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03/09/88 Dennis Lamoine Frye, v. Bennie O'neill Et Al.

March 9, 1988

DENNIS LAMOINE FRYE, PLAINTIFF-APPELLANT

v.

BENNIE O'NEILL ET AL., DEFENDANTS-APPELLEES (BYRON CUDMORE ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

520 N.E.2d 1233, 166 Ill. App. 3d 963, 117 Ill. Dec. 882 1988.IL.329

Appeal from the Circuit Court of Sanagmon County; the Hon. Richard E. Mann, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. LUND and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

The plaintiff, Dennis Frye, appeals an order of summary judgment entered with respect to his lawsuit against defendants Bennie O'Neill and Joe Williams. Frye's claims against O'Neill and Williams are premised on alleged malicious prosecution and civil rights violations on their part. We affirm as to defendant Williams and reverse and remand as to defendant O'Neill.

Count I of Frye's second-amended complaint, which is premised on an alleged malicious prosecution, states that at all relevant times, O'Neill was a trooper with the Illinois State Police and Williams was employed as an investigator with the Illinois Secretary of State's office. Count I further alleges Frye's indictment by the Sangamon County grand jury on August 8, 1985, on charges of unlawful delivery of a controlled substance. According to Frye's complaint, O'Neill and Williams, together with Assistant State's Attorney Byron Cudmore (who was also named as a defendant but is not a party to this appeal), were "responsible" for Frye's indictment, and O'Neill "in no way verified that the person who gave him the controlled substance was [Frye]." Moreover, Williams "without cause or reason, identified [Frye] as the person who delivered the controlled substance."

Count I further alleges a warrant for Frye's arrest was issued, and Frye was arrested and detained on August 9, 1985. Also, the defendants persisted in prosecuting the charge against Frye. The defendants subsequently admitted in charging Frye they charged the wrong person and they had relied on "bad information." Frye further stated in count I the defendants acted without probable cause when they caused the indictment and arrest warrant to be filed and when they caused the charge to continue to be prosecuted in that they had no evidence indicating he had committed a crime. Also, Frye alleged defendants acted maliciously in causing the complaint against him to be filed and in causing the continued prosecution of the charge against him, because "they acted out of prejudice toward [him] and out of a desire to harm, wrong and annoy" him. Count I concludes with an allegation of the damages which Frye allegedly suffered as a result of O'Neill's and Williams' actions, as well as an allegation their actions were "wilful, wanton, malicious, and oppressive" in support of a claim for punitive damages.

Count II of Frye's complaint, which is premised on an alleged malicious prosecution or false arrest of Frye which violated his Federal constitutional rights guaranteed by section 1983 of the Civil Rights Act of 1871 (42 U.S.C. § 1983 (1982)), alleges O'Neill's and Williams' statuses, Frye's arrest on August 9, 1985, on a charge of unlawful delivery of a controlled substance, which allegedly occurred as a result of O'Neill's and Williams' accusations, and O'Neill's nonverification Frye was the person who delivered the controlled substance, as well as Williams' identification of Frye as that person "without reason or cause." Count II also alleges defendants admitted they had charged the wrong person, had relied on "'bad' information" and had no reasonable information indicating Frye had committed any crime. Count II further alleges Frye's entitlement to the protections of the fourth and fourteenth amendments to the United States Constitution and the performance of defendants' conduct under color of law. Count II concludes with an allegation of Frye's damages and an allegation O'Neill's and Williams' conduct was performed in knowing violation of Frye's rights, or with malicious disregard thereof, in support of a claim for punitive damages.

O'Neill and Williams filed a motion for summary judgment on June 15, 1987. On the same date, they filed affidavits in support of the motion. In his affidavit, Williams stated he is employed as an investigator with the Illinois Secretary of State's office. In early May 1985, he encountered O'Neill, who informed him he was trying to establish the identity of a black man who in February of that year had sold O'Neill cocaine in the vicinity of the John Hay Homes. Williams had previously worked for six years as a security officer at the Hay Homes and agreed to help O'Neill discover the identity of the drug dealer. On May 23, 1985, O'Neill again contacted Williams. O'Neill apparently stated to Williams either at that time or previously he believed the drug dealer worked for the cable television company. On the basis of that fact, Williams felt he might know who the drug dealer was. Williams believed only one black man worked for the cable television company.

Williams stated he telephoned Leon Shanklin, chief of security at the Hay Homes, and related to him the information he had received from O'Neill. Shanklin told Williams the only black man he knew who worked for the cable television company was Dennis Frye, whom he had known in the East St. Louis-Alton, Illinois, area. Williams relayed that information to O'Neill and had no other involvement in the matter. Although Williams had observed Frye in the area of the Hay Homes on several occasions, their only contact consisted of an occasional exchange of greetings.

O'Neill stated in his affidavit he is a special agent with the Department of Criminal Investigation of the Illinois State Police (Department). In late January and early February 1985, the Department began a large-scale investigation of drug trafficking in the city of Springfield. The Department received information a subject known as Albert Jackson or "A.J." was conducting a cocaine delivery operation at 306 North 15th Place, which is located in the Hay Homes in Springfield. In early February 1985, O'Neill began working undercover as a maintenance employee at the Hay Homes in order to observe whether any drug trafficking was occurring. On February 28, 1985, O'Neill and a confidential informant, backed by a surveillance team, went to the apartment at 306 North 15th Place in order to attempt to purchase cocaine from "A.J." They were advised "A.J." was not present, but would return later. While leaving the area, an unidentified black man approached them outside the apartment. When they indicated their desire to purchase cocaine, the unidentified black man asked them to reenter the apartment. That individual then sold O'Neill for $200 a substance subsequently identified as cocaine. The individual who sold O'Neill the cocaine stated he was known as both "Dirty Red" and "Tigo." After leaving the apartment, the informant who was which O'Neill stated the man who sold O'Neill the cocaine was known as "Montigo."

After O'Neill unsuccessfully checked several sources, including law enforcement agencies, for information concerning the identify of an individual known as "Tigo" or "Montigo," O'Neill's informant advised him that person was Lamont Wilson, who worked at the cable television company. The informant further stated he had at one time dated Wilson's sister. A computer check revealed Wilson had been imprisoned in Illinois, and a photograph of him was available. Upon viewing the photograph of Wilson, O'Neill realized he was not the person who sold him cocaine on February 28, 1985.

On May 23, 1985, O'Neill met with defendant Williams, who was known to O'Neill to have previously worked as a security guard at the Hay Homes and had some familiarity with the residents and other persons in the Hay Homes area. Williams stated he knew an individual answering the description of the person who sold O'Neill the cocaine and who worked for the cable television company. Although Williams believed he knew that individual's identity, he was not sure and needed to make a telephone call in order to check his information. Williams made the telephone call in O'Neill's presence. At the Conclusion of the call, Williams told O'Neill he believed the drug dealer was Dennis Frye, formerly of the Alton area, because only one black man worked for the cable company. A computer check revealed a Dennis Frye had previously been arrested for a traffic offense in Alton and was then living at 1614 South 17th Street in Springfield. No photograph or fingerprints of Frye were available from the Alton police department.

O'Neill further stated in his affidavit the drug investigation concluded in late July 1985, and the results were presented by special agent David King to a Sangamon County grand jury on August 8, 1985. On August 9, 1985, a command post was established at Camp Lincoln from which arrest teams were dispatched to serve warrants on the approximately 40 people indicted by the grand jury as a result of the drug investigation. As the arrest warrants were served, the arrestees were brought to Camp Lincoln in order to be identified by members of the investigation teams, processed and transported to the Sangamon County jail. O'Neill was present at Camp Lincoln, but Frye was not served with an arrest warrant prior to the dismantlement of the command post following the arrest of most of the suspects. Therefore, Frye was immediately taken to the Sangamon County jail after the arrest warrant was served on him.

On September 19, 1985, O'Neill received the "arrest packet" on Frye, which included a photograph taken at the time of his arrest. O'Neill realized Frye was not the person who sold him cocaine on February 28, 1985, and so advised the Sangamon County State's Attorney's office on the same day he received Frye's "arrest packet." Also, on September 19, 1985, O'Neill learned there was another black man employed by the cable television company. In the company of William Brown, who is also employed by the Department of Law Enforcement and was sold cocaine by the person whom O'Neill thought was Frye, O'Neill went to the Times-Mirror Cable Company. There, he and Brown identified Robert Montgomery as the man who sold them cocaine ...


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