Collura v. Board of Police Com'rs of Village of Itasca

• Decision Date: 01 October 1986
• Docket Number: No. 62407,62407
• Citation: 101 Ill.Dec. 640,498 N.E.2d 1148,113 Ill.2d 361
• Parties: , 101 Ill.Dec. 640 Robert COLLURA, Appellant, v. The BOARD OF POLICE COMMISSIONERS OF the VILLAGE OF ITASCA et al., Appellees.
• Court: Illinois Supreme Court

Page 1148

498 N.E.2d 1148

113 Ill.2d 361, 101 Ill.Dec. 640

Robert COLLURA, Appellant, v. The BOARD OF POLICE COMMISSIONERS OF the VILLAGE OF ITASCA et al., Appellees.

No. 62407.

Supreme Court of Illinois.

Oct. 1, 1986.

Rock, Fusco, Reynolds & Heneghan, P.C., Chicago, for appellant; William P. Jones, Michael J. Murray, of counsel.

James R. Schirott, Charles E. Hervas, James G. Sotos, Schirott & Associates, P.C., Itasca, Lawrence C. Traeger, Traeger & Traeger, Chicago, for appellees.

Justice WARD delivered the opinion of the court:

The circuit court of Du Page County confirmed an order of the Itasca board of police commissioners (the board) discharging the plaintiff, Officer Robert Collura, on the complaint of Itasca police chief Stanley Rossol that Collura, while on duty, had improperly fondled a woman. The appellate court affirmed (135 Ill.App.3d 827, 90 Ill.Dec. 436, 482 N.E.2d 143), and we granted the plaintiff's petition for leave to appeal under our Rule 315 (94 Ill.2d R. 315(a)).

In a prior appeal, this court determined that the board improperly considered evidence of a polygraph examination at Collura's hearing, and the court remanded the case to the board for a new hearing at which evidence of the polygraph examination and its results were to be inadmissible. Kaske v. City of Rockford (1983), 96 Ill.2d 298, 312, 70 Ill.Dec. 841, 450 N.E.2d 314, cert. denied (1983), 464 U.S. 960, 104 S.Ct. 391, 78 L.Ed.2d 335.

At the second hearing, the board heard the testimony of Alicia Martinez that when she was in her automobile outside the Colonial Village apartment complex in Itasca around 8 p.m. on December 27, 1979, the plaintiff stopped his marked police vehicle in front of her. He asked Martinez her reason for being in the parking lot and she responded that she was waiting for a girlfriend who was visiting a friend at the complex. Martinez testified that she left the parking lot but returned a short time later. She said that, around 10 or 15 minutes later, Collura again stopped his vehicle in front of her car and asked why she was still in the parking lot. The witness stated that she told Collura that she had lied to him earlier, and that she was visiting her boyfriend, who lived in the apartment complex. Martinez recalled that she was upset and crying because her boyfriend had just told her that he intended to marry someone else. She stated that she told Collura that her boyfriend was moving from the apartment complex that night and she was waiting so that she could follow him and "talk things out."

Collura informed her that the registration tag on her license plate had expired, and he asked to see her driver's license. Martinez responded that she did not have her license with her. She testified that at about this time a second Itasca police car arrived, and she said that Collura identified the officer who emerged as a lieutenant. The second officer, whose name she did not know but who was later identified as Officer Terry Mickow, asked Martinez if she had any means of identification. She gave him a supermarket "check cashing card" and a card bearing her social security number. Mickow returned the cards to her and, after examining her license plates with Collura, returned to his automobile and left the parking lot.

Martinez said that another Itasca police officer, identified in subsequent testimony as Officer Craig Hansen, drove through the parking lot, but she testified that he did not stop. Martinez said that Collura told her that he would have to take her to the police station because she had an expired license-plate tag, was driving without a driver's license, and was trespassing on private property. She told him that she did not want to go to the police station because she did not wish her mother to know that she had been visiting her boyfriend. She stated that Collura told her that she would have to post a $1,000 bond if he took her to the station, and he asked if she had any weapons. Collura said that he was concerned that she intended to harm her boyfriend, but she assured him that she did not have a weapon and did not intend to hurt her boyfriend. She testified that he asked if she had a weapon under her jacket, and in response she unzippered the jacket to show that she was not concealing a weapon. Martinez stated that the plaintiff put his hand inside her jacket and touched her breast.

Martinez said that Collura repeatedly asked her what she had "to offer" in exchange for his not taking her to the police station. He asked if she had a weapon concealed in the waistline of her slacks and, while still seated in her car, she pulled her sweater up slightly so that he could see that she did not have a weapon. He inquired about "lower," she said, and suggested that she pull down her slacks so that he could check for a weapon. When the witness protested that she did not believe that a proper search required this, Collura answered that he would take her to the police station if she refused to allow him to check for weapons. Martinez stated that she then complied and that Collura reached inside her undergarment and touched her intimately.

Martinez recalled that she became angry and pulled up her slacks. About this time she heard Collura receive a call about "a burglary alarm at Wickes" on his police radio. She said that Collura told her to lower her slacks for "the final check," but she refused. He remained with her for 5 or 10 minutes after he received the call about a possible burglary at a Wickes furniture store. She said that Collura did not give her a ticket or a citation.

Officer Terry Mickow testified that he heard over his police radio that Collura made a vehicle stop at the apartment complex and, using a transcript of that night's police radio transmissions which was introduced into evidence, the witness stated that the call came at 9:42 p.m. Mickow drove to the complex, arriving about two minutes later. Mickow said that upon his arrival Collura informed him that he had observed Martinez drive through a nearby industrial park, and that she could not produce any identification. The witness recalled that Collura identified him to Martinez as a lieutenant, and that upon his request, Martinez showed Mickow a check-cashing card and a card with her social security number. Mickow testified that their station radioed at 9:46 that Martinez had a valid driver's license. However he did notice that her license-plate sticker had expired. Collura assured him that no further assistance was needed, and he left the parking lot about 9:54.

At 10:09 Mickow heard a "burglary in process" call, regarding a Wickes furniture store, being directed to Collura over the radio. The witness was near the store at the time, he said, so he notified Collura over the radio that he too would answer the call. As he arrived at the store, Mickow saw Officer Hansen drive up in his marked vehicle, and the two officers entered the store through a front door. At 10:15, Collura informed the officers over the radio that he was in the rear of the building. Mickow left the store from the rear at 10:20 and saw Collura outside the store.

Officer Hansen testified that after he heard Collura had stopped a vehicle he proceeded to a factory parking lot across the street from the apartment complex. (It was explained that, though it was against department policy to leave an assigned patrol area, the officers would often offer assistance when a suspicious car is stopped in the area of the industrial park.) He had a clear view of the parking lot, but he said that Collura was standing on the other side of Martinez' automobile. He stated that while he was there Collura remained 3 to 4 feet from the car. Collura requested Hansen to switch his police radio to another frequency, and they then had an unrecorded conversation on that frequency. Hansen testified that during the conversation Collura told him that Martinez was upset about her boyfriend and that there was no need for Hansen's assistance. Hansen stayed but a minute longer and left the area. He said that he was in the factory lot about seven minutes. Officer Hansen corroborated Mickow's testimony that they met while responding to the call at the furniture store, and that at 10:15 Collura told them that he was at the rear of the store.

Officer Collura acknowledged that he stopped Martinez' vehicle that night, but he denied that he touched her. His testimony generally coincided with that of Martinez up to the time he had the unrecorded conversation with Hansen, after which he said that he ordered her to leave the apartment-complex parking lot. She refused to leave, he said. At 10:09 he received a call concerning a burglary at Wickes furniture store, and he again ordered her to leave the area. He testified that as he walked to his vehicle, Martinez asked him not to leave because she was upset that her boyfriend was with another woman. He said that he advised her to forget about him and told her not to remain in the area.

He testified that he left the apartment complex and arrived at the rear of the Wickes store at approximately 10:14 or 10:15. He admitted that he may have notified the officers in the store that he was at the rear of the store as he was driving up to the store and before he actually alighted from his car.

The board found that the evidence supported the allegation in the complaint that Collura had improperly touched Martinez, and it ordered that he be discharged from the Itasca police department.

The plaintiff complains that Nancy Fedor, who sat as a board member at both of Collura's hearings, should have recused herself from the second hearing because at the first hearing she had heard the impermissible evidence of the polygraph examination. He says that her refusal to recuse herself, and the other board members' failure to disqualify her, denied him an impartial tribunal which he says is required by the due process clauses of the State and Federal...