Nos. 2--03--0825 & 2--04--0217 cons.

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

On April 24, 2003, the defendant, James Feddor, was charged by criminal complaint withdriving under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(2) (West 2002)), and his drivingprivileges were suspended. The defendant subsequently filed a petition to rescind the statutorysummary suspension of his driving privileges and a motion to suppress certain evidence against him. Following separate hearings, the trial court granted both the defendant's petition to rescind hissummary suspension and his motion to suppress evidence. The State filed a certificate of impairmentand appeals from both of these orders. We affirm.

On May 27, 2003, Judge Elizabeth Sexton conducted a hearing on the defendant's petitionto rescind his summary suspension. Officer Matthew Conway of the Bartlett police departmenttestified that on April 24, 2003, he responded to a call regarding a hit-and-run accident near a golfcourse. One of the vehicles involved in the accident had left the scene and was being followed by awitness. The witness reported that the vehicle had "heavy front end damage" and that the hood wasfolded up over the windshield. The vehicle's driver was hanging out of the vehicle as he drove. Thedriver drove to 1339 Deerfield Lane in Bartlett, where he pulled into the garage and closed the garagedoor. The distance between this house and where the accident had occurred was approximately one-quarter of a mile. Officer Conway testified that the vehicle involved in the accident, as well as theresidence where the vehicle had been driven to, were both registered to the defendant.

Officer Conway further testified that both he and Officer Gary Mitchell of the Bartlett policedepartment knocked on the defendant's door and rang the doorbell in order to locate someone at theresidence. However, there was no response. About 10 minutes later, Sergeant Joseph Leonas of theBartlett police department arrived. After the three officers conferred, Sergeant Leonas contacted theBartlett fire department. The Bartlett fire department responded with a fire truck and an ambulanceand ultimately forced entry into the residence. After entering the residence, the police arrested thedefendant for DUI.

Sergeant Joseph Leonas testified that, upon arriving at the defendant's residence, he poundedon the defendant's door over the course of a 20- to 30-minute period. He also tried to open thegarage door as well as all of the other doors of the residence. All of the doors were locked. The onlyresponse they heard was a dog barking.

Sergeant Leonas testified that he instructed Officers Conway and Mitchell to canvass theneighborhood in order to find a phone number for the residence. After those efforts wereunsuccessful, it was decided that the fire department would be contacted in order to make a possibleentry into the residence. After the fire department arrived, Sergeant Leonas told them that the personinside might be injured, but he did not know. Sergeant Leonas testified that he believed the defendantmay have been injured due to the severity of the accident he had been involved in. However,Sergeant Leonas did not know whether the defendant was injured or not. Sergeant Leonas alsotestified that he had not been able to consult with the witness at the scene as to whether the defendanthad been injured. Upon entering the residence, Sergeant Leonas testified that he had the paramedicsimmediately assess the defendant's condition. He testified that the defendant appeared to beintoxicated but otherwise was fine.

Officer Mitchell testified that he canvassed the neighborhood to see if someone could help thepolice make contact with the defendant. He talked with several neighbors, but none of them knewthe defendant well or could provide the required information.

Glenn Sarwas, a neighbor of the defendant's, testified that he was contacted by OfficerMitchell regarding the incident at issue. Officer Mitchell asked him whether the defendant plays golf. Sarwas indicated that the defendant did golf. Sarwas asked the officer whether there was a problem. Officer Mitchell indicated that there was not a problem but that the police just wanted to talk to thedefendant. Sarwas testified that the officer did not express any concerns to him regarding thedefendant's safety or well-being. Sarwas further testified that he observed one of the police officerstrying to open the defendant's garage door before Officer Mitchell came over to talk to him.

At the close of the hearing, Judge Sexton granted the defendant's motion to rescind hissummary suspension. The trial court first explained that the instant case was similar to People v.Krueger, 208 Ill. App. 3d 897 (1991). The trial court further explained that the witness in the instantcase who had followed the defendant had not indicated that there were any problems with thedefendant's driving. The witness did not observe the defendant having any problems getting out ofthe car. The defendant did not appear to be injured. There was no blood found near the defendant'sresidence. The trial court placed particular importance on Sarwas's testimony that the police did notindicate that they were concerned about the defendant's health but rather wanted to know if he golfed. The trial court also noted that the police were trying to enter the residence before they called theparamedics. Based on this evidence, the trial court found that the police should have obtained asearch warrant before they entered the defendant's residence. Following the denial of its motion toreconsider, the State filed a timely notice of appeal. The State's appeal was docketed in this courtas number 2--03--0825.

On September 9, 2003, Judge Kenneth Torluemke conducted a hearing on the defendant'smotion to suppress evidence. Sarwas and the police officers who had testified at the hearing on thepetition to rescind the statutory suspension testified substantially the same as they had at the earlierhearing. On February 9, 2004, the trial court granted the defendant's motion to suppress evidence. Judge Torluemke also found that the case was similar to People v. Krueger and found that theemergency exception did not apply to the police's entry of the defendant's residence without a searchwarrant. The trial court found that the totality of the circumstances indicated that the officers enteredthe defendant's residence not out of concern for the defendant's health but rather because they wantedto apprehend the defendant for having fled the scene of an accident.

Following the trial court's ruling, the State filed a certificate of impairment pursuant toSupreme Court Rule 604(a)(1) (188 Ill. 2d R. 604(a)(1)) and a timely notice of appeal. The State'sappeal was docketed in this court as number 2--04--0217. On April 6, 2004, this court granted thedefendant's motion to consolidate appeal numbers 2--03--0825 and 2--04--0217.

On appeal, the State argues that the trial court erred in granting the defendant's petition torescind his statutory suspension and his motion to suppress evidence. Specifically, the State contendsthat the trial court erred in finding that the police were not justified in entering the defendant's housebased on their concerns that he may be injured.

A hearing on a petition to rescind the statutory suspension of driving privileges is a civilproceeding. The petitioner has the burden of providing a prima facie case for the rescission. Peoplev. Rozela, 345 Ill. App. 3d 217, 222 (2003). The burden then shifts to the prosecution to presentevidence justifying the suspension. People v. Smith, 172 Ill. 2d 289, 294-95 (1996). A petitionermay establish that the statutory suspension should be rescinded if his driving privileges weresuspended pursuant to an invalid arrest. Krueger, 208 Ill. App. 3d at 903-04. A warrantless in-homearrest, which is presumptively unreasonable, is considered invalid unless it is justified by theexigencies of a particular case. Krueger, 208 Ill. App. 3d at 907. One such exigency is that the policemay make a warrantless entry into a residence when they reasonably believe that the person withinis in need of immediate aid. Krueger, 208 Ill. App. 3d at 907-08. The requirements of this"emergency exception" are that (1) the police must have reasonable grounds to believe that there isan 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 an intent to arrest and seize evidence; and (3) theremust be some reasonable basis, approximating probable cause, to associate the emergency with thearea or place to be searched. People v. Bondi, 130 Ill. App. 3d 536, 539 (1984).

In weighing the evidence before it on a petition to rescind a statutory suspension, the trialcourt is charged with assessing the credibility of the witnesses and the weight to be given theirtestimony. Generally, the trial court's decision will not be disturbed unless the decision is against themanifest weight of the evidence. Smith, 172 Ill. 2d at 295. A finding is against the manifest weightof the evidence where an opposite conclusion is clearly evident from the record. People v. Hood, 265Ill. App. 3d 232, 241 (1994).

We agree with the trial court that this case is analogous to Krueger. In Krueger, the policesuspected that the defendant had damaged several mailboxes while driving intoxicated. The policewent to the defendant's home to investigate. The defendant did not respond to the police knockingon his door. A neighbor of the defendant's heard the noise that the police were making and went totalk with the police. After the police told her that the defendant had been in a car accident and thatthey wanted to talk with him, the neighbor let herself into the defendant's home. The neighborreturned and told the police that the defendant had vomit on him and that she was unable to wakehim. However, the neighbor believed that the defendant was "fine." One of the police officers theninsisted that the neighbor let them into the house so that they could check on the defendant's well-being. The neighbor then let them into the house. After checking the defendant's pulse andmonitoring his breathing, the police awoke the defendant. They then questioned him about thealleged car accident. After the defendant made some inculpatory statements, the police arrested him. The defendant was subsequently charged with DUI and his driving privileges were suspended. Krueger, 208 Ill. App. 3d at 899-902.

The defendant thereafter filed a petition to rescind his statutory suspension, arguing that hisarrest was illegal because it followed a warrantless entry into his home. The trial court found that thedefendant had been illegally arrested but nonetheless upheld his statutory suspension. The trial courtexplained that to grant rescission because the arrest of the defendant was illegal would amount to theimproper application of the exclusionary rule to a civil proceeding. Krueger, 208 Ill. App. 3d at 903. On appeal, this court reversed. Krueger, 208 Ill. App. 3d at 910. We held that the arrest underlyinga statutory suspension must be lawful and valid. Krueger, 208 Ill. App. 3d at 904. We further heldthat the arrest of the defendant was not valid. Krueger, 208 Ill. App. 3d at 908-09. We explainedthat the State did not meet its "heavy burden" in showing that the case fell within the "emergencyexception" to the rule requiring the police to have either consent or a warrant before entering aresidence. Krueger, 208 Ill. App. 3d at 908. At the time of entering the defendant's residence, thepolice knew only that he had returned home from a car accident, was upstairs sleeping, and had beendescribed by a neighbor as "fine." We therefore found that the police had no reasonable grounds tobelieve that the defendant required their immediate assistance to safeguard his physical well-being. Krueger, 208 Ill. App. 3d at 908. We additionally found that the State did not meet its burden inshowing that the entry was not motivated primarily by the intent to investigate or seize evidence inconnection with the possible DUI offense. Krueger, 208 Ill. App. 3d at 908-09. We noted that therewas nothing in the record to indicate that the police sought to provide medical assistance for thedefendant's possible injuries. Krueger, 208 Ill. App. 3d at 909. Finally, we found that the officers'post-entry conduct was not limited to achieving the objective justifying the entry. Krueger, 208 Ill.App. 3d at 909.

In the instant case, as in Krueger, the police entered the defendant's home without either thedefendant's consent or a warrant. The State claims, as in Krueger, that this entry was nonethelessproper under the "emergency exception" because the police were concerned about the defendant'shealth. We disagree. At the time the police entered the defendant's residence, they knew only that(1) he had been in a car accident and had returned to his home; (2) the witness who had followed himdid not observe anything physically wrong with the defendant; and (3) the defendant was notanswering his door but his dog was barking. Sergeant Leonas acknowledged that he did not knowwhether the defendant was injured. As such, these minimal facts were not enough to show that thepolice had reasonable grounds to believe that there was an emergency at hand and an immediate needfor their assistance. Indeed, these facts are even less suggestive than those in Krueger as to whetherthe defendant required assistance. In Krueger, the police learned from the defendant's neighbor thathe had vomited in his room. Conversely, the defendant herein left no physical signs that he was sickor injured.

We also cannot say that the State met its burden in establishing that the police's entry into theresidence was not based primarily by an intent to arrest and seize evidence. This is particularlyapparent based on the testimony of the defendant's neighbor, Glenn Sarwas, who testified that thepolice did not convey to him a concern about the defendant's health but rather inquired if thedefendant golfed. Such a question indicated that the police were primarily concerned withinvestigating the car accident the defendant had allegedly been in and the accident's proximity to agolf course. Although several police officers testified that they were concerned about the defendant'swell-being, the trial court was free to place greater weight on Sarwas's testimony. See Smith, 172Ill. 2d at 295 (determinations as to credibility of witnesses lies within the sole discretion of the trialcourt). Accordingly, because the summary suspension of the defendant's driver's license was notbased on a lawful and valid arrest, the trial court properly rescinded the suspension of the defendant'sdriver's license.

We next address whether the trial court properly suppressed the evidence that was obtainedfrom the defendant following his arrest. When reviewing a ruling on a motion to suppress, ourstandard of review is generally twofold. We accord great deference to the trial court's factual findingsand credibility determinations and reverse those conclusions only if they are against the manifestweight of the evidence. People v. Gherna, 203 Ill. 2d 165, 175 (2003); People v. Sorenson, 196 Ill.2d 425, 431 (2001). After reviewing the trial court's factual findings, we review de novo the trialcourt's ultimate legal ruling on the motion to suppress. Sorenson, 196 Ill. 2d at 431.

For the same reasons discussed above, we believe that the trial court properly suppressedthe evidence recovered from the defendant following the arrest at his residence. The policeentered the defendant's residence without his consent or a warrant. This warrantless search wasnot justified by the "emergency exception," because the facts in the record did not give the policereasonable grounds to believe that the defendant was injured. Although the officers testified thatthey went into the defendant's residence based on concerns for his health, the trial court was freeto reject this testimony in light of Sarwas's testimony that suggested that the police were moreconcerned about investigating a possible crime than they were about the defendant's health. SeeGherna, 203 Ill. 2d at 175. Accordingly, the trial court did not err in granting the defendant'smotion to suppress.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

McLAREN and BYRNE, JJ., concur.