and because their actions had been suspicious. He denied soliciting money and denied that he had received any money in his hand or on the front seat.

Alphonso Carter, who had also been charged with the violations of the department rules, then testified that he was plaintiff's partner on patrol that night. He was driving the car when he saw the three men in the parked car make suspicious moves, "as though they were trying to elude us as we passed by." He was aware of a prior robbery at the restaurant. His search of the men revealed no weapons or other contraband, nor did he see plaintiff discover anything illicit from his search of the car. He observed no violations of any law or ordinance. He drove the police car that night. Everybody got into the police car because it was cold and he drove around the block because the car had been blocking traffic. He saw no money transferred, but he did see Kimble hand his identification over the seat to plaintiff. He did not solicit or accept any money from the three men and he did not violate any other department rules.

The evidence produced at the hearing concerning the March 10 and 11 incident consisted of the testimony of two men, James Webster and James Williams, who had been investigated by plaintiff and his partner on the night of March 10, and who, according to Williams, paid plaintiff $20 on March 11 for not arresting them. Several Chicago police officers testified and corroborated much of Williams's account of the March 11 transfer of money. Plaintiff and Carter denied solicitation of funds.

James Williams testified that on March 10 he was working as a security guard with James Webster at a supermarket near Pulaski and 31st Street in Chicago. They had just left work in Webster's car when they were stopped by a marked squad car with two uniformed policemen in it at about 9:15 p.m. Webster exited his car and entered the police car parked behind it, while the witness remained seated in Webster's car. An unmarked police car arrived and parked behind the squad car. One of the uniformed policemen came up to the witness, shined a light at him and said to wait a few minutes, then returned to the police car. The witness then testified that plaintiff, in plain clothes, walked up to the car and looked in the window. Williams said, "Do you want me?" Plaintiff replied, "Yes, stretch your legs a while." Williams and plaintiff then got into the back seat of the marked squad car with Webster.

Williams testified that one of the uniformed officers then asked how much money they had, and Williams replied that he had none, but that if they would stop the next day, "I will give you some money." The other uniformed policeman asked how much money, to which Williams responded, "I will make it worth your while." The first uniformed officer then said, "I am going to let you go. I will send for the money. If you don't pay me, don't give it to me, I will get you." Plaintiff then said, "I will pick it up." One of the uniformed officers told him it was against the law to have a gun, and the witness replied that the gun was registered. Plaintiff then said, "Well now, you know you are wrong. You better get this money right. And if I come in there [the supermarket] will you give me some steaks?" The witness replied that all he would get was money. The witness testified that the policemen all said they would leave the amount to him. Williams then asked what time would they arrive, and plaintiff told him 6:15; Williams then said to get there before 7:15 or there would be no payment. Williams was released without being arrested. He called his supervisor at the security guard agency that night.

On the next day, March 11, Williams met with Sergeant Major of the Chicago Police Department, in the supermarket at about 4 p.m. The officer gave him two $10 bills and the witness signed a receipt on which the serial numbers of the bills had been recorded. At 7 p.m., plaintiff and Carter arrived at the store and Williams met them at the door and led them toward a bread display. The witness testified that as plaintiff looked around, he said, "This is a fine store. You sell whiskey here?" Williams replied, "Hurry, man, get your money and get out of here." Williams then offered $20 to Carter, who said, "I don't want the money, give it to him," indicating plaintiff. Williams then put the money in plaintiff's pocket and gave a signal. The police officers present then stopped plaintiff and Carter and Williams told them which of plaintiff's pockets the money was in.

On cross-examination, Williams stated that he did not commit a crime on the night of the 10th. Although he had a weapon concealed on his person, he told no police officer he was armed. He admitted he was not asked for $20 and that nobody ever told him he was under arrest. Williams recalled that plaintiff had asked him in the police car if he knew a certain lieutenant of police who also worked for the security guard agency, and Williams did know the man. When plaintiff and Carter entered the store on the 11th, Williams was the first person to speak and said he would "make it worth their while." Williams admitted that he offered the bribe and that neither plaintiff nor Carter said, "We are here to get the money." Plaintiff had asked in the police car how much money would Williams give, but Williams had refused to be specific. Plaintiff did not actually ask for whiskey.

James Webster testified that he was the driver of the car in which Williams was riding on the evening of the 10th. He was stopped by a marked squad car for driving with his bright lights on. He got out of the car and went back to the squad car and, as he reached for his license, the uniformed policeman saw his gun and told him it was illegal to carry one. Webster explained that he was a security guard, that the gun was registered and that he was transporting it home after work. The uniformed policemen called for another car and an unmarked car arrived carrying two plainclothed policemen. Webster was in the back seat of the marked car and plaintiff entered and sat next to him. Webster admitted to plaintiff that he had a gun and plaintiff said he could put him in jail for possessing one. Plaintiff then exited the car, went to the witness's car, where Williams was sitting, and returned. Plaintiff then asked Webster if he had any money, and Webster said, "No." That was all plaintiff said. One of the uniformed officers then told him to go home. He did not consider himself under arrest and never saw the police involved anymore. Nobody searched him and plaintiff himself did not see the gun. On cross-examination, Webster stated that Mobley never asked for money in exchange for letting him go. In response to questions put by the hearing officer, Webster stated that ...


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