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July 31, 1997


Appeal from the Circuit Court of De Kalb County. No. 96--CF--7. Honorable Roger W. Eichmeier, Judge, Presiding.

Released for Publication August 29, 1997.

The Honorable Justice Rathje delivered the opinion of the court. Thomas and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Rathje

The Honorable Justice RATHJE delivered the opinion of the court:

Defendant, Denis C. Lawlor, was charged by information with aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(1) (West 1994)) and three counts of reckless discharge of a firearm (720 ILCS 5/24--1.5(a) (West 1994)). Pursuant to a seizure order, defendant was required to surrender his firearm and ammunition. Defendant filed motions to quash the seizure order and to suppress the evidence. Following a hearing, the court granted the motions. The State filed a notice of appeal and a certificate of impairment. On appeal, the State argues that the court erred in quashing the seizure order because the order was issued based on a written affidavit and complaint and was found by a neutral judge to be supported by probable cause. We affirm.

Sergeant Deborrah Pettit of the Northern Illinois University police force filed the affidavit and complaint for a seizure order. Pettit stated in her affidavit that on November 22, 1995, there were reports of gunshots fired into Grant Towers South, a campus residence hall. Pettit interviewed Darren Burgstiner on November 27, 1995, and he told her that his cousin (defendant) stayed with him on the night of the shooting. Defendant went outside apartment No. 5 at 710 Regent and "shot off a couple of rounds." Defendant then came back inside the apartment and placed a black 9 millimeter handgun and 5 bullet casings on the bed. Later that day defendant was looking at Grant Towers South, and Burgstiner heard him say that he did not think his bullets could go that far and that he did not think the gun was pointing in that direction.

Pettit confirmed with the Chicago police department that defendant is a Chicago police officer and has a registered Sig Sauer 9 millimeter automatic pistol. Russell McLain, an Illinois State Police firearms examiner, told Pettit that the bullets from the shooting bore markings that could help identify the gun used in the incident.

Scott Carl son informed Pettit that he heard five to seven gunshots and then saw four white males standing on the sidewalk in front of 710 Regent. Carlson observed one of the men go to a car that matched a description of defendant's car. That person retrieved a flashlight from the car, picked up several items from the ground, and then went inside apartment No. 5. Carlson heard the man with the flashlight say "the evidence is gone now."

Donald McCue told Pettit that he saw defendant holding a black automatic handgun right after McCue heard gunshots in the area of apartment No. 5. Ryan Hill told Pettit that he observed three to four men exit 710 Regent and face south toward the dorms. Hill heard three shots fired and saw clouds of smoke after each shot. Hill then saw the men walk into the west entrance to 710 Regent. From Pettit's observations of the bullet holes, she believed that the shots came from north of Grant Towers South, and 710 Regent, No. 5, is north of Grant Towers South.

Based on the information in Pettit's affidavit and complaint, Judge Douglas R. Engel issued a seizure order for a search of defendant and for the seizure of all 9 millimeter semiautomatic pistols, ammunition, and shell casings. In the seizure order, the trial judge stated that the facts were sufficient to show probable cause pursuant to Supreme Court Rule 413 (134 Ill. 2d R. 413) for the seizure and inspection of handguns and ammunition from defendant.

At the hearing on the motion to suppress, defendant testified that he had been a Chicago police officer for almost two years. On December 2, 1995, Lieutenant Lorenz of the seventh district told him that the next morning he should report to the seventh district in compliance with an order from the first deputy's office to turn over his gun, a Sig Sauer 9 millimeter pistol. The next morning, defendant reported to the seventh district and turned over his weapon to Sergeant Dennis O'Brien. Defendant was not placed under arrest, and he was not given a search warrant for the seizure of his gun. Defendant did not consent to the turnover of his weapon, and he had not received it back. After defendant turned over his weapon, he received a substitute weapon and went back to work.

Sergeant Dennis O'Brien of the Chicago police department testified that on the morning of December 2, 1995, he was told by the watch commander to bring defendant to the operations command. When they arrived, O'Brien was told that there was a court order requiring that defendant surrender any handgun that he owned, as well as any ammunition, magazines, and spent cartridges. O'Brien was told that the order was signed by Judge Engel. O'Brien was shown the order, but he did not read the whole thing. O'Brien was not told that there was a search warrant. He did see the portion that indicated what defendant was to surrender. O'Brien took defendant's Sig Sauer 9 millimeter pistol, along with the magazines and ammunition, and delivered them to his commanding officer.

Sergeant Deborrah Pettit of the Northern Illinois University police force testified that she appeared before Judge Engel on December 1, 1995. She presented the affidavit and complaint for a seizure order that she worked on with Michael Coghlan, the De Kalb County State's Attorney. When she received the order, she faxed it to Herman Cristia at the Chicago police department's Office of Professional Standards. The order was executed, and Pettit obtained the 9 millimeter Sig Sauer.

On cross-examination, Pettit testified that the seizure order looked like a search warrant, but that she now realized that it was not one. The part of the order that authorized a search of ...

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