Appeal from the Circuit Court of Williamson County. No. 05-CF-571 Honorable Ronald R. Eckiss, Judge, presiding.
The opinion of the court was delivered by: Justice Goldenhersh
NOTICE Decision filed 08/24/07. The text of this dec ision may be changed or corrected prior to the filing of a Petition for Rehea ring or the disposition of the same.
After a bench trial in the circuit court of Williamson County, defendant, John H. Erby IV, was found guilty of participation in methamphetamine manufacturing (720 ILCS 646/15(a)(2)(A) (West Supp. 2005)). Defendant appeals the denial of his motion to suppress. On appeal, the issue is whether a police officer patrolling outside his jurisdiction used the powers of his office to obtain evidence when his ability to recognize evidence of a crime was due to his training and experience. We affirm.
Officer Kendrick of the Johnston City police department was on patrol in his squad car, but outside of his jurisdiction, when he saw a blue car sitting in the middle of the road. Officer Kendrick drove alongside the driver's side of the stopped vehicle and, while sitting in the patrol car, saw defendant slumped over the steering wheel. After Officer Kendrick activated his patrol lights, defendant awoke and rolled down his window.
An odd odor emanated from defendant's car. Officer Kendrick, as a trained and experienced police officer, knew this to be the smell of anhydrous ammonia--a telltale sign of methamphetamine production.
A conversation ensued. Officer Kendrick asked if defendant needed help, and defendant responded with an unintelligible mumble. Officer Kendrick asked if there was a meth lab in the car, and defendant stated something about items being possessed by a Bubba McKay. Officer Kendrick looked through the driver's side window and saw a metal funnel and a Mason jar full of pills soaking in liquid. The officer believed he had, indeed, found a mobile meth lab.
Officer Kendrick radioed for the local jurisdiction to send an officer. A West Frankfort police officer responded and Officer Kendrick assisted in placing defendant in handcuffs. He noticed that defendant smelled of anhydrous ammonia and that defendant's hands were dingy. From outside defendant's car, Officer Kendrick saw a rubber hose and several flashlights on the backseat--common tools for a meth lab operating at night. Officer Kendrick asked the Illinois State Police to send a meth response team, and he filled out an inventory of the car.
Defendant moved to suppress all the evidence seized during his arrest. The circuit court conducted a hearing and denied the motion. After a stipulated bench trial, defendant was found guilty of participating in the manufacture of methamphetamine. Defendant appeals.
Because Officer Kendrick was outside his jurisdiction, his position as a police officer did not give him authority to arrest defendant. Kendrick was acting as a private citizen throughout the time he interacted with defendant. Nonetheless, police officers may, like any other private citizen, effectuate an extraterritorial arrest when a crime is being committed. 725 ILCS 5/107-3 (West 2004); People v. Lahr, 147 Ill. 2d 379, 383, 589 N.E.2d 539, 540 (1992). Although an officer may use any proper tool at his disposal to restrain a suspect, he may not use the powers of his office to gather evidence outside his jurisdiction. People v. Kleutgen, 359 Ill. App. 3d 275, 279, 833 N.E.2d 416, 420 (2005). In those situations, the officer's powers to investigate are no greater than those of other private citizens, and he may not use the powers of his office to obtain evidence unavailable to similarly situated citizens. Lahr, 147 Ill. 2d at 383, 589 N.E.2d at 540. The issue, then, is whether Officer Kendrick used the powers of his office to gather evidence unavailable to him as a private citizen.
The characterization of an exterritorial arrest as a citizen action has rung hollow when officers have relied upon police equipment to gather evidence necessary for the arrest. The choice tool of the traffic police--the radar gun--provides the prime example. See People v. Lahr, 147 Ill. 2d 379, 383, 589 N.E.2d 539, 540 (1992); People v. Kirvelaitis, 315 Ill. App. 3d 667, 672, 734 N.E.2d 524, 528-29 (2000). In Lahr, the Illinois Supreme Court found that the extraterritorial arrest of a speeding motorist was not valid. The court affirmed the appellate court's stance that the use of equipment not available to the average citizen was an exercise of police authority. The court admitted that although a citizen could hypothetically purchase a radar gun, the likelihood of that occurring was remote. The use of the radar gun, therefore, was an exercise of police authority that tainted the claim of a citizen's arrest. Lahr, 147 Ill. 2d at 383, 589 N.E.2d at 540.
Kirvelaitis expounded on Lahr. Kirvelaitis also involved an extraterritorial traffic stop based on a radar gun reading. Relying on Lahr, Kirvelaitis reversed convictions for traffic offenses derived from the use of a radar gun. The court stated, "[T]he use of the radar gun took the arrest outside the purview of a citizen's arrest because private citizens generally do not have access to radar guns." Kirvelaitis, 315 Ill. App. 3d at 672, 734 N.E.2d at 529 (citing Lahr, 147 Ill. 2d at 383, 589 N.E.2d at 540). The court noted, however, "[W]hen an officer's own observations provide a sufficient basis to arrest the defendant, an officer subsequently may use the powers of his office to make the arrest." Kirvelaitis, 315 Ill. App. 3d at 672, 734 N.E.2d at 529 (citing People v. ...