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06/19/97 PEOPLE STATE ILLINOIS v. ELECTRONIC

June 19, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
ELECTRONIC PLATING COMPANY, ROBERT PORCELLI, AND HARSHAD PATEL, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 94--CR--10434. Honorable Eugene Campion, Judge Presiding.

As Corrected June 20, 1997. As Modified On Denial Of Rehearing August 21, 1997. Rehearing Denied August 18, 1997. Released for Publication August 21, 1997.

The Honorable Justice Cerda delivered the opinion of the court. McNamara, J., and Burke, J., concur.

The opinion of the court was delivered by: Cerda

MODIFIED ON DENIAL OF REHEARING

The Honorable Justice CERDA delivered the opinion of the court:

Defendants, Electronic-Plating Company (EPC) and two company officials, Robert Porcelli and Harshad Patel, were indicted on 22 counts of introducing contaminants into a sewage works from a non-domestic source (415 ILCS 5/12(h); 5/44 (j)(1)(H)(West 1994)), one count of unauthorized use of hazardous waste (415 ILCS 5/44 (d)(1)(A)(West 1994); 35 Ill. Adm. Code, ยง 722.134), and one count of conspiracy (720 ILCS 5/8-2; 415 ILCS 5/12(h) (West 1994)). Prior to trial, defendants filed a motion to suppress evidence, contending that the evidence recovered by the Metropolitan Water Reclamation District (District) agents had been illegally obtained in violation of the U.S. Constitution's fourth amendment. Following a hearing, the trial court granted the motion to suppress on appeal, the State asserts that the trial court erred because (1) EPC lacked a reasonable expectation of privacy in their sewer connection; (2) EPC lacked a possessory interest in the wastewaters that were being irretrievably discharged from its plant; and (3) the search conducted was authorized by a valid statute. For the following reasons, we reverse and remand.

The issue in this case is whether the District conducted a search and seizure under the fourth amendment when it obtained samples of the wastewaters EPC had flushed out into a pipe that was connected to the District's sewerage system.

On June 26, 1992, the District received an anonymous tip from an alleged ex-EPC employee that EPC had installed and was operating an underground by-pass of its pretreatment facility. The informant also sent the District a sketch showing the location of the alleged bypass.

On September 26, 1992, James Waclawik, a pollution control officer, went to EPC pursuant to instructions from District supervisor Allen Giedraitis to investigate the alleged by-pass. Previously, the 1-A sampling station had been set up as EPC's designated sampling point pursuant to the District's statutory authority. Station 1-A was physically located underneath a manhole in a pipe under the concrete floor of EPC's building. The District has a user charge sampling program, which verifies the strength and volume of sewage, industrial waste, and other wastes generated by EPC. Because Waclawik was aware that the 1-A sampling station may not have been providing an accurate sample of the discharge from EPC, he went to EPC to determine whether a by-pass had been put in the line to avoid the District's official sampling point. Typically, the District inspected every company that is regulated under the Sewage and Water Control Ordinance, including EPC, at least once a week.

On September 26, 1992, Waclawik knocked on the side door and was admitted into the premises by an EPC employee. When Waclawik entered the plant, he was directed to the area of the treatment system. Waclawik proceeded to a manhole, station 1-A, which was the sampling point specifically designated by EPC for inspections. There, he discovered a suspicious discolored discharge, so he began to investigate. He encountered Jerry Steward, EPC's maintenance supervisor, who told him that the reason for the discolored discharge was that a valve had been left open by an employee. Waclawik then traced the discolored discharge beyond station 1-A.

After the inspection, Waclawik reported his findings to Giedraitis and prepared a report. He returned to the EPC plant on October 27, 1992, to install a surreptitious probe from station 1A. When he entered the plant, he told company personnel that he needed to service the automatic sampling equipment at station 1A. He did not request permission from EPC personnel to install the second probe because he did not want them to know he would be sending a surreptitious probe 24 feet down the sewer line from station 1A. After he shut down the automatic samplers at station 1A and obtained 99 samples from the surreptitious probe, he noticed that the samples were obviously different than those taken from the immediate area of station 1A. They appeared to violate the District's Sewage and Waste Control Ordinance.

Between October 27, 1992, and November 12, 1992, Waclawik and other District personnel returned to the EPC site numerous times to obtain samples from station 1A's surreptitious probe. Each time, Waclawik was in full District uniform. Neither the existence of the 24 foot surreptitious probe nor the real reason for its presence was ever revealed to EPC personnel. He took steps to allay EPC's suspicions, including programming the automatic sampler for an anticipated holiday schedule and stopping his activities when he became aware of being followed by an EPC employee. Occasionally, his activities were interrupted by the unexpected arrival of EPC employees. Neither Waclawik nor the other District employees sought or obtained search warrants for any of the visits.

Waclawik submitted the samples for analysis and reported his findings to his superiors. Giedraitis directed that EPC not be notified of the covert investigation. Waclawik and other District employees returned to EPC 10 times over the next two weeks to gather more samples. On November 10, 1992, a search warrant was issued on the basis of Waclawik's affidavit.

The trial court granted EPC's motion to suppress. In its February 23, 1996, written order and opinion, the court found that the State's argument, that EPC did not have a reasonable expectation of privacy in the wastewaters, was irrelevant because the minimized privacy interests of commercial establishments are taken into account in the administrative search exception to the warrant clause. The court ...


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