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02/01/94 PEOPLE STATE ILLINOIS v. JUAN ANTONIO

February 1, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF,
v.
JUAN ANTONIO PEREZ, DEFENDANT-APPELLEE (RONALD H. GRIMMING, DEPUTY DIRECTOR, ILLINOIS STATE POLICE, CONTEMNOR-APPELLANT). THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF, V. RAYMOND RIVERA, DEFENDANT-APPELLEE (RONALD H. GRIMMING, DEPUTY DIRECTOR, ILLINOIS STATE POLICE, CONTEMNOR-APPELLANT). THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF, V. TERRY MCCUTCHEON, DEFENDANT-APPELLEE (RONALD H. GRIMMING, DEPUTY DIRECTOR, ILLINOIS STATE POLICE, CONTEMNOR-APPELLANT).



Appeal from the Circuit Court of Effingham County. No. 91-CF-185 (No. 5-92-0461). Honorable Harold H. Pennock, III, Judge Presiding. Appeal from the Circuit Court of Effingham County. No. 92-CF-51 (No. 5-92-0499). Honorable Harold H. Pennock, III, Judge Presiding. Appeal from the Circuit Court of Effingham County. No. 92-CF-24 (No. 5-92-0672). Honorable Harold H. Pennock, III, and E. C. Eberspacher, III, Judges Presiding.

Petition for Leave to Appeal Denied June 2, 1994.

Welch, Lewis, Goldenhersh

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

The appellant, Ronald H. Grimming, Deputy Director of the Illinois State Police, appeals from the orders of the circuit court which held him in indirect civil contempt for failing to produce certain documents which defendants contend are necessary to establish whether the traffic stops that ultimately led to their arrests involving cannabis were pretextual. Imposed sanctions have been stayed pending these appeals. On April 16, 1993, upon appellant's motion, this court ordered the three cases consolidated for purposes of argument and decision only.

On August 30, 1991, defendant Juan Antonio Perez was charged in a four-count criminal information in Effingham County No. 91-CF-185 with violating various sections of the Illinois Cannabis Control Act (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 701 et seq.) and with unlawful possession of cannabis without paying the appropriate cannabis tax (Ill. Rev. Stat. 1991, ch. 120, par. 2160). Prior to trial, Perez filed a motion to suppress evidence. A subpoena duces tecum was issued to Sgt. Thomas Oliverio, of the Illinois State Police, which commanded that he was to bring to the Effingham County courthouse records of his employment by any law enforcement agency, records of attendance at training programs or schools where the subject matter was related to cannabis and controlled substance investigations, copies of duty assignments, records of traffic stops made and cannabis and controlled substance investigations made since being transferred to District 12 headquarters, records of all consents to search in connection with traffic stops since being assigned to District 12, and any records of advance notice that defendant Perez would be travelling through Illinois on August 29, 1991. Oliverio had stopped Perez, who was driving in Illinois. A second subpoena duces tecum was issued to Captain Roger McIntire of the Illinois State Police tobring copies of duty assignments, activity logs, and schedules of Thomas Oliverio, records of all traffic citations and warnings issued by Oliverio, records of all cannabis and controlled substance investigations in which Oliverio participated, and records of all consents to search obtained by Oliverio in connection with traffic stops. The second subpoena also requested activity logs for Trooper Jane Middleton and Trooper Roger Webb for each day during the week of August 26, 1991, the activity log of canine "P.C." in connection with Oliverio's traffic stops, records of advance notice that Perez would be travelling through Illinois, and Illinois State Police policy concerning troopers riding together in a single police vehicle.

The Attorney General of the State of Illinois, on behalf of McIntire and Oliverio, filed a motion to quash subpoena and for protective order.

McIntire and Oliverio filed affidavits which stated, "Deputy Director, Ronald H. Grimming is the commanding officer in charge of the Division of State Troopers and has authority to control the release of the records of the Division." Appellant was substituted for McIntire and Oliverio. Appellant's affidavit states that he is the "ultimate keeper of the records for the Division of State Police."

At the March 20, 1992, hearing on the motion to quash subpoena, the assistant Attorney General argued that the material sought by defendant is not required to be disclosed by statute or case law and is not relevant to the facts of defendant's case. The assistant Attorney General further argued that defendant's requests are overbroad and unduly burdensome and the requests concerning police procedure or informants are privileged work products and, therefore, not discoverable.

Defendant argued that Oliverio testified at the preliminary hearing that defendant's vehicle was initially stopped because two balls of a trailer hitch obscured one of the numbers of the pickup truck's license plate and because the truck was observed to travel 1 1/2 feet over the white line on the edge of the road. Defendant reasoned that if Oliverio had never before stopped a vehicle for such violations, then the stop was a pretextual stop. Police training procedures would indicate that traffic stops should not be made unless there is a solid violation, and equipment violations of a minor nature and insignificant speeding violations should not be used in order to investigate the potential for other criminal activity. Defendant further argued the documents sought were necessary to establish whether the stop was a pretextual stop or a "traffic stop that reasonably would have been made in the absence of an intention to investigate other criminal activity." Defendant did not ask for theidentity of any informant but whether the State police had advance notice that defendant would be traveling through Illinois. Defendant requested the duty assignments of Oliverio in order to determine if he was truly a patrol officer or had a limited assignment to conduct traffic stops in order to further investigate cannabis or controlled substance offenses. The request for production was made to prepare for the hearing on defendant's motion to suppress evidence and not to burden the State police.

The assistant Attorney General responded that the burden of production is unreasonable in light of the facts of the case.

On March 26, 1992, the court denied the motion to quash subpoena. The court found that the documents sought by subpoena duces tecum are relevant to the issue raised in defendant's motion to suppress evidence. The court further found, assuming, arguendo, that the subpoenas are overbroad and oppressive, that a general representation by counsel, unsupported by affidavit or direct evidence by persons who would actually have to conduct the search for the documents, is inadequate to support such objection. The court lastly found that any general claim of privilege in work product is premature and should be made as to specific documents produced and available for in camera inspection. The court noted that the standard for determining whether a traffic stop is pretextual is found in People v. Guerrieri (1990), 194 Ill. App. 3d 497, 551 N.E.2d 767, and United States v. Smith (11th Cir. 1986), 799 F.2d 704.

We will note at this point that in Guerrieri this court held that, in determining whether an investigative stop is invalid as pretextual, the proper inquiry is whether a reasonable officer would have made the seizure in the absence of an illegitimate motive; however, an objectively reasonable stop or other seizure is not invalid solely because the officer acted out of an improper or dual motive. Guerrieri, 194 Ill. App. 3d at 501-02, 551 N.E.2d at 770.

The Attorney General filed a motion to reconsider the denial of the motion to quash subpoena, and on May 8, 1992, a hearing was held on the motion to reconsider the court's denial of the motion to quash subpoena. The assistant Attorney General argued that Oliverio stopped defendant after observing two violations of the Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 1-100 et seq.); therefore, there was a legitimate traffic violation. After the stop was made, defendant consented to the search. He argued to produce the required documents would be burdensome and oppressive based upon the affidavits of James G. Milbrandt, Bureau Chief of the Bureau of Management Information in the Division of State Troopers, Illinois ...


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