No. 2--96--0143
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit
OF ILLINOIS, ) Court of Lake County.
)
Plaintiff-Appellee, ) No. 95--CM--2937
v. )
CHARLES THORNTON, ) Honorable
) George Bridges,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE DOYLE delivered the opinion of the court:
Defendant, Charles Thornton, was convicted of cruelty to an
animal in violation of section 3.01 of the Humane Care For Animals
Act (Act) (510 ILCS 70/3.01 (West 1994)). The trial court imposed
a sentence that included, inter alia: 10 days of incarceration; 2
years of probation; 200 hours of community service; and restitution
totalling $3,571.83.
Defendant filed a timely appeal. On appeal, defendant
contends that the trial court erred when it (1) denied his motion
to suppress evidence which was seized in a warrantless search of
his residence; (2) required him to pay restitution; and (3) imposed
an excessive sentence on him.
We will first address defendant's contention that the trial
court erred when it denied his motion to suppress evidence. At a
hearing on the motion, Sergeant Ryland Woodruff testified as
follows. On May 29, 1995, Woodruff was on duty as a police officer
for the Grayslake police department. At approximately 9 a.m. on
that day, Woodruff responded to a report that a dog had been
barking for several days inside an apartment in an apartment
complex in Grayslake.
Woodruff went to the apartment complex and met with Debbie
Nissen, the manager of the apartment complex. Nissen told Woodruff
that tenants had complained to her about a dog that had been
barking and yelping for two or three days inside apartment 104 in
the complex. In response to these complaints, Nissen had
unsuccessfully tried to contact defendant, the tenant of apartment
104, by knocking on the door of defendant's apartment, by calling
defendant's apartment phone number, and by calling defendant's
place of employment. Nissen also attempted to look inside
defendant's apartment, but could not see inside the apartment
because the blinds were closed.
Woodruff further testified that Nissen told him that she then
used a key to enter defendant's apartment. Upon entering
defendant's apartment, Nissen found a brown-colored dog in a small
cage in a secondary bedroom. The cage was so small that the dog
could not stand inside the cage. The bottom of the cage was
covered with urine and feces. There was no sign of food or water
in the cage. The dog was very thin and had blood on its paws. The
dog was shaking and continuously made a whimpering and yelping
sound.
Woodruff also spoke with a tenant who lived in the apartment
above defendant's apartment. This tenant told Woodruff that the
dog had been making the yelping sound continuously, "all day and
all night," for two or three days.
Based on this information, Woodruff and another police officer
decided that it was necessary to enter immediately defendant's
apartment to "check on the well being of the dog." As the police
officers came within six or seven feet of the entrance to
defendant's apartment, they detected a strong odor of feces and
urine. Upon entering the apartment, the police officers discovered
a dog in a cage in conditions matching the conditions which Nissen
had described.
The trial court based its denial of defendant's motion to
suppress the evidence found in his apartment on the ground that the
police were justified in entering defendant's apartment without a
warrant because of an emergency related to the condition of the
dog. On appeal, defendant contends that there are two reasons why
the trial court's ruling was erroneous: (1) section 10 of the Act
specifically prohibits the entry into a residence without a
warrant; and (2) no emergency justified the warrantless entry.
We first consider defendant's statutory argument. Section 10
of the Act provides, in pertinent part:
"Upon receiving a complaint of a suspected violation of
this Act, a Department investigator, any law enforcement
official, or an approved humane investigator may, for the
purpose of investigating the allegations of the complaint,
enter during normal business hours upon any premises where the
animal or animals described in the complaint are housed or
kept, provided such entry shall not be made into any building
which is a person's residence, except by search warrant or
court order." 510 ILCS 70/10 (West 1994).
Defendant contends that the plain words of section 10 prohibit
the warrantless entry of a residence by police to investigate a
complaint regarding cruelty to an animal. Defendant argues that
section 10 does not enumerate any exceptions to the warrant
requirement for the search of a residence and that therefore there
are no exceptions to the warrant requirement. Defendant asserts
that the police violated the prohibition against warrantless entry
when they entered his apartment without a warrant to investigate a
complaint of cruelty to an animal.
The State responds that defendant has misread section 10. The
State contends that the obvious intent of the legislature in
enacting section 10 was to broaden the protection for animals
subjected to cruelty. The State argues that the legislature sought
to do this by granting an extraordinary exception in section 10 to
the general warrant requirement for searches of nonresidential
premises. In the State's view, the language in section 10
specifying that a warrant is required to search a residence merely
indicates that the extraordinary exception does not apply to
searches of residences, but does not mean that there are no
exceptions to the warrant requirement.
The primary objective in construing the meaning of a disputed
statute is to ascertain and give effect to the intent of the
legislature. People v. Robinson, 172 Ill. 2d 452, 457 (1996). The
most reliable indicator of legislative intent is the language of
the statute itself. People v. Tucker, 167 Ill. 2d 431, 435 (1995).
In construing the statute, a court should consider every part of
the statute together. People v. Warren, 173 Ill. 2d 348, 357
(1996). Because the construction of the statute is a question of
law, our review is de novo. Robinson, 172 Ill. 2d at 457.
With these principles in mind, and viewing the language of
section 10 of the Act as a whole, we agree with the State's
position. The language in section 10 which states that "entry
shall not be made into any building which is a person's residence,
except by search warrant or court order," is plainly intended to
make it clear that the extraordinary exception to the general
warrant requirement for investigatory searches of nonresidential
premises set out in section 10 does not extend to residential
premises. There is nothing in section 10 which suggests that this
language means that the few specifically established and well-
delineated exceptions to the general warrant requirement for entry
into residential premises (see Katz v. United States, 389 U.S. 347,
357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507, 514 (1967)) are not
applicable under the Act.
A contrary construction of section 10 would prevent government
agents from entering a residence without a warrant even when faced
with exigent circumstances. Such a result would be absurd. We
presume that in enacting section 10 the legislature did not intend
to produce an absurd, inconvenient or unjust result. Schirmer v.
Bear, 174 Ill. 2d 63, 73 (1996). For these reasons, we must reject
defendant's proposed construction of section 10.
Next, we turn to defendant's contention that there was no
emergency in this case that justified a warrantless entry of his
residence by the police. The fourth amendment to the United States
Constitution (U.S. Const., amend. IV) prohibits all unreasonable
searches and seizures. A warrantless search of a home is
presumptively an unreasonable search in violation of the fourth
amendment. Payton v. New York, 445 U.S. 573, 586, 63 L. Ed. 2d
639, 651, 100 S. Ct. 1371, 1381 (1980).
However, the supreme court has recognized an "emergency
exception" to the warrant requirement. The emergency exception
allows police to enter and search residential premises without a
warrant for the purpose of protecting and preserving life or
property and to avoid serious injury. Mincey v. Arizona, 437 U.S.
385, 393-94, 57 L. Ed. 2d 290, 300-01, 98 S. Ct. 2408, 2413 (1978).
The basic elements of the emergency exception to the general
warrant requirement are (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 or
seize evidence; and (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, 130 Ill. App. 3d
536, 539 (1984).
Our research has not revealed any Illinois case in which a
court has applied the emergency exception to a situation involving
the mistreatment of animals. However, courts in other
jurisdictions have applied the emergency exception to such
situations. See Suss v. American Society for Prevention of Cruelty
to Animals, 823 F. Supp. 181 (S.D.N.Y. 1993); Tuck v. United
States, 477 A.2d 1115 (D.C. App. 1984); State v. Bauer, 127 Wis. 2d
401, 379 N.W.2d 895 (1985).
The guiding principle in fourth amendment search and seizure
cases is reasonableness. People v. Free, 94 Ill. 2d 378, 395
(1983). In determining the reasonableness of the belief that an
emergency exists, courts must take into account the totality of the
circumstances known to the officers at the time of their entry.
People v. Paudel, 244 Ill. App. 3d 931, 939 (1993). A reviewing
court should not disturb a trial court's ruling on a motion to
suppress unless the ruling is manifestly erroneous. People v.
Miller, 173 Ill. 2d 167, 181 (1996).
In this case, the totality of the circumstances known to the
officers at the time of their entry into defendant's apartment was
sufficient for the officers to reasonably believe that an emergency
was at hand which required their immediate assistance. The tenant
in the apartment above defendant's apartment told the officers that
a dog had been yelping in defendant's apartment continuously for
two or three days. Efforts by Nissen, the manager of the apartment
complex, to contact defendant were unsuccessful. Thus the officers
knew that the yelping had persisted for several days, but did not
know when, or if, defendant might return to his apartment to tend
to the distressed animal.
Nissen had previously entered defendant's apartment and
observed the yelping dog. Nissen told the officers that the dog
was in a filthy cage which was so small that the dog could not
stand. Nissen told the officers that the dog was very thin and
that there was no sign of food or water available. Nissen told the
officers that the dog was bleeding and was shaking. Based on this
information, the officers could have reasonably believed that the
dog was not merely "uncomfortable," but was in need of immediate
assistance to avoid serious injury or, possibly, death.
Defendant argues that, because there was no evidence of a
change in the dog's yelping, the officers did not have a reasonable
basis to conclude that the dog's condition was dire. This argument
is unpersuasive. The dog's constant yelping over such an extended
period of time could also have been taken as an indication of the
intensity of the dog's suffering. The officers could have
reasonably believed that the dog had been confined in a tiny,
filthy cage without food or water for up to three days. Moreover,
the officers could have reasonably believed that the dog was
injured and was bleeding. This was sufficient for the officers to
conclude that an emergency was at hand which required their
immediate assistance.
Defendant's argument that the officers should have gone to the
county courthouse, which was only 15 or 20 minutes away, for a
search warrant before entering his apartment does not require a
different result. The amount of time it might have taken the
officers to obtain a search warrant is unclear, and the officers
had a reasonable belief that they had to act at once to aid the
dog.
Defendant also argues that the officers' actions in taking
pictures of the dog upon their entry into defendant's apartment
belie the State's position that the officers were motivated to
assist the dog. Our review of the record indicates that any pause
by the officers to take pictures of the dog was apparently quite
brief and does not show that the officers were primarily motivated
by an intent to seize evidence. Rather, the record shows that the
officers were primarily motivated by their reasonable belief that
the dog was in need of immediate assistance to protect its life or
prevent it from being seriously injured.
For these reasons, we conclude that the trial court's denial
of defendant's motion to suppress was not manifestly erroneous.
Defendant next contends that the trial court erred when it
ordered him to pay restitution. Alternatively, defendant contends
that the trial court erred in determining the amount of restitution
that he was required to pay.
The trial court ordered defendant to pay $3,571.83 in
restitution to the Lake County Health Department Animal Control
Division (Department). The amount of the restitution ordered by
the court was based on a fee statement prepared by the Department.
The fee statement indicated that $2,772 of the restitution amount
was for 231 days of boarding the dog by the Department at a rate of
$12 per day. Most of the balance of the restitution ordered was
for various veterinary costs.
Defendant posits that the trial court "presumably" entered the
restitution order pursuant to section 5--5--6 of the Unified Code
of Corrections (Code) (730 ILCS 5/5--5--6 (West 1994)). Defendant
acknowledges that section 5--5--6 authorizes a trial court to
require a criminal defendant to make restitution for "out-of-pocket
expenses, damages, losses, or injuries found to have been
proximately caused by the conduct of the defendant" (730 ILCS 5/5--
5--6(a) (West 1994)) and suffered by the victim or victims of a
defendant's conduct (730 ILCS 5/5--5--6(b) (West 1994)). However,
defendant asserts that the term "victim," as used by the Code, does
not encompass the Department. Based on his position that the
Department is not an appropriate "victim" under section 5--5--6,
defendant argues that the trial court erred when it ordered him to
pay restitution to the Department.
The State responds by first disagreeing with defendant's
presumption that the trial court ordered restitution pursuant to
section 5--5--6 of the Code. The State contends that the trial
court could have required defendant to pay restitution under
section 12 of the Act (510 ILCS 70/12 (West 1994)), which creates
a lien on an impounded animal for the expenses of the impoundment.
Alternatively, the State contends that the trial court could also
have properly ordered restitution under section 5--5--6 of the
Code. Finally, the State suggests that defendant waived the issue
of the propriety of restitution because he did not raise the issue
at trial.
We will first address the question of waiver. The State
contends that defendant acquiesced in the imposition of restitution
by arguing at trial only that the amount of the restitution was
excessive, but not arguing that restitution was an unauthorized
disposition. The State argues that defendant may not raise the
issue of the trial court's authority to impose restitution for the
first time on appeal.
Since defendant's argument addresses the authority of the
trial court to order the restitution, we disagree. See In re
V.L.F., 174 Ill. App. 3d 930, 933 (1988). Also, because defendant
argues that the trial court exceeded its authority under the
restitution statute by awarding restitution to a person who is not
considered a victim under the statute, the order may be considered
void and attacked at any time. In re D.R., 219 Ill. App. 3d 13, 16
(1991).
With respect to the merits of the restitution issue, the State
first contends that under section 12 of the Act (510 ILCS 70/12
(West 1994)) defendant was personally liable for the costs of the
care the Department provided for his dog. Section 12 of the Act
sets out procedures for notifying a violator of the Act that an
animal has been impounded and for a hearing when the violator
appeals the impoundment. Section 12 then provides, in relevant
part, as follows:
"Any expense incurred in such impoundment becomes a lien
on the animal impounded and must be discharged before the
animal is released from the facility. When the animal is not
claimed by its owner and all impoundment costs satisfied
within 7 days, it may be sold at public or private sale for
fair consideration to a person capable of providing care
consistent with this Act, with the proceeds of that sale
applied first to discharge the lien and any balance to be paid
over to the owner. If no purchaser is found, the animal may
be offered for adoption or disposed of in a manner not
inconsistent with this or any other Act." 510 ILCS
70/12(b)(6) (West 1994).
The State contends that this language in section 12 made
defendant personally liable for the costs of the care which his
wrongdoing precipitated. In the State's view, a lien arose under
section 12 when the Department impounded defendant's dog. The
State asserts that the cost of the impoundment and other necessary
expenses related to the impoundment were therefore a debt which the
trial court had the power to collect by ordering defendant to pay
restitution.
We disagree with the State's construction of section 12. The
State contends that section 12 shows a legislative intent to make
a violator of the Act personally liable for the costs of the care
which his wrongdoing precipitated because section 12 allows a lien
on an animal which is impounded. We initially note that there were
no formal impoundment proceedings here as contemplated in section
12. Even assuming there had been, the State does not explain how
the existence of a civil debt to the county would, in itself,
automatically empower a court to order summarily the debtor to make
payment of the debt as restitution in a criminal prosecution.
Moreover, section 12, by itself, does not provide authority for a
court to order restitution from the violator to pay the costs of
the care. Rather, the plain language of section 12 sets out only
one source for the payment of the costs of impoundment, i.e., the
proceeds, if any, from the sale of the animal. 510 ILCS
For these reasons, we reject the State's argument that section
12 provided authority for the trial court to order defendant to pay
restitution for the costs related to the impoundment of his dog.
We turn now to the State's contention that section 5--5--6 of
the Code authorized the trial court to order defendant to pay
restitution for these costs. Section 5--5--6 of the Code provides,
in relevant part, as follows:
"In fixing the amount of restitution to be paid in cash,
*** the court shall assess the actual out-of-pocket expenses,
losses, damages, and injuries suffered by the victim named in
the charge and any other victims who may also have suffered
out-of-pocket expenses, losses, damages, and injuries
proximately caused by the same criminal conduct of the
defendant ***." 730 ILCS 5/5--5--6(b) (West 1994).
Defendant correctly notes that the Code provides a definition
of the term "victim." 730 ILCS 5/3--1--2(n) (West 1994) (cross
referencing 725 ILCS 120/3(a) (West 1994)). The designated
definition specifies five types of "persons" who may be considered
a victim. These are (1) a person physically injured as a result of
a violent crime; (2) a person who suffers injury to or loss of
property as a result of a violent crime; (3) a close relative of a
person against whom a violent crime is perpetrated; (4) any person
against whom a violent crime has been committed; and (5) any person
who has suffered personal injury as a result of a violation of
certain statutory provisions. 725 ILCS 120/3(a) (West 1994).
Defendant argues that the Code's definition of victim does not
include the Department. In support of this position, defendant
cites People v. McGrath, 182 Ill. App. 3d 389 (1989), and cases
cited therein which hold that law enforcement agencies are not
entitled to restitution for costs related to investigating and
prosecuting crimes because these agencies are funded to provide
such services. Defendant reasons that the Department should not be
construed as a victim because the Department was simply providing
services to board and house the dog, which are within the
Department's normal course of operations.
Defendant acknowledges that the dog could be considered a
"victim" under section 5--5--6 if it were a person. However,
defendant argues that an animal is not a "person" to whom, or on
whose behalf, restitution can be paid because an animal is
considered property under the statute.
The State counters that defendant is incorrect in his position
that the definition of victim under section 5--5--6 is limited to
the definition designated in the Act. The State cites People v.
Lowe, 153 Ill. 2d 195 (1992), where our supreme court stated that
"within the context of section 5--5--6, the term 'victim' has a
broader meaning than that given it in the [Code]". Lowe, 153 Ill.
2d at 201. The Lowe court then held that the meaning of "victim"
in section 5--5--6 is not restricted to those who are injured by
violent crimes, but also includes victims of nonviolent crimes.
Lowe, 153 Ill. 2d at 207. The State also points to section 3--1--1
of the Code, which provides that "[f]or the purposes of this
Chapter, the words and phrases described in this Article have the
meanings designated in this Article, except when a particular
context clearly requires a different meaning." 730 ILCS 5/3--1--1
(West 1994).
Urging a broader and/or contextually required definition of
"victim," the State argues that either the dog or the Department
can be properly characterized as a victim under section 5--5--6.
The State reasons that animals are owed a duty of care
substantially like that owed to humans and that the Department was
obliged to render services to the dog substantially like those that
would be required by a human in the same circumstances.
We cannot agree with the State's position. The definition of
"victim" provided in the Code plainly specifies that a victim must
be a "person." 725 ILCS 120/3(a) (West 1994). The State has not
cited any case where an animal was considered a victim in the
context of a restitution statute.
In view of the plain language in the statutory definition
specifying that a victim must be a person, and in view of the lack
of authority for broadening the definition to include an animal in
the definition of "person," we conclude that the definition of
"victim" in section 5--5--6 does not include an animal. Thus, the
dog in this case was not a victim under section 5--5--6.
Nor can we conclude that the Department was a victim under
section 5--5--6. We are aware that the appellate court has held
that a trial court may, in certain circumstances, order restitution
to an agency which has provided services to a victim. See, e.g.,
People v. Strebin, 209 Ill. App. 3d 1078 (1991) (restitution proper
to agency which provided counseling services to victim). However,
we are not aware of any Illinois case ordering restitution to an
agency where there has not been an underlying victim or where the
"victim" was an animal.
Section 5--5--6 allows a trial court to order restitution to
a victim, or, in certain circumstances, an agency that has provided
services to a victim. But, under section 5--5--6, it is essential
that there be a victim.
In this case, no victim that meets the statutory definition of
that term, or any previously broadened definition of that term, has
been identified. Consequently, to the extent that it relied on
section 5--5--6, the trial court erred when it ordered defendant to
pay restitution.
Because the State has not cited any authority that supports
the restitution order, the order must be vacated. Consequently, we
need not address defendant's contention that the amount of the
restitution ordered was excessive. Parenthetically, we note that
in similar future cases the State will not be without the option of
seeking the imposition of an appropriate fine as a financial
penalty against convicted offenders.
Defendant next contends that the trial court abused its
discretion by imposing an excessive sentence. The trial court
imposed a sentence that included 10 days of incarceration (stayed
pending a subsequent determination of compliance); 2 years of
probation; 200 hours of community service; and restitution of
$3,571.83. In addition, the sentencing order required defendant,
inter alia, to undergo a mental health evaluation; obtain a GED;
have no contact with animals; refrain from consuming alcohol or
drugs while on probation; and submit to random urine and breath
analysis. The trial court also ordered that the dog be placed for
adoption.
Defendant contends that this punishment was disproportionate
to the severity and nature of the offense of cruelty to an animal.
In support of his contention, defendant compares the sentence
imposed on him with the sentence imposed on a defendant in a
totally unrelated case involving the offense of cruelty to an
animal.
Defendant cites no authority in support of his proposition
that the propriety of a sentence may be determined by comparing the
sentence with a sentence or sentences imposed in unrelated cases.
Supreme Court Rule 341(e)(7) (155 Ill. 2d R. 341(e)(7)) requires an
appellant to cite authority in support of his legal arguments on
appeal. Because defendant has not cited any authority in support
of his argument, the argument is waived and we need not address it.
Chicago Title & Trust Co. v. Weiss, 238 Ill. App. 3d 921, 927
(1992).
Even if defendant had not waived this issue, defendant's
arguments are unavailing. This court recognizes the principle that
fundamental fairness and respect for the law require that
defendants similarly situated not receive grossly disparate
sentences. People v. Brown, 103 Ill. App. 3d 306, 309 (1982).
However, that principle applies to the unfairness of imposing
grossly disparate sentences on codefendants for the commission of
the same offense. Brown, 103 Ill. App. 3d at 309. The principle
does not apply to the commission of similar or identical offenses
in separate cases involving the same defendant (Brown, 103 Ill.
App. 3d at 309) or defendants who are not codefendants (People v.
Terneus, 239 Ill. App. 3d 669, 674-78 (1992)). Consequently,
defendant's argument that his sentence is excessive because it was
disproportionately harsh when compared to the sentence imposed in
an unrelated case is without merit.
Finally, we address the question of whether, without referring
to other cases, defendant's sentence was excessive. Because a
trial court is in a superior position to assess the credibility of
the witnesses and to weigh the evidence presented at the sentencing
hearing, a trial court has broad discretionary powers in choosing
the appropriate sentence a defendant should receive. People v.
Jones, 168 Ill. 2d 367, 373 (1995). Therefore, when a reviewing
court examines the propriety of a sentence imposed by a trial
court, the reviewing court should proceed with great care and
caution. People v. Streit, 142 Ill. 2d 13, 19 (1991). A reviewing
court may not alter a sentence imposed by a trial court without a
showing that the punishment imposed constituted an abuse of
discretion. People v. Illgen, 145 Ill. 2d 353, 379 (1991).
After a careful review of the record in this case, we conclude
that the trial court did not impose an excessive sentence on
defendant. A first offense for cruelty to an animal is a Class C
misdemeanor. 510 ILCS 70/16(c)(6) (West 1994). The offense is
therefore punishable by a sentence of incarceration of not more
than 30 days. 730 ILCS 5/5--8--3(a)(3) (West 1994). Thus, the 10-
day sentence of incarceration imposed on defendant in this case is
substantially less than the maximum sentence which the trial court
could have imposed. Moreover, we note that, under the terms of the
sentence, defendant could avoid incarceration entirely by complying
with the other terms of the sentence.
As determined above, the restitution part of the sentence was
improper and must be vacated. As to the probation and community
service parts of the sentence, the record shows that the trial
court imposed these terms and conditions after carefully
considering the appropriate factors in aggravation and mitigation
presented at the sentencing hearing. After reviewing the record,
we cannot say that the trial court abused its discretion in
imposing these terms and conditions.
Based on the foregoing, the judgment of the trial court of
Lake County is affirmed. The sentence is affirmed except for the
order requiring restitution which is vacated.
Affirmed in part and vacated in part.
McLAREN and HUTCHINSON, JJ., concur.