FIFTH DIVISION November 9, 2006
No. 1-05-2684
SANG KEN KIM, ) ) Appeal from the Plaintiff-Appellant, ) Circuit Court of ) Cook County v. ) ) THE CITY OF CHICAGO, a Municipal Corporation; ) Honorable NEAL JACK; and ROBERT RUTHERFORD, ) Michael J. Hogan, ) Judge Presiding. Defendants-Appellees. )
JUSTICE O=MARA FROSSARD delivered the opinion of the court:
Plaintiff, Sang Ken Kim, spent 32 years in Cook County jail awaiting trial for first
degree murder and rape. Prior to trial, the State dropped the charges against plaintiff and
he was released. Thereafter, plaintiff filed suit against the City of Chicago, Chicago police
detective Neal Jack, and Chicago police detective Robert Rutherford, alleging that he was
coerced into giving a false confession, deprived of access to counsel, and subjected to
malicious prosecution. All counts were resolved against plaintiff prior to trial. On appeal,
plaintiff contends that the trial court erred in granting defendants= motion for summary
judgment on the allegations of malicious prosecution because a genuine issue of material
fact exists regarding whether the detectives had probable cause to arrest him and charge
him with murder.
BACKGROUND
On April 6, 1997, 17-year-old E.X., who was 21 to 22 weeks pregnant, went to the 1-05-2684
emergency room at Ravenswood Hospital, complaining of leaking fluid from her vagina. At
Ravenswood Hospital, E.X. was seen by Dr. Anthony Caruso, who arranged to have her
transferred to the University of Illinois at Chicago Medical Center (UIC).
UIC records show that E.X. was admitted on April 6, 1997, with prematurely ruptured
membranes. On the afternoon of April 9, 1997, after extensive discussion with UIC
doctors, including Dr. Elaine Chang, who was her principal treating physician, E.X. decided
to have labor induced. E.X. was given medication to induce labor at 1:45 p.m. and 7:45
p.m.
Around 8:40 p.m. on April 9, 1997, E.X. reported to medical personnel that plaintiff,
who was her boyfriend and the baby=s father, had kicked her in the abdomen three times,
pushed her, and made her fall, and that afterwards, she began Ahaving watery discharge.@
Officers from the Chicago police department came to UIC and took a statement from E.X.
E.X. told the officers that plaintiff pushed her to the floor, causing her to fall and strike her
stomach on a piece of exercise equipment. E.X. said that while she was on the floor,
plaintiff kicked her in the stomach Anumerous times@ and kicked her in the vagina. E.X. also
told the officers that she began discharging fluid from her vagina two to three hours later.
E.X. gave birth to a baby boy at 12:14 a.m. on April 10, 1997. He died at 3 a.m.
Chicago police detectives Neal Jack and Robert Rutherford were assigned to
investigate E.X.=s complaint against plaintiff. On April 10, 1997, the detectives met with
E.X. at UIC. E.X. told the detectives that around 11:30 a.m. on April 4, 1997, she and
plaintiff argued at plaintiff=s house. E.X. related that during the argument, which was about
E.X.=s pregnancy, plaintiff pushed her to the floor and kicked her in the stomach. Twice
2 1-05-2684
when E.X. tried to rise, plaintiff pushed or threw her to the floor. When E.X. eventually got
up, she went into the bathroom and noticed her underwear was damp. She believed the
dampness was amniotic fluid. E.X. further related that around 3 p.m. that day, when she
was back home, she noticed that her underwear and pants were again wet with amniotic
fluid. She noticed the wetness once more later that afternoon or evening. E.X. told the
detectives that she continued to discharge fluid for the next two days. She told the
detectives that around 10 a.m. on April 6, 1997, Ann McCormack took her to the
emergency room at Ravenswood Hospital. E.X. told the detectives that she was
transferred to UIC, where she was treated by Dr. Elaine Chang. Finally, E.X. said that she
had labor induced on April 9, 1997, and that a short time after the baby was born, he died.
After interviewing E.X., the detectives spoke with Dr. Chang. Dr. Chang told them
that E.X.=s water bag was ruptured when she arrived at UIC. According to Dr. Chang, after
she told E.X. that her water bag had been ruptured and explained her options to her, E.X.
chose to have labor induced. Dr. Chang told the detectives that the baby was born on April
9, 1997, and died a short time later. According to Dr. Chang, after the amniotic sac was
ruptured, it was unlikely that the baby could survive for a long period of time. Dr. Chang
also told the detectives that it could not be confirmed that abdominal trauma caused the
rupture of membranes.
The detectives then contacted Ann McCormack, who told them that E.X. called her
around 10 a.m. on Saturday, April 5, 1997. McCormack drove to E.X.=s residence and
picked her up. E.X. stayed at McCormack=s house until Sunday morning. On Saturday
evening, E.X. reported to McCormack that she was discharging some type of fluid from her
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vaginal area. McCormack told the detectives that on Sunday morning when E.X. awoke,
she was discharging a large amount of fluid. At that time, E.X. told McCormack that the
discharge began on Friday evening and occurred several times throughout the day on
Saturday.
McCormack told the detectives that she took E.X. to Ravenswood Hospital. Once
there, she asked E.X. whether she had fallen before the discharge started. In response to
the question, E.X. told McCormack that on Friday she and plaintiff had a fight during which
they pushed and shoved each other. E.X. told McCormack that plaintiff picked her up and
threw her to the floor a couple of times. When McCormack asked if plaintiff had punched
her in the stomach, E.X. said no.
At some point during their investigation on April 10, 1997, the detectives learned that
the hospital intended to cremate the baby. The detectives contacted the medical
examiner=s office, which subsequently ordered and received the baby=s body for autopsy.
Around 6 p.m. on April 10, 1997, the detectives called plaintiff and asked him to
come to the police station. According to the detectives= report, plaintiff told them that on
April 4, 1997, he and E.X. were holding hands and arguing. Plaintiff said he pushed E.X.=s
hand away and she fell onto the floor Awith her buttocks hitting the floor and her back
striking the weight bench.@ Plaintiff related that he then worked on his car with a friend,
whose name the detectives recorded as AHong Sook.@ After the interview, plaintiff left the
police station.
On April 12, 1997, Dr. Nancy Jones conducted an autopsy on the baby. Dr. Jones
indicated in her report that the baby Adied as a result of prematurity due to premature
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rupture of membranes due to maternal blunt abdominal trauma.@ Dr. Jones listed the
manner of death as homicide.
On April 14, 1997, at 12:30 p.m., plaintiff was arrested by two officers not involved in
the instant case. Around 2 p.m. that day, Detective Jack and Detective Rutherford
interviewed plaintiff. According to the detectives= report, plaintiff related that during his
argument with E.X. on April 4, 1997, he pushed E.X. to the floor, went to kick her in the leg
but missed, and kicked her in the stomach. According to the detectives, plaintiff said that
when E.X. got up, he grabbed her and pulled her back, and that he also kicked her in the
thigh.
Between 5 p.m. and 7:30 p.m. on April 14, 1997, E.X. met with an assistant State=s
Attorney at the police station. After speaking with E.X. and the detectives, the assistant
State=s Attorney interviewed plaintiff around 9 p.m. Detective Jack was present for parts of
the interview. According to the assistant State=s Attorney=s notes, plaintiff told her he
pushed E.X., she fell to the ground, and then he kicked her in the stomach.
Around 10 p.m. on April 14, 1997, the assistant State=s Attorney took a written
statement from E.X. wherein she repeated her assertion that plaintiff kicked her in the
stomach. E.X. further alleged that after kicking her in the stomach, plaintiff forced her to
have sex with him. According to the detectives= report, when they asked plaintiff about
E.X.=s claim, he initially denied it, but then admitted that he had sex with E.X. but Ait was
consensual.@ The report also indicated that plaintiff Aadmitted that at first she resisted him
but after a while she relented.@
On the morning of April 15, 1997, the detectives spoke with Dr. Jones, the medical
5 1-05-2684
examiner who conducted the autopsy of the baby. Dr. Jones told the detectives that based
on the autopsy and a review of the available medical records from Ravenswood Hospital
and UIC, she determined the cause of death was prematurity due to premature rupture of
membranes due to maternal blunt abdominal trauma, and that the manner of death was
homicide.
At 5:30 p.m. on April 15, 1997, the assistant State=s Attorney interviewed plaintiff a
second time. Detective Jack was present for the interview. Some time between 9:45 p.m.
and 10:15 p.m., plaintiff signed a written statement prepared by the assistant State=s
Attorney. At 12:15 a.m. on April 16, 1997, the assistant State=s Attorney approved charges
of first degree murder and criminal sexual assault against plaintiff.
In May 1997, a Cook County grand jury indicted plaintiff for first degree murder,
simple and aggravated criminal sexual assault, and aggravated battery. Subsequently,
plaintiff filed a motion to suppress his written statement, which was denied. In 2000, the
assigned trial prosecutor met with E.X., who said that plaintiff had not kicked her in the
stomach and that her original story was Asomething that she and her dad cooked up.@ Due
to E.X.=s partial recantation, the prosecutor decided to dismiss the case against plaintiff.
On October 19, 2001, plaintiff filed suit against E.X., her father, the City of Chicago,
the City of Chicago police department, Detective Jack, and Detective Rutherford. Five days
later, plaintiff filed a first amended complaint, adding Dr. Jones and the medical examiner=s
office as defendants. On September 27, 2002, plaintiff filed a 12-count second amended
complaint. In the caption of the second amended complaint, plaintiff listed all the above
parties as defendants except for the Chicago police department. All 12 counts of the
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second amended complaint were resolved against plaintiff, either by dismissal on the
defendants= motions, voluntary dismissal, or summary judgment. As relevant to this
appeal, the trial court granted summary judgment against plaintiff on count I, which was
titled AMalicious Prosecution Defendants Detective Jack and Detective Rutherford,@ and
count III, which was titled AMalicious Prosecution Defendant B City of Chicago and City of
Chicago Police Department.@
ANALYSIS
On appeal, plaintiff challenges the trial court=s grant of summary judgment against
him on counts I and III, which were his allegations of malicious prosecution against the City
of Chicago, the City of Chicago police department, Detective Jack, and Detective
Rutherford. Plaintiff=s brief does not address the other counts of the second amended
complaint.
Summary judgment is proper when the pleadings, depositions, and admissions on
file, along with any affidavits, show there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2004).
In determining whether a genuine issue of material fact exists, a court must construe the
pleadings, depositions, admissions and affidavits strictly against the movant and liberally in
favor of the opponent. Watkins v. Schmitt, 172 Ill. 2d 193, 203 (1996). The propriety of an
order granting summary judgment is a question of law which we review de novo. Fabiano
v. City of Palos Hills, 336 Ill. App. 3d 635, 640-41 (2002). We may affirm the granting of
summary judgment on any basis in the record, regardless of whether the trial court=s
reasoning was correct. Fabiano, 336 Ill. App. 3d at 641.
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When a defendant moves for summary judgment, he may meet his initial burden of
production either by affirmatively showing that some element of the cause of action must be
resolved in his favor or by demonstrating that the plaintiff cannot produce evidence
necessary to support the cause of action. Fabiano, 336 Ill. App. 3d at 641. In either case,
the defendant must produce evidence that would clearly entitle him to judgment as a matter
of law. Fabiano, 336 Ill. App. 3d at 641. Once the defendant satisfies his initial burden of
production, the burden shifts to the plaintiff to present some factual basis that would
arguably entitle the plaintiff to a favorable judgement. Fabiano, 336 Ill. App. 3d at 641.
To succeed on a claim of malicious prosecution, a plaintiff must establish five
elements: (1) the commencement or continuation of an original criminal or civil judicial
proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff;
(3) the absence of probable cause for such proceeding; (4) malice; and (5) damages.
Fabiano, 336 Ill. App. 3d at 641, citing Swick v. Liautaud, 169 Ill. 2d 504, 512 (1996). The
failure to establish any one of these elements precludes recovery for malicious prosecution.
Fabiano, 336 Ill. App. 3d at 641.
Plaintiff contends that the trial court erred in entering summary judgment for
defendants on his counts of malicious prosecution. He argues that the trial court erred in
finding that no genuine issue of material fact existed as to whether the defendant detectives
had probable cause to arrest him and charge him with murder. Plaintiff asserts that the trial
court=s finding was in error due to the existence of the following genuine issues of material
fact: (1) whether it was unreasonable for the detectives to rely upon E.X.=s allegations
where her statements were inconsistent and uncorroborated; (2) whether plaintiff=s signed
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statement was illegally obtained; and (3) whether it was unreasonable for the detectives to
rely upon the medical examiner=s findings where they were based upon unsubstantiated
information. Plaintiff additionally argues that the fact the grand jury indicted him does not
require a finding that probable cause existed to arrest him and charge him with murder.
In the context of a malicious prosecution case, probable cause is defined as Aa state
of facts that would lead a person of ordinary care and prudence to believe or to entertain an
honest and sound suspicion that the accused committed the offense charged.@ Fabiano,
336 Ill. App. 3d at 642. It is the state of mind of the person commencing the prosecution
that is at issue B not the actual facts of the case or the guilt or innocence of the accused.
Johnson v. Target Stores, Inc., 341 Ill. App. 3d 56, 72 (2003). When there is an honest
belief by the complainant that the accused is probably guilty of the offense, a mistake or
error that is not grossly negligent will not affect the question of probable cause. Johnson,
341 Ill. App. 3d at 72. A reasonable ground for belief of an accused=s guilt may be on
information from other persons as well as on personal knowledge. Johnson, 341 Ill. App.
3d at 72. The complainant is not required to verify the correctness of each item of
information obtained; it is sufficient to act with reasonable prudence and caution. Johnson,
341 Ill. App. 3d at 72. In addition, AWhere the victim of the crime supplies the police with
the information forming probable cause, there is a presumption that this information is
inherently reliable.@ People v. Turner, 240 Ill. App. 3d 340, 357-58 (1992).
After reviewing the record, we conclude that the trial court did not err in finding no
genuine issue of material fact existed as to whether the defendant detectives had probable
cause to arrest plaintiff and charge him with murder. The record reflects that probable
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cause existed in this case. On April 10, 1997, Detective Jack and Detective Rutherford met
with E.X. at the UIC Medical Center. At that time, E.X. told the detectives that around
11:30 a.m. on April 4, 1997, she and plaintiff argued at plaintiff=s house. E.X. related that
during the argument, which was about E.X.=s pregnancy, plaintiff pushed her to the floor
and kicked her in the stomach. Twice when E.X. tried to rise, plaintiff pushed or threw her
to the floor. When E.X. eventually got up, she went into the bathroom and noticed her
underwear was damp. She believed the dampness was amniotic fluid. E.X. further related
that around 3 p.m. that day, when she was back home, she noticed that her underwear and
pants were again wet with amniotic fluid. She noticed the wetness once more later that
afternoon or evening. E.X. told the detectives that she continued to discharge fluid for the
next two days. She told the detectives that around 10 a.m. on April 6, 1997, Ann
McCormack took her to the emergency room at Ravenswood Hospital. After being
transferred to the UIC Medical Center, where she was treated by Dr. Elaine Chang, E.X.
had labor induced on April 9, 1997. E.X. told the detectives that a short time after the baby
was born, he died.
As noted above, AWhere the victim of the crime supplies the police with the
information forming probable cause, there is a presumption that this information is
inherently reliable.@ Turner, 240 Ill. App. 3d 357-58. In this case, the detectives received
information from the victim of a crime. Yet, instead of only relying on the presumption that
E.X.=s information was reliable B which they could have done B they set about gathering
more information to corroborate E.X. and establish probable cause. After interviewing E.X.,
the detectives spoke with Dr. Chang. According to Dr. Chang, after she told E.X. that her
10 1-05-2684
water bag had been ruptured and explained her options to her, E.X. chose to have labor
induced. Dr. Chang told the detectives that the baby was born on April 9, 1997, and died a
short time later. According to Dr. Chang, after the amniotic sac was ruptured, it was
unlikely that the baby could survive for a long period of time. Dr. Chang also told the
detectives that it could not be confirmed that abdominal trauma caused the rupture of
membranes.
The detectives then contacted Ann McCormack, who told them that E.X. called her
around 10 a.m. on Saturday, April 5, 1997. McCormack drove to E.X.=s residence and
picked her up. E.X. stayed at McCormack=s house until Sunday morning. On Saturday
evening, E.X. reported to McCormack that she was discharging some type of fluid from her
vaginal area. McCormack told the detectives that on Sunday morning when E.X. awoke,
she was discharging a large amount of fluid. At that time, E.X. told McCormack that the
discharge began on Friday evening and occurred several times throughout the day on
McCormack told the detectives that she took E.X. to Ravenswood Hospital. Once
there, she asked E.X. whether she had fallen before the discharge started. In response to
the question, E.X. told McCormack that on Friday she and plaintiff had a fight during which
they pushed and shoved each other. E.X. told McCormack that plaintiff picked her up and
threw her to the floor a couple of times. When McCormack asked if plaintiff had punched
At some point during their investigation on April 10, 1997, the detectives learned that
the hospital intended to cremate the baby. The detectives contacted the medical
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examiner=s office, which subsequently ordered and received the baby=s body for autopsy.
On April 15, 1997, the detectives spoke with Dr. Jones, the medical examiner who
performed the autopsy on the baby. Dr. Jones told the detectives that based on the
autopsy and a review of the available medical records from Ravenswood Hospital and UIC,
she determined the cause of death was prematurity due to premature rupture of
membranes due to maternal blunt abdominal trauma, and that the manner of death was
We conclude that, based on the above information, which was known to the
detectives at the time of arrest, the detectives held an objectively reasonable belief that
plaintiff had committed murder. See Aboufariss v. City of DeKalb, 305 Ill. App. 3d 1054,
1062 (1999) (in malicious prosecution case, summary judgment was proper on question of
probable cause where defendants held an objectively reasonable belief that plaintiff had
committed a crime). As explained earlier, in the context of a malicious prosecution case,
probable cause is defined as Aa state of facts that would lead a person of ordinary care and
prudence to believe or to entertain an honest and sound suspicion that the accused
committed the offense charged.@ Fabiano, 336 Ill. App. 3d at 642. We find that there is no
genuine issue of material fact regarding the existence of probable cause in this case, and
therefore, also find that the trial court acted properly in granting defendants= motion for
summary judgment on the allegations of malicious prosecution.
Plaintiff asserts that defendants could not have reasonably relied upon E.X.=s
statements because they were inconsistent and uncorroborated. In support of his
argument that E.X.=s statements were inconsistent, plaintiff notes that (1) the UIC medical
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records reflect E.X.=s report that plaintiff kicked her in the stomach Athree times,@ while the
April 10, 1997, police report reflects E.X. reported being kicked Anumerous times,@ and
E.X.=s signed statement indicates she was kicked one time; and (2) the Ravenswood
Hospital records indicate E.X. reported that she started leaking fluid around 5 p.m. on April
4, 1997, and McCormick told the detectives that E.X. related the same time frame to her,
but when E.X. spoke with the detectives and the assistant state=s attorney, she reported
that on April 4, she began leaking fluid right after the alleged assault and continued to do so
throughout the day.
A claim of Athree@ kicks is consistent with a claim of Anumerous@ kicks. Also, contrary
to plaintiff=s assertion, E.X. did not report Aone@ kick in her written statement. Instead, E.X.
reported simply that plaintiff kicked her in the stomach. She did not specify the number of
kicks. Further, E.X. was consistent in reporting that she began leaking fluid on April 4,
1997. While she identified different hours for the commencement of the leaking, we cannot
agree with plaintiff that this inconsistency was serious enough to deprive defendants of Aan
honest and sound suspicion that the accused committed the offense charged.@ Fabiano,
336 Ill. App. 3d at 642.
In support of his argument that E.X.=s allegations were uncorroborated, plaintiff notes
that (1) records from Ravenswood Hospital and UIC Medical Center indicate that upon
examination, E.X.=s abdomen was soft and nontender, without evidence of bruising; (2) Dr.
Chang testified at her deposition that Athere=s no evidence, physical evidence, in the
records that I can find that indicates maternal trauma@ and that she told the detectives it
could not Abe confirmed that abdominal trauma caused@ the rupture of membranes; (3) Dr.
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Anthony Caruso testified that he was never contacted by anyone at the Chicago police
department and that he did not see any evidence of trauma when he examined E.X. at
Ravenswood Hospital; and (4) Hong Lim, a friend of plaintiff who was present when plaintiff
worked on his car on April 4, 1997, testified that he was not contacted by the Chicago
police department and that when he interacted with E.X. on the day in question, she did not
appear to be angry, upset, or in distress.
We are unconvinced by plaintiff=s arguments regarding corroboration. The existence
of probable cause is measured based on the facts known to the officers at the time of the
arrest. Aboufariss, 305 Ill. App. 3d at 1060, 1062-63. Here, in the course of their
investigation, the detectives interviewed Dr. Chang, who had treated E.X. at UIC. Dr.
Chang related to the detectives that she could not confirm that trauma was the cause of
E.X.=s preterm delivery. As noted by defendants in their brief, this means that Dr. Chang
also did not rule out abdominal trauma as the cause of E.X.=s preterm delivery. Thus, the
medical facts known to the arresting officers did not contradict their reasonable belief that
plaintiff had committed a crime.
Plaintiff accurately notes that defendants did not contact Dr. Caruso and Hong Lim in
the course of their investigation. However, plaintiff has cited no requirement that police
must interview all potentially relevant witnesses before determining probable cause exists,
and our research has revealed no holdings to that effect. When making a determination
regarding the existence of probable cause, courts must be guided by common sense and
practical considerations. People v. Harris, 352 Ill. App. 3d 63, 66-67 (2004). Just as the
police are not required to verify the correctness of each item of information they obtain
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(Johnson, 341 Ill. App. 3d at 72, quoting Turner v. City of Chicago, 91 Ill. App. 3d 931, 935
(1980)), we conclude that it would be impractical and contrary to common sense to require
the police to follow all possible leads in the course of an investigation to establish probable
cause. We cannot agree with plaintiff that the detectives= failure to contact Dr. Caruso and
Hong Lim is fatal to a finding of probable cause to arrest.
Plaintiff argues that the findings of the medical examiner, Dr. Jones, were based
upon unsubstantiated information and that, therefore, a genuine issue of material fact exists
as to whether defendants could have reasonably relied upon those findings to establish
probable cause. Plaintiff asserts that E.X.=s Aunsubstantiated, inconsistent allegations@
were the only support Dr. Jones had for her opinion that the baby=s death was caused by
prematurity due to the premature rupture of membranes as a result of maternal blunt
trauma.
We reject plaintiff=s argument. The record reveals that Dr. Jones=s conclusion
regarding the cause of the baby=s death was based on a combination of factors. At her
deposition, Dr. Jones explained her conclusion as follows:
A[T]here is indication in the medical records that mother
complained of having blunt abdominal trauma during what
amounted to a physical and verbal altercation with someone.
And there was no other indication in the medical records
at all of the mother having any other known cause for having
premature rupture of the membranes.
She did not have an infectious process going on or not
15 1-05-2684
an incompetent cervix.
And in fact she required the use of Malanaria (phonetic)
to tone her cervix, so the fetus could be delivered.
So, I -- basically what it does is it gives me both positive
and negative information, which allows me to go ahead and
come up with the cause of death.@
The testimony of Dr. Jones refutes plaintiff=s argument that Dr. Jones relied only
upon E.X.=s statement in coming to an opinion as to the cause of death. As Dr. Jones
explained, she also relied upon Anegative@ information: there was no other indication in the
medical records of E.X. having any other known cause for having premature rupture of the
membranes, such as an infectious process or an incompetent cervix. Moreover, as
defendants note in their brief, Athe detectives were not required to second guess the
medical examiner=s expertise and analyze whether her opinion was sound -- as far as they
were aware, Dr. Jones=s conclusion legitimately confirmed E.X.=s account.@ Plaintiff=s
argument fails.
Next, plaintiff argues that a genuine issue of material fact exists as to whether his
confession was illegally obtained. He maintains that his requests to speak with a lawyer
while in custody were denied, that defendants told him if he did not give a statement
consistent with E.X.=s he would go to prison for 40 to 45 years, that he could go home if he
gave a consistent statement, that he was presented with a statement that was pre-
prepared, and that at the time he signed the statement, he was exhausted, confused, and
otherwise broken down. Plaintiff asserts that because his confession was coerced, it was
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Aunable to be relied upon to establish probable cause.@ Plaintiff explains his argument as
follows:
AGiven the inconsistent nature of [E.X.=s] allegations
(from the initial allegation made at UIC Medical Center through
her recantation), there exists a genuine issue of material fact
as to whether the alleged incident of April 4, 1997, ever took
place. *** Since there exists a genuine issue of material fact
as to whether the incident ever took place, it is axiomatic that a
genuine issue of material fact exists as to whether the
confession was illegally obtained. Obviously, an illegally
obtained confession can never be used to establish probable
cause to charge an accused.@
Plaintiff=s argument is not persuasive. We have already concluded that, independent
of plaintiff=s confession, the detectives had ample probable cause at the time of arrest to
believe he had committed a crime. We are mindful that E.X. eventually recanted.
However, the existence of probable cause is measured based on the facts known to the
officers at the time of the arrest. Aboufariss, 305 Ill. App. 3d at 1060, 1062-63. Moreover,
as noted by defendants in their brief, the record does not indicate that the detectives
engineered plaintiff=s prosecution or prevented the assistant State=s Attorney from
exercising her independent discretion to proceed with charges and the prosecution.
Accordingly, plaintiff=s argument fails.
Finally, plaintiff argues that the fact that a grand jury indicted him does not require a
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finding that probable cause existed to arrest and charge him. Plaintiff explains that he
makes this argument because the Adefendants will undoubtedly point to the fact that the
Grand Jury issued an indictment against Plaintiff in an effort to support their case for the
existence of probable cause.@ We need not address plaintiff=s argument, as defendants
have not made such a claim on appeal.
CONCLUSION
For the reasons explained above, we affirm the judgment of the circuit court.
Summary judgment was properly granted for defendants and against plaintiff on the claims
of malicious prosecution because there was no genuine issue of material fact as to whether
probable cause existed at the time of the arrest and defendants were entitled to judgment
as a matter of law.
Affirmed.
O=BRIEN, P.J., and GALLAGHER, J., concur.