APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
537 N.E.2d 388, 181 Ill. App. 3d 600, 130 Ill. Dec. 321 1989.IL.527
Appeal from the Circuit Court of McHenry County; the Hon. James C. Franz, Judge, presiding.
JUSTICE INGLIS delivered the opinion of the court. UNVERZAGT, P.J., and REINHARD, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS
The State appeals pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)) from an order of the circuit court of McHenry County denying its motion to "reinstate" a charge against defendant, Michael DeBlieck, and reconsider the court's ruling quashing defendant's arrest and suppressing evidence. The State contends that: (1) the trial court erred in denying its motion to "reinstate" a charge for driving while under the influence which was previously nol-prossed by the State; (2) the finding that defendant was improperly detained and placed under arrest was against the manifest weight of the evidence; (3) the police officer had authority to arrest defendant as a private citizen; and (4) the evidence obtained after defendant was detained should not have been suppressed. For the reasons set forth below, we reverse and remand for further proceedings.
The following facts were established at the hearing on defendant's motion to quash arrest and suppress evidence. On August 23, 1986, Sergeant Keith Klein of the Harvard police department was on duty when he received a radio report that the McHenry County sheriff's department was requesting assistance from the Harvard police department at the scene of a hit-and-run accident on Route 14. The sheriff's department described the hit-and-run vehicle as a black Corvette. Sergeant Klein ordered another unit to the scene and then responded himself.
While on route to the scene, Sergeant Klein observed a black Corvette parked on the shoulder of Oak Grove Road, just off Route 14. According to Sergeant Klein, the car was partially on the roadway and was covered in corn stalks and dust. The location of the car was controverted by defendant and his companion, Glen Kellenberger, who testified that the car was completely on the shoulder. Sergeant Klein parked behind the Corvette and exited his squad car to speak to defendant and his companion.
Pursuant to Sergeant Klein's inquiry, defendant identified himself as the owner of the car and stated that he had been involved in an accident. Defendant told Sergeant Klein that he was traveling south-bound on Route 14 when another car cut him off, causing him to lose control of his car and drive into a cornfield. Sergeant Klein advised defendant that he was assisting the McHenry County sheriff's department with the accident investigation and asked him to sit in the squad car until the county sheriff arrived. While defendant waited in Sergeant Klein's squad car, a second officer from the Harvard police department arrived and transported defendant's companion to another location. This was controverted by defendant and his companion, who testified that both defendant and the companion waited in Sergeant Klein's squad car.
Deputy sheriff Vernon Holm arrived within 20 minutes and asked Sergeant Klein to remain with defendant while he completed his investigation of the accident scene. Holm returned approximately 30 to 45 minutes later and told Sergeant Klein that he could leave. Holm testified that he had defendant sit in his squad car while he filled out an accident report and noted that defendant exhibited signs of intoxication. Holm subsequently performed field sobriety tests on defendant and arrested him for driving while under the influence of alcohol .
The trial court concluded that Sergeant Klein's actions constituted an arrest and granted defendant's motion to quash the arrest and suppress evidence on the basis that Sergeant Klein did not have the authority to arrest defendant. The State then nol-prossed the DUI charge.
On January 6, 1988, 15 days after the State nol-prossed the DUI charge, the State filed its "MOTION FOR RECONSIDERATION OF COURT ORDER QUASHING THE ARREST AND SUPPRESSION OF EVIDENCE, AND MOTION TO REINSTATE CHARGES." In that pleading, the State moved "that the People be allowed to reinstate the charge of Driving Under the Influence of Alcohol." However, in its prayer for relief, the State requested that the court "grant the State leave to refile " the DUI charge. (Emphasis added.) The State represented that if the court denied its motion for reconsideration of the order quashing the arrest and suppressing evidence, the State's "appeal efforts would be thwarted without the reinstatement" of the DUI charge. The court denied the State's motion, and this appeal followed.
The State first contends that the trial court erred in denying its motion to "reinstate" the DUI charge against defendant. In addressing this contention, we believe it necessary to comment on a confusing, albeit prevalent practice in the criminal courts concerning dismissals obtained by the State.
It has been held that a prosecutor's statutory authority to prosecute impliedly confers authority to nol-pros a charge when, in his judgment, the prosecution should not continue. (People v. Verstat (1983), 112 Ill. App. 3d 90, 104; see also People v. Matuck (1988), 174 Ill. App. 3d 592, 593.) A nolle prosequi is the formal entry of record by the prosecuting attorney by which he declares that he is unwilling to prosecute a case. (21 Am. Jur. 2d Criminal Law § 512 (1981).) The nature ...