People v. Erby ( 2007 )

NO. 5-06-0217
N O T IC E
Decision filed 08/24/07. The text of
IN THE
this dec ision m ay b e changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
P e t i ti o n for Re hea ring or the
disposition of the same.
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Williamson County.
)
v. ) No. 05-CF-571
)
JOHN H. ERBY IV, ) Honorable
) Ronald R. Eckiss,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE GOLDENHERSH delivered the opinion of the court:
After a bench trial in the circuit court of Williamson County, defendant, John H. Erby
IV, was found guilty of participation in methamphetamine manufacturing (720 ILCS
646/15(a)(2)(A) (West Supp. 2005)). Defendant appeals the denial of his motion to
suppress. On appeal, the issue is whether a police officer patrolling outside his jurisdiction
used the powers of his office to obtain evidence when his ability to recognize evidence of
a crime was due to his training and experience. We affirm.
FACTS
Officer Kendrick of the Johnston City police department was on patrol in his squad
car, but outside of his jurisdiction, when he saw a blue car sitting in the middle of the road.
Officer Kendrick drove alongside the driver's side of the stopped vehicle and, while sitting
in the patrol car, saw defendant slumped over the steering wheel. After Officer Kendrick
activated his patrol lights, defendant awoke and rolled down his window.
An odd odor emanated from defendant's car. Officer Kendrick, as a trained and
experienced police officer, knew this to be the smell of anhydrous ammonia–a telltale sign
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of methamphetamine production.
A conversation ensued. Officer Kendrick asked if defendant needed help, and
defendant responded with an unintelligible mumble. Officer Kendrick asked if there was
a meth lab in the car, and defendant stated something about items being possessed by a
Bubba McKay. Officer Kendrick looked through the driver's side window and saw a metal
funnel and a Mason jar full of pills soaking in liquid. The officer believed he had, indeed,
found a mobile meth lab.
Officer Kendrick radioed for the local jurisdiction to send an officer. A West
Frankfort police officer responded and Officer Kendrick assisted in placing defendant in
handcuffs. He noticed that defendant smelled of anhydrous ammonia and that defendant's
hands were dingy. From outside defendant's car, Officer Kendrick saw a rubber hose and
several flashlights on the backseat–common tools for a meth lab operating at night. Officer
Kendrick asked the Illinois State Police to send a meth response team, and he filled out an
inventory of the car.
Defendant moved to suppress all the evidence seized during his arrest. The circuit
court conducted a hearing and denied the motion. After a stipulated bench trial, defendant
was found guilty of participating in the manufacture of methamphetamine. Defendant
appeals.
ANALYSIS
Because Officer Kendrick was outside his jurisdiction, his position as a police officer
did not give him authority to arrest defendant. Kendrick was acting as a private citizen
throughout the time he interacted with defendant. Nonetheless, police officers may, like any
other private citizen, effectuate an extraterritorial arrest when a crime is being committed.
725 ILCS 5/107-3 (West 2004); People v. Lahr, 147 Ill. 2d 379, 383, 589 N.E.2d 539, 540
(1992). Although an officer may use any proper tool at his disposal to restrain a suspect, he
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may not use the powers of his office to gather evidence outside his jurisdiction. People v.
Kleutgen, 359 Ill. App. 3d 275, 279, 833 N.E.2d 416, 420 (2005). In those situations, the
officer's powers to investigate are no greater than those of other private citizens, and he may
not use the powers of his office to obtain evidence unavailable to similarly situated citizens.
Lahr, 147 Ill. 2d at 383, 589 N.E.2d at 540. The issue, then, is whether Officer Kendrick
used the powers of his office to gather evidence unavailable to him as a private citizen.
The characterization of an exterritorial arrest as a citizen action has rung hollow when
officers have relied upon police equipment to gather evidence necessary for the arrest. The
choice tool of the traffic police–the radar gun–provides the prime example. See People v.
Lahr, 147 Ill. 2d 379, 383, 589 N.E.2d 539, 540 (1992); People v. Kirvelaitis, 315 Ill. App.
3d 667, 672, 734 N.E.2d 524, 528-29 (2000). In Lahr, the Illinois Supreme Court found that
the extraterritorial arrest of a speeding motorist was not valid. The court affirmed the
appellate court's stance that the use of equipment not available to the average citizen was an
exercise of police authority. The court admitted that although a citizen could hypothetically
purchase a radar gun, the likelihood of that occurring was remote. The use of the radar gun,
therefore, was an exercise of police authority that tainted the claim of a citizen's arrest.
Lahr, 147 Ill. 2d at 383, 589 N.E.2d at 540.
Kirvelaitis expounded on Lahr. Kirvelaitis also involved an extraterritorial traffic
stop based on a radar gun reading. Relying on Lahr, Kirvelaitis reversed convictions for
traffic offenses derived from the use of a radar gun. The court stated, "[T]he use of the radar
gun took the arrest outside the purview of a citizen's arrest because private citizens generally
do not have access to radar guns." Kirvelaitis, 315 Ill. App. 3d at 672, 734 N.E.2d at 529
(citing Lahr, 147 Ill. 2d at 383, 589 N.E.2d at 540). The court noted, however, "[W]hen an
officer's own observations provide a sufficient basis to arrest the defendant, an officer
subsequently may use the powers of his office to make the arrest." Kirvelaitis, 315 Ill. App.
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3d at 672, 734 N.E.2d at 529 (citing People v. Ciesler, 304 Ill. App. 3d 465, 471, 710
N.E.2d 1270, 1274 (1999)). The court then proceeded to address the State's claim that the
arrest was based on the unaided personal observations of the officer:
"The question then becomes whether Officer Symonds actually observed
defendant speeding before he used his radar gun. The testimony showed that Officer
Symonds observed defendant driving at a high rate of speed. A high rate of speed
could very well mean 45 miles per hour, which was the posted speed limit. The
problem is that Officer Symonds never testified that he observed defendant speeding.
We would be presented with a very different situation if Officer Symonds testified
that he had experience as a traffic officer, knew when cars were speeding, and
observed, based on his experience, that defendant was speeding. Without this type
of evidence, we cannot say that Officer Symonds saw defendant speeding and then
used his radar only after making this visual observation." Kirvelaitis, 315 Ill. App.
3d at 672-73, 734 N.E.2d at 529.
Defendant asserts that but for Officer Kendrick's training and experience as a police
officer, he would not have recognized the smell of anyhdrous ammonia or the significance
of what he witnessed. This makes no difference. As Kirvelaitis suggests, the ability of an
experienced law enforcement officer to interpret what he witnesses is not an exercise of the
powers granted to police. The skills possessed by Officer Kendrick were the same he
possessed off duty or otherwise acting as a private citizen. Kendrick's use of his cognitive
skills, obtained by police experience or otherwise, to interpret what he witnessed was not an
exercise of authority.
An extraterritorial arrest based solely on the unaided observations of an officer is not
an exercise of police authority if the officer does not use the powers of his office to obtain
evidence unavailable to a private citizen. For example, extraterritorial arrests have
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withstood scrutiny when the officer based his stop on seeing improper lane usage or hearing
an all-points bulletin on the police radio. People v. Kleutgen, 359 Ill. App. 3d 275, 279, 833
N.E.2d 416, 420 (2005) (an arrest for driving under the influence was made after the officer
saw the car weaving); People v. Shick, 318 Ill. App. 3d 899, 905, 744 N.E.2d 858, 863
(2001) (a valid citizen's arrest because "defendant made no showing that an ordinary citizen
would not have been able to monitor the police radio band").
The precedent most similar to the case at hand is People v. Ciesler, 304 Ill. App. 3d
465, 710 N.E.2d 1270 (1999). In Ciesler, an officer observed a truck safely parked on the
shoulder of a road outside her jurisdiction. Upon approaching the truck, the officer saw the
defendant slumped over the wheel. The officer saw the defendant's bloodshot eyes, smelled
the odor of alcohol, and heard a thick-tongued response from the defendant. She then had
the defendant perform field sobriety tests. Ciesler, 304 Ill. App. 3d at 468, 710 N.E.2d at
1272-73. The court found that the officer "approached defendant no differently than any
other citizen might have approached him to inquire if he needed assistance." Ciesler, 304
Ill. App. 3d at 471, 710 N.E.2d at 1275. The court stated:
"We conclude that Officer Berry's extraterritorial arrest of defendant was valid
because she obtained evidence sufficient to warrant a traffic stop merely by using her
own powers of observation without resorting to the powers of her office. Therefore,
any subsequent use of the powers of her office by Officer Berry to develop probable
cause to arrest defendant would not have been improper." Ciesler, 304 Ill. App. 3d
at 471, 710 N.E.2d at 1274-75.
As the officer in Ciesler, Officer Kendrick approached defendant in a manner that
might have been used by any other citizen. He approached defendant as a caretaker
checking on a car stalled in the road. See Ciesler, 304 Ill. App. 3d at 471, 710 N.E.2d at
1275. As in Ciesler, Kendrick saw, smelled, and heard defendant. Officer Kendrick used
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his own powers of observation without resorting to the powers of his office. The fact that
Officer Kendrick was better able to interpret what he observed does not move his actions
from those of a citizen to those of police power.
Accordingly, the order of the circuit court is hereby affirmed.
Affirmed.
CHAPMAN and SPOMER, JJ., concur.
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NO. 5-06-0217
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Williamson County.
)
v. ) No. 05-CF-571
)
JOHN H. ERBY IV, ) Honorable
) Ronald R. Eckiss,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: August 24, 2007
___________________________________________________________________________________
Justices: Honorable Richard P. Goldenhersh, J.
Honorable Melissa A. Chapman, J., and
Honorable Stephen L. Spomer, J.,
Concur
___________________________________________________________________________________
Attorneys Daniel M. Kirwan, Deputy Defender, Paige Clark Strawn, Assistant Defender, Office
for of the State Appellate Defender, Fifth Judicial District, 117 North Tenth Street, Suite
Appellant #300, Mt. Vernon, IL 62864
___________________________________________________________________________________
Attorneys Hon. Charles Garnati, State's Attorney, Williamson County Courthouse, Marion, IL
for 62959; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kendra S.
Appellee Peterson, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730
E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________________