People v. Ertl
Annotate this Case
No. 2--96--1076
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of De Kalb County.
)
Plaintiff-Appellant, ) No. 96--CF--111
)
v. )
)
RUSSELL J. ERTL, ) Honorable
) Douglas R. Engel,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________
JUSTICE COLWELL delivered the opinion of the court:
The State appeals from the circuit court's order granting the
motion of defendant, Russell J. Ertl, to quash his arrest and
suppress evidence. See 145 Ill. 2d R. 604(a)(1). The State argues
that the trial court's ruling is manifestly erroneous. We affirm.
FACTS
Following the stop of his vehicle on April 17, 1996, defendant
was charged with the unlawful use of a weapon (720 ILCS 5/24--
1(a)(4) (West 1996)) and disorderly conduct (720 ILCS 5/26--1(a)(1)
(West 1996)). At the hearing on defendant's motion to quash and
suppress, Deputy Sheriff Anthony J. Grum of De Kalb County
testified that, when he stopped defendant on April 17, 1996, he had
observed him driving but did not have a warrant for his arrest. He
did not observe defendant violate any laws. When defendant pulled
over, he got out of his vehicle. Grum testified that defendant was
not free to go.
On cross-examination, Grum stated he was responding to the
dispatch of another police vehicle to a residence on Esmond Road
where there was a female in the house who was apparently very
afraid of defendant.
A recording of the communications traffic was played. The
initial dispatch call was actually intended for Deputy Delisio.
Grum heard this dispatch. Cindy Ertl called the police and stated,
"I'm sorry to bug you, you probably just got a phone call from my
ex-husband or my husband, or whatever you want to call him." Cindy
and defendant were in the midst of marriage dissolution
proceedings. She related that her husband was sitting in the
driveway and would not leave. She had just bought out his half of
the house, but he had permission to use the shed through September
30. Cindy stated that defendant started "hammering *** on the
doors and the patio and yelling that he knew that I was in here ***
and he wanted to pick up his mail." She was just going to hand him
his mail to get him to go away. He asked if she had taken some
water softener pellets out of the shed. She said that her dad had
done so. He responded, "[W]ell, you shouldn't have taken those,
those were mine." He said he was going to call the police. Cindy
said that she and her attorney had started paperwork to get an
order of protection and wanted to make the police aware of that.
The dispatcher said that, instead of telling her all of this,
she needed to know what the immediate problem was and whether
defendant was threatening her. Cindy answered, "I'm sorry. Um, my
husband, the order of protection that we were getting *** was
because um my father found a loaded gun ready to shoot out in that
shed ***." Her husband had locked her out of that shed, and her
father got in through a window and found a gun. When the
dispatcher asked where defendant was at this time, Cindy replied
that he was in the driveway. When asked if he had a gun, Cindy
said she did not know.
Cindy gave her name, telephone number, and address on Esmond
Road. The dispatcher told her they had not heard from her husband
at all. Cindy said she did not have an order of protection. She
said she did not know him for the last nine months and he went into
rages. She said he had four guns and used to sleep with one by his
bed. The dispatcher again stated that she did not need to hear
this information and asked for his name and what kind of vehicle he
was in. Cindy stated it was a black Dodge Ram with license plate
CFIII1. The dispatcher ascertained that Cindy was in the house
with the door locked and said that an officer would be sent out.
The county dispatcher subsequently radioed Zebra-59, giving
the Esmond Road address and advised that the "soon to be ex-husband
is in the driveway. Has made previous threats to her in the past
***. She has advised that he's known to have 10-32 [a weapon].
However she does not know if he has one at this time." The
dispatcher confirmed that it was a black Dodge truck. Zebra-59
asked Zebra-13 if it would be "10-44 to have Zebra-44 check" and
then stated he was headed that way from his location at Lindgren
and Plank Road. An officer identified as Zebra-84 (Deputy Grum)
called stating he would be en route as he was located at Glidden
and Aldrich. He asked for the vehicle's description.
At this point in the recording, Cindy stated, "[H]e used to
keep one [a gun] in his console in his car when he had a car or
under the seat." The dispatcher replied that there was an extra
patrol out already. Cindy said, "Oh good. I just wanted to let you
know about the one that was in the shed that my dad unloaded it."
Cindy then said that defendant used to carry a gun with him in the
truck, but did not know "if he would be stupid enough at this point
to do this."
Cindy called again to inform the dispatcher that her husband
was going north on Esmond Road and was going back to Kirkland and
would be turning on Baseline Road. The dispatcher called Zebra-84
stating that the wife called to advise that her husband was going
northbound toward Baseline Road and would be going east toward
Kirkland. An unknown police car "930" broke in to ask if any
assistance was needed. The reply was, "Negative." Another officer
asked, "13 do you want me to go ahead and stop him or uh wait until
somebody else is in the area?" The responding officer stated his
location and then said, "Why don't you go ahead and stop him and
I'll 10-25 your location." The recording continued: "Zebra-44 from
13, if you could 10-25 the complaintant [sic] and see if there is
any grounds for complaint or anything." The other officer
responded, "10-4. I'm almost at Malta and Baseline. I can see
Zebra-84's headlights. Do you want me to head over there?" The
reply was "Affirmative. We'll head over there and see what we've
got."
Deputy Grum testified he was Zebra-84. Based on the
description given by the dispatcher, Grum activated his emergency
lights and pulled defendant over on Baseline Road, east of Esmond
Road. Defendant stopped his truck, got out of his vehicle, walked
to the squad car, and gave his license to Grum at his request.
Defendant acknowledged that he had just been at his wife's
residence on Esmond road and told Grum about their pending divorce.
Defendant explained that a court order still gave him access to
outbuildings on the property. Sergeant Petersen and Deputy
Kaminski then arrived. Defendant initially denied having any
weapons. Petersen asked if defendant would consent to a search of
the vehicle for weapons, and defendant consented. As Grum started
to walk toward the truck, defendant said he may have put a .22-
caliber pistol in the glove box, but was not sure if it was in
there or not. Grum recovered a loaded .22-caliber pistol from the
glove box.
On redirect examination, Grum stated he heard the radio
traffic and knew the Ertls were not yet divorced. He knew there
was no order of protection. He acknowledged that, although the
dispatcher had stated that defendant had been known to have
weapons, it was not known at this time whether he had a weapon.
Grum was not sure if there was any ground for a complaint at the
time and conceded that he had no evidence that there had been any
crime committed at the residence. Defendant was not at the
residence when Grum arrived. Although he heard the transmission
that there had been threats in the past, he admitted that he
received no information that any threats had been made that day.
After taking the motion under advisement, the court found that
the officer had no information that a crime had been committed and
could not have had reasonable and articulable suspicion as a basis
for the stop.
ISSUES
On appeal, the thrust of the State's arguments is that the
court erred in not finding that the officer who effectuated the
stop and arrest of defendant had sufficient knowledge, when
considered collectively with that of the other officers working in
concert (i.e., imputed knowledge), to support probable cause for
the stop, search, and arrest. See, e.g., People v. Fenner, 191
Ill. App. 3d 801, 806 (1989) (probable cause or reasonable
suspicion to stop may be established from all the information
collectively received by the officers acting in concert even if all
information is not known to the officer initiating the stop). The
State further argues that the search was justified because of
defendant's consent and the presence of exigent circumstances. We
do not reach the issue of probable cause because we conclude that,
after considering all the facts and circumstances, the police did
not have a reasonable and articulable suspicion to justify the
Terry stop in the first place.
LEGAL STANDARDS
A trial court's decision to suppress evidence will not be
overturned on review unless the decision is clearly erroneous or is
against the manifest weight of the evidence, that is, unless the
opposite conclusion is clearly evident. People v. Lukach, 263 Ill.
App. 3d 318, 323 (1994). In a motion to suppress evidence, the
initial burden is on the defendant to establish that the search or
seizure was unreasonable or unlawful. People v. Scott, 249 Ill.
App. 3d 597, 600 (1993). The defendant must make a prima facie
case that the police acted without a warrant and that he was doing
nothing unusual (i.e., indicative of criminal activity) to justify
the intrusion by the police at the time of the stop or arrest.
Once the defendant has made this showing, the burden of going
forward with the evidence to justify the intrusion shifts to the
State. People v. Drake, 288 Ill. App. 3d 963, 967 (1997); Scott,
249 Ill. App. 3d at 600.
A warrantless search or seizure is deemed unreasonable per se
unless it comes within a specific, well-delineated exception to the
constitutional warrant requirement (Drake, 288 Ill. App. 3d at
967), such as when it amounts to a valid investigative Terry stop
or is based on probable cause coupled with exigent circumstances
and making it impractical to obtain a warrant; the ultimate test of
the constitutionality of the search or seizure is reasonableness.
See People v. McGee, 268 Ill. App. 3d 32, 40 (1995); People v.
Crest, 188 Ill. App. 3d 768, 772 (1989).
A warrantless arrest may be made if the arrest is supported by
probable cause, that is, when the totality of the facts and
circumstances known to the officer are such that a reasonable,
prudent person would believe that the suspect is committing or has
committed a crime; probable cause is governed by commonsense
considerations and concerns the probability of criminal activity.
Scott, 249 Ill. App. 3d at 601.
The test for a Terry stop based on reasonable and articulable
suspicion is a less exacting one than for probable cause to arrest.
Scott, 249 Ill. App. 3d at 601. An officer may make a valid
investigatory stop of a person in a public place, without probable
cause to arrest, when the officer reasonably infers from all the
facts and circumstances that the person is committing, has
committed, or is about to commit an offense. Scott, 249 Ill. App.
3d at 601; Crest, 188 Ill. App. 3d at 772. The inquiry concerns
whether the officer's conduct was reasonable under the
circumstances known to the officer at the time the stop was
initiated; the officer's inferences must be based on more
substantial facts than would support a mere hunch. Crest, 188 Ill.
App. 3d at 772. For the police to justify such a detention, they
must point to specific, articulable facts which, when taken
together with natural inferences, make the intrusion reasonable--
such as when the officer observes unusual conduct which leads him
reasonably to conclude in the light of his experience that criminal
activity may be afoot. Scott, 249 Ill. App. 3d at 601. The
reasonableness of the police conduct depends upon balancing the
public's interest and the individual's right to personal security
free from arbitrary interference by law officers. People v.
Pantoja, 184 Ill. App. 3d 671, 674 (1989).
LEGAL PRECEDENTS--TELEPHONE TIPS
Where an informant's tip is received by telephone, it may form
the basis for a lawful Terry stop, but the information must bear
some indicia of reliability, and the information upon which the
police act must establish the requisite quantum of suspicion.
People v. Yarber, 279 Ill. App. 3d 519, 528-29 (1996). In other
words, the totality of the information available to the police must
have a degree of reliability, of quality, and of sufficiency that
will sustain a finding of a reasonable and articulable suspicion
for the stop. Where the reliability of the information obtained
from an (anonymous) informant cannot be easily corroborated and
there are no other suspicious circumstances known to the police, a
stop may be found unwarranted under the totality of the
circumstances. Yarber, 279 Ill. App. 3d at 529; see Scott, 249
Ill. App. 3d at 602; People v. Moraca, 124 Ill. App. 3d 561 (1984).
The totality of the circumstances approach for probable cause
determinations is applied analogously in the Terry reasonable-
suspicion context, making an allowance for the lesser showing
required to meet this standard. See Yarber, 279 Ill. App. 3d at
525-26, 529.
"Informants" were traditionally classified into two major
categories: citizen-informant (victim or eyewitness) or paid
(police) informant. People v. Kidd, 175 Ill. 2d 1, 23 (1996).
Information received from private citizens, sometimes referred to
as "citizen-informants," was considered presumptively reliable and
not subject to the same scrutiny as that received from an informer
from the criminal milieu (who was paid for his information).
People v. Hood, 262 Ill. App. 3d 171, 175 (2d Dist. 1994). In
People v. Adams, 131 Ill. 2d 387, 397 (1989), in discussing
probable cause determinations, the supreme court noted that "it
matters not by what name the informant is labelled; we look rather
to the informant's reliability as only one of the factors to be
considered in the totality of the circumstances approach."
In establishing the reliability of the information source, the
importance of the traditional classifications is now less
significant than it once was. Kidd, 175 Ill. 2d at 23. Indeed,
the information source does not always fit neatly into one category
or another. Kidd, 175 Ill. 2d at 23 (information was given by
person who was not a witness, victim, or paid informant). The
basis of the informant's knowledge remains relevant (i.e., whether
from a victim or witness, or whether from a reliable paid
informant); however, "the rigidity embodied in the presumptions
concerning the classifications is no longer applicable." Adams,
131 Ill. 2d at 398. Thus, rather than employing a presumption of
reliability based on classification, under the totality of the
circumstances approach, a court examines the source of information
as one of the relevant factors to be considered. The fact that the
information came from the victim or from an eyewitness to the crime
affects the weight that is to be accorded in evaluating its
reliability. People v. Aguilar, 286 Ill. App. 3d 493, 496-97
(1997).
In Hood, this court used the more flexible Adams approach in
reviewing the information provided by two identified "citizen-
informants" who had no motive to lie; the court additionally
considered the reliability of their statements by noting there was
some independent verification or corroboration. Hood, 262 Ill.
App. 3d at 175.
Based on an evaluation of all the information available to the
police at the time, including the source of the information, the
question here is whether the police could have reasonably inferred
from all the facts and circumstances that the person was
committing, had committed, or was about to commit an offense.
In Moraca, 124 Ill. App. 3d 561, this court held that a Terry
stop and search of the defendant and his van were unreasonable
where the stop was based on a telephone tip to the police relayed
through the CATCH organization. The informant stated that a person
named Moraca drove a blue van with a specific license number, had
a machine gun in a black pouch, and possessed cannabis in a green
bag. The suspect might have a suspended or revoked driver's
license and frequented Hickory Street.
The officers observed the van being driven by a male white
subject on Hickory Street. Neither officer recognized the driver
since they had no description of him, and they saw nothing unusual
or suspicious about the van any time prior to the stop. Upon
stopping the van, the police opened a black pouch protruding from
under the driver's seat and observed what appeared to be a machine
pistol. After learning that the driver was Moraca and that his
license was suspended, the defendant was arrested, and the police
recovered some suspected cannabis.
The anonymous telephone call failed to establish that the
informant was honest or reliable or that there was any basis for
the informant's knowledge of Moraca's illegal activities. The
informant was unknown to the police and never spoke directly to the
officers. There was insufficient corroboration of the informant's
tip except for the location of the van and the license number. We
concluded that the only corroborated facts known to the police
prior to the stop were insufficient to justify a Terry stop, and we
affirmed the trial court's suppression order. A similar result was
reached in Pantoja, 184 Ill. App. 3d 671 (information from
anonymous citizen caller received by radio dispatch that defendant
had a handgun and left a location in a certain vehicle;
insufficient facts to corroborate information and officer viewed no
suspicious behavior by defendant).
In City of Lake Forest v. Dugan, 206 Ill. App. 3d 552 (1990),
the officer received a radio dispatch of a citizen's complaint from
an identified gas station. The citizen-informant stated he
believed the driver of a car that had been in the station was
intoxicated and described the car, the license plate, and the
occupants. When the officer pulled the car over, the driver
stopped immediately; he denied that he violated any laws or that he
was driving under the influence.
This court concluded that there were insufficient facts known
to the officer to support the informant's conclusion that the
driver was driving under the influence. The complainant did not
state that the defendant was loud or obnoxious at the gas station
or that there was any unusual behavior or poor driving on his part.
The officer did not observe any bad driving, and the defendant
responded in a timely and appropriate manner when he was pulled
over. The informant's facts were conclusory. See United States v.
Packer, 15 F.3d 654 (7th Cir. 1994) (citizen's complaint about
suspicious vehicle lacked sufficient details for stop). The
officer's observations did not sufficiently corroborate the
complaint to justify the stop where the crucial part of the
complaint was that the driver was intoxicated. We therefore
affirmed the trial court's order granting the defendant's motion to
suppress.
In People v. Yarber, 279 Ill. App. 3d 519, an anonymous
informant telephoned the Crimestopper's line staffed by the
Carbondale police department. The informant claimed that her best
friends purchased cannabis on a regular basis at parties from a man
named Samuel Yarber. The informant provided a general physical
description of the defendant, his dormitory address at the
university, and his place of employment. Four hours later, the
informant called back to relate that the defendant would leave that
day by Amtrak train bound for Chicago to purchase cannabis and
would return by train on November 9, 1994. The police confirmed
through university law enforcement officials some of the details of
the tip including his status as a student and his residence. His
employer told them the defendant had not worked for several days.
A criminal background check confirmed his race, height, and weight.
The police were unable to verify that he had been on the train on
November 8.
When the defendant arrived by train on November 9, he was
approached by an officer who called him by name. He produced
identification upon request. When questioned, he denied he had
drugs. After a limited search of his person yielded nothing, the
defendant refused consent to search his two bags and stood by them.
It was disputed whether defendant was advised that he was free to
go. The detention lasted 15 minutes or more. After learning that
a dog trained in narcotics detection was not available, the police
seized the defendant's bags and took them to the police station
where a dog "alerted" on both of the bags. A search warrant was
obtained and two pounds of cannabis were eventually seized.
After observing that the limited Terry-stop exception to the
probable cause requirement was extended from stops based upon the
officer's personal observation to stops based on an informant's
tip, the Yarber court focused on the veracity, reliability, and the
basis of the knowledge as factors in determining the value of an
informant's report. The court noted the importance of the
officer's corroboration in imparting a degree of reliability to the
informant's predictions. Relying in part on Moraca, the court
concluded, after considering the totality of the circumstances,
that there was no reasonable basis for the officers to stop the
defendant at the train station.
In Yarber, the officers conceded that the only basis for the
stop was the anonymous tip. The defendant did not act suspiciously
at the time he was stopped. Although the informant provided many
details, there was nothing about the tip to establish the basis of
her knowledge, and she did not indicate that she had witnessed any
criminal activity. Since the informant had not previously given
correct information to the police, there was no way to determine
her reliability. Although the officers corroborated "innocent"
details about the defendant, they were unable to verify
independently any of the informant's allegations of criminal
activity. Without sufficient verification of the tip, for all the
police knew, the defendant was the victim of a malicious prank.
The court noted that a reasonable and articulable suspicion must
rest on more than the corroboration of innocent details and found
that the quality, and not the quantity, of the corroboration was
significant in determining whether the officers had a reasonable
and articulable suspicion to stop the defendant.
ANALYSIS
Veracity, reliability, and basis of knowledge remain highly
relevant in determining the value of an informant's report and in
determining that the requisite quantum of reasonable suspicion
existed for the police to effectuate a Terry stop. Yarber, 279
Ill. App. 3d at 525-26. These factors are not to be applied in a
compartmentalized, inflexible manner. Under the totality of the
circumstances approach, a deficiency in one element may be made up
by the strength of another or by sufficient corroboration. Yarber,
279 Ill. App. 3d at 525, 529. Information from a victim or an
eyewitness to a crime is entitled to particularly great weight in
evaluating its reliability. Aguilar, 286 Ill. App. 3d at 496-97.
However, the mere fact that a citizen is identified will not
automatically impart credibility and reliability to his statement,
and courts may look to additional factors in evaluating the
information. People v. Jones, 196 Ill. App. 3d 937, 956 (1990)
(noting Adams; without more, statement of eyewitness citizen-
informant no longer viewed as presumptively or inherently
reliable); see Hood, 262 Ill. App. 3d at 175 (noting independent
verification by police of citizen-informant's information); People
v. Wilson, 260 Ill. App. 3d 364, 370 (1994) (noting Adams;
reviewing court suggested information from victim's daughter should
have been evaluated by police for veracity and basis of knowledge).
In the present case, the informant's name and location were
made known to the dispatcher. Though a degree of veracity or
credibility would normally attach to the information provided by an
identified citizen-informant, the information supplied here was
based on limited and somewhat speculative observations and
consisted largely of the informant's subjective fears. She tended
to rely on information from prior events rather than direct
observation of actual criminal conduct. Although pressed by the
dispatcher to reveal what immediate threat or criminal conduct
defendant was engaging in, the caller could not respond
unequivocally that she was then witnessing any criminal or
immediately threatening behavior.
The tenor of the call was preemptive and anticipatory and did
not impart the type of urgency that would arise from witnessing a
crime in progress and thereby suggest a greater degree of
reliability. The trial court evaluated the credibility of the
recorded and the live testimony. The caller was more concerned
that defendant had called the police because her father had broken
into defendant's locked shed. Even discounting the caller's
possible bias and assuming that the officer's stop should be
considered in light of the information provided to the police
collectively, the officer was essentially acting on general,
"innocent" information concerning defendant, his vehicle, and his
location.
The quality and the factual basis of the knowledge provided
the police were insufficient to warrant the stop. Defendant had
apparently gone onto the property legally to check his shed and get
his mail. There was no order of protection. He was in the
driveway at the time of the call and left shortly thereafter. The
doors of the residence were locked, and there appeared to be no
immediate danger to the informant. She never responded
affirmatively and decisively when asked if defendant was
threatening her. Although the informant related that defendant had
been known in the past to have guns, she could not state that he
had one on this occasion. Indeed, the informant herself questioned
whether he "would be stupid enough" to have one at this time. The
information regarding whether defendant had a weapon was
speculative. Although a description of the truck and its location
were given, there was no description of the defendant himself.
At the time of the stop, although there was some corroboration
of the vehicle's description and location, there were insufficient
facts to corroborate that defendant had just engaged or was about
to engage in criminal conduct. Officer Grum observed no unlawful
or threatening behavior before the stop. The vehicle's description
and direction of travel were "innocent" facts even though somewhat
predictive of defendant's behavior. The officer conceded that he
had no real basis for a complaint and no evidence of criminal
conduct or of threats made that day. The recording concluded that
the officers were proceeding "to see what we've got."
Defendant immediately pulled over and responded reasonably to
the officer's requests. The record does not show that any further
information was obtained or verified at the informant's location
although there were several officers available to do so.
Nevertheless, Grum was requested to stop the vehicle at a time when
there was no apparent and immediate danger to anyone. Our review
of the law and the facts persuades us that there were no exigent
circumstances and no evidence of criminal conduct sufficient to
warrant an immediate and warrantless stop of defendant.
CONCLUSION
A general suspicion or a mere hunch is insufficient to support
a warrantless stop. Being insufficiently reliable and detailed,
the information here could not provide the quantum of
particularized, reasonable suspicion of criminal conduct needed for
the stop. See Packer, 15 F.3d at 659.
We commend the officers for their diligent response and their
concern for public safety. We must nevertheless hold that the
evidence was properly suppressed. Even though it may be
permissible for an officer to act on the basis of information
collectively available to the police acting in concert, the
forcible stop of a citizen cannot be legitimized by the simple
expedient of one officer passing on a telephone informant's tip
lacking the requisite degree of reliability, quality, factual
sufficiency, and corroboration. See 4 W. LaFave, Search & Seizure,
9.4(h), at 221-25, 9.4(i), at 232-33 (3d ed. 1996). The totality
of the information available to the police collectively must still
provide the same quantum of reasonable and articulable suspicion
that would be necessary for an individual officer to effectuate a
lawful stop. See Village of Gurnee v. Gross, 174 Ill. App. 3d 66,
69 (1988). We cannot say that the trial court's ruling was
manifestly erroneous or was against the manifest weight of the
evidence.
The judgment of the circuit court of De Kalb County is
affirmed.
Affirmed.
RATHJE, J., concurs.
JUSTICE DOYLE, specially concurring:
I agree with our majority's conclusion that the trial court
was correct in its determination that there was no basis for a stop
of defendant's truck. The reason for this determination is plain
and simple--the information communicated by the complainant, Cindy
Ertl, did not contain sufficient facts to create a reasonable
suspicion that defendant had committed, or was committing, any
crime. The fact that defendant reportedly "hammered" at the door
or that, at some time in the past, had made threats or possessed
firearms falls short of providing reasonable suspicion that
criminal activity was currently afoot.
I believe our opinion should have ended there. Instead, the
majority has embarked upon what seems to me to be a confusing
discussion, creating a potential for muddling well established
principles in the law of arrest and temporary detention for
investigation. Instead of simply discounting the complainant's
information as factually insufficient, the discussion focuses
heavily on the aspect of her credibility.
For no apparent reason other than that the complainant used a
telephone to communicate her information, the majority suggests
that the police officers were required to regard her complaint on
the same level as information supplied by a confidential informant
or an anonymous tipster, concluding, "the forcible stop of a
citizen cannot be legitimized by the simple expedient of one
officer passing on a telephone informant's tip lacking the
requisite degree of reliability, quality, factual sufficiency, and
corroboration." (Emphasis added.)
Accordingly, the opinion parades out a series of decisions
dealing with the special scrutiny requirements applicable when
authorities act upon information from confidential or anonymous
sources, the cases ordinarily focusing on the need to establish
reliability of the source through prior track record or
corroboration of the information. In my view, these cases have no
application to the present case where the source of information was
not a confidential or anonymous informant but, rather, an ordinary
citizen who identified herself and who claimed to have directly
witnessed the events she was reporting.
It has long been recognized that the proof-of-veracity rules
applicable to informant cases are inapplicable when the information
comes from an identified citizen who is in a position to supply the
information by virtue of having been a crime victim or eyewitness.
People v. Bean, 84 Ill. 2d 64, 68 (1981); People v. Hoffman, 45 Ill. 2d 221, 226 (1970); People v. Hester, 39 Ill. 2d 489, 514
(1968); People v. Carroll, 260 Ill. App. 3d 319, 340-41 (1992); 2
W. La Fave, Search & Seizure 3.4(a), at 204-24 (3d ed. 1996).
As in Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970), the United States Supreme Court has proceeded
as if veracity may be assumed when information comes from the
victim of or a witness to criminal activity. 2 W. La Fave, Search
& Seizure 3.4(a), at 205. Accordingly, police may ordinarily rely
on information from a private citizen who is a victim or witness to
formulate probable cause to arrest without verifying that citizen's
reliability Carroll, 260 Ill. App. 3d at 340-41; People v.
McCleary, 208 Ill. App. 3d 466, 478 (1990). A well recognized
exception to this rule exists where police are aware of special
circumstances which would make it unreasonable to automatically
rely on statements of a witness (e.g. witness known to be mentally
deranged, or to have a clear motive to fabricate). 2 W. La Fave,
Search & Seizure 3.4(a), at 211-12.
Although any caller who claims to have been the victim of a
domestic disturbance might arguably harbor a "bias" in wanting the
alleged offender apprehended, this cannot mean that officers may
not act immediately on a sufficiently detailed complaint.
Hopefully, it is still the law that if police receive a 911 call
from an identified woman alleging that her husband has just
attempted to strangle her and is now headed south in a
specifically-described vehicle, responding officers would, without
more, have reasonable suspicion authorizing them to intercept and
detain the driver of that vehicle for investigation.
Yet, our majority states that, without more, the statement of
a citizen who is an eyewitness to a crime "is no longer viewed as
presumptively or inherently reliable." In defense of my
colleagues, I must acknowledge that at least one other court, in
dicta, has made the same unfortunate statement. (See People v.
Jones, 196 Ill. App. 3d 937, 956 (1990)). I believe that this
erroneous observation may have been hatched from a fundamental
misinterpretation of our supreme court's analysis in People v.
Adams, 131 Ill. 2d 387 (1989). However, a close reading of Adams
shows that the court was not addressing the present question of
whether police may ordinarily assume veracity when acting on a call
from a crime victim or eyewitness. Rather, Adams was analyzed in
its context of the information having been provided by a paid,
confidential informant with no track record for reliability who,
unlike an ordinary crime victim or witness, must be subjected to
heightened scrutiny. The trial court, however, had made the error
of mechanically categorizing this informant as an "ordinary
citizen" (probably because the police represented that he was not
of the criminal milieu), thereby automatically crediting his
information as reliable. Second, the informant's information in
Adams failed to disclose any clear basis for his knowledge that the
suspect would be transporting contraband at the time in question;
therefore, even if the informant had been an identified citizen-
witness, the existence of probable cause would have been
questionable absent corroboration. Finally, the efforts of the
police to strengthen the conclusory information through
investigation were unsatisfactory. Accordingly, in commenting,
"the rigidity embodied in the presumptions concerning the
classifications [of sources of information] is no longer
applicable" (131 Ill. 2d at 398), the supreme court, speaking in
the context of an informant case, was merely illustrating the trial
court's error in finding that the source's information
presumptively established probable cause because of his status as
an "ordinary citizen" informant. The arrest could have been upheld
only if, in the totality of the circumstances, further
investigation had sufficed to corroborate the information.
Certainly, our supreme court, in Adams, has continued to
follow Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983), in substituting a totality of the circumstances
approach for the less flexible Aguilar analysis. But, nothing in
Adams or Gates stands for the proposition that police officers
would be unjustified in detaining a suspect where, in the totality
of the circumstances, their only information is a call from an
ordinary victim or eyewitness who has provided sufficient facts
from his or her own personal observation to raise a reasonable
suspicion that a crime has been perpetrated by the suspect. The
totality approach, of course, retains the traditional requirement
that the police must consider any known circumstances tending to
discredit the witness's veracity.
The overall effect of Gates, another anonymous informant case,
was to expand, not to restrict, the potential for the issuance of
a valid search warrant when an element of reliability, viewed
independently under Aguilar standards, is questionable. By
permitting the total circumstances to compensate for a deficiency
in the veracity prong, an anonymous or confidential informant's
information may still be a viable component of the probable cause
determination when, under the previously inflexible Aguilar
analysis, this deficiency would have been fatal. People v. Tisler,
103 Ill. 2d 226, 240 (1984). Accordingly, in People v. Kidd, 175 Ill. 2d 1 (1996), our supreme court was able to find probable cause
for arrest from the total circumstances in spite of the defendant's
argument that "Mrs. Orange must be considered an informant"
(apparently because she was not an eyewitness but had worked behind
the scenes in cooperation with the police in eliciting admissions
from the defendant), and she was of "untested and unestablished
reliability." 175 Ill. 2d at 23. Again, however, Kidd, does not
address the present issue of police reliance on information from
victims or eyewitnesses to a crime. Our majority's references to
cases in which reviewing courts have cited police corroboration of
an ordinary eyewitness' information to further support a finding of
probable cause lend no support to the unique theory that such
corroboration is essential. Nothing prevents a court from
referring to corroborating evidence or any other facts that might
strengthen the finding of veracity. See 2 W. La Fave, Search &
Seizure 3.4(a), at 211.
In my view, it is potentially misleading for our opinion to
commingle the nonissue of Cindy Ertl's veracity with our
examination of the sufficiency of her information. As an
identified eyewitness to the alleged events, with no special
circumstances to signal fabrication, her report should have been
regarded as presumptively reliable. However, more is required than
a reliable witness with an evident basis of knowledge. The
witness' report must still contain sufficient facts to create a
reasonable suspicion of criminal activity by the suspect. It is
there that Cindy Ertl's report fails, and it is that failure that
should be the sole basis of our decision to affirm the trial
court's suppression order.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of De Kalb County.
)
Plaintiff-Appellant, ) No. 96--CF--111
)
v. )
)
RUSSELL J. ERTL, ) Honorable
) Douglas R. Engel,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________
JUSTICE COLWELL delivered the opinion of the court:
The State appeals from the circuit court's order granting the
motion of defendant, Russell J. Ertl, to quash his arrest and
suppress evidence. See 145 Ill. 2d R. 604(a)(1). The State argues
that the trial court's ruling is manifestly erroneous. We affirm.
FACTS
Following the stop of his vehicle on April 17, 1996, defendant
was charged with the unlawful use of a weapon (720 ILCS 5/24--
1(a)(4) (West 1996)) and disorderly conduct (720 ILCS 5/26--1(a)(1)
(West 1996)). At the hearing on defendant's motion to quash and
suppress, Deputy Sheriff Anthony J. Grum of De Kalb County
testified that, when he stopped defendant on April 17, 1996, he had
observed him driving but did not have a warrant for his arrest. He
did not observe defendant violate any laws. When defendant pulled
over, he got out of his vehicle. Grum testified that defendant was
not free to go.
On cross-examination, Grum stated he was responding to the
dispatch of another police vehicle to a residence on Esmond Road
where there was a female in the house who was apparently very
afraid of defendant.
A recording of the communications traffic was played. The
initial dispatch call was actually intended for Deputy Delisio.
Grum heard this dispatch. Cindy Ertl called the police and stated,
"I'm sorry to bug you, you probably just got a phone call from my
ex-husband or my husband, or whatever you want to call him." Cindy
and defendant were in the midst of marriage dissolution
proceedings. She related that her husband was sitting in the
driveway and would not leave. She had just bought out his half of
the house, but he had permission to use the shed through September
30. Cindy stated that defendant started "hammering *** on the
doors and the patio and yelling that he knew that I was in here ***
and he wanted to pick up his mail." She was just going to hand him
his mail to get him to go away. He asked if she had taken some
water softener pellets out of the shed. She said that her dad had
done so. He responded, "[W]ell, you shouldn't have taken those,
those were mine." He said he was going to call the police. Cindy
said that she and her attorney had started paperwork to get an
order of protection and wanted to make the police aware of that.
The dispatcher said that, instead of telling her all of this,
she needed to know what the immediate problem was and whether
defendant was threatening her. Cindy answered, "I'm sorry. Um, my
husband, the order of protection that we were getting *** was
because um my father found a loaded gun ready to shoot out in that
shed ***." Her husband had locked her out of that shed, and her
father got in through a window and found a gun. When the
dispatcher asked where defendant was at this time, Cindy replied
that he was in the driveway. When asked if he had a gun, Cindy
said she did not know.
Cindy gave her name, telephone number, and address on Esmond
Road. The dispatcher told her they had not heard from her husband
at all. Cindy said she did not have an order of protection. She
said she did not know him for the last nine months and he went into
rages. She said he had four guns and used to sleep with one by his
bed. The dispatcher again stated that she did not need to hear
this information and asked for his name and what kind of vehicle he
was in. Cindy stated it was a black Dodge Ram with license plate
CFIII1. The dispatcher ascertained that Cindy was in the house
with the door locked and said that an officer would be sent out.
The county dispatcher subsequently radioed Zebra-59, giving
the Esmond Road address and advised that the "soon to be ex-husband
is in the driveway. Has made previous threats to her in the past
***. She has advised that he's known to have 10-32 [a weapon].
However she does not know if he has one at this time." The
dispatcher confirmed that it was a black Dodge truck. Zebra-59
asked Zebra-13 if it would be "10-44 to have Zebra-44 check" and
then stated he was headed that way from his location at Lindgren
and Plank Road. An officer identified as Zebra-84 (Deputy Grum)
called stating he would be en route as he was located at Glidden
and Aldrich. He asked for the vehicle's description.
At this point in the recording, Cindy stated, "[H]e used to
keep one [a gun] in his console in his car when he had a car or
under the seat." The dispatcher replied that there was an extra
patrol out already. Cindy said, "Oh good. I just wanted to let you
know about the one that was in the shed that my dad unloaded it."
Cindy then said that defendant used to carry a gun with him in the
truck, but did not know "if he would be stupid enough at this point
to do this."
Cindy called again to inform the dispatcher that her husband
was going north on Esmond Road and was going back to Kirkland and
would be turning on Baseline Road. The dispatcher called Zebra-84
stating that the wife called to advise that her husband was going
northbound toward Baseline Road and would be going east toward
Kirkland. An unknown police car "930" broke in to ask if any
assistance was needed. The reply was, "Negative." Another officer
asked, "13 do you want me to go ahead and stop him or uh wait until
somebody else is in the area?" The responding officer stated his
location and then said, "Why don't you go ahead and stop him and
I'll 10-25 your location." The recording continued: "Zebra-44 from
13, if you could 10-25 the complaintant [sic] and see if there is
any grounds for complaint or anything." The other officer
responded, "10-4. I'm almost at Malta and Baseline. I can see
Zebra-84's headlights. Do you want me to head over there?" The
reply was "Affirmative. We'll head over there and see what we've
got."
Deputy Grum testified he was Zebra-84. Based on the
description given by the dispatcher, Grum activated his emergency
lights and pulled defendant over on Baseline Road, east of Esmond
Road. Defendant stopped his truck, got out of his vehicle, walked
to the squad car, and gave his license to Grum at his request.
Defendant acknowledged that he had just been at his wife's
residence on Esmond road and told Grum about their pending divorce.
Defendant explained that a court order still gave him access to
outbuildings on the property. Sergeant Petersen and Deputy
Kaminski then arrived. Defendant initially denied having any
weapons. Petersen asked if defendant would consent to a search of
the vehicle for weapons, and defendant consented. As Grum started
to walk toward the truck, defendant said he may have put a .22-
caliber pistol in the glove box, but was not sure if it was in
there or not. Grum recovered a loaded .22-caliber pistol from the
glove box.
On redirect examination, Grum stated he heard the radio
traffic and knew the Ertls were not yet divorced. He knew there
was no order of protection. He acknowledged that, although the
dispatcher had stated that defendant had been known to have
weapons, it was not known at this time whether he had a weapon.
Grum was not sure if there was any ground for a complaint at the
time and conceded that he had no evidence that there had been any
crime committed at the residence. Defendant was not at the
residence when Grum arrived. Although he heard the transmission
that there had been threats in the past, he admitted that he
received no information that any threats had been made that day.
After taking the motion under advisement, the court found that
the officer had no information that a crime had been committed and
could not have had reasonable and articulable suspicion as a basis
for the stop.
ISSUES
On appeal, the thrust of the State's arguments is that the
court erred in not finding that the officer who effectuated the
stop and arrest of defendant had sufficient knowledge, when
considered collectively with that of the other officers working in
concert (i.e., imputed knowledge), to support probable cause for
the stop, search, and arrest. See, e.g., People v. Fenner, 191
Ill. App. 3d 801, 806 (1989) (probable cause or reasonable
suspicion to stop may be established from all the information
collectively received by the officers acting in concert even if all
information is not known to the officer initiating the stop). The
State further argues that the search was justified because of
defendant's consent and the presence of exigent circumstances. We
do not reach the issue of probable cause because we conclude that,
after considering all the facts and circumstances, the police did
not have a reasonable and articulable suspicion to justify the
Terry stop in the first place.
LEGAL STANDARDS
A trial court's decision to suppress evidence will not be
overturned on review unless the decision is clearly erroneous or is
against the manifest weight of the evidence, that is, unless the
opposite conclusion is clearly evident. People v. Lukach, 263 Ill.
App. 3d 318, 323 (1994). In a motion to suppress evidence, the
initial burden is on the defendant to establish that the search or
seizure was unreasonable or unlawful. People v. Scott, 249 Ill.
App. 3d 597, 600 (1993). The defendant must make a prima facie
case that the police acted without a warrant and that he was doing
nothing unusual (i.e., indicative of criminal activity) to justify
the intrusion by the police at the time of the stop or arrest.
Once the defendant has made this showing, the burden of going
forward with the evidence to justify the intrusion shifts to the
State. People v. Drake, 288 Ill. App. 3d 963, 967 (1997); Scott,
249 Ill. App. 3d at 600.
A warrantless search or seizure is deemed unreasonable per se
unless it comes within a specific, well-delineated exception to the
constitutional warrant requirement (Drake, 288 Ill. App. 3d at
967), such as when it amounts to a valid investigative Terry stop
or is based on probable cause coupled with exigent circumstances
and making it impractical to obtain a warrant; the ultimate test of
the constitutionality of the search or seizure is reasonableness.
See People v. McGee, 268 Ill. App. 3d 32, 40 (1995); People v.
Crest, 188 Ill. App. 3d 768, 772 (1989).
A warrantless arrest may be made if the arrest is supported by
probable cause, that is, when the totality of the facts and
circumstances known to the officer are such that a reasonable,
prudent person would believe that the suspect is committing or has
committed a crime; probable cause is governed by commonsense
considerations and concerns the probability of criminal activity.
Scott, 249 Ill. App. 3d at 601.
The test for a Terry stop based on reasonable and articulable
suspicion is a less exacting one than for probable cause to arrest.
Scott, 249 Ill. App. 3d at 601. An officer may make a valid
investigatory stop of a person in a public place, without probable
cause to arrest, when the officer reasonably infers from all the
facts and circumstances that the person is committing, has
committed, or is about to commit an offense. Scott, 249 Ill. App.
3d at 601; Crest, 188 Ill. App. 3d at 772. The inquiry concerns
whether the officer's conduct was reasonable under the
circumstances known to the officer at the time the stop was
initiated; the officer's inferences must be based on more
substantial facts than would support a mere hunch. Crest, 188 Ill.
App. 3d at 772. For the police to justify such a detention, they
must point to specific, articulable facts which, when taken
together with natural inferences, make the intrusion reasonable--
such as when the officer observes unusual conduct which leads him
reasonably to conclude in the light of his experience that criminal
activity may be afoot. Scott, 249 Ill. App. 3d at 601. The
reasonableness of the police conduct depends upon balancing the
public's interest and the individual's right to personal security
free from arbitrary interference by law officers. People v.
Pantoja, 184 Ill. App. 3d 671, 674 (1989).
LEGAL PRECEDENTS--TELEPHONE TIPS
Where an informant's tip is received by telephone, it may form
the basis for a lawful Terry stop, but the information must bear
some indicia of reliability, and the information upon which the
police act must establish the requisite quantum of suspicion.
People v. Yarber, 279 Ill. App. 3d 519, 528-29 (1996). In other
words, the totality of the information available to the police must
have a degree of reliability, of quality, and of sufficiency that
will sustain a finding of a reasonable and articulable suspicion
for the stop. Where the reliability of the information obtained
from an (anonymous) informant cannot be easily corroborated and
there are no other suspicious circumstances known to the police, a
stop may be found unwarranted under the totality of the
circumstances. Yarber, 279 Ill. App. 3d at 529; see Scott, 249
Ill. App. 3d at 602; People v. Moraca, 124 Ill. App. 3d 561 (1984).
The totality of the circumstances approach for probable cause
determinations is applied analogously in the Terry reasonable-
suspicion context, making an allowance for the lesser showing
required to meet this standard. See Yarber, 279 Ill. App. 3d at
525-26, 529.
"Informants" were traditionally classified into two major
categories: citizen-informant (victim or eyewitness) or paid
(police) informant. People v. Kidd, 175 Ill. 2d 1, 23 (1996).
Information received from private citizens, sometimes referred to
as "citizen-informants," was considered presumptively reliable and
not subject to the same scrutiny as that received from an informer
from the criminal milieu (who was paid for his information).
People v. Hood, 262 Ill. App. 3d 171, 175 (2d Dist. 1994). In
People v. Adams, 131 Ill. 2d 387, 397 (1989), in discussing
probable cause determinations, the supreme court noted that "it
matters not by what name the informant is labelled; we look rather
to the informant's reliability as only one of the factors to be
considered in the totality of the circumstances approach."
In establishing the reliability of the information source, the
importance of the traditional classifications is now less
significant than it once was. Kidd, 175 Ill. 2d at 23. Indeed,
the information source does not always fit neatly into one category
or another. Kidd, 175 Ill. 2d at 23 (information was given by
person who was not a witness, victim, or paid informant). The
basis of the informant's knowledge remains relevant (i.e., whether
from a victim or witness, or whether from a reliable paid
informant); however, "the rigidity embodied in the presumptions
concerning the classifications is no longer applicable." Adams,
131 Ill. 2d at 398. Thus, rather than employing a presumption of
reliability based on classification, under the totality of the
circumstances approach, a court examines the source of information
as one of the relevant factors to be considered. The fact that the
information came from the victim or from an eyewitness to the crime
affects the weight that is to be accorded in evaluating its
reliability. People v. Aguilar, 286 Ill. App. 3d 493, 496-97
(1997).
In Hood, this court used the more flexible Adams approach in
reviewing the information provided by two identified "citizen-
informants" who had no motive to lie; the court additionally
considered the reliability of their statements by noting there was
some independent verification or corroboration. Hood, 262 Ill.
App. 3d at 175.
Based on an evaluation of all the information available to the
police at the time, including the source of the information, the
question here is whether the police could have reasonably inferred
from all the facts and circumstances that the person was
committing, had committed, or was about to commit an offense.
In Moraca, 124 Ill. App. 3d 561, this court held that a Terry
stop and search of the defendant and his van were unreasonable
where the stop was based on a telephone tip to the police relayed
through the CATCH organization. The informant stated that a person
named Moraca drove a blue van with a specific license number, had
a machine gun in a black pouch, and possessed cannabis in a green
bag. The suspect might have a suspended or revoked driver's
license and frequented Hickory Street.
The officers observed the van being driven by a male white
subject on Hickory Street. Neither officer recognized the driver
since they had no description of him, and they saw nothing unusual
or suspicious about the van any time prior to the stop. Upon
stopping the van, the police opened a black pouch protruding from
under the driver's seat and observed what appeared to be a machine
pistol. After learning that the driver was Moraca and that his
license was suspended, the defendant was arrested, and the police
recovered some suspected cannabis.
The anonymous telephone call failed to establish that the
informant was honest or reliable or that there was any basis for
the informant's knowledge of Moraca's illegal activities. The
informant was unknown to the police and never spoke directly to the
officers. There was insufficient corroboration of the informant's
tip except for the location of the van and the license number. We
concluded that the only corroborated facts known to the police
prior to the stop were insufficient to justify a Terry stop, and we
affirmed the trial court's suppression order. A similar result was
reached in Pantoja, 184 Ill. App. 3d 671 (information from
anonymous citizen caller received by radio dispatch that defendant
had a handgun and left a location in a certain vehicle;
insufficient facts to corroborate information and officer viewed no
suspicious behavior by defendant).
In City of Lake Forest v. Dugan, 206 Ill. App. 3d 552 (1990),
the officer received a radio dispatch of a citizen's complaint from
an identified gas station. The citizen-informant stated he
believed the driver of a car that had been in the station was
intoxicated and described the car, the license plate, and the
occupants. When the officer pulled the car over, the driver
stopped immediately; he denied that he violated any laws or that he
was driving under the influence.
This court concluded that there were insufficient facts known
to the officer to support the informant's conclusion that the
driver was driving under the influence. The complainant did not
state that the defendant was loud or obnoxious at the gas station
or that there was any unusual behavior or poor driving on his part.
The officer did not observe any bad driving, and the defendant
responded in a timely and appropriate manner when he was pulled
over. The informant's facts were conclusory. See United States v.
Packer, 15 F.3d 654 (7th Cir. 1994) (citizen's complaint about
suspicious vehicle lacked sufficient details for stop). The
officer's observations did not sufficiently corroborate the
complaint to justify the stop where the crucial part of the
complaint was that the driver was intoxicated. We therefore
affirmed the trial court's order granting the defendant's motion to
suppress.
In People v. Yarber, 279 Ill. App. 3d 519, an anonymous
informant telephoned the Crimestopper's line staffed by the
Carbondale police department. The informant claimed that her best
friends purchased cannabis on a regular basis at parties from a man
named Samuel Yarber. The informant provided a general physical
description of the defendant, his dormitory address at the
university, and his place of employment. Four hours later, the
informant called back to relate that the defendant would leave that
day by Amtrak train bound for Chicago to purchase cannabis and
would return by train on November 9, 1994. The police confirmed
through university law enforcement officials some of the details of
the tip including his status as a student and his residence. His
employer told them the defendant had not worked for several days.
A criminal background check confirmed his race, height, and weight.
The police were unable to verify that he had been on the train on
November 8.
When the defendant arrived by train on November 9, he was
approached by an officer who called him by name. He produced
identification upon request. When questioned, he denied he had
drugs. After a limited search of his person yielded nothing, the
defendant refused consent to search his two bags and stood by them.
It was disputed whether defendant was advised that he was free to
go. The detention lasted 15 minutes or more. After learning that
a dog trained in narcotics detection was not available, the police
seized the defendant's bags and took them to the police station
where a dog "alerted" on both of the bags. A search warrant was
obtained and two pounds of cannabis were eventually seized.
After observing that the limited Terry-stop exception to the
probable cause requirement was extended from stops based upon the
officer's personal observation to stops based on an informant's
tip, the Yarber court focused on the veracity, reliability, and the
basis of the knowledge as factors in determining the value of an
informant's report. The court noted the importance of the
officer's corroboration in imparting a degree of reliability to the
informant's predictions. Relying in part on Moraca, the court
concluded, after considering the totality of the circumstances,
that there was no reasonable basis for the officers to stop the
defendant at the train station.
In Yarber, the officers conceded that the only basis for the
stop was the anonymous tip. The defendant did not act suspiciously
at the time he was stopped. Although the informant provided many
details, there was nothing about the tip to establish the basis of
her knowledge, and she did not indicate that she had witnessed any
criminal activity. Since the informant had not previously given
correct information to the police, there was no way to determine
her reliability. Although the officers corroborated "innocent"
details about the defendant, they were unable to verify
independently any of the informant's allegations of criminal
activity. Without sufficient verification of the tip, for all the
police knew, the defendant was the victim of a malicious prank.
The court noted that a reasonable and articulable suspicion must
rest on more than the corroboration of innocent details and found
that the quality, and not the quantity, of the corroboration was
significant in determining whether the officers had a reasonable
and articulable suspicion to stop the defendant.
ANALYSIS
Veracity, reliability, and basis of knowledge remain highly
relevant in determining the value of an informant's report and in
determining that the requisite quantum of reasonable suspicion
existed for the police to effectuate a Terry stop. Yarber, 279
Ill. App. 3d at 525-26. These factors are not to be applied in a
compartmentalized, inflexible manner. Under the totality of the
circumstances approach, a deficiency in one element may be made up
by the strength of another or by sufficient corroboration. Yarber,
279 Ill. App. 3d at 525, 529. Information from a victim or an
eyewitness to a crime is entitled to particularly great weight in
evaluating its reliability. Aguilar, 286 Ill. App. 3d at 496-97.
However, the mere fact that a citizen is identified will not
automatically impart credibility and reliability to his statement,
and courts may look to additional factors in evaluating the
information. People v. Jones, 196 Ill. App. 3d 937, 956 (1990)
(noting Adams; without more, statement of eyewitness citizen-
informant no longer viewed as presumptively or inherently
reliable); see Hood, 262 Ill. App. 3d at 175 (noting independent
verification by police of citizen-informant's information); People
v. Wilson, 260 Ill. App. 3d 364, 370 (1994) (noting Adams;
reviewing court suggested information from victim's daughter should
have been evaluated by police for veracity and basis of knowledge).
In the present case, the informant's name and location were
made known to the dispatcher. Though a degree of veracity or
credibility would normally attach to the information provided by an
identified citizen-informant, the information supplied here was
based on limited and somewhat speculative observations and
consisted largely of the informant's subjective fears. She tended
to rely on information from prior events rather than direct
observation of actual criminal conduct. Although pressed by the
dispatcher to reveal what immediate threat or criminal conduct
defendant was engaging in, the caller could not respond
unequivocally that she was then witnessing any criminal or
immediately threatening behavior.
The tenor of the call was preemptive and anticipatory and did
not impart the type of urgency that would arise from witnessing a
crime in progress and thereby suggest a greater degree of
reliability. The trial court evaluated the credibility of the
recorded and the live testimony. The caller was more concerned
that defendant had called the police because her father had broken
into defendant's locked shed. Even discounting the caller's
possible bias and assuming that the officer's stop should be
considered in light of the information provided to the police
collectively, the officer was essentially acting on general,
"innocent" information concerning defendant, his vehicle, and his
location.
The quality and the factual basis of the knowledge provided
the police were insufficient to warrant the stop. Defendant had
apparently gone onto the property legally to check his shed and get
his mail. There was no order of protection. He was in the
driveway at the time of the call and left shortly thereafter. The
doors of the residence were locked, and there appeared to be no
immediate danger to the informant. She never responded
affirmatively and decisively when asked if defendant was
threatening her. Although the informant related that defendant had
been known in the past to have guns, she could not state that he
had one on this occasion. Indeed, the informant herself questioned
whether he "would be stupid enough" to have one at this time. The
information regarding whether defendant had a weapon was
speculative. Although a description of the truck and its location
were given, there was no description of the defendant himself.
At the time of the stop, although there was some corroboration
of the vehicle's description and location, there were insufficient
facts to corroborate that defendant had just engaged or was about
to engage in criminal conduct. Officer Grum observed no unlawful
or threatening behavior before the stop. The vehicle's description
and direction of travel were "innocent" facts even though somewhat
predictive of defendant's behavior. The officer conceded that he
had no real basis for a complaint and no evidence of criminal
conduct or of threats made that day. The recording concluded that
the officers were proceeding "to see what we've got."
Defendant immediately pulled over and responded reasonably to
the officer's requests. The record does not show that any further
information was obtained or verified at the informant's location
although there were several officers available to do so.
Nevertheless, Grum was requested to stop the vehicle at a time when
there was no apparent and immediate danger to anyone. Our review
of the law and the facts persuades us that there were no exigent
circumstances and no evidence of criminal conduct sufficient to
warrant an immediate and warrantless stop of defendant.
CONCLUSION
A general suspicion or a mere hunch is insufficient to support
a warrantless stop. Being insufficiently reliable and detailed,
the information here could not provide the quantum of
particularized, reasonable suspicion of criminal conduct needed for
the stop. See Packer, 15 F.3d at 659.
We commend the officers for their diligent response and their
concern for public safety. We must nevertheless hold that the
evidence was properly suppressed. Even though it may be
permissible for an officer to act on the basis of information
collectively available to the police acting in concert, the
forcible stop of a citizen cannot be legitimized by the simple
expedient of one officer passing on a telephone informant's tip
lacking the requisite degree of reliability, quality, factual
sufficiency, and corroboration. See 4 W. LaFave, Search & Seizure,
9.4(h), at 221-25, 9.4(i), at 232-33 (3d ed. 1996). The totality
of the information available to the police collectively must still
provide the same quantum of reasonable and articulable suspicion
that would be necessary for an individual officer to effectuate a
lawful stop. See Village of Gurnee v. Gross, 174 Ill. App. 3d 66,
69 (1988). We cannot say that the trial court's ruling was
manifestly erroneous or was against the manifest weight of the
evidence.
The judgment of the circuit court of De Kalb County is
affirmed.
Affirmed.
RATHJE, J., concurs.
JUSTICE DOYLE, specially concurring:
I agree with our majority's conclusion that the trial court
was correct in its determination that there was no basis for a stop
of defendant's truck. The reason for this determination is plain
and simple--the information communicated by the complainant, Cindy
Ertl, did not contain sufficient facts to create a reasonable
suspicion that defendant had committed, or was committing, any
crime. The fact that defendant reportedly "hammered" at the door
or that, at some time in the past, had made threats or possessed
firearms falls short of providing reasonable suspicion that
criminal activity was currently afoot.
I believe our opinion should have ended there. Instead, the
majority has embarked upon what seems to me to be a confusing
discussion, creating a potential for muddling well established
principles in the law of arrest and temporary detention for
investigation. Instead of simply discounting the complainant's
information as factually insufficient, the discussion focuses
heavily on the aspect of her credibility.
For no apparent reason other than that the complainant used a
telephone to communicate her information, the majority suggests
that the police officers were required to regard her complaint on
the same level as information supplied by a confidential informant
or an anonymous tipster, concluding, "the forcible stop of a
citizen cannot be legitimized by the simple expedient of one
officer passing on a telephone informant's tip lacking the
requisite degree of reliability, quality, factual sufficiency, and
corroboration." (Emphasis added.)
Accordingly, the opinion parades out a series of decisions
dealing with the special scrutiny requirements applicable when
authorities act upon information from confidential or anonymous
sources, the cases ordinarily focusing on the need to establish
reliability of the source through prior track record or
corroboration of the information. In my view, these cases have no
application to the present case where the source of information was
not a confidential or anonymous informant but, rather, an ordinary
citizen who identified herself and who claimed to have directly
witnessed the events she was reporting.
It has long been recognized that the proof-of-veracity rules
applicable to informant cases are inapplicable when the information
comes from an identified citizen who is in a position to supply the
information by virtue of having been a crime victim or eyewitness.
People v. Bean, 84 Ill. 2d 64, 68 (1981); People v. Hoffman, 45 Ill. 2d 221, 226 (1970); People v. Hester, 39 Ill. 2d 489, 514
(1968); People v. Carroll, 260 Ill. App. 3d 319, 340-41 (1992); 2
W. La Fave, Search & Seizure 3.4(a), at 204-24 (3d ed. 1996).
As in Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970), the United States Supreme Court has proceeded
as if veracity may be assumed when information comes from the
victim of or a witness to criminal activity. 2 W. La Fave, Search
& Seizure 3.4(a), at 205. Accordingly, police may ordinarily rely
on information from a private citizen who is a victim or witness to
formulate probable cause to arrest without verifying that citizen's
reliability Carroll, 260 Ill. App. 3d at 340-41; People v.
McCleary, 208 Ill. App. 3d 466, 478 (1990). A well recognized
exception to this rule exists where police are aware of special
circumstances which would make it unreasonable to automatically
rely on statements of a witness (e.g. witness known to be mentally
deranged, or to have a clear motive to fabricate). 2 W. La Fave,
Search & Seizure 3.4(a), at 211-12.
Although any caller who claims to have been the victim of a
domestic disturbance might arguably harbor a "bias" in wanting the
alleged offender apprehended, this cannot mean that officers may
not act immediately on a sufficiently detailed complaint.
Hopefully, it is still the law that if police receive a 911 call
from an identified woman alleging that her husband has just
attempted to strangle her and is now headed south in a
specifically-described vehicle, responding officers would, without
more, have reasonable suspicion authorizing them to intercept and
detain the driver of that vehicle for investigation.
Yet, our majority states that, without more, the statement of
a citizen who is an eyewitness to a crime "is no longer viewed as
presumptively or inherently reliable." In defense of my
colleagues, I must acknowledge that at least one other court, in
dicta, has made the same unfortunate statement. (See People v.
Jones, 196 Ill. App. 3d 937, 956 (1990)). I believe that this
erroneous observation may have been hatched from a fundamental
misinterpretation of our supreme court's analysis in People v.
Adams, 131 Ill. 2d 387 (1989). However, a close reading of Adams
shows that the court was not addressing the present question of
whether police may ordinarily assume veracity when acting on a call
from a crime victim or eyewitness. Rather, Adams was analyzed in
its context of the information having been provided by a paid,
confidential informant with no track record for reliability who,
unlike an ordinary crime victim or witness, must be subjected to
heightened scrutiny. The trial court, however, had made the error
of mechanically categorizing this informant as an "ordinary
citizen" (probably because the police represented that he was not
of the criminal milieu), thereby automatically crediting his
information as reliable. Second, the informant's information in
Adams failed to disclose any clear basis for his knowledge that the
suspect would be transporting contraband at the time in question;
therefore, even if the informant had been an identified citizen-
witness, the existence of probable cause would have been
questionable absent corroboration. Finally, the efforts of the
police to strengthen the conclusory information through
investigation were unsatisfactory. Accordingly, in commenting,
"the rigidity embodied in the presumptions concerning the
classifications [of sources of information] is no longer
applicable" (131 Ill. 2d at 398), the supreme court, speaking in
the context of an informant case, was merely illustrating the trial
court's error in finding that the source's information
presumptively established probable cause because of his status as
an "ordinary citizen" informant. The arrest could have been upheld
only if, in the totality of the circumstances, further
investigation had sufficed to corroborate the information.
Certainly, our supreme court, in Adams, has continued to
follow Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983), in substituting a totality of the circumstances
approach for the less flexible Aguilar analysis. But, nothing in
Adams or Gates stands for the proposition that police officers
would be unjustified in detaining a suspect where, in the totality
of the circumstances, their only information is a call from an
ordinary victim or eyewitness who has provided sufficient facts
from his or her own personal observation to raise a reasonable
suspicion that a crime has been perpetrated by the suspect. The
totality approach, of course, retains the traditional requirement
that the police must consider any known circumstances tending to
discredit the witness's veracity.
The overall effect of Gates, another anonymous informant case,
was to expand, not to restrict, the potential for the issuance of
a valid search warrant when an element of reliability, viewed
independently under Aguilar standards, is questionable. By
permitting the total circumstances to compensate for a deficiency
in the veracity prong, an anonymous or confidential informant's
information may still be a viable component of the probable cause
determination when, under the previously inflexible Aguilar
analysis, this deficiency would have been fatal. People v. Tisler,
103 Ill. 2d 226, 240 (1984). Accordingly, in People v. Kidd, 175 Ill. 2d 1 (1996), our supreme court was able to find probable cause
for arrest from the total circumstances in spite of the defendant's
argument that "Mrs. Orange must be considered an informant"
(apparently because she was not an eyewitness but had worked behind
the scenes in cooperation with the police in eliciting admissions
from the defendant), and she was of "untested and unestablished
reliability." 175 Ill. 2d at 23. Again, however, Kidd, does not
address the present issue of police reliance on information from
victims or eyewitnesses to a crime. Our majority's references to
cases in which reviewing courts have cited police corroboration of
an ordinary eyewitness' information to further support a finding of
probable cause lend no support to the unique theory that such
corroboration is essential. Nothing prevents a court from
referring to corroborating evidence or any other facts that might
strengthen the finding of veracity. See 2 W. La Fave, Search &
Seizure 3.4(a), at 211.
In my view, it is potentially misleading for our opinion to
commingle the nonissue of Cindy Ertl's veracity with our
examination of the sufficiency of her information. As an
identified eyewitness to the alleged events, with no special
circumstances to signal fabrication, her report should have been
regarded as presumptively reliable. However, more is required than
a reliable witness with an evident basis of knowledge. The
witness' report must still contain sufficient facts to create a
reasonable suspicion of criminal activity by the suspect. It is
there that Cindy Ertl's report fails, and it is that failure that
should be the sole basis of our decision to affirm the trial
court's suppression order.
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