*1 (1992). that, doing petitioner sought 586 N.E.2d Instead application the 1988 determination to avoid of ma- reconsideration of having to jor spite comply modification PSD restrictions failed The IEPA had no with the lower standard set 1988. ruling. upholding
reconsider its earlier Board’s decision permit the 1988 condi- IEPA’s decision not reconsider construction legally tions correct. appeal may
The Board contends that the entire be futile also because, limits, petitioner once the exceeded the 1988 PSD federal that, date, regulations require comply major as of that it with the 52.21(i) §§ requirements modification it now seeks to avoid. 40 C.ER. (r) (1999). Board, through According provide to the it is too late to automatically it petitioner any disputes relief. Petitioner became subject requirements. light to the PSD of our determination of the issues, regulations do not whether federal for PSD first two we discuss facility exceeded the emission applicable petitioner’s became because previously permits. limitation in the issued We also decline to discuss that, if argument petitioner’s proposed the IEPA’s alternative even adopted, petitioner amended PSD avoidance limitation had been 1996, triggering major regula- that limit in modification exceeded BACT or that it would not requiring petitioner tion to demonstrate future, petitioner exceed the limit in the both of which failed to do. denial of upholding We affirm the decision of Board IEPA’s permit. petitioner’s application revise Affirmed. GARMAN,JJ., concur.
STEIGMANN ILLINOIS, Plaintiff-Appellee, THE PEOPLE OF THE STATE OF HESS, Defendant-Appellant. TIMOTHY G. 4 — 99—0643
Fourth District No. May Opinion 2000. Argued filed June 2000. *2 McCULLOUGH, J., dissenting. Lang (argued), Appellate
Daniel D. Yuhas and Arden J. both of State Office, Springfield, appellant. Defender’s of (Norbert Goetten, Sullivan, Attorney, Matthew L. State’s of Paris J. Rob- Majors (argued), Attorneys Appel- ert J. Biderman and James C. all of State’s Office, counsel), People. late Prosecutor’s of for the opinion JUSTICE STEIGMANN delivered the of the court: Hess, 1998, defendant, Timothy charged November the State G. one count of grams with unlawful manufacture of 30 to 500 of can- (720 550/5(d) (West 1998)) nabis ILCS and three of counts unlawful (720 1.1(a) (West 1998)). possession weapons by a felon ILCS 5/24 — 1999, In January evidence, defendant filed a motion to suppress which 1999, the trial court In July denied. weapons State dismissed the charges. trial, Following stipulated bench the court convicted defen- dant of unlawful manufacture of more than 10 but not more than 30 grams of cannabis and later sentenced him year prison. to one appeals,
Defendant arguing that the trial court erred when it (1) denied his motion to suppress evidence because his consent to a (2) search of his home was the fruit an illegal detention; his (a) statements to the made illegally detained, while he was (b) (Miranda Arizona, without the benefit of Miranda warnings (1966)). 694, 384 U.S. 16 L. Ed. 2d agree S. Ct. 1602 We with argument defendant’s first and reverse.
I. BACKGROUND presented hearing evidence on defendant’s motion to following. showed the On November at about 3 or afternoon, 3:30 in approximately members Illinois State Team) Response Police Tactical Team (Response arrived at the resi- Kansas, Illinois, dence of Richard Simmons to execute a search war- rant. The police also had a warrant for Simmons’ arrest and had been firearm, informed that he was a felon in possession of his res- *3 might booby-trapped, idence be and he might high on metham- phetamine. police Response Several local officers assisted the Team. day,
On that defendant was at Simmons’ home for a social visit truck, and to check on repairing his which Simmons was for him. As table, they pull Simmons and defendant sat at the kitchen heard a car up dogs got up and Simmons’ start to bark. to Simmons see what was happening and went out the back door. Defendant started toward the yelling, back door when he heard a “Come of voice out the house. You house, in house, out of the He heard or eight now.” six voices screaming. police A officer a toting gun submachine confronted defen- door, dant at the back and in of pants defendant urinated his out fright. yelled get officer at defendant to out of the house and onto ground. He yelled, way,” also “Don’t look at me. Look the other questions booby traps. and shouted at defendant about The officer knees, belly, forced defendant to then his and then spread-eagled his and searched him. taken in a car. promptly away police Simmons was police kept lying
Defendant testified that him handcuffed an armed officer stood facedown the dirt for 15 to 20 minutes while jeans and that wearing over him. Defendant was a T-shirt and testified Later, going on. He had no idea what was he cold and scared. was and had him sit on what was ground off the officer lifted defendant and an “stump” by some witnesses hearing as a described (hereinafter for another 15 to 20 by stump) others “spool” industrial that defendant Response A Team testified minutes. member and was being he was frisked only ground was facedown on the while a few stump sitting ground to the after on moved over minutes. depart- Todd, investigator Edgar County an with the sheriffs
T.R. stump. Defendant ment, sitting defendant was on arrived while he had known for about upon seeing felt reassured Todd because arrived, defendant years. Shortly after Todd officer told coat,” that he to take him to the “man the down going was over meaning Todd. his with Todd as follows:
Defendant described first conversation said, going on. I T don’t know what’s “[Todd] asked me what was ***, said, going says you He in this?’ I T don’t on.’ ‘Are involved ‘Well, you’re talking goes, going about.’ He we’re over know what to said, ‘Well,if your goes, you house next.’ And I ‘For what?’ He on, got anything going you right you better tell me now. ‘Cause can there, you go you got, go over can me what or we can over show things going there and hell tear out of and find it ourselves. We’re there, way.’ just over either That’s what he told me.” According defendant, angry yelling throughout Todd was exchange. produc- Todd indicated that was Simmons involved methamphetamine. tion of defendant at He asked what he had his house, and might pot.” defendant told him that he have “a little Todd told defendant if it personal was for defendant’s own use anything signed would not “do subsequently about it.” Defendant consent-to-search form A authorizing a search his residence. residence, officer then drove defendant to his the evidence where against subsequently defendant found. Defendant arrested was charged as stated. hearing,
At the Todd denied that he threatened to search defendant’s even if declined to consent to the search. house A notation on the form indicates that defendant consent-to-search signed it at p.m. 4:35 hearing, granted
At the close of the the trial court defendant’s mo- tion suppress regarding statements he made without benefit warning, a Miranda in all the court denied the mo- respects, but other tion that defendant had vol- suppress. Specifically, the court found untarily consented to the search of his residence. *4 trial, the court convicted defen-
Following stipulated a bench trial dant and appeal sentenced as stated. This followed.
310
II. ANALYSIS question by appeal raised this is length whether the of the defendant’s detention at Simmons’ residence was in violation (U.S. fourth amendment of the Constitution of the United States IV). Const., so, amend. If defendant’s consent to search his home was tainted as a “fruit poisonous of the tree.” Because the trial court determined that voluntarily consented to the search of his residence, court, by implication, found that defendant lawfully was detained disagree. We time.
A trial
ruling
court’s
on a
motion to
evidence will not
be reversed
manifestly
unless it is
People Wells,
erroneous.
v.
182 Ill.
(1998).
471, 481,
2d
303,
696 N.E.2d
308
A person is “seized” for
“
fourth
purposes
amendment
‘by
when
means of physical force or a
”
authority,’
show of
that person’s ‘freedom of movement is restrained.’
People Brownlee,
v.
501, 517,
556,
186 Ill. 2d
(1999),
713 N.E.2d
564
quoting
Mendenhall,
United
544, 553,
States v.
446 U.S.
64 L. Ed. 2d
(1980).
497, 509,
1870,
100 S. Ct.
1877
applies
The fourth amendment
seizures,
to all
even those that
only
involve
a brief detention short of a
Brownlee,
518,
traditional arrest.
In Michigan
Summers,
692,
v.
452 U.S.
69 L.
2d
Ed.
101 S.
(1981),
Ct. 2587
Supreme
Court
police may
held that
detain
persons found at the premises
warrant,
named in a
provided
search
the warrant
authorizes
“search for contraband” and
persons detained are “occupants”
premises. Summers,
452 U.S.
at
Cases
the character
of both
call for examination
warrant
ecution of
search
*5
701,
Summers, 452 U.S. at
justification.
and
official intrusion
its
of the
that the exe
recognize
We
348-49, 101 Ct. at 2593.
Ed. 2d at
S.
69 L.
the kind of transac
contraband “is
to search for
cution of a warrant
efforts to conceal
or frantic
rise to sudden violence
may give
tion that
police
evidence,”
harm to both
and the risk of
destroy
or
exercise
are free to
minimized if the officers
anyone
is
present
Summers,
do not because of the Code of ity pursuant to detain defendant to section 108—9 (West 1998)). (Code) (725 of 1963 ILCS Criminal Procedure 5/108—9 agreeWe with defendant. of the as follows:
Section 108—9 Code reads executing person “In the of the the same execution warrant reasonably any person place may detain to search time:
(a) attack, protect To himself from or (b) instruments, any prevent disposal To or concealment of articles[,] things particularly in the warrant.” 725 or described (West1998). ILCS 5/108—9 Code, however, 108—9 of the does not render a detention law
Section People v. Merri ful that otherwise violates the fourth amendment. See (sec weather, 1050, 1054, App. 261 Ill. 3d 634 N.E.2d any person authorize the search of tion 108—9 of the Code does not executed; prob on the when a warrant is happens premises who required). premises or a sufficient connection to the able cause Moreover, pivotal question argument the State’s fails address is, length of defendant’s detention presents: this case that whether the beyond justification. extended its resi out of the Simmons police ordered defendant
When Simmons, the dence, connected to they had no evidence that he was premises, objects or the They search. also had no warrant for knew, his arrest. For all they atwas Simmons’ home to delivery, make a tool, borrow a or candy sell for charity. Their justification holding defendant was to minimize the risk of harm to executing the officers the warrant prevent or to destroying from evidence. argues
The State that the nature of the search warrant and the they information had about namely, that they were on a Simmons— contraband, search for Simmons had weapons, and might Simmons high have been on methamphetamine justified detaining defendant. — point, To a we agree with the State. The must be free to exercise their discretion to control the environment when facing dangerous cir- cumstances, such as the execution of the search warrant in this case. Initially, in the safety interest of pursuant to section 108—9 of the Code, the police here did have the appropriate use force to safely secure the premises, including detaining defendant as did. Once that accomplished, however, any justification for continuing to detain defendant ceased to exist. disagree
We with the State’s contention that the justi- *6 fied in detaining they defendant until completed the search of Sim- mons’ residence. The determination of what ais reasonable detention fact specific. is Although, under circumstances, some safety officer might compel the detention of a seemingly unconnected individual until a search completed, Here, is not such a case. 15 to 20 po- lice (Simmons) officers encountered 2 potential suspects, one of whom promptly was away. whisked This case is distinguishable from a “crack raid, house” where a handful of officers encounter 10 or 20 people in a confined space and must maintain control of present those to ensure safety officer preservation and the of evidence. police
The here determined quickly rather that defendant was not armed. He was detained outside residence, the Simmons which subsequently swarming police was with officers. Because no reason existed to believe that defendant might reenter the house to thwart the destroy evidence, search or no reason existed for not sending de- after) (or, most, fendant on his way once at shortly the police secured the Certainly, Simmons residence. no circumstances concerning defen- justified dant detaining him minutes, for an additional 15 let alone 30 to 40 Simply put, police minutes. the vastly jus- exceeded the scope tifiable of defendant’s detention.
We note that the State’s police justified contention —that the were in detaining defendant until they completed the search of Simmons’ residence —is essentially open-ended. Depending upon thorough- search, ness of the execution of the might search warrant here have was as defendant All, apparently, complete. hours taken several other officers. by outside detained to a consented that once defendant
Moreover, record indicates there, them residence, accompany made him police of his search ongoing. still residence was of the Simmons though the search even police that the asking us to hold Thus, essentially the State is after even at the Simmons residence detaining justified decline detain him there. We they had no need to they determined that to do so. taint detention did not that defendant’s argues
The further State signed actually detained when he was not his consent because State, defendant had been According to the consent-to-search form. to Todd. voluntarily spoke then after 20 minutes and “released” about however, supports record, findings, trial court’s or the Nothing spin on the evidence. State’s pas a car and its Brownlee, unlawfully detained (with only minimal minutes authority) few show sengers to search the vehicle. the driver’s consent before obtained the ille the fruit of court held that the driver’s consent was supreme 520-21, Brownlee, 186 Ill. 2d at gal detention and therefore invalid. circumstances of Considering 565-66. the extreme 713 N.E.2d at detention, reach the same result. The trial defendant’s unlawful we conclusion, therefore, consent under these court’s that defendant’s valid, manifestly erroneous. legally circumstances was (1) illegally detained Accordingly, hold that defendant was we residence; illegal gave the consent to search his when he by denying consent; and the trial court erred detention tainted his at defendant’s motion the evidence found defendant’s the trial court should have home. Because we have concluded his guilt, of defendant’s we reverse suppressed the evidence proceedings. not remand for further conviction and need
III. CONCLUSION stated, judgment. the trial court’s For the reasons we reverse *7 Reversed.
KNECHT, J., concurs. McCULLOUGH, dissenting:
JUSTICE trial court erred majority I dissent. The finds that the respectfully to evidence because his it denied defendant’s motion when illegal the fruit of an detention. consent to a search of his home was ruling, majority To trial it appears disagrees reverse the court’s the with the on credibility Trooper trial court issues. State Roll testified that he Response was a member of the Team. The first took team Sim- custody mons subject, defendant, into and noticed another in the porch and, ordered ground according area. Police defendant to the Roll, he the ground just long enough was on the put handcuffs on him and to “a pockets, couple check defendant’s minutes.” Defendant upon which, was then walked over to and sat stump, according to the trooper, was defendant’s comfort. was in Defendant handcuffs for about 15 minutes for the reason that “the had not house been yet. cleared had intelligence gathered that been was that there possibly booby-traps yard, shed, [sic] some in the in the in the just residence. So at that time had subject we the secured for their [sic] until safety own, as as our the totally well house was and cleared yard the was cleared.” The team leader makes the determination that cleared, the “usually house is made over our “At point radio.” that I Hess, unhandcuffed Mr. and I advised that other officers would be taking care of him.” Todd, County
Officer of the Edgar sheriff’s department, testified that he talked to defendant and told defendant that he would like to talk response to him “after the had team finished their work and after he was unhandcuffed.” Todd further testified he had no that intention of arresting defendant, defendant never indicated that he inwas discomfort, the and defendant rode in front seat Officer with Wilson to some away. defendant’s residence three miles Officer Wilson testified that, if were in custody, would have been handcuffs and been the backseat. Wilson Officer did not smell urine as rode in the car. Defendant that he approximately testified lived four to Kansas, five miles south of handcuffed the he was while house was be- ing searched, secured and he was “[f]or [his] that handcuffed own protection.”
I agree majority “[a]n investigatory with that detention must temporary than longer necessary and last no to effectuate the purpose Heitschmidt, App. of the detention.” 314 Ill. 3d at 310. In stated, safety detention was As and pur hours. interest 4V2 Code, suant to 108—9 section of the have appropriate safely including use force to the premises, secure detain ing defendant. testimony witnesses,
The trial heard of all court had the benefit of authority, five-page setting written and entered a- letter out Brownlee, findings suggest Summers, its and decision. I Heitschmidt, section the Code support ruling 108—9 of trial court. *8 rulings. in its the trial court affirm
I would MAX ILLINOIS, Plaintiff-Appellee, v. OF OF THE STATE THE PEOPLE HOPKINS, Defendant-Appellant. 4 — 99—0692 No.
Fourth District 16, 2000. Opinion filed June Office, appellant. Gray Noll, Springfield, of Jon of Noll Law (Joel Bertocchi, General, Solicitor Attorney Chicago D. Ryan, James E. Attorneys Iskowich, Assistant General, H. L. Browers and David and William General, counsel), People. for the court: opinion of the delivered the
JUSTICE STEIGMANN to section petition pursuant filed a the State October