Ross v. Mauro Chevrolet

FOURTH DIVISION

December 28, 2006

No. 1-06-0156

CHARISSE ROSS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellant, ) Cook County.

)

v. )

)

MAURO CHEVROLET, an Illinois )

Corporation, THE CITY OF CHICAGO, an )

Illinois Municipality, CHRISTOPHER K. )

KAPORIS AND BENNY A. PAMBUKU, )

Individually and as agent for the City )

of Chicago, ) Honorable

) Kathy M. Flanagan

Defendants-Appellees. ) Judge Presiding.

PRESIDING JUSTICE QUINN delivered the opinion of the court:

Plaintiff Charisse Ross has filed an interlocutory appeal

from the dismissal of counts III and IV in her third amended

complaint against defendants Mauro Chevrolet, Inc. (Mauro),

Chicago police officers Christopher Kaporis and Benny Pambuku,

and the City of Chicago (City).1 On appeal, plaintiff contends

1

Two claims alleging negligence and violation of the

Consumer Fraud and Deceptive Business Practices Act (815 ILCS

505/1 et seq. (West 2004)) against Mauro remain pending in the

circuit court. In addition, plaintiff does not challenge the

dismissal of count V based on section 1983 of the Civil Rights

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that the circuit court erred in dismissing her claims of false

arrest, false imprisonment, and malicious prosecution against the

officers and the City.

BACKGROUND

The facts of this case are largely undisputed. On October

13, 2003, plaintiff purchased a new 2004 Chevrolet Cavalier from

Mauro in Skokie, Illinois. Following the sale, Mauro allegedly

placed a temporary registration permit, which had an expiration

date of January 31, 2004, in the license plate holder of the

vehicle. Mauro told plaintiff that the permit demonstrated that

the vehicle was properly registered with the State of Illinois

and that she legally owned the vehicle.

About 11:30 p.m. on January 29, 2004, Officers Kaporis and

Pambuku saw plaintiff driving her Chevrolet Cavalier near the

intersection of Belmont Street and Haggarty Street in Chicago.

Upon observing the temporary registration permit affixed to

plaintiff's vehicle, the officers determined that it came back as

belonging to a different vehicle. As such, plaintiff's display

of the unauthorized temporary registration permit constituted a

violation of section 4-104(a)(4) of the Illinois Vehicle Code

(Vehicle Code) (625 ILCS 5/4-104(a)(4) (West 2004)), which

provides in pertinent part:

"It is a violation of this Chapter for:

***

Act (42 U.S.C. §1983 (2000)) against the officers and the City.

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(4) A person to display or affix to a vehicle any

certificate of title, manufacturers statement

of origin, salvage certificate, junking

certificate, display certificate, temporary

registration permit, registration card,

license plate or registration sticker not

authorized by law for use on such vehicle[.]"

[Emphasis added.] 625 ILCS 5/4-104(a)(4)

(West 2004).

Due to the observed traffic offense, Officers Kaporis and

Pambuku pulled plaintiff over. During the ensuing traffic stop,

plaintiff presented the officers with a valid driver's license

and proof of insurance for the vehicle. In addition, she showed

them a bill of sale from Mauro, which identified the 2004

Chevrolet Cavalier as a vehicle sold to plaintiff, the vehicle

identification number, and other cost of transaction items which

included an itemized amount paid by her to Mauro for license

plates and title costs. Despite plaintiff's production of these

documents, the officers decided to arrest her for the observed

traffic violation. Thereafter, Officer Pambuku filed a charge

against plaintiff for the misdemeanor violation. As a result of

the arrest, plaintiff's vehicle was impounded, and she was

incarcerated overnight before being released the next day on her

own recognizance.

On March 30, 2004, the circuit court of Cook County

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dismissed the criminal case against plaintiff. Thereafter,

plaintiff filed a five-count complaint on November 3, 2004, in

which she alleged (1) negligence against Mauro, (2) violation of

the Consumer Fraud and Deceptive Business Practices Act against

Mauro, (3) false imprisonment against the officers and the City,

(4) false imprisonment against solely the City, and (5) a

violation of section 1983 (42 U.S.C. §1983 (2000)) against the

officers, individually, and the City.

On February 7, 2005, plaintiff filed a first amended

complaint to add Sharp Chevrolet, LLC, a successor in interest to

Mauro, as a defendant. Subsequently, she filed a second amended

complaint on March 10, 2005, to remove claims of bodily injury.

On March 24, 2005, the officers and the City filed a joint

motion to dismiss counts III, IV, and V of plaintiff's second

amended complaint pursuant to sections 2-615 (735 ILCS 5/2-615

(West 2004)) and 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2004))

of the Illinois Code of Civil Procedure (Code). Therein,

defendants argued that plaintiff's failure to sufficiently plead

that the officers acted with willful and wanton conduct entitled

them to dismissal pursuant to section 2-615 of the Code. In

addition, defendants argued that dismissal was appropriate under

section 2-619 of the Code because Officers Kaporis and Pambuku

had probable cause to arrest plaintiff, which provided them

immunity under the Local Governmental and Governmental Employees

Tort Immunity Act (Immunity Act). Defendants also contended that

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the officers' establishment of probable cause provided them with

qualified immunity against the section 1983 claims.

On July 1, 2005, the circuit court granted defendants'

motion to dismiss counts III, IV, and V of plaintiff's second

amended complaint pursuant to section 2-615 of the Code. The

court, however, allowed plaintiff 21 days to refile her

complaint.

On July 22, 2005, plaintiff filed her third amended

complaint. Therein, she claimed in count III that the officers

willfully and wantonly arrested and imprisoned her without

probable cause, and that the City was responsible on the basis of

respondeat superior pursuant to section 9-102 of the Immunity Act

(745 ILCS 10/9-102 (West 2004)). In count IV, plaintiff stated a

claim of malicious prosecution against Officer Pambuku and the

City where she alleged that Officer Pambuku initiated prosecution

against her despite the officers' lack of probable cause.

Finally, in count V, plaintiff stated a section 1983 claim

against the officers, individually, and the City.

On August 12, 2005, the officers and the City filed another

joint motion to dismiss counts III, IV, and V pursuant to section

2-615 of the Code. On August 17, 2005, the circuit court granted

the motion as to count V and denied it as to counts III and IV.

Subsequently, on September 13, 2005, the officers and the

City filed a motion to dismiss counts III and IV pursuant to

section 2-619(a)(9) of the Code. Officers Kaporis and Pambuku

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argued that section 2-202 of the Immunity Act (745 ILCS 10/2-202

(West 2004)) protected them from liability because their conduct

was not willful and wanton where they possessed probable cause to

arrest plaintiff. The officers further argued that sections 2-

201 (745 ILCS 10/2-201 (West 2004)), 2-204 (745 ILCS 10/2-204

(West 2004)), and 2-208 (745 ILCS 10/2-208 (West 2004)) of the

Immunity Act also protected them. Based on the officers' alleged

immunity, the City argued that it was not liable to plaintiff.

Following the parties' exchange of responses in which they

set forth many of the arguments they advance in this court, the

circuit court granted defendants' motion to dismiss on December

16, 2005. The court determined that plaintiff had admitted to a

violation of section 4-104(a)(4) of the Illinois Vehicle Code

(625 ILCS 5/4-104(a)(4)(West 2004)), and that she had merely

argued that she lacked intent to violate the statute. The

circuit court thus found that the officers had probable cause to

arrest and prosecute plaintiff. In making its ruling, the

circuit court concluded that the officers had no duty to search

the Secretary of State's records to determine ownership of the

vehicle prior to arresting plaintiff. Based on those

conclusions, the court held that the officers were immune from

liability under sections 2-202 and 2-208 (745 ILCS 10/2-202, 208

(West 2004)) of the Immunity Act. Consequently, the court

concluded that the City was also not liable to plaintiffs under

section 2-109 of the Immunity Act (745 ILCS 10/2-109 (West

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2004)).2 Plaintiff now appeals the dismissal of counts III and

IV.

ANALYSIS

This appeal arises from the circuit court's ruling granting

defendants' section 2-619(a)(9) motion to dismiss counts III and

IV of plaintiff's third amended complaint. A motion to dismiss

pursuant to section 2-619(a)(9) raises an " 'affirmative matter

avoiding the legal effect of or defeating the claim.' " Krueger

v. Lewis, 359 Ill. App. 3d 515, 520 (2005), quoting 735 ILCS 5/2-

619(a)(9)(West 2004). A section 2-619 motion admits the legal

sufficiency of the complaint but raises other defects or defenses

that defeat the claims therein. Lewis, 359 Ill. App. 3d at 520.

We review a circuit court's ruling on a section 2-619 motion de

novo. Lewis, 359 Ill. App. 3d at 521.

We first address plaintiff's claims in count III of her

third amended complaint, which allege false arrest and false

imprisonment. To establish either a claim of false arrest or

false imprisonment, a plaintiff must show that she " 'was

restrained or arrested by the defendant[s], and that the

2

In dismissing plaintiff's claim against the City, the

circuit court cites section 9-102 of the Immunity Act (745 ILCS

10/9-102) (West 2004)) under which the City would have been

liable. However, it is section 2-109 of the Immunity Act (745

ILCS 10/9-102 (West 2004)) that provides the City is not liable

where its employees are not liable.

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defendant[s] acted without having reasonable grounds to believe

that an offense was committed by the plaintiff.' " Reynolds v.

Menard, Inc., 365 Ill. App. 3d 812, 819 (2006), quoting Meerbrey

v. Marshall Field & Co., 139 Ill. 2d 455, 474 (1990).

Essentially, a plaintiff has to show that she was unreasonably

restrained without probable cause. Reynolds, 365 Ill. App. 3d at

819.

Here, the record shows that Officers Kaporis and Pambuku saw

plaintiff driving her vehicle in violation of section 4-104(a)(4)

(625 ILCS 5/4-104(a)(4)(West 2004)), a Class A misdemeanor (625

ILCS 5/4-104(b)(3) (West 2004)). In response, the officers

conducted a valid traffic stop (Whren v. United States, 517 U.S.

806, 810, 135 L. Ed. 2d 89, 95-96, 116 S. Ct. 1769, 1772 (1996);

People v. Shepherd, 242 Ill. App. 3d 24, 29 (1993)), which

plaintiff concedes was supported by probable cause given the

officers' observation.

During the ensuing traffic stop, plaintiff did not contest

the invalidity of temporary registration permit affixed to her

vehicle. Further, the record contains no mention of plaintiff

alleging during the stop that Mauro was responsible for affixing

the permit to her vehicle. Rather, plaintiff simply presented

documentation that showed that she had purchased the vehicle from

Mauro. Given those circumstances, we conclude that Officers

Kaporis and Pambuku could have reasonably believed that plaintiff

had violated section 4-104(a)(4) of the Vehicle Code, and thus

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they had sufficient probable cause to arrest plaintiff pursuant

to their statutory authority (725 ILCS 5/107-2(1)(c) (West

2004)). See People v. Cox, 202 Ill. 2d 462, 477 (2002) (Thomas,

J., dissenting) (police had statutory right to arrest the

defendant where his vehicle did not have a rear registration

light (625 ILCS 5/12-201(c) (West 2004)); People v. Mendez, 322

Ill. App. 3d 103, 109-110 (2001) (police had statutory right to

arrest defendant who was driving without his license (625 ILCS

5/6-112 (West 2004)). Although our supreme court has analogized

a traffic stop to an investigatory stop under Terry v. Ohio, 392

U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and has

encouraged officers to provide a warning or citation in lieu of

arresting an offender (People v. Cox, 202 Ill. 2d 462, 468

(2002)), the United States Supreme Court has held that the fourth

amendment does not prohibit the warrantless arrest for a minor

traffic offense even if punishable only by a fine (Atwater v.

City of Lago Vista, 532 U.S. 318, 354, 149 L. Ed. 2d 549, 577,

121 S. Ct. 1536, 1557 (2001); 725 ILCS 5/107-2(1)(c)(West 2004)).

In concluding that the officers conducted a valid arrest, we

reject plaintiff's contention that Officers Kaporis and Pambuku

erroneously converted their justification for stopping her for a

traffic violation into an arrest without probable cause. The

gist of plaintiff's argument on appeal is that Officers Kaporis

and Pambuku failed to establish that she knowingly committed the

charged offense and thus did not have probable cause to arrest

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her. Although in her reply brief plaintiff objects to the

characterization of her argument as requiring the establishment

of mens rea for a finding of probable cause, we find the

substance of her arguments to suggest otherwise.

As defendants assert, plaintiff devotes a significant

portion of her opening brief to her argument that section 4-

104(a)(4) of the Vehicle Code (625 ILCS 5/4-104(a)(4) (West

2004)) does not constitute an absolute liability statute and,

thus, the officers had to determine whether she knowingly

violated it in order to establish probable cause to arrest her.

For support, plaintiff relies on People v. Gean, 143 Ill. 2d 218

(1991), People v. Tolliver, 147 Ill. 2d 397 (1992), and People v.

Wright, 194 Ill. 2d 1 (2000).

In Gean, our supreme court held that sections 4-104(a)(1)

(625 ILCS 5/4-104(a)(1)(West 2004)) and 4-104(a)(2)(625 ILCS 5/4-

104(a)(2)(West 2004)) of the Vehicle Code are not absolute

liability offenses but, rather, require the State to establish a

defendant's intent to commit those offenses by showing her

knowledge that her conduct was unlawful. The supreme court

subsequently modified the intent requirement for a violation of

section 4-104(a)(2) in Tolliver and Wright to require knowledge

plus criminal intent. Plaintiff, however, fails to recognize

that the holdings in Gean, Tolliver, and Wright concerned the

State's burden of proving the defendants' mens rea in order to

sustain their convictions in criminal proceedings. Since the

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case at bar concerns the establishment of probable cause to

effectuate an arrest and not the determination of guilt in a

criminal proceeding, we find Gean, Tolliver, and Wright do not

provide persuasive authority in support of plaintiff's argument.

Plaintiff further argues that probable cause did not exist

for her arrest because documents showed that she bought the

Chevrolet Cavalier from Mauro, which was statutorily responsible

for affixing a temporary registration permit to her vehicle (625

ILCS 5/5-401.2(a-1) (West 2004)). As such, plaintiff asserts

that had the officers examined those documents and confirmed her

purchase of the vehicle, they would not have reasonably believed

that she intended to violate section 4-104(a)(4).

"Police are entitled to act on information that may be

inaccurate and let the courts determine whether to credit a

suspect's claim of innocence." Hernandez v. Sheahan, 455 F.3d

772, 775 (7th Cir. 2006), citing Askew v. Chicago, 440 F.3d. 894

(7th Cir. 2006); Gramenos v. Jewel Companies, Inc., 797 F.2d 432

(7th Cir. 1986). "All the police need is probable cause, which

is well short of certainty. Like a grand jury, see United States

v. Williams, 504 U.S. 36, 112 S. Ct. 1735, 118 L. Ed. 2d 352

(1992), police may act on the basis of inculpatory evidence

without trying to tote up and weigh all exculpatory evidence."

Sheahan, 455 F.3d at 775.

Pursuant to this line of cases, we agree with defendants

that Officers Kaporis and Pambuku had no duty to verify the

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validity of the documents concerning plaintiff's purchase of her

vehicle. Nonetheless, even if the officers had verified the

documents' validity, and thus had found plaintiff properly owned

the vehicle, those documents neither excused the placement of an

unauthorized temporary registration permit on her vehicle nor

informed the officers that plaintiff did not know that her

vehicle had an unauthorized temporary registration permit affixed

to it.

Moreover, we distinguish People v. Lee, 214 Ill. 2d 476

(2005), upon which plaintiff relies to contest the existence of

probable cause to arrest her. In Lee, the defendant was

convicted of the unlawful possession of a controlled substance

with intent to deliver after the arresting officers recovered

cocaine from his person following a warrantless arrest based on

the defendant's alleged violation of a Joliet drug-loitering

ordinance. Our supreme court reversed that conviction, however,

where it determined that the officers did not observe the

defendant engage in any drug related activity and, thus, despite

an informant's phone call regarding drug transactions on the

street corner where defendant was arrested, the officers lacked

probable cause to arrest him for violating the drug-loitering

ordinance. Conversely, in the case at bar, Officers Kaporis and

Pambuku saw plaintiff commit the offense for which they arrested

her when they saw her driving a vehicle with an unauthorized

temporary registration permit in violation of section 4-104(a)(4)

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of the Vehicle Code, and thus they had a reasonable belief that

defendant had committed the offense.

Finally, we reject plaintiff's argument that the circuit

court committed plain error by stating in its ruling that she

admitted to violating section 104-4(a)(4) of the Vehicle Code.

Although the circuit court's ruling appears to have

mischaracterized plaintiff's failure to contest the invalidity of

the temporary registration permit affixed to her vehicle as an

admission of guilt, the error is harmless given the record

supporting the officers' probable cause to arrest plaintiff (725

ILCS 5/107-2(1)(c) (West 2004) ("A peace officer may arrest a

person when: *** (c) [h]e has reasonable grounds to believe that

the person is committing or has committed an offense")).

We next address plaintiff's claim of malicious prosecution.

In doing so, we initially note that Illinois does not favor a

suit for malicious prosecution due to the public policy interest

in the exposure of crime. Reynolds, 365 Ill. App. 3d at 819.

That said, to establish a claim of malicious prosecution, a

plaintiff must show (1) the commencement or continuation of an

original criminal or civil proceeding by defendants, (2)

termination of the proceeding in favor of plaintiff, (3) the

absence of probable cause for the proceeding, (4) the presence of

malice on defendants' part, and (5) damages resulting to

plaintiff. Reynolds, 365 Ill. App. 3d at 818-819.

With respect to probable cause as an element of malicious

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prosecution involving criminal proceedings, this court has

defined it as " 'a state of facts that would lead a person of

ordinary caution and prudence to believe, or entertain an honest

and strong suspicion, that the person arrested committed the

offense charged.' " Johnson v. Target Stores, Inc., 341 Ill.

App. 3d 56, 72 (2003), quoting Rodgers v. Peoples Gas, Light &

Coke Co., 315 Ill. App. 3d 340, 348 (2000). "It is the state of

mind of the one commencing the prosecution, and not the actual

facts of the case or the guilt or innocence of the accused, that

is at issue." Johnson, 341 Ill. App. 3d at 72, quoting Rodgers,

315 Ill. App. 3d at 348. Further, "a mistake or error that is

not grossly negligent will not affect the question of probable

cause in an action for malicious prosecution when there is an

honest belief by the complainant that the accused is probably

guilty of the offense." Johnson, 341 Ill. App. 3d at 72. There

is no need to verify the veracity of each item of information

obtained; one need only act with reasonable prudence and caution

in proceeding. Johnson, 341 Ill. App. 3d at 72.

As stated, we have determined that the officers had probable

cause to arrest plaintiff. Further, we find that no intervening

event occurred between the officers' arrest of plaintiff for the

traffic offense and Officer Pambuku's filing of the misdemeanor

charge against plaintiff for the offense that would have

contradicted their probable cause finding. As such, the

officers' probable cause to arrest plaintiff proves fatal to her

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claim of malicious prosecution. Johnson, 341 Ill. App. 2d at 80

(noting that although the probable cause standard for an arrest-

"reasonable grounds"-differs from the probable cause standard in

a criminal proceeding-"honest and strong suspicion"-they are,

"for all purposes, equal").

Given our determinations as to probable cause, we find that

plaintiff cannot sustain her claims against Officers Kaporis and

Pambuku. Section 2-202 of the Immunity Act provides, in

pertinent part, "[a] public employee is not liable for his act or

omission in the execution or enforcement of any law unless such

act constitutes willful and wanton conduct." 745 ILCS 10/2-202

(West 2004). The Immunity Act defines willful and wanton conduct

as "a course of action which shows an actual or deliberate

intention to cause harm or which, if not intentional, shows an

utter indifference to or conscious disregard for the safety of

others or their property." 745 ILCS 10/1-210 (West 2004).

Here, our conclusions that Officers Kaporis and Pambuku had

probable cause to arrest plaintiff and that probable cause

supported Officer Pambuku's filing the misdemeanor charge against

plaintiff clearly negate plaintiff's allegations that the

officers acted in a willful and wanton manner. As such, section

2-202 of the Immunity Act provides the officers with immunity

from any liability resulting from their interaction with

plaintiff following the observed offense.

Consequently, the officers' immunity renders plaintiff's

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claim against the City moot since it is premised on the officers'

liability. LaMonte v. City of Belleville, 41 Ill. App. 3d 697,

705 (1976), citing 745 ILCS 10/2-109 (West 2004).

CONCLUSION

For the above reasons, we affirm the judgement of the

circuit court of Cook County dismissing counts III and IV of

plaintiff's third amended complaint.

Affirmed

CAMPBELL and NEVILLE, JJ., concur.

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