People v. Mitchell

June 29, 1998

                               NO. 5-97-0075

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,)  Appeal from the 
                                    )  Circuit Court of
     Plaintiff,                     )  Effingham County.
                                    ) 
v.                                  )  Nos. 96-CM-801 &   
                                    )       96-TR-7065      
ROBERT L. MITCHELL,                 )
                                    )
     Defendant-Appellee             ) 
                                    )  Honorable
(Captain Dennis Lovell, Illinois    )  Michael R. Weber,
State Police, Contemnor-Appellant). )  Judge, presiding.
_________________________________________________________________

     JUSTICE HOPKINS delivered the opinion of the court:
     Appellant, Captain Dennis Lovell of the Illinois State Police,
appeals from the trial court's order that found him in civil
contempt for refusing to comply with defendant's, Robert L.
Mitchell's, subpoena duces tecum and from the order that denied his
motion to quash defendant's subpoena.  We affirm in part and vacate
in part.
                                   FACTS
     The facts adduced are from police reports contained in the
record.  These reports established that on December 3, 1996, at
approximately 12:10 p.m., Illinois State Trooper Mitchell McClaren
stopped defendant's vehicle on Interstate 57 for speeding. 
Defendant was going 81 miles per hour in a 65-mile-per-hour zone. 
During the stop, Trooper McClaren ran a computer check on
defendant, which revealed that defendant had prior drug-related
arrests.  According to Trooper Vogles' report, Vogles arrived at
the scene at 12:10 p.m. to assist Trooper McClaren with the stop. 
Vogles also reported that Trooper Mehl and his "K-9" police dog
were already there when he arrived.  Trooper Mehl's report of the
incident stated that he arrived at 12:20 p.m. with his police dog
Icar and did a walk-around of defendant's car.  Icar alerted
positive for the presence of drugs.  While stopped, defendant
inadvertently disclosed $1,000 he had in his pocket, and when
defendant was told that Icar detected drugs in his car, defendant
admitted he had five marijuana cigarettes in his glove box.  The
marijuana cigarettes were retrieved by the officers.  Defendant was
placed under arrest at 12:50 p.m. for possession of cannabis.  At
the time of his arrest, defendant was found to have approximately
$5,200 on him.  
     On January 3, 1997, defendant was charged by information with
possession of less than 2.5 grams of cannabis, a misdemeanor (720
ILCS 550/4(a) (West 1996)).  Subsequently, defendant's counsel
directed a subpoena duces tecum to Lovell, asking Lovell to produce
the following documents:
     "all photographs; complete log of telecommunicator's notes of
     audio recordings of radio transmissions and telephone calls;
     December 3, 1996 Activity, Notes, and Inquiry Transaction
     Report for M. McClaren, T. Mehl, and B. Vogles; written and
     recorded statement(s) (Robert Mitchell and Paul Golish);
     Statement of Constitutional Rights and Waiver (Robert Mitchell
     and Paul Golish); and video recordings, related to the
     apprehension, arrest, and post-arrest interrogation, of Robert
     L. Mitchell on December 3, 1996 ***."
The Illinois Attorney General's office, representing Lovell, filed
a motion to quash the subpoena duces tecum.  
     At the hearing on the motion to quash the subpoena, Lovell
advised the trial court that no photographs, no written and
recorded statements of the defendant, no statements of defendant's
waiver of rights, and no video recordings existed and that,
therefore, none could be provided.  Lovell objected to producing
the remaining two items sought, the log of the telecommunicator's
notes and "the activity, notes and inquiry transactions reports" 
of the arresting officers, arguing that the documents were
irrelevant to whether the officers had probable cause to arrest
defendant, that the requests were too broad, and that defendant was
using the subpoena as a discovery tool.  In response, defendant
contended that he wanted the documents in order to investigate
whether the length of defendant's stop was unreasonable, that the
documents sought were relevant to this issue, and that the
documents were not otherwise discoverable.  
     The court denied the State's motion to quash the subpoena
duces tecum and stated its reasons as follows:
     "He [defendant] has limited his request only to matters
     involving this defendant and the officers involved in the
     arrest.  Regarding the fact that this information is sought
     directly from the Illinois State Police as opposed to through
     the prosecuting authority, this circuit has taken some pride
     in the fact that it does require all subpoenas to be
     returnable in open court so that if there [are] any objections
     to be raised regarding any sensitive matter or matters that
     are not relevant or that some way jeopardize another
     investigation or in any way harm anyone, [they] can be
     reviewed by the Court and that [sic] addressed; and it's the
     same thing here.  The State's Attorney or the Attorney General
     can come to court[--]these records have yet to be turned over
     to the defendant[--]and can object.  So there is a protection
     built in for all of that."
After the court ruled on the motion to quash, Lovell declined to
produce the records.  The court found Lovell to be in "willful
contempt" and fined him $100, to be paid within seven days.  An
additional fine of $100 was to be imposed for every week thereafter
that Lovell failed to comply with the order.  The court stated that
filing a notice of appeal would toll the accumulation of additional
fines.  Lovell filed his notice of appeal. 
                                 ANALYSIS
                       1. Motion to quash subpoena.
     Lovell contends that the court erred in denying his motion to
quash defendant's subpoena because it was clear the documents
sought were irrelevant and immaterial to the underlying criminal
matter.  Lovell argues that because there was a reasonable basis
for the stop, defendant's speeding, there is no basis for the
suggestion that Trooper McClaren's stop was pretextual for making
a drug arrest or that defendant's detention was unlawful.   
     Parenthetically, we note that a review of Lovell's contempt
order encompasses a review of the court's denial of his motion to
quash (generally a nonreviewable order) to determine if the
underlying order, which Lovell refused to comply with, was proper. 
See People v. Shukovsky, 128 Ill. 2d 210 (1988).  The use of
subpoenas is a compulsory process for obtaining witnesses or
documentary evidence in all criminal prosecutions and is guaranteed
by the sixth amendment.  U.S. Const., amend. VI; Shukovsky, 128 Ill. 2d  at 222; People ex. rel. Fisher v. Carey, 77 Ill. 2d 259
(1979).  A subpoena is separate from the rules of discovery. 
Carey, 77 Ill. 2d  at 267. 
     To justify a pretrial subpoena, a defendant must show that (1)
the documents are evidentiary and relevant, (2) the documents are
not otherwise procurable reasonably in advance of trial by the
exercise of due diligence, (3) the party cannot properly prepare
for trial without production and inspection in advance of trial and
the failure to obtain an inspection may tend to unreasonably delay
the trial, and (4) the application is made in good faith and is not
intended as a general "fishing expedition."  Shukovsky, 128 Ill. 2d 
at 225.  Any material sought by subpoena is to be sent directly to
the court rather than the party who caused the subpoena to issue. 
People v. Nohren, 283 Ill. App. 3d 753 (1996).  The court then
reviews the documents in camera and decides whether the documents
are relevant, material, or privileged and whether the request is
unreasonable or oppressive, prior to allowing the moving party to
view the subpoenaed material.  Nohren, 283 Ill. App. 3d at 759.  A
court should grant a motion to quash a subpoena if a request is
oppressive, unreasonable, or overbroad.  Carey, 77 Ill. 2d  at 270.
     Here, defendant's request was relevant and material. 
Defendant wanted the documents so that he could investigate whether
defendant was detained after the traffic stop an unduly long period
of time.  The records sought would show the time frames of the
stop, show when the assisting officers arrived, and show whether
the stop was unduly lengthy.  Defendant could not otherwise procure
the information through discovery, because these documents are not
routinely provided by the police to the State's Attorney.  The
documents were pertinent for defendant's preparation of a motion to
suppress and were needed to prevent a delay of trial. 
Additionally, the request did not amount to a general "fishing
expedition," because all the requested documents related to
defendant's traffic stop on December 3, 1996.    
     We do not find defendant's request overbroad, for he limited
the material sought to one incident and to one day, the day of
defendant's traffic stop on December 3, 1996.  There is no showing
that defendant's request overburdens the State or is oppressive or
unreasonable.  As the trial court duly noted, the built-in
safeguards for the review and release of information under a
subpoena will adequately protect the State from unreasonable
requests.  We find that the trial court properly denied Lovell's
motion to quash the subpoena.   
                           2. Order of contempt.
     Lovell next contends that, even if his motion to quash the
subpoena was properly denied, the entry of the contempt order
against him was an abuse of discretion.  Lovell argues that his
refusal to comply with the subpoena was a formal objection designed
to allow him to appeal the court's denial of his motion to quash
and was not done out of disdain or disrespect for the trial court. 
Therefore, Lovell asks this court to vacate the contempt order and
the fines imposed.  We allow this request.  
     It is recognized that subjecting one's self to contempt
proceedings is an appropriate method for obtaining appellate review
of a court's ruling.  Shukovsky, 128 Ill. 2d  at 219.  When the
substance of a public official's contempt is purely formal and
motivated by a desire to obtain appellate review, a reviewing court
can appropriately vacate the contempt citation.  Buss v. Edwards,
203 Ill. App. 3d 992 (1990).  That is the situation in the case at
bar.  Lovell's attorney made it clear to the court that it meant no
disrespect to the court when Lovell declined to provide the
documents required by the subpoena, but that Lovell only desired to
appeal the court's order.  The record reflects that the trial court
understood that an appeal was the reason for the refusal.  Thus, we
vacate the court's order of contempt and the fines imposed against
Lovell.  
                                CONCLUSION
     For the foregoing reasons, the judgment of the circuit court
of Effingham County is affirmed as to the order denying the motion
to quash subpoena but is vacated as to the order for contempt and
the fines imposed.  

     Affirmed in part and vacated in part.  

     GOLDENHERSH and KUEHN, JJ., concur.