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People v. Burk

Court of Appeals of Illinois, Second District

August 30, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DALE E. BURK, Defendant-Appellant. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DALE E. BURK, Defendant-Appellant.

Held [*]

The denial of defendant’s motions to suppress in two consolidated cases was affirmed, since defendant voluntarily consented to a search of his person following a consensual encounter with an officer at 1:30 a.m. while he was walking on a street near an apartment complex, and in an unrelated case, a statement he made while seated in a squad car was recorded by a device capable of recording audio and video mounted in the rear passenger area and later used to find heroin in the vehicle defendant occupied when the car was stopped, and that statement was exempt from the Illinois Eavesdropping Act, since defendant was “in the presence” of the officer who was in and out of the car several times and never more than a few feet away when defendant made his statement.

Appeal from the Circuit Court of Du Page County, Nos. 10-CF-2683, 11- CF-967; the Hon. John J. Kinsella, Judge, presiding.

Thomas A. Lilien and R. Christopher White, both of State Appellate Defender’s Office, of Elgin, for appellant.

Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman and Kristin M. Schwind, Assistant State’s Attorneys, of counsel), for the People.

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Schostok and Spence concurred in the judgment and opinion.

OPINION

McLAREN JUSTICE

¶ 1 Defendant, Dale E. Burk, [1] brings these consolidated appeals from the denials of his motions to suppress evidence in two separate cases in the circuit court of Du Page County. We separately set forth the pertinent facts in each case as well as the analysis and disposition of the respective issues. Because the trial court did not err in denying the motion to suppress in either case, we affirm.

¶ 2 I. BACKGROUND

¶ 3 A. No. 2-12-0063

¶ 4 The following facts in this case are taken from the hearing on defendant's motion to suppress evidence. The only witness to testify at the hearing was Officer Daniel McIntyre of the Woodridge police department.

¶ 5 On November 12, 2010, at about 1:30 a.m., Officer McIntyre was patrolling in his unmarked squad car on a street adjacent to an apartment complex. As he drove down the street, he observed two individuals walking along the street's edge. As they walked, they went behind some "bushes and trees" located between the street and the apartment buildings. There was nothing about the street that forced them to walk behind the bushes and trees. The area in the vicinity of the bushes and trees was "real dark" because the nearby streetlights did not illuminate it. After 5 or 10 seconds, the two walked from behind the shrubbery, across the lane of traffic in which Officer McIntyre was driving, and onto the grassy median between the traffic lanes.

¶ 6 As they walked on the median, Officer McIntyre pulled up to them in his squad car and stopped in his lane of traffic. In doing so, he did not block their path of travel or activate the emergency lights on the squad car. He asked, "[H]ow you folks doing tonight?" He did not give them any commands such as ordering them to stop, nor did he raise his voice. Defendant responded, "[O]h I didn't even know you were in a squad car; I didn't even know who you were."

¶ 7 Officer McIntyre then exited his squad car and asked defendant and his female companion what they were up to and why they had been by the bushes and trees. He did so, in part, because it was near the holiday season and there had been an increase in vehicular and residential burglaries during that time of year, including in dark areas. Also, he, along with other patrol officers, had been asked to "beef up [their] patrols in the apartment complex." Thus, although there were no vehicles parked near the bushes and trees, Officer McIntyre approached defendant and his companion to "find out why they were in the apartment complex at 1:20 in the morning" and why they were "coming out from behind a bush and tree area which was adjacent to an apartment building where nobody ever walks."

ΒΆ 8 Officer McIntyre also asked the two for identification, which each produced. After asking defendant for identification, Officer McIntyre observed that defendant was "sweating profusely, " his hands were ...


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