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10/22/97 PEOPLE STATE ILLINOIS v. RUSSELL J. ERTL

October 22, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
RUSSELL J. ERTL, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of De Kalb County. No. 96--CF--111. Honorable Douglas R. Engel, Judge, Presiding.

Released for Publication November 21, 1997.

The Honorable Justice Colwell delivered the opinion of the court. Rathje, J., concurs. Justice Doyle, specially concurring.

The opinion of the court was delivered by: Colwell

The Honorable Justice COLWELL delivered the opinion of the court:

The State appeals from the circuit court's order granting the motion of defendant, Russell J. Ertl, to quash his arrest and suppress evidence. See 145 Ill. 2d R. 604(a)(1). The State argues that the trial court's ruling is manifestly erroneous. We affirm.

FACTS

Following the stop of his vehicle on April 17, 1996, defendant was charged with the unlawful use of a weapon (720 ILCS 5/24--1(a)(4) (West 1996)) and disorderly conduct (720 ILCS 5/26--1(a)(1) (West 1996)). At the hearing on defendant's motion to quash and suppress, Deputy Sheriff Anthony J. Grum of De Kalb County testified that, when he stopped defendant on April 17, 1996, he had observed him driving but did not have a warrant for his arrest. He did not observe defendant violate any laws. When defendant pulled over, he got out of his vehicle. Grum testified that defendant was not free to go.

On cross-examination, Grum stated he was responding to the dispatch of another police vehicle to a residence on Esmond Road where there was a female in the house who was apparently very afraid of defendant.

A recording of the communications traffic was played. The initial dispatch call was actually intended for Deputy Delisio. Grum heard this dispatch. Cindy Ertl called the police and stated, "I'm sorry to bug you, you probably just got a phone call from my ex-husband or my husband, or whatever you want to call him." Cindy and defendant were in the midst of marriage dissolution proceedings. She related that her husband was sitting in the driveway and would not leave. She had just bought out his half of the house, but he had permission to use the shed through September 30. Cindy stated that defendant started "hammering *** on the doors and the patio and yelling that he knew that I was in here *** and he wanted to pick up his mail." She was just going to hand him his mail to get him to go away. He asked if she had taken some water softener pellets out of the shed. She said that her dad had done so. He responded, "Well, you shouldn't have taken those, those were mine." He said he was going to call the police. Cindy said that she and her attorney had started paperwork to get an order of protection and wanted to make the police aware of that.

The dispatcher said that, instead of telling her all of this, she needed to know what the immediate problem was and whether defendant was threatening her. Cindy answered, "I'm sorry. Um, my husband, the order of protection that we were getting *** was because um my father found a loaded gun ready to shoot out in that shed ***." Her husband had locked her out of that shed, and her father got in through a window and found a gun. When the dispatcher asked where defendant was at this time, Cindy replied that he was in the driveway. When asked if he had a gun, Cindy said she did not know.

Cindy gave her name, telephone number, and address on Esmond Road. The dispatcher told her they had not heard from her husband at all. Cindy said she did not have an order of protection. She said she did not know him for the last nine months and he went into rages. She said he had four guns and used to sleep with one by his bed. The dispatcher again stated that she did not need to hear this information and asked for his name and what kind of vehicle he was in. Cindy stated it was a black Dodge Ram with license plate CFIII1. The dispatcher ascertained that Cindy was in the house with the door locked and said that an officer would be sent out.

The county dispatcher subsequently radioed Zebra-59, giving the Esmond Road address and advised that the "soon to be ex-husband is in the driveway. Has made previous threats to her in the past ***. She has advised that he's known to have 10-32 [a weapon]. However she does not know if he has one at this time." The dispatcher confirmed that it was a black Dodge truck. Zebra-59 asked Zebra-13 if it would be "10-44 to have Zebra-44 check" and then stated he was headed that way from his location at Lindgren and Plank Road. An officer identified as Zebra-84 (Deputy Grum) called stating he would be en route as he was located at Glidden and Aldrich. He asked for the vehicle's description.

At this point in the recording, Cindy stated, "He used to keep one [a gun] in his console in his car when he had a car or under the seat." The dispatcher replied that there was an extra patrol out already. Cindy said, "Oh good. I just wanted to let you know about the one that was in the shed that my dad unloaded it." Cindy then said that defendant used to carry a gun with him in the truck, but did not know "if he would be stupid enough at this point to do this."

Cindy called again to inform the dispatcher that her husband was going north on Esmond Road and was going back to Kirkland and would be turning on Baseline Road. The dispatcher called Zebra-84 stating that the wife called to advise that her husband was going northbound toward Baseline Road and would be going east toward Kirkland. An unknown police car "930" broke in to ask if any assistance was needed. The reply was, "Negative." Another officer asked, "13 do you want me to go ahead and stop him or uh wait until somebody else is in the area?" The responding officer stated his location and then said, "Why don't you go ahead and stop him and I'll 10-25 your location." The recording continued: "Zebra-44 from 13, if you could 10-25 the complaintant [sic] and see if there is any grounds for complaint or anything." The other officer responded, "10-4. I'm almost at Malta and Baseline. I can see Zebra-84's headlights. Do you want me to head over there?" The reply was "Affirmative. We'll head over there and see what we've got."

Deputy Grum testified he was Zebra-84. Based on the description given by the dispatcher, Grum activated his emergency lights and pulled defendant over on Baseline Road, east of Esmond Road. Defendant stopped his truck, got out of his vehicle, walked to the squad car, and gave his license to Grum at his request. Defendant acknowledged that he had just been at his wife's residence on Esmond road and told Grum about their pending divorce. Defendant explained that a court order still gave him access to outbuildings on the property. Sergeant Petersen and Deputy Kaminski then arrived. Defendant initially denied having any weapons. Petersen asked if defendant would consent to a search of the vehicle for weapons, and defendant consented. As Grum started to walk toward the truck, defendant said he may have put a .22-caliber pistol in the glove box, but was not sure if it was in there or not. Grum recovered a loaded .22-caliber pistol from the glove box.

On redirect examination, Grum stated he heard the radio traffic and knew the Ertls were not yet divorced. He knew there was no order of protection. He acknowledged that, although the dispatcher had stated that defendant had been known to have weapons, it was not known at this time whether he had a weapon. Grum was not sure if there was any ground for a complaint at the time and conceded that he had no evidence that there had been any crime committed at the residence. Defendant was not at the residence when Grum arrived. Although he heard the transmission that there had been threats in the past, he admitted that he received no information that any threats had been made that day.

After taking the motion under advisement, the court found that the officer had no information that a crime had been committed and could not have had reasonable and articulable suspicion as a basis for the stop.

ISSUES

On appeal, the thrust of the State's arguments is that the court erred in not finding that the officer who effectuated the stop and arrest of defendant had sufficient knowledge, when considered collectively with that of the other officers working in concert (i.e., imputed knowledge), to support probable cause for the stop, search, and arrest. See, e.g., People v. Fenner, 191 Ill. App. 3d 801, 806, 138 Ill. Dec. 917, 548 N.E.2d 147 (1989) (probable cause or reasonable suspicion to stop may be established from all the information collectively received by the officers acting in concert even if all information is not known to the officer initiating the stop). The State further argues that the search was justified because of defendant's consent and the presence of exigent circumstances. We do not reach the ...


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