{ "id": 2881637, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TOMMY RIDDLE, Defendant-Appellee", "name_abbreviation": "People v. Riddle", "decision_date": "1994-02-22", "docket_number": "No. 2-92-0991", "first_page": "253", "last_page": "261", "citations": [ { "type": "official", "cite": "258 Ill. App. 3d 253" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "148 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "148 Ill. 2d 96", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3283326 ], "weight": 2, "pin_cites": [ { "page": "102-03" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/148/0096-01" ] }, { "cite": "204 Ill. App. 3d 1075", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2574982 ], "pin_cites": [ { "page": "1078-79" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/1075-01" ] }, { "cite": "245 Ill. App. 3d 644", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5387118 ], "pin_cites": [ { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/0644-01" ] }, { "cite": "129 Ill. 2d 522", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567358 ], "weight": 7, "pin_cites": [ { "page": "532" }, { "page": "533" }, { "page": "533" }, { "page": "533" }, { "page": "533" }, { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0522-01" ] }, { "cite": "149 Ill. 2d 423", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599731 ], "pin_cites": [ { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0423-01" ] }, { "cite": "144 Ill. 2d 404", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592090 ], "pin_cites": [ { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0404-01" ] } ], "analysis": { "cardinality": 898, "char_count": 20973, "ocr_confidence": 0.76, "pagerank": { "raw": 1.1186615923393765e-07, "percentile": 0.5728696924029162 }, "sha256": "81007cb255f128baa27639d18e098edd097875876d8a0af4e8586f35e2d0e9a5", "simhash": "1:9faa0f9b53cc214b", "word_count": 3546 }, "last_updated": "2023-07-14T22:48:59.357066+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TOMMY RIDDLE, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE WOODWARD\ndelivered the opinion of the court:\nThe State appeals from the order of the circuit court which granted the motion of defendant, Tommy Riddle, to suppress evidence seized pursuant to a search warrant. In challenging the court\u2019s ruling, the State raises two issues: (1) whether the police officers executing the warrant \"knocked and announced\u201d before battering in defendant\u2019s door; and (2) whether the presence of \"pit bull\u201d dogs at defendant\u2019s residence created exigent circumstances authorizing a \"no-knock\u201d entry.\nDefendant was indicted for armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A \u2014 2 (now 720 ILCS 5/33A \u2014 2 (West 1992))), the unlawful possession of a substance containing cocaine (Ill. Rev. Stat. 1991, ch. 56\u00bd, par. 1402(a)(2)(A) (now 720 ILCS 570/402(a)(2)(A) (West 1992))), the unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1991, ch. 56\u00bd, par. 1401(a)(2)(A) (now 720 ILCS 570/401(a)(2)(A) (West 1992))), the unlawful possession of cannabis with the intent to deliver (Ill. Rev. Stat. 1991, ch. 56\u00bd, par. 705(d) (now 720 ILCS 55075(d) (West 1992))), and the unlawful possession of cannabis (Ill. Rev. Stat. 1991, ch. 56\u00bd, par. 704(d) (now 720 ILCS 55074(d) (West 1992))). The charges were based on evidence seized from defendant\u2019s home during the execution of a search warrant. Defendant moved to suppress the evidence on the basis that the police officers used excessive force in executing the warrant.\nSteve Engelhard, a friend of defendant\u2019s son, testified that he went to defendant\u2019s home around 4 p.m. on October 4, 1991, to visit defendant\u2019s son. Engelhard sat and watched TV while waiting for defendant\u2019s son to come home. Engelhard got up to change the channel of the TV and was five to six feet from the front door, when the door was knocked down and the police SWAT team came in. He did not hear anyone knock or announce the police presence before the door was broken in.\nOfficer Eric Lundahl testified that he was a team leader with the Northern Illinois Police Alarm System (NIPAS), a SWAT team. About a week before October 4, 1991, Metropolitan Enforcement Group (MEG) Agents Budny and Agos advised Lundahl that they might need the services of \u00d1IPAS in executing a search warrant for defendant\u2019s home. The MEG agents told Lundahl that they were concerned about safety as they had information that defendant carried a handgun, weapons would be inside the residence, and there were \"pit bulls\u201d on the property. Lundahl was told that there were at least four, and as many as nine, dogs.\nLundahl further testified that the day of the execution of the search warrant, the NIPAS team met with the MEG agents to plan the entrance. The NIPAS team brought a C02 fire extinguisher to deal with the dogs. The plan was for Donald Hohs to open the screen door of the house. James Kuzynowski was to knock and announce. If there was no response, Kuzynowski would use a battering ram to break in the door.\nThe NIPAS team arrived in a van. The van was parked so that it was hidden from view from the house. The 10 NIPAS agents left the van and ran towards the house. Lundahl was the fifth person out of the van. He did not recall hearing anyone announce the police presence until the door was already being battered or had been broken in and the officers were entering the house. Lundahl noticed that there were two \"pit bulls\u201d in a dog run outside the house. There were no dogs inside the house.\nOfficer Jeffrey Schirmbeck, of \u00d1IPAS, testified that he was the fourth person out of the van. As he was getting to the porch, the door was being broken down. Kuzynowski said \"police, search warrant,\u201d and then Schirmbeck heard Kuzynowski hit the door with the battering ram. Schirmbeck stated that he did not hear anyone knock on the door before Kuzynowski hit it with the battering ram.\nJames Kuzynowski testified that he was the second person out of the van. Hohs opened the screen door, and Kuzynowski knocked and announced \"police, search warrant.\u201d Kuzynowski paused for a couple of seconds and then hit the door with the battering ram.\nOfficer Thomas Armstrong, of MEG, testified that he was in an undercover vehicle driven by Agent Budny. The car was parked a quarter mile from defendant\u2019s house, across Green Bay Road. Armstrong was watching the street with binoculars. Although it was dusk and it was raining, Armstrong saw the SWAT team arrive. Armstrong stated that he saw \"an attempt to knock\u201d or \"what appeared to be a knock.\u201d He also heard a muffled yell. Nearly all of the 10 \u00d1IPAS officers were on the porch at that time. Armstrong did not recall seeing a battering ram or hearing the door being struck. He estimated that 15 to 20 seconds elapsed from the time the first person knocked on the door until the door was opened.\nAgent Brian Budny of MEG testified that he could not see the front porch of defendant\u2019s house from where he and Armstrong were parked. Budny was driving the car as the \u00d1IPAS van pulled up. As Budny was crossing Green Bay Road, the \u00d1IPAS team was approaching the house, and after Budny crossed the road, he saw the team entering the house. He never saw the team members on the porch. When Budny pulled up, Agent Agos was standing in the driveway, and the \u00d1IPAS team members were already in the house. Budny stated that he had no information about \"pit bulls,\u201d except what Agos told him.\nAgent Thomas Agos testified that he was the primary investigator for the case. Agos saw the entry team running towards the front door. According to Agos, there were five or six \u00d1IPAS agents. Agos testified that the screen door was opened, and he heard one officer yell \"police, search warrant.\u201d That officer waited three to five seconds and then battered in the door. Agos was standing in the driveway with Tony Gordon of the Waukegan News-Sun newspaper when the entry was made.\nTony Gordon, a reporter for the News-Sun, testified that he was riding in Agos\u2019 vehicle that day when there was a radio dispatch that the \u00d1IPAS team was starting its assault. Agos pulled onto Green Bay Road, drove south, and turned onto defendant\u2019s street. Agos parked the car east of the driveway. Gordon stated that he could not see the front of the house until he got out and moved forward from the car. At that point, Gordon saw one \u00d1IPAS officer standing in the doorway. The front door of the house was already open, and the entry had been made. Gordon further testified that there were dogs on the premises, but he was \"not sure whether they were pit bulls or another type\u201d of dog.\nIn addition to this testimony, defendant introduced a videotape depicting his street and how it looked from Officer Armstrong\u2019s vantage point across Green Bay Road.\nThe State moved for a directed finding on the motion. The court found that, based on the videotape, Armstrong was not in a position to see a knock on the door or to hear anything. The court therefore found Armstrong\u2019s testimony not credible. The court also found that Agos\u2019 testimony was impeached by Gordon\u2019s account. The court determined that the testimony of the \u00d1IPAS team members was credible and that it established that there was a knock and an announcement and that. Kuzynowski waited a few seconds and then battered in the door. However, the court ruled that there were not sufficient facts to show exigent circumstances to justify the officers\u2019 waiting such a short time before breaking in the door. The court therefore denied the motion.\nThe State recalled Agos to testify in its case. Agos stated that an examination of defendant\u2019s garbage in July 1991 revealed a 50-pound bag of dog food. On one occasion, Agos heard a dog barking while he was conducting surveillance of the property. In addition, a police officer who lived near defendant told Agos that \"there were pit bull dogs on the property.\u201d On August 27, 1991, Agos saw two dogs in the dog run, and he recognized them to be \"pit bulls.\u201d Agos did not know how many dogs were on the property. When the prosecutor asked Agos if he had any personal knowledge about \"pit bulls,\u201d he responded:\n\"My personal knowledge, although I\u2019ve never been in close contact with a pit bull, is I understand they are vicious attack dogs, and the closest that I have come to that knowledge is one of our officers being attacked by a pit bull to the point where that officer had to shoot the pit bull.\u201d\nAgos admitted that the incident occurred a few years earlier, and the officer involved was on the owner\u2019s property and the dog came after him. However, the dog did not bite the officer, and Agos did not know if the officer killed the dog. Agos also admitted that he did not include anything about \"pit bulls\u201d in his reports on the investigation, even though the presence of the dogs made it a \"high-risk search warrant.\u201d Agos did not include anything in the affidavit for the search warrant about any danger in executing the warrant. He stated that the warrant was not a \"no-knock\u201d warrant, but he asked for \u00d1IPAS participation because of the possibility of encountering dogs.\nThe last witness, Donald Hohs, testified that he was the first person out of the \u00d1IPAS van. He knocked twice on the screen door and pulled it open, announcing \"Police. Open up.\u201d Hohs stated that Kuzynowski also knocked and announced the police presence. Kuzynowski paused momentarily and then hit the door with the battering ram. Hohs stated that he was told it would be a high-risk entry because the occupants were armed, and there were five Rottweilers in the house.\nIn ruling on the motion, the court found that the \u00d1IPAS team \"knocked and hit the door almost immediately open with the ram,\u201d because they were expecting a high-risk situation. The \u00d1IPAS team relied in good faith on the representations of Agos. However, the court found that Agos\u2019 testimony was not credible. The court explained:\n\"I believe when the team approached, the dogs were still outside in the pen ***. Even if I find Agos\u2019 testimony to be credible which credibility has been strained by other evidence in this case, I do not think that the information he has was sufficient to justify an exigent entry into the residence.\nThe fact that there were two dogs outside in a pen does not give them exigent circumstances in my opinion. Now, it is the information that was transmitted to the N.I.P.A.S. team that they believed that there were going to be several dogs inside the residence, and I don\u2019t know how that ever came about, how that information was distorted to indicate several dogs inside of the residence, but with the lack of paper work concerning this aspect of the case it may more just have been rumor and word of mouth than anything else as to how they believed they were going to encounter all these dogs.\u201d\nThe court found that defendant met his burden to show that there were no exigent circumstances to justify the manner of entry. The court therefore granted defendant\u2019s motion. The State filed a certificate of impairment and timely appealed.\nA reviewing court may not disturb a trial court\u2019s ruling on a motion to suppress evidence unless that ruling was manifestly erroneous. (In re D.G. (1991), 144 Ill. 2d 404, 408.) In addition, we will defer to the trial court\u2019s determination of the credibility of the witnesses and its resolution of the conflicts in the testimony. (People v. Melock (1992), 149 Ill. 2d 423, 432.) The trial court discredited the testimony of both Officer Armstrong and Agent Agos. We will therefore not consider the testimony of either officer. The court also resolved the conflict between the testimony of Hohs and the testimony of Lundahl and Kuzynowski in favor of the latter two\u2019s account that Hohs\u2019 duty was only to open the screen door and Kuzynowski was the only officer who knocked.\nThe court found that the knock and announcement, and the battering in of the door, occurred simultaneously. The State contends that the evidence shows that the officer properly \"knocked and announced\u201d before battering in defendant\u2019s door. The State relies on People v. Saechao (1989), 129 Ill. 2d 522, in support of its contention. In Saechao, the police officers executing a search warrant went to the defendant\u2019s house at 10:30 a.m. One officer knocked on the door three times and announced that he was from the sheriffs office. One of the knocks caused the unlatched door to swing open. The officers remained on the threshold for 5 to 10 seconds before entering the house. The supreme court held that the manner of executing the warrant was proper. Saechao, 129 Ill. 2d at 532.\nThe State\u2019s reliance on Saechao is misplaced. The supreme court\u2019s ruling upheld the trial court\u2019s decision, and it noted that the appellate court\u2019s conclusion that the announcement and entry were simultaneous was unsupported by the record. (129 Ill. 2d at 533.) Here, the State must show that the court\u2019s finding that the knock, announcement, and breaking in were simultaneous is manifestly erroneous. Saechao declined to rule whether, in every case, some time must pass between the announcement and the entry. 129 Ill. 2d at 533.\nMoreover, Saechao is factually distinguishable because the officer knocked three times and, once the door swung open, the officers were in a vulnerable position. (129 Ill. 2d at 533.) Here, the officers were not in such a vulnerable position, and the court found there was only one knock. The State has not shown that the court\u2019s finding was wholly unwarranted, unreasonable, or not based on the evidence. (See People v. Leach (1993), 245 Ill. App. 3d 644, 655.) On the contrary, the testimony of Kuzynowski, Lundahl, and Schirmbeck amply supports the trial court\u2019s finding that the knock, announcement, and battering were simultaneous.\n\"[A] person should be afforded sufficient opportunity to respond to authority before a forcible entry is made.\u201d (Saechao, 129 Ill. 2d at 533.) There are no rigid rules for determining whether the police have allowed sufficient time before forcing, entry into a dwelling. (129 Ill. 2d at 533.) The court here found that the pause of only a few seconds before breaking in the door was not sufficient to allow defendant to respond. Thus, we must turn to the State\u2019s second contention, that exigent circumstances justified the police conduct. See People v. Jennings (1990), 204 Ill. App. 3d 1075, 1078-79 (whether a defendant was given sufficient time to respond depends on the presence and nature of exigent circumstances).\nAt the time the search warrant was executed, Illinois did not have a \"knock and announce\u201d statute. (See 725 ILCS 5/108 \u2014 8(b) (West 1992).) The supreme court, in People v. Condon (1992), 148 Ill. 2d 96, set forth the standards which govern our analysis.\n\"Since Illinois has no statutory requirement that officers knock and announce their authority and purpose prior to entering a dwelling, the propriety of such an entry must be determined by constitutional standards. [Citation.] Although the failure of law enforcement officers to knock and announce is not a per se constitutional violation, the presence or absence of such an announcement is an important consideration in determining whether a subsequent entry to arrest or search is constitutionally reasonable. [Citations.] The purpose of the knock-and-announce rule is to notify the person inside of the presence of police and of the impending intrusion, give that person time to respond, avoid violence, and protect privacy as much as possible. [Citation.] Officers may be excused from the knock-and-announce requirement if exigent circumstances exist sufficient to justify the intrusion. [Citation.] Where exigent circumstances exist, the failure of the police to knock and announce their authority and purpose in the execution of a search warrant for narcotics does not violate the fourth amendment right against unreasonable searches and seizures. [Citation.] Exigent circumstances may encompass such considerations as danger to the police officers executing the warrant, or the uselessness of the announcement, or the ease with which the evidence may be destroyed.\u201d (Condon, 148 Ill. 2d at 102-03.)\nThe State asserts that the guns, cocaine, and \"pit bulls\u201d created the exigent circumstances necessary for a \"no-knock\u201d entry.\nLike the supreme court in Condon, we disagree with the State that drugs plus weapons equal exigent circumstances. Condon rejected a \"synergistic\u201d analysis and examined each factor individually. (148 Ill. 2d 103-04.) Condon noted that where there was no evidence to indicate that the police reasonably believed a gun would be used against them, the need for compliance with the knock-and-announce rule is even greater. (148 Ill. 2d at 106-07.) Similarly, Condon required the warrant or the record to show that the occupants of the premises had devised a means for the quick destruction of evidence; otherwise, the mere presence of drugs would not provide exigent circumstances. (148 Ill. 2d at 106-08.) Here, as in Condon, there was no indication that defendant would use a gun against the police officers or that he had a quick means to dispose of the drugs. Thus, the presence of guns and drugs here does not constitute exigent circumstances sufficient to justify the simultaneous knock, announcement, and entry.\nThe State further argues that \"the presence of pit bull dogs observed on the property\u201d justifies the police action. The State asserts that the trial court should have taken judicial notice \"of the dangerousness of these types of dogs.\u201d According to the State, \"vicious dogs can be more dangerous than guns.\u201d The State\u2019s argument is wholly without merit.\nFirst, the State presented no evidence to show what type of dogs was on defendant\u2019s property. The term \"pit bull\u201d does not define a breed of dog. A \"pit bull\u201d is defined only as a \"bullterrier\u201d (Webster\u2019s Third New International Dictionary 1724 (1986) (Webster\u2019s)), which is further defined as \"a short-haired terrier of a breed originated in England by crossing the bulldog with terriers to develop a dog of speed, hardihood, and powerful bite for use in dog fights\u201d (Webster\u2019s, at 295). A \"terrier\u201d is \"any of various usu. [sic] small and rather low-built dogs (as an airedale, fox terrier, schnauzer) kept chiefly as pets but orig. [sic] used by hunters to dig for small furred game and engage the quarry underground or drive it out of its hole.\u201d (Webster\u2019s, at 2360.) Thus, merely applying the label \"pit bull\u201d to a dog does little to describe it and provides no basis for determining whether it is dangerous.\nMoreover, even if we assume that by \"pit bull\u201d the State is referring to the American Staffordshire terrier (\"a strong stocky terrier of a breed orig. [sic] developed for dogfighting\u201d (Webster\u2019s, at 56a), we cannot malign a breed of dogs on the basis of rumor and hysteria. Under the Animal Control Act, a \"Vicious dog\u201d is:\n\"(i) Any individual dog that when unprovoked inflicts bites or I attacks a human being or other animal either on public or private \u25a0 property. I\n(ii) Any individual dog with a known propensity, tendency or I disposition to attack without provocation, to cause injury or to I otherwise endanger the safety of human beings or domestic H animals. H\n(iii) Any individual dog that has as a trait or characteristic and H a generally known reputation for viciousness, dangerousness or H unprovoked attacks upon human beings or other animals, unless \u25a0 handled in a particular manner or with special equipment. H\n(iv) Any individual dog which attacks a human being or domes- H tic animal without provocation. H\n***\n*** Vicious dogs shall not be classified in a manner that is specific as to breed.\u201d (Emphasis added.) (510 ILCS 5/15(a)(1) (West 1992).)\nOur legislature chose not to accede to the stereotypes the State urges here. In Illinois, each dog is to be evaluated individually and is not to be classified as \"vicious\u201d merely because of its breed or type.\nThe State presented no evidence to show that defendant\u2019s dogs were \"vicious\u201d or dangerous, or that the officers had reason to believe that they were. The trial court properly found that the presence of two dogs, in an enclosed dog run, did not constitute exigent circumstances to justify the failure of the police officers to allow defendant sufficient time to respond to the knock and announcement before they broke in the door. We therefore conclude that the granting of defendant\u2019s motion to suppress was not manifestly erroneous.\nThe order of the circuit court is affirmed.\nAffirmed.\nQUETSCH and PECCARELLI, JJ., concur.", "type": "majority", "author": "JUSTICE WOODWARD" } ], "attorneys": [ "Michael J. Waller, State\u2019s Attorney, of Waukegan (William L. Browers, Robert J. Biderman, and James L. Overholt, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender\u2019s Office, of Elgin, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TOMMY RIDDLE, Defendant-Appellee.\nSecond District\nNo. 2 \u2014 92\u20140991\nOpinion filed February 22, 1994.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (William L. Browers, Robert J. Biderman, and James L. Overholt, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nG. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender\u2019s Office, of Elgin, for appellee." }, "file_name": "0253-01", "first_page_order": 273, "last_page_order": 281 }