City of Chicago v. Pudlo

• Decision Date: 30 December 1983
• Docket Number: No. 82-2256,82-2256
• Parties: , 78 Ill.Dec. 375 CITY OF CHICAGO, a municipal corporation, Plaintiff-Appellee, v. Thaddeus PUDLO and Walter J. Pudlo, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 494

462 N.E.2d 494

123 Ill.App.3d 337, 78 Ill.Dec. 375

CITY OF CHICAGO, a municipal corporation, Plaintiff-Appellee, v. Thaddeus PUDLO and Walter J. Pudlo, Defendants-Appellants.

No. 82-2256.

Appellate Court of Illinois First District, First Division.

Dec. 30, 1983.

Supplemental Opinion on Denial of Rehearing May 7, 1984.

Dennis M. Doherty, Chicago, for defendants-appellants.

James D. Montgomery, Corp. Counsel, Chicago (Jerome A. Siegan, Frank W. Nagorka and Allison K. Bethel, Asst. Corp. Counsels, Chicago, of counsel), for plaintiff-appellee.

CAMPBELL, Justice:

Following a jury trial, defendants Thaddeus Pudlo and Walter J. Pudlo were found guilty of violating chapter 130, sections 6.1, 6.4 and 9 of the Municipal Code of Chicago (Chicago, Ill., Municipal Code (1980) ch. 130, secs. 6.1, 6.4, 9) which regulates wholesale and retail food establishments in the city. The issues on appeal include: (1) whether chapter 130-9 of the Municipal Code which authorizes warrantless searches of food establishments is unconstitutional; (2) whether the issuance of an administrative search warrant was proper; (3) whether lack of counsel at trial constituted reversible error; (4) whether trial errors deprived defendants of due process of law; (5) whether the trial court acted properly with respect to possible jury contamination; and (6) whether defendants are entitled to return of their seized weapons.

Three separate complaints were filed in this case. On July 1, 1981, Thaddeus Pudlo was charged with two violations of the Municipal Code. Count one alleged a violation of chapter 130-9 for refusing to allow an inspection of his food establishment. Count two alleged a violation of chapter 16-5 for obstructing an inspector in the performance of his duties. On July 15, 1981, a complaint was filed against both defendants charging them with three violations of the Municipal Code. Count one alleged a violation of chapter 130-6.1 for failure to hold a license for the business; count two alleged a violation of chapter 130-6.1 and prayed for judgment finding a daily violation for not holding a license; count three alleged a violation of chapter 130-6.3 for failure to pay a truck license fee. The third complaint was filed on July 15, 1981, against both defendants charging them with three additional violations of the Municipal Code. Count one alleged a violation of chapter 130-6.16 for having a dog on the premises; count two alleged a violation of chapter 130-6.4 for unsanitary conditions on the premises; and count three alleged a violation for chapter 130-6.18 for rubbish on the premises.

On July 15, 1981, an inspection of defendant's business, Pudlo Food Products, was conducted by the Department of Consumer Services for the City of Chicago. [Department] The inspection was made pursuant to the issuance of a warrant and with the accompaniment of Chicago police officers. The record is unclear as to events transpiring before this date except that unsuccessful attempts were made to gain access to the defendants' premises for purposes of making an inspection.

John R. Colletti, Supervising Food Inspector for the Department, testified that he along with Inspector John Sharkey and Chicago police Officers, conducted the July 15, 1981, inspection of defendants' food establishment. Colletti enumerated his findings at trial and summarized those findings as follows: "And the place was not kept neat and clean." Inspector Sharkey and officers Eugene Seyfert and Judith Schultz corroborated Colletti's testimony regarding the condition of defendants' premises.

Defendants first argue that their convictions should be reversed because chapter 130-9 of the Municipal Code violates the fourth amendment of the United States Constitution because that chapter authorized warrantless searches of any establishment within the City of Chicago. The provision of chapter 130-9 pertinent to this case provides:

"A representative of the Department of Health, after proper identification, shall be permitted to enter, at any reasonable time, any establishment within the City of Chicago for the purpose of making an inspection to determine compliance with this ordinance. He shall be permitted to examine the records of the establishment to obtain pertinent information relating to food, water, beverages and supplies received or used, and persons employed."

In light of the fact that the inspection in this case was conducted pursuant to a warrant, it will not be necessary to reach the issue as to the constitutionality of warrantless searches under chapter 130-9.

Defendants' second argument is that because there was no probable cause to issue the search warrant, the trial court erred in denying defendants' motion to quash the warrant. It is clear that an administrative inspection warrant is to issue only upon a showing of probable cause. (Donovan v. Federal Clearing Die Casting Company, (7th Cir.1981), 655 F.2d 793.) Although the degree of probable cause that is required is unclear, (Burkart Randall Division of Textron, Inc. v. Marshall (7th Cir.1980), 625 F.2d 1313), it is clear that probable cause in the criminal sense is not required for the issuance of an administrative inspection warrant. (Marshall v. Barlow's, Inc. (1978), 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305). In the Barlow's case, the United States Supreme Court held that "probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that 'reasonable legislative or administrative standards for conducting an * * * inspection are satisfied with respect to a particular [establishment].' " (436 U.S. 307, 320, 98 S.Ct. 1816, 1824, 56 L.Ed.2d 305, 316, citing Camara v. Municipal Court (1967), 387 U.S. 523, 538, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930, 941.)

In determining the reasonableness of a particular inspection, and in turn, the existence of probable cause for that inspection, the need for the inspection must be balanced against the invasion which the search entails. (Camara v. Municipal Court; see also Morris v. United States Department of Labor (S.D.Ill.1977), 439 F.Supp. 1014.) The Camara court added that a valid public interest would justify issuance of a suitably restricted warrant.

The public interest asserted by the government is the protection of the health and safety of consumers through regulations such as approved sources of food supplies and storage procedures to prevent contamination of food products. The scope of the intrusion is limited by the Code to areas where there is food production or storage. The record disclosed that the search was initially made pursuant to a computer listing which named all food establishments in Chicago. At the hearing, Inspector Colletti stated that defendants had been issued a license to operate a food establishment in 1979 and 1980. Colletti noted, however, that the defendant's license had been suspended in 1980 for unsanitary conditions and had never been reinstated. Colletti further testified that defendants were still operating the food establishment. The search warrant was then issued over defendants' objections.

The record reveals that the inspection was initially attempted pursuant to an administrative plan to ensure compliance with Code regulations and therefore not arbitrary. Defendants' refusal to permit entry at that time prompted the need to apply for a warrant. It would appear that the court considered the allegations presented at the hearing to have been sufficient for probable cause under the circumstances and we find no error in that ruling.

Defendants next contend that it was reversible error for the trial court to deny them appointed counsel to assist in their defense. Defendants argue that there was no voluntary and knowing waiver of counsel, but that they in fact made it clear throughout the proceedings that they wanted legal assistance. Defendants further argue that they were not given the opportunity to fill out an affidavit of assets and liabilities in order to secure the services of a public defender.

The City asserts, however, that the sixth amendment does not obligate courts to furnish counsel for indigent defendants in quasi-criminal actions where there is no possibility of imprisonment. (City of Danville v. Clark (1976), 63 Ill.2d 408, 348 N.E.2d 844, cert. denied, (1976), 429 U.S. 899, 97 S.Ct. 266, 50 L.Ed.2d 184.) The City further argues that it was through defendants own actions that the requisite affidavit for establishing indigency was not completed.

The constitutional right to appointed counsel is limited to criminal proceedings which result in actual imprisonment (Argersinger v. Hamlin (1972), 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530; see also Scott v. Illinois (1979), 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383), and the statutory right to counsel is similarly limited. (See Ill.Rev.Stat.1981, ch. 38, pars. 103-4, 113-3(b); ch. 34, par. 5604.) The issue of an indigent defendant's right to appointed counsel in a prosecution for violation of municipal ordinances has not been ruled upon by the courts of this State. The determination of whether a party is entitled to appointed counsel, however, is a matter within the trial court's discretion which must be delicately decided always with a mind toward protection of the indigent party from any possible impairment. See People v. Whiteny (1974), 24 Ill.App.3d 685, 321 N.E.2d 317.

In the instant case, the record is replete with instances where the various trial judges who participated in this matter admonished both defendants of their need for counsel. The record indicates that defendants failed and refused to comply with the eligibility requirements for appointment of counsel by not supplying the requisite information regarding their financial situation. The record also shows that the trial court made attempts to ascertain the indigency of defendants, but defendants refused to cooperate...