McCullough v. Knight

• Decision Date: 26 November 1997
• Docket Number: No. 1-96-0775,1-96-0775
• Citation: 293 Ill.App.3d 591,688 N.E.2d 1186
• Parties: , 228 Ill.Dec. 209 Bernard J. McCULLOUGH, Plaintiff-Appellant, v. John KNIGHT, Adolphus Hall, Philip Bernstein, and the CITY of Chicago, John K. Madden, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1186

688 N.E.2d 1186

293 Ill.App.3d 591, 228 Ill.Dec. 209

Bernard J. McCULLOUGH, Plaintiff-Appellant, v.John KNIGHT, Adolphus Hall, Philip Bernstein, and the CITY of Chicago, John K. Madden, Defendants-Appellees.

No. 1-96-0775.

Appellate Court of Illinois First District, Third Division.

Nov. 26, 1997.

Rehearing Denied Jan. 9, 1998.

Rehearing Dismissed for Lack of Appellate Jurisdiction Feb. 27, 1998.

R. Eugene Pincham, Chicago, for Plaintiff-Appellant.

Susan S. Sher, Corp.Counsel of the City of Chicago, Chicago (Lawrence Rosenthal, Deputy Corp.Counsel, Benna Ruth Solomon, Chief Asst. Corp.Counsel and Julian N. Henriques, Jr., Asst. Corp.Counsel, of counsel), for Defendants-Appellees.

Justice CAHILLdelivered the opinion of the court:

The issue presented for review in this appeal is whether evidence suppressed in a criminal case may be introduced later in an administrative hearing.

Bernard McCullough sought administrative review of a $500 fine imposed by the Chicago department of revenue for an unregistered firearm recovered from his vehicle.The circuit court upheld the department of revenue's decision.McCullough appeals.We affirm.

Police officer John Knight arrested McCullough on May 1, 1995, searched his vehicle, and seized a handgun.Two proceedings followed.The first was a criminal prosecution of McCullough for failure to register the firearm in violation of section 8-20-040 of the Chicago Municipal Code, Chicago Municipal Code § 8-20-040(amended July 7, 1992).The circuit court suppressed evidence of the recovered weapon when the city admitted that Knight lacked probable cause to search McCullough's vehicle.The court discharged McCullough but ordered the weapon confiscated and destroyed.

There followed an administrative hearing before the department of revenue.McCullough's vehicle had been seized by Officers Knight and Dougherty at the time of his arrest in accordance with section 8-20-015 of the Chicago Municipal Code.Chicago Municipal Code, § 8-20-015(amended July 14, 1993).Section 8-20-015 provides:

"(a) The owner of record of any motor vehicle that contains an unregistered firearm or a firearm that is not broken down in a nonfunctioning state shall be liable to the city for an administrative penalty of $500.00 plus any towing and storage fees applicable under Section 9-92-080.Any such vehicle shall be subject to seizure and impoundment pursuant to this section.* * *

(b) Whenever a police officer has probable cause to believe that a vehicle is subject to seizure and impoundment pursuant to this section, the police officer shall provide for the towing of the vehicle to a facility controlled by the city or its agents.* * * [T]he police officer shall notify any person identifying himself as the owner of the vehicle * * * at the time of the alleged violation, of the fact of the seizure and of the vehicle owner's right to request a vehicle impoundment hearing * * *

(c) Whenever the owner of record of a vehicle seized pursuant to this section makes a [written] request * * * for a vehicle impoundment hearing within 12 hours after the seizure, a hearing officer of the department of revenue shall conduct the vehicle impoundment hearing within 24 hours after the seizure * * *.* * * If, after the hearing, the hearing officer determines that there is probable cause to believe that the vehicle is subject to seizure and impoundment under subsection (a), the hearing officer shall order the continued impoundment of the vehicle * * * unless the owner of the vehicle posts * * * a cash bond in the amount of $500.00 plus any applicable towing and storage fees.

(d) Within 10 days after a vehicle is seized and impounded pursuant to this section, the city shall notify * * * the owner of record of the date, time and location of a hearing that will be conducted pursuant to this section.* * * If, after the hearing, the hearing officer determines by a preponderance of evidence that the vehicle contained an unregistered firearm or a firearm not broken down in a nonfunctioning state, * * * the hearing officer shall enter an order finding the owner of record of the vehicle civilly liable to the city for an administrative penalty in the amount of $500.00.* * * If the hearing officer finds that no such violation occurred, the hearing officer shall order the immediate return of the owner's vehicle or cash bond."

McCullough paid the $500 bond for the release of his vehicle.He then filed a motion to dismiss the impoundment proceedings and for return of the $500, arguing that the search of his vehicle violated the fourth and fifth amendments of the United States Constitution(U.S. Const. amends. V, XIV) and article 1, section 2, of the Illinois Constitution(Ill. Const. 1970, art. I, § 2).

McCullough argued at the hearing that evidence of the unregistered firearm was inadmissible in the impoundment proceedings because it had been suppressed in the criminal case.The hearing officer disagreed and held that McCullough was subject to the $500 administrative penalty.

McCullough filed a complaint in circuit court for administrative review.The circuit court affirmed the hearing officer's decision.

We first note that McCullough filed a motion to supplement the record on appeal, under Supreme Court Rule 329(134 Ill.2d R. 329), with a transcript of the hearing before the department of revenue.The motion was granted.The transcript was not certified by the trial court and had not been filed in or considered by the trial court.We will not consider references to this transcript because "documents which are not a part of the trial court record and were not considered by the trial court will not be considered on appeal."State Farm Mutual Automobile Insurance Co. v. Stuckey, 112 Ill.App.3d 647, 649, 68 Ill.Dec. 147, 445 N.E.2d 791(1983).The failure to file the transcript in the trial court would allow us to affirm the hearing officer without further analysis.SeeJenkins v. Wu, 102 Ill.2d 468, 482, 82 Ill.Dec. 382, 468 N.E.2d 1162(1984).The issue before us, however, is a question of law reviewed de novo.The state of the record is such that we are able to address the question of law.SeeDubey v. Abam Building Corp., 266 Ill.App.3d 44, 46, 203 Ill.Dec. 176, 639 N.E.2d 215(1994)(incomplete record does not preclude review where issue can be decided without complete record).

On appeal, McCullough argues that under both the United States and Illinois Constitutions the unconstitutionally seized firearm must be suppressed.But he cites no authority, as required under Illinois Supreme Court Rule 341, for his claim under the Illinois Constitution.155 Ill.2d R. 341(e)(7);Estate of Strocchia v. City of Chicago, 284 Ill.App.3d 891, 901, 220 Ill.Dec. 102, 672 N.E.2d 919(1996).So we will only address his claim under the United States Constitution.We are aware that the exclusionary rule is applicable to state criminal trials.Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090(1961).

McCullough contends that the city's "argument" that "the $500 penalty is not a sufficient amount to merit constitutional [protection] is * * * ludicrous."But the city does not argue that McCullough is not constitutionally protected.The city correctly notes that whether the exclusionary sanction is proper in a particular case is " 'an issue separate from the question whether the [f]ourth [a]mendment rights of the party seeking to invoke the rule were violated by police conduct.' "United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677, 688(1984), quotingIllinois v. Gates, 462 U.S. 213, 223, 103 S.Ct. 2317, 2324, 76 L.Ed.2d 527, 538-39(1983).The point the city makes is that the severity of the penalty is an element to be considered in the balancing test employed to invoke or relax the exclusionary rule.McCullough labels this point "ludicrous" without addressing it.Such a strategy of appellate advocacy on an issue of some significance is more than a minor irritant for those who must read his brief.

McCullough argues that the department of revenue erred in relying on evidence obtained during an unconstitutional search.In support of his contention, McCullough cites Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746(1886).McCullough argues that the hearing officer and circuit court's decisions were "repugnant to and violative of over two hundred years [sic ] of * * * Supreme Court precedent of Boyd, which has been religiously followed without deviation."Miscounting the years and misstating the precedential history of Boyd aside, the case is relevant to the issue before us, though far from dispositive.

Boyd was a forfeiture action brought by the United States against an importer of 35 cases of plate glass allegedly imported without payment of a customs duty.The penalty faced by the importer was forfeiture of the glass.Relying on an 1874 revenue statute, the trial court ordered the importer to produce company records that would aid the United States in its case against him.The Supreme Court held that the compulsory production of a person's private papers for use against him in a civil forfeiture proceeding violates both the unreasonable search proscription of the fourth amendment and the self-incrimination proscription of the fifth amendment.The Court further held that the unconstitutionally seized records could not be used against the defendant.Boyd, 116 U.S. at 633-35, 638, 6 S.Ct. at 533-35, 536, 29 L.Ed. at 752-53, 753.

The city argues that Boyd is distinguishable.Boyd involved a forfeiture of property of the kind that the Supreme Court has found to be punitive.SeeOne 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 701-02, 85 S.Ct. 1246, 1251, 14 L.Ed.2d 170, 175(1965);Boyd116 U.S. at 634, 6 S.Ct. at 534, 29 L.Ed. at 752.McCullough simply gives us an extensive quotation from Boyd; he does not explain why the $500 fine and...