by Donald J. Ramsell www.dialdui.com
DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION TO SUPPRESS EVIDENCE
On June 13, 2003, the Defendant was involved in a hit-and-run accident at Route 59 and Army Trail Road in Bartlett, Illinois. The other driver, Wendy Austin, was examined at the scene by paramedics and released without treatment.
A witness to the accident, Phil Denemark, followed the defendant from the scene of the accident to 1339 Deerfield, defendant's residence. Denemark's call to 911 was recorded on tape. On the tape, Denemark is asked by the dispatcher whether the defendant appeared injured, and Denemark replies "no". Denemark then proceeds to tell the dispatcher that the police have just arrived.
A neighbor across the street from the defendant's house, Glenn Sarwas, testified that he watched as officers began attempting to open garage doors and kicking in the front door. Subsequently, an officer arrives at Sarwas' door and asks him if he knows whether Feddor golfs, and whether Feddor was golfing that day. When Sarwas asks the officer whether everything is okay, the officer says they just want to talk to the defendant.
Officer Conway, one of two officers to first arrive at the scene, denies that he or Officer Mitchell were trying to open doors or kicking doors prior to Sergeant Leonas' arrival -- contrary to Glenn Sarwas' testimony. Conway further states that when the fire department arrived, he was in the back of the defendant's house for no special reason, even though Sergeant Leonas admitted that he sent Conway and Mitchell there to ensure that the defendant did not escape out the back door.
Conway and Leonas testified that they knocked on the defendant's house, and that there was no response. They stated that they could hear a dog barking. The Fire Department was called to the scene, and they forced entry into the defendant's home, where he was subsequently arrested. No warrant was secured prior to entry.
Sergeant Leonas testified under oath, and was severely and drastically impeached in many material respects:
First, Leonas claimed that Officer Snider informed him that the accident was a T-bone accident with severe driver's door damage to the defendant's vehicle. Snider denied this.
Second, Leonas claimed that it wasn't his decision to force entry, but rather it was the paramedic supervisor's. Leonas was impeached with his May 27th testimony where he stated that the decision to force entry was "mine".
Third, Leonas claimed that the decision to force entry wasn't made until after the paramedic arrived and he consulted with them. Leonas' testimony was impeached by the fire department incident report that indicated that they were called "in order to force entry to assist police".
Of course, Leonas could not explain why his own officers were trying to gain entry within the first few minutes of their arrival, which would belie their in-court excuse that they only decide to enter after 20 minutes of the defendant refusing to respond to their demands.
A. THE STATE BEARS THE HEAVIEST BURDEN TO DEMONSTRATE THAT THE WARRANTLESS ENTRY INTO DEFENDANT'S HOUSE WAS CONSTITUTIONAL.
"Physical entry into the home is the chief evil against which the wording of the Fourth Amendment is directed." Welsh v. Wisconsin (1984) 466 U.S. 740, 748, (citations omitted).
The police bear the "heavy" burden to prove that a warrantless in-home arrest, which is presumptively unreasonable, is justified. Welsh, supra, 466 U.S. at 749-750.
The emergency exception to the Fourth Amendment requires:
(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property;
(2) The search must not be primarily motivated by intent to arrest and seize evidence;
(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. People v. Bondi (1984) 130 Ill. App. 3d. 536, 539.
Additionally, although the police may seize evidence that is in plain view during the course of their legitimate emergency activities, the warrantless search must be strictly circumscribed by the exigencies which justify its initiation. Mincey v. Arizona (1978) 437 U.S. 385, 393.
1. The State has failed to meet its heavy burden that there was reasonable grounds to believe that the defendant was in immediate need for assistance.
The facts in this case fail to establish that the 'belief' that defendant was injured (and defendant disputes whether there was even such a belief motivating entry) was reasonable. First, Leonas' testimony was that he believed defendant was injured primarily based upon Snider telling him that this was a T-bone accident with heavy damage to the driver's door of defendant's vehicle. Snider absolutely denied ever saying this to Leonas.
Rather, the facts adduced at the hearing established that the other driver was not in need of medical treatment, and was released after being examined by the paramedics prior to the police entering the defendant's home. This reduces the likelihood that the other driver, i.e. the defendant, was hurt.
Additionally, even though a witness followed the defendant several blocks from the accident to the defendant's home, there was no indication that defendant's driving was erratic or indicative of injury. This witness was available for interview and in fact was interviewed prior to entry into defendant's home.
Even more compelling is the 911 call of the witness, where he specifically tells the dispatcher that the defendant does not appear injured.
The testimony of the neighbor Glen Sarwas that the police told him that there was no problem at the defendants house; that they merely wanted to talk to the defendant; and that the police were interested in whether the defendant was golfing; and that the police never expressed concern for defendant's safety to the neighbor also belie "reasonable belief"
Sergeant Leonas testified that he arrived 20 minutes after the accident, and that the defendant's failure to respond to requests to answer the door led him to believe the defendant might be injured. This reasoning, however, fails to explain why Officers Mitchell and Conway were attempting to gain entry prior to Leonas' arrival and within minutes of their appearing at the house.
If the mere fact that a person was refusing to respond to police commands to open the door were enough to justify a warrantless entry, there would be no Fourth Amendment.
The officers supposed "belief of an injury" as an excuse for forcing entry into the house of a hit-and-run driver, although belied by the evidence, is at best speculation and conjecture.
Further, there is less evidence of an injury than there was in the unlawful entry committed by the police in People v. Krueger (1991) 208 Ill. App. 3d 897. There, the police entered the house of a hit-and-run driver who flattened a pole, left the roadway, and left behind the T-top to the car. A neighbor first entered the house and told the police that the defendant was "out of it", but OK. Certainly a person being out of it is more evidence as to the possible injury to the driver than what we have herein. The loss of the T-top in Krueger also indicates damage within the occupant portion of the vehicle. Here, the damage was to the front grill only. And we now know that Leonas was lying to the court about being told that there was driver's door damage to defendant's vehicle.
Finally, it is not sufficient for the police merely to have reasonable grounds to believe that the defendant was injured - they must also have reasonable grounds to believe that the injury required immediate assistance for the protection of life, which certainly wasn't established under the State's heavy burden.
Therefore, the State has failed to meet its burden under the first prong of the "emergency exception".
2. The State has failed to meet its heavy burden that entry was not primarily motivated by the intent to arrest or seize evidence.
In the instant case, Leonas was less than credible regarding his decision to enter. First, he lied when he testified that the decision to enter was primarily the paramedics', when his previous testimony under oath stated that the decision to force entry was his and his alone. Further, Leonas is contradicted by the fire department's report that states that they were called to assist the police in a forced entry.
Third, the recorded conversation of Leonas' request to summon the fire department, which he admits would include the reason for his summoning of them, is missing despite a subpoena and a court order preserving such statements.
Common sense dictates that the police would be highly motivated to arrest a hit-and-run driver inside a house who was refusing to allow entry. The State has failed to establish that arrest wasn't a primary motivation.
Any conduct that indicates that the police did more than was "reasonably necessary to ascertain whether [the defendant was] in need of assistance and to provide that assistance" "is just cause for healthy skepticism by the courts." Krueger, supra, 208 Ill. App. 3d at 909.
Placing a police officer at the back of the defendant's house to prevent his escape indicates a motivation to capture and arrest, not to provide assistance and medical aid. Having Sergeant Leonas enter the house before the paramedics entered also detracts from their claimed motivations of providing immediate aid to the defendant to save his life.
Asking the neighbor whether the defendant went golfing that day, and telling the neighbor that "there was no problem, they just wanted to talk to defendant", is conduct by an officer which is just cause for a healthy skepticism as to the police officers' motivations for entry.
Finally, the missing dispatch communications of Sergeant Leonas' call for the fire department; the inconsistencies in his testimony; and the fire department report which states that they were called to assist the police in forcing entry are ample reasons to hold that the State has failed to meet its heavy burden under the second prong of the "emergency exception".
B. RELITIGATING THE ISSUE AS TO WHETHER THE DEFENDANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED COULD LEAD TO INCONSISTENT RULINGS AFTER TWO FULL HEARINGS, TWO SEPARATE APPEALS, AND WOULD BE INEQUITABLE.
A full hearing on the merits as to whether the arrest of Defendant was unconstitutional was held before the Honorable Beth Sexton on May 27, 2003, wherein she ruled in the defendant's favor. The State has provided no additional witnesses or new evidence which was not previously introduced before Judge Sexton. In fact, the States evidence at the second hearing was more inconsistent than the first hearing, and contained fewer witnesses. Those who did testify at the second hearing were the same ones who testified on May 27, 2003 before Judge Sexton.
A decision of another trial judge on the same identical issue, while not precedential, is certainly persuasive. Given the lack of any different evidence or new case law, this court should adopt the findings of Judge Sexton as its own and grant defendant's motion to suppress.
Donald J. Ramsell