People v. Carey

• Decision Date: 07 November 2008
• Docket Number: No. 1-07-3262.,1-07-3262.
• Parties: The PEOPLE of The State of Illinois, Plaintiff-Appellant, v. Kevin CAREY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

898 N.E.2d 1127

386 Ill. App. 3d 254

The PEOPLE of The State of Illinois, Plaintiff-Appellant, v. Kevin CAREY, Defendant-Appellee.

No. 1-07-3262.

Appellate Court of Illinois, First District, Sixth Division.

November 7, 2008.

Richard A. Devine, State's Attorney of Cook County, Chicago, IL (James Fitzgerald, Ashley Romito and Jessica R. Ball,

Asst. State's Attorneys, of Counsel), for Plaintiff-Appellant.

Daniel Q. Herbert, Chiacgo, IL, for Defendant-Appellant.

Justice McBRIDE delivered the opinion of the court:

On May 5, 2006, defendant, Kevin Carey, was arrested and charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2006)) and aggravated assault (720 ILCS 5/12-2(a)(1) (West 2006)). Prior to trial, defendant filed a motion in limine to bar admission of the results of a breath test given to measure his blood-alcohol content. Following a hearing, the trial court granted defendant's motion and the State now appeals that suppression order. For that reasons that follow, we reverse and remand.

The following evidence was presented at the hearing on defendant's motion.

Sergeant Steven Cannizzo of the Chicago police department's internal affairs division testified that on the morning of May 6, 2006, he was notified that defendant had been placed under arrest for aggravated assault and a possible DUI and was assigned to investigate the incident. Sergeant Cannizzo arrived at the police station at approximately 7:30 a.m. and was told by the arresting officers that defendant was being processed as a "refusal" to submit to a breath test. The sergeant thereafter began his investigation.

Sergeant Cannizzo spoke to the arresting officers and the victim, 52-year-old Willie Flood, to determine the events which led to defendant's arrest. Based upon those conversations, Sergeant Cannizzo learned that the victim was in his vehicle at a stoplight when he saw defendant in a vehicle and "words were spoken" by defendant. The victim continued driving toward an expressway and then stopped at another stoplight, where "more words were exchanged." As the victim entered the expressway, defendant began to "tail" him at a high rate of speed and, at some point, defendant pulled next to the victim's vehicle and pointed a gun at him. The victim then called 911 and emergency personnel attempted to direct him to a nearby police station. Efforts to direct the victim to the nearby police station failed when he made a wrong turn. The victim subsequently drove in the direction of a different police station and observed a "squadrol" parked on the street. He pulled his vehicle to the side of the road and fled to the nearby officers as defendant followed him while armed with a weapon. The officers, who were not aware that defendant was a police officer, ordered him to drop his weapon. Defendant did not respond or look in the officers' direction, but instead continued to point his weapon at the victim. During this time, the victim continued to run toward the officers while yelling, "he has a gun, he has a gun." Eventually, one of the officers either pushed or tackled defendant and knocked the weapon out of his hand. At that point, it was revealed that defendant was a Chicago police officer.

Sergeant Cannizzo, who transcribed the 31-minute phone conversation between the victim and emergency personnel, described the victim during this call as "in fear of his life," "delirious," "screaming," and "yelling for help." According to Sergeant Cannizzo, defendant made certain derogatory remarks regarding the victim's race as an explanation for why he chased the victim.

After learning of the events which led to defendant's arrest, Sergeant Cannizzo read defendant his "Administrative Proceeding Rights and Notification of Charges." and ordered him to submit to a breath test. The administrative rights advised defendant:

"1. Any admission or statement made by you in the course of this hearing, interrogation or examination may be used as the basis for your suspension or as the basis for charges seeking your removal or discharge or suspension in excess of 30 days.

2. You have the right to counsel of your choosing to be present with you to advise you at this hearing, interrogation or examination and you may consult with him as you desire.

3. You have a right to be given a reasonable time to obtain counsel of your own choosing.

4. You have no right to remain silent. You have an obligation to truthfully answer questions put to you. Your are advised that your statements or responses constitute an official police report.

5. If you refuse to answer questions put to you, you will be ordered by a superior officer to answer the questions.

6. If you persist in your refusal after the order has been given to you, you are advised that such refusal constitutes a violation of the Rules and Regulations of the Chicago Police Department and will serve as a basis for which your discharge will be sought.

7. You are further advised that by law any admission or statement made by you during the course of this hearing, interrogation or examination and the fruits thereof cannot be used against you in a subsequent criminal proceeding."

According to Sergeant Cannizzo, he ordered defendant to submit to the test because there was evidence that defendant had been drinking, including that he smelled of alcohol, that he had bloodshot eyes, and that he "leaned in and out of being cooperative and defiant."

Sergeant Cannizzo also testified that he did not tell defendant he would be fired if he refused to take the breath test. Sergeant Cannizzo explained that if an officer refuses a direct order, an additional charged is made against that officer that could form the basis for disciplinary action ranging from a reprimand to termination. The sergeant also explained that an officer has a right to an appeal even if he is terminated and that he was unaware of any rule which stated that any officer who refused a direct order would be unequivocally terminated.

Under questioning by the trial court, Sergeant Cannizzo explained that he was present at the police station for purposes of an administrative investigation and that he ordered defendant to submit to the breath test as part of that investigation. The sergeant also testified that, to the best of his knowledge, the criminal investigation terminated when defendant initially refused to submit to the breath test.

During the hearing on defendant's motion, the parties stipulated that there was probable cause to arrest defendant for aggravated assault and DUI and that no physical force was used to obtain defendant's breath analysis.

The trial court began its ruling by finding that defendant was arrested based upon probable cause for DUI and aggravated assault and that, pursuant to that arrest, defendant was asked but refused to submit to a breath test. The court then stated that the question became whether the breath test was a search incident to an arrest and what effect the administrative proceeding had upon the admissibility of the test results. The court noted that, according to Sergeant Cannizzo's testimony, the criminal investigation ended when defendant initially refused to submit to the test and defendant was later advised of his administrative rights and ordered to submit to the test pursuant to an administrative investigation. The court further noted that the "Notification of Charges and Allegations" against defendant indicated that he submitted to an "administrative breathalyzer." The court then stated that consent in context of the fourth amendment was an issue in the case, that after being advised of his administrative rights, defendant did not feel he "[had] any choice" but to submit to the breath test, and that defendant would not have submitted to the test unless he was ordered to and promised that it would not be used against him in a criminal proceeding. The court thus concluded that it went against "fundamental fairness" and the "constitution" to allow the test results into evidence after defendant was told that those results could not be used against him in a criminal proceeding. Accordingly, the court found that the breath test constituted an invalid search and seizure and granted defendant's motion to bar admission of the test results.

The State filed a certificate of substantial impairment and timely appealed.

The State contends that the trial court erred by suppressing the results of defendant's breath test. The State asserts that the trial court erroneously considered whether defendant consented to the test when, in fact, consent is not a prerequisite to the admissibility of the test results. The State further maintains that defendant's test results are admissible because the police had probable cause to arrest defendant and because defendant's breath sample was properly obtained as a search incident to his lawful arrest.

Defendant responds that his breath-test results were properly suppressed because: (1) the results were obtained pursuant to a administrative, rather than criminal, investigation; (2) he did not voluntarily consent to the test; (3) he submitted to the test only under threat of termination; and (4) the State is precluded from using the test results under the doctrine of judicial estoppel.

When reviewing a trial court's ruling on a motion to suppress, we apply the two-part standard of review adopted by the United States Supreme Court in Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996). People v. Luedemann, 222 Ill.2d 530, 542, 306 Ill.Dec. 94, 857 N.E.2d 187 (2006). Under this standard, the trial court's factual findings are reviewed for clear error and will be upheld on review unless such findings are against the manifest weight of the evidence. Luedemann, 222 Ill.2d at 542, 306 Ill.Dec. 94, 857 N.E.2d 187. However, we review de novo the ultimate question of whether the evidence should be suppressed. Luedemann, 222...