author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SANJAY PAUDEL, Defendant-Appellant.
    Second District
    No. 2—91—0593
    Opinion filed May 6,1993.

      Thomas J. Mullen, of Mullen, Winthers & Galasso, P.C., of Winfield, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Lawrence M. Kaschak, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Sanjay Paudel, was charged in the circuit court of Du Page County with the offense of unlawful possession of a controlled substance (heroin) (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1402(b)). Following the trial court’s denial of his motion to suppress evidence, defendant was found guilty of this offense in a stipulated bench trial and sentenced to a one-year term of probation (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1410) and a $200 fine. Defendant argues in this timely appeal that the trial court erred by relying on the medical emergency corollary to the exigent circumstances exception in denying his motion to suppress evidence.

Prior to trial, defendant filed a motion to suppress evidence, asserting that the police violated his fourth amendment rights by entering his residence and conducting a search of his bedroom without a search or arrest warrant and without his consent. At the hearing on that motion, the court heard the testimony of several witnesses.

Officer Robert Mudra testified that on the morning of September 26, 1990, he received a call to report to the defendant’s residence concerning an unconscious male. He was the first official person to arrive at this location. He knocked at the door and was admitted by a young woman who told him defendant was passed out and pointed to the location of defendant. Mudra found the defendant lying on the floor and waited for fire fighters and paramedics to arrive. Defendant was lying in a hallway halfway between his bedroom and bathroom in an unconscious and unresponsive state. Paramedics and another officer arrived within a minute and began resuscitation efforts. Mudra spoke to a second female in the house and asked her the normal questions for the paramedics concerning defendant’s medical history. These included questions about defendant’s past medical history, whether he was on drugs, and if he was presently taking drugs or prescription medication. This information was to assist the paramedics in their treatment of defendant. Defendant’s brother-in-law and a family friend arrived, and Mudra asked them if defendant used drugs, if he was on any medication or if he had other medical problems. They had no knowledge of these facts.

Mudra further testified that he assisted the paramedics and fire fighters by moving equipment and by trying to keep the family isolated from defendant and the paramedics. After 15 or 20 minutes of efforts by the paramedics, they gave defendant an injection and he regained consciousness. They then placed defendant on a stretcher and took him in an ambulance. Mudra assisted by carrying the equipment to the ambulance. The paramedics still needed further information, and defendant told them that he was taking some sort of medication. Mudra then asked the woman he had first spoken with whether he could look around to see if he could locate the medication, and she granted him permission. He searched the bathroom without finding anything and then searched the bedroom. He was searching for the medication because the paramedics needed to know what dosage defendant took. Mudra also spoke to defendant’s sister, who gave permission to search both the bathroom and defendant’s bedroom for medication. After finding no medication in the bathroom or in plain view in defendant’s bedroom, Mudra began looking through dresser drawers and desk drawers while Officer Lewis Hayes looked in the closet. Within two minutes Mudra opened a dresser drawer and found a controlled substance. At that time defendant was either in the ambulance or on his way to the hospital. After the controlled substance was discovered, a friend of the family stated, “I think you guys should stop looking,” and the officers complied with his request.

On cross-examination Mudra testified that it is standard procedure for an officer to accompany medical personnel for the purpose of obtaining information and controlling persons at the scene of an incident. At the time of the bedroom search the officers were not engaged in any criminal investigation of anyone in the house. Items found by him in the dresser drawer included a white substance, a large spoon, a rolled-up dollar bill and a baggie.

Officer Lewis P. Hayes testified that on the morning of September 26 he received a call to report to the Paudel residence. When he arrived at least two police units and an ambulance were already at the scene. The front door of the house was open, and he entered and approached the area where the firemen were assisting defendant. The firemen informed Hayes that defendant was unconscious and not responsive to resuscitation efforts. Hayes then turned to the two young women who were present and asked them questions concerning defendant’s general health and activities. He asked whether defendant had done any physical exercise that morning, what he was allergic to, any types of medication, if he was taking medication and whether he was diabetic or had any other physical ailments. He also asked if there had been any history of substance abuse. Both women indicated that defendant was not taking any medication that they knew of, was not allergic to anything and had no history of substance abuse. By that time defendant had been “down” for more than an hour, and Hayes wanted to assist the firemen. A fire fighter informed Hayes that a paramedic had administered Narcan to defendant and that defendant was becoming conscious. The fire fighter said that Narcan is a medication used to neutralize the effects of opiates and that there was a good chance that defendant had used some type of opiate. Hayes heard the paramedics ask defendant whether he was taking any medication, and defendant responded that he was taking Prozac. They asked him what the dosage was, and he stated he did not know. Defendant wanted to get up but the paramedics wanted to keep him down so they could administer aid and talk him into going to the hospital for a checkup. Eventually defendant agreed and was removed from the house on a stretcher and taken to the hospital.

According to Hayes, after defendant was placed in the ambulance Hayes and Mudra asked the two young women for permission to look in defendant’s room because it appeared that defendant had left that room on his way to the bathroom when he fell. The officers asked if they could look in the bedroom for the purpose of finding medication which defendant may have taken. It was the officers’ intention to communicate the information to the ambulance crew so that they could relay it to the hospital while traveling to the hospital. The officers were looking for any kind of drug which might have been used to cause defendant’s condition. Hayes also looked in the bathroom for medication, but he found none. Hayes asked both females for permission to search defendant’s room to look for medication. Both said almost in unison that it was okay for the officers to search the room. Hayes testified that he would not have conducted the search without their consent. Hayes testified that he looked in the closet to see if there was anything in the open that was visible. Mudra looked on the desk and opened the drawer of the dresser where he removed a spoon, a rolled-up dollar bill and a white powdery substance. At that time the two previously mentioned young women were in the room along with a man.

After the controlled substance was found, the man indicated that he thought that there should be no further search. The women agreed that the search should stop, and the officers ceased making any further search in the house. Hayes told the man that because there was an indication that the powdery substance had been used by defendant the officers would take it and advise the hospital accordingly.

On cross-examination Hayes testified that the reason why he did not obtain a search warrant was because he was worried about defendant’s health and wanted to get as much information to the ambulance crew or paramedics so that they could take anything that may have been injurious to defendant’s health to the hospital with him. He is trained in CPR and reported to defendant’s residence to give assistance because he had been told that defendant had been unconscious for approximately an hour.

On redirect examination Hayes was asked whether he searched any other locations within the house for medication or drugs. He answered that he looked into another bedroom located off the hallway, but there was no intrusion into any closed or locked spaces or any drawers or cabinets.

Miss Uma Shrestha, a friend of defendant’s family, who resided in defendant’s residence, testified that on September 26, 1990, she discovered defendant lying unconscious in the hallway of the residence. After unsuccessfully attempting to revive defendant, she telephoned another friend of the family, Anju Shrestha, for assistance. Within five minutes Anju Shrestha arrived and called an ambulance at approximately 8:40 a.m. Within 15 to 20 minutes an ambulance arrived and Uma and Anju directed several paramedics to defendant’s location. The paramedics began to give emergency assistance to defendant, and within 5 or 10 minutes a police officer arrived and directed Uma and Anju to go to another room. Following the arrival of a second officer, one of the police officers asked Uma whether defendant used any drugs. She responded that he did not. The officer asked whether defendant had eaten anything that morning, and Uma answered that she did not know. The officer then directed his questions to Anju. Uma further testified that after several minutes another family friend, Ohm Dewan, arrived and spoke with the officers. About 10 minutes after Dewan arrived, the paramedics told the family members that defendant was “just fine.” During this time one of the officers was roaming around near the family room.

The paramedics placed defendant on a stretcher and began taking him to the ambulance. Defendant awoke near the doorway and began asking what had happened. The paramedics responded that they were taking him to the hospital, and defendant stated that he did not wish to go. The paramedics asked defendant if he was taking medication, and he said he was, giving them a name of a medication. One of the officers told defendant that he had to go with the paramedics. An officer then asked Uma, Anju and Mr. Dewan if they would please go with the officer to search defendant’s room. They walked together to defendant’s room accompanied by three officers. One of the officers entered a closet while another officer started to look on the bed and under the mattress. The third officer looked at the desk and dresser, pulling out all the dresser drawers. He also began to search books by shaking them. In one drawer the officer found a drug and a spoon. The officer who was searching the bed also searched in the pillow and under the bed. Uma said that at no time was she asked where the family kept medication, and she did not observe officers entering a bathroom. After the officer found a drug and a spoon in a drawer, they stopped searching and came out of the bedroom.

On cross-examination Uma testified that at the time of the incident she was residing as a guest in defendant’s home. She had her own bedroom, a key to the house and access to the other rooms of the house. After the officer found the drug and spoon in defendant’s bedroom, they stopped searching and asked Mr. Dewan if they could search the rest of the house. He declined to give them permission.

Anju Shrestha testified that on the morning of the incident she was in her apartment when she received a call from Uma. Before leaving her apartment, Anju called an ambulance and then went directly to defendant’s house. When she arrived she found the door open and, upon entering, saw Uma and found defendant lying on the floor by a bathroom. When their efforts to revive defendant were unsuccessful, Anju again called for an ambulance. It was 20 or 25 minutes before the ambulance arrived and two paramedics entered the house. They left the exterior door open slightly. A few minutes later, Officer Hayes and another officer arrived and entered the door without asking permission. After going to see defendant, one of the officers directed Anju and Uma to the living room and began asking them questions. He asked Anju whether she knew if defendant took any drug or medicine or sold any drugs. Anju answered that she had no knowledge of these matters. She asked the officer what kind of drug he was referring to, and the officer responded that he meant cocaine. The officer who asked the questions was Officer Hayes. Officer Hayes denied Anju’s request to see defendant.

Hayes then began questioning Mr. Dewan, and he asked Dewan’s permission to search the house. Dewan did not respond to the request. Anju heard Hayes’ comment to Officer Mudra that “something fishy” was going on and that they should search the house. The officers did not ask her whether defendant was taking prescription drugs. After Sergeant Hayes finished speaking with Dewan, Hayes went to defendant’s room without permission and began to search the room. At that time defendant was still on the floor. One of the officers asked if they could search the entire house and was refused permission. During the search of defendant’s room the officers searched the closet, the bed, books, a garbage container and the dresser drawers. When the officer found a powdery substance in a drawer, he said, “this is the thing we are looking for.” Anju at no time saw the officers go into the bathroom.

Ohm Dewan testified that he is a friend of defendant’s family. On the morning of September 26 he was at home when he received a phone call from defendant’s house from Anju. Anju reported that defendant was not breathing and was having trouble. Dewan said that he went immediately to defendant’s residence arriving at approximately 9:30 a.m. Before leaving his home, he called 911 and requested that an ambulance be sent to the residence.

When Dewan arrived, he saw two police cars and two or three ambulances at defendant’s house. As he entered, Dewan was met by Officers Mudra and Hayes, who questioned him concerning his relationship to the family. Thereafter there was a lot of commotion as the paramedics were attempting to revive defendant. He heard one of the officers say that it looked like defendant had some reaction to the medicine he was taking. Someone mentioned that defendant took Prozac. Defendant was lying on a stretcher in the hallway right outside his bedroom door. When defendant became conscious someone told him that he was being taken to Good Samaritan Hospital, and defendant kept saying that he was doing fine and asked why he had to go.

There was communication between the paramedics and the police concerning defendant’s having taken medicine. Dewan saw defendant as he was being removed from the hallway and observed that he was conscious. He was breathing fine, and his body movements appeared to be normal. Defendant was responding to questions of the paramedics.

As they were standing outside the door of defendant’s room Officer Mudra asked Dewan if he minded if they looked around. Because they didn’t have authority to say yes or no, Dewan and Anju just looked at each other at which time Mudra began searching the room while Hayes observed. Mudra searched the mattress, a garbage can, under pillows, through the books and bookshelf, and began opening dresser drawers. He found a spoon, a rolled-up dollar bill and a white powder in one of the drawers and said, “it looks like we found something.” Officer Hayes then asked if they could search the rest of the house. Dewan declined to give his consent. The officers then stopped the search and took the evidence and defendant with them as they left for the hospital. At no time did the officers ask Dewan where the family kept prescription drugs, and he did not recall their having searched the bathroom.

On cross-examination Dewan admitted that he, Uma and Anju had not told the officers not to search prior to their discovery of the white powder. They assumed that the officers were looking for prescription drugs or something which defendant may have inadvertently taken and, therefore, they did not object.

Officer Robert Mudra was recalled as a witness by the State. He testified that when he arrived at defendant’s residence on the morning of September 26 the first person he spoke to was Uma Shrestha. The second person he spoke with that morning was Phadam Paudel. Both individuals said that they resided within the house.

Anju Shrestha testified in rebuttal that she did not tell the officer on that morning that her name was Phadam Paudel.

Based on the foregoing testimony, the trial court denied defendant’s motion to suppress evidence, stating:

“THE COURT: Based upon the facts presented and the law as it applies, it is the finding of the Court that the police officers, first of all, had a right to enter the petitioner’s residence.
Since there was a call made for an ambulance and fire department paramedics, there was a requirement for assistance of the police to these personnel individuals.
Once the condition of the petitioner was determined to be that he was unconscious, the police officers had a further right to check the living quarters, mainly the washroom and the bedroom, for any evidence of medication or similar products so that medical personnel could properly deal with the situation they had at hand.
The situation presented to the police officers was one of a medical emergency exception to the hearsay and seizure law.
There was an emergency situation that was posed here. The threat to life and safety of the petitioner required a reasonable search under the circumstances, which was done, and validly conducted by the police department.”

The court found it unnecessary to rule on the issue of consent.

On April 27, 1991, in a stipulated bench trial the court admitted the evidence adduced at the suppression hearing together with the evidence derived from the search and found defendant guilty of the offense as charged.

Defendant first argues that the trial court erred in denying his motion to suppress the evidence because the police officers illegally entered his residence without a warrant.

It is undisputed that defendant had a reasonable expectation of privacy within the residence and to his personal possessions in the bedroom. As defendant correctly asserts, the fourth amendment proscribes all unreasonable searches and seizures, and warrantless searches of private residences are considered to be per se unreasonable absent the applicability of a specifically established and well defined exception. (Mincey v. Arizona (1978), 437 U.S. 385, 390, 57 L. Ed. 2d 290, 298-99, 98 S. Ct. 2408, 2412.) The fourth amendment, however, “does not bar police officers from making warrantless entries and searches when they ‘reasonably believe that a person within is in need of immediate aid.’ ” People v. Koniecki (1985), 135 Ill. App. 3d 394, 398, quoting Mincey, 437 U.S. at 392, 57 L. Ed. 2d at 300, 98 S. Ct. at 2413.

We have recognized an exigent circumstances exception to exist when it is reasonably necessary for officers to make a warrantless entry into a home for the purpose of rendering emergency aid. (People v. Speer (1989), 184 Ill. App. 3d 730, 737-38.) Such exception is recognized only where officers reasonably believe an emergency exists which mandates immediate action to aid persons or property within the home. (Speer, 184 Ill. App. 3d at 738.) The reasonableness of the belief that an emergency exists must be evaluated with regard to the totality of the circumstances known to the officers at the time of their entry. (People v. Mitran (1990), 194 Ill. App. 3d 344, 347.) The purpose, to offer assistance to a possibly imperiled person, not to obtain evidence of a crime, justifies such a search. People v. Meddows (1981), 100 Ill. App. 3d 576, 580.

In the present case, defendant argues that although his friends called for an ambulance to assist him, they did not specifically request police assistance and that officers entered the residence without permission after nonpolice medical personnel had already arrived and were attending to defendant.

Officer Mudra, on the other hand, testified that he received a call to report to defendant’s residence concerning “an unconscious male.” He said he was the first person to arrive and he was admitted into the residence by a young woman who directed him to defendant’s location in a hallway. Officer Hayes testified that he responded to the same call and entered through the open front door after Mudra and the paramedics were inside the house rendering assistance to defendant. Both officers described their duties in rendering assistance to the medical personnel who were attempting to revive defendant who, by that time, had reportedly been unconscious for more than an hour.

The trial court found from this testimony that the officers had a right to enter the home based upon the nature of the emergency. It is the function of the trial court to determine the credibility of the witnesses, the weight to be accorded their testimony, and what inferences may legitimately be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 298.) The trial court’s determination on a motion to suppress evidence will not be reversed on appeal unless it is manifestly erroneous. (People v. Redd (1990), 135 Ill. 2d 252, 289.) We conclude that the trial court heard sufficient evidence of exigent circumstances to find that the officers acted reasonably in entering defendant’s residence.

Defendant next argues that even if the officers were justified in entering the residence based upon the report of his condition, they had no basis or authority for conducting a search of his bedroom. Any analysis of this contention must necessarily focus upon the fundamental requirements for application of the emergency exception which this court has previously recognized:

“(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 and seize evidence.
(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.” People v. Krueger (1991), 208 Ill. App. 3d 897, 908.

Defendant argues that once he regained consciousness and began to communicate with the paramedics there was no longer any emergency requiring the involvement of police personnel. He further points out that the search of his bedroom was conducted after the paramedics had taken control of any emergency and after defendant had been removed from the residence.

As the trial judge observed, however, the mere fact that a person has regained consciousness does not in itself establish that all danger has been alleviated or that the person’s life or safety is not still threatened by the cause of the unconsciousness. It is common knowledge that a drug overdose is sometimes a cause of death and that a person who is apparently suffering from an overdose must be regarded as being dangerously ill and in need of immediate assistance. Time is ordinarily of the essence, and police, fire and medical personnel responding to apparent overdose emergencies are naturally expected to act swiftly and efficiently. Officer Mudra testified that it is customary procedure for officers to accompany medical personnel to assist in obtaining information necessary for treatment of the endangered person. Officer Hayes testified that it is almost a standard practice for officers to search the area for medication when responding to calls in which the victim is under medication. In this case, the paramedics required information concerning the nature and amount of any substance ingested by defendant. This information was to be relayed to the hospital to aid in defendant’s diagnosis and treatment. It is not unreasonable to expect that those responding to the emergency would employ all available resources, including the involvement of participating police investigators, to expedite the pursuit of this vital information. The need for this information was not diminished by the removal of defendant from the house. In our view the trial court did not err in finding that the emergency was ongoing at the time the officers searched the bedroom for the purpose of obtaining information which would facilitate defendant’s treatment for an overdose.

The trial court was further required, however, to examine the motives of the officers who conducted the search. As defendant contends, if their primary motivation was to find and seize evidence of a crime, their actions cannot be justified on medical emergency grounds. See Krueger, 208 Ill. App. 3d at 908-09.

The officers here were informed by a paramedic that defendant was responding favorably to an injection of Narcan, a medication used to neutralize the effects of opiates. According to Sergeant Hayes, the paramedic expressed an opinion that defendant had probably used an opiate. Further, defendant reportedly told the paramedics that he had taken the drug Prozac but did not know the dosage. We conclude that the trial court was provided with an evidentiary basis to determine that the officers’ primary objective was to aid in the treatment of an overdose by identifying the substance ingested by defendant. Even if the trial court gave credence to the testimony of defense witness Anju Shrestha alleging that she overheard one officer say to the other, “There’s something fishy going on here, you know, something must be going on. We should search the house, you know,” this statement does not necessarily establish that the officers’ primary motive was to gather evidence for a potential criminal prosecution.

We must next consider the related question of whether the trial court was correct in its determination that it was reasonable to search the particular area of the residence, i.e., defendant’s bedroom. As noted above, the emergency exception to the warrant requirement applies only when there is some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. (Krueger, 208 Ill. App. 3d at 908.) The conduct of the officers conducting the search under the emergency exception must always be consistent with the purported reason for the warrantless entry. People v. Abney (1980), 81 Ill. 2d 159, 173-74.

Defendant contends that if, as the State claims, the true objective of the officers was to obtain information relating to medication ingested by defendant, it is logical to conclude that their search would have been confined to the bathroom, where one might ordinarily expect medications to be kept. Yet, according to defense witnesses, the officers were not observed to have searched the bathroom, and they made no inquiry as to where prescription medication was kept by the family. Defendant argues that the nature of this police conduct further supports the defense assertion that the officers were primarily concerned with seizing contraband for evidentiary purposes.

Both officers, however, testified that they looked for medication in the bathroom but found none. Further, the officers said that they asked both young women for permission to search defendant’s room for medication and that both women agreed to the search. Aside from any issue of a valid consent to search, the trial court might reasonably have interpreted this testimony as demonstrating that the women were consulted concerning the officers’ objective in locating substances and could have disclosed any relevant information known to them. The credibility and legitimate interpretation of this testimony was the function of the trial court. (Akis, 63 Ill. 2d at 298.) Moreover, it appears that defendant’s argument that a search for “medication” should have been restricted to the bathroom is founded upon a faulty premise, i.e., that the officers were necessarily confined to a search for prescription medication and were accordingly prohibited from looking for controlled substances. In our view, the officers were not required to interpret defendant’s statement to the paramedics as establishing that the only substance he had ingested was Prozac, particularly in view of their knowledge that defendant, moments earlier, had been revived by an injection of Narcan, and the paramedic’s opinion that defendant had probably taken an opiate. The fact that officers may have been searching for any dangerous substance, including controlled substances, does not in itself evidence a primary motive to seize evidence for use in a criminal prosecution.

Defendant was discovered lying unconscious in a hallway approximately midway between his bedroom and the bathroom. Considering the proximity of defendant’s room to the location where he was found unconscious in the hallway, the trial court might have reasonably found a probable connection between the nature of the emergency and the place searched. Under the circumstances of this incident, it would not have been unreasonable for the officers to believe that a dangerous substance might have been located in defendant’s room.

Defendant further argues that even assuming a right of the officers to look for substances in his room, they exceeded the permissible scope of that search by opening a closed dresser drawer to discover the contraband. Defendant relies upon our statements in People v. Speer (184 Ill. App. 3d 730) for the proposition that the medical emergency exception authorizes an inspection of only those areas in plain view of the officers after their entry into that part of the residence relating to the emergency. Defendant’s reliance on Speer is misplaced. In that case officers entered an apartment in search of a woman believed to be the victim of a drug overdose. While looking for the woman, they saw drugs and drug paraphernalia in plain view. We were not required in that case to address the issue of whether officers during an emergency entry may ever search hidden places closed to their view. We will now do so.

Certainly the authority to enter a private residence for the purpose of rendering emergency assistance to an endangered person must not be perceived as an invitation to officers to conduct an exploratory search unrelated to the purpose of their entry. (See Abney, 81 Ill. 2d at 173-74.) A warrantless search must be “strictly circumscribed by the exigencies which justify its initiation.” Terry v. Ohio (1968), 392 U.S. 1, 26, 20 L. Ed. 2d 889, 908, 88 S. Ct. 1868, 1882; People v. Abney (1980), 81 Ill. 2d 159, 173-74.

Considering the range of variable circumstances which may potentially confront emergency personnel in the course of their duties, it seems unwise to forge in the abstract any absolute and inflexible rules governing the permissible scope of their inspection within a premise. “As to what may be done by the police or other public authorities once they are inside the premises, this must be assessed upon a case-by-case basis, taking into account the type of emergency which appeared to be present.” 2 W. LaFave, Search & Seizure §6.6(a), at 705 (2d ed. 1987).

In People v. Smith (1969), 44 Ill. 2d 82, our supreme court considered the admissibility of evidence taken without consent from the wallet of a gunshot victim. An officer at the shooting scene removed the wallet from the person of the semiconscious victim and later examined it at the station house, finding a note implicating the man in a murder. After finding that the defendant had waived the issue, the court commented that although there had been no arrest of the man to support a search incident to arrest, the taking and examination of the wallet was justified, in view of the emergency, as “an appropriate police measure.” (Smith, 44 Ill. 2d at 87.) The court reasoned that the wallet might have contained information of value in the wounded man’s treatment, such as information as to the man’s identity, his blood type, diabetic condition, allergies to medications, etc. Smith, 44 Ill. 2d at 87-88.

It would seem that the rationale for authorizing a search of places closed to the view of emergency personnel must be the same as that which justified their initial entry into the residence, that being the reasonable necessity of making the intrusion in light of the exigencies of the particular emergency. It would make little sense to suggest that officers could make a warrantless emergency entry into a dwelling to aid a heart attack victim but would be defeated in their efforts for lack of authority to open a medicine cabinet to locate the person’s heart medication. The interior of a closed medicine cabinet is no more within the officers’ plain view than were the contents of the gunshot victim’s wallet in Smith, yet such factors as the nature of the life-threatening occurrence, the good-faith objective of the officer, the urgency of the situation, and the peculiar necessity of the search may combine to render an otherwise impermissible intrusion reasonable under the particular circumstances.

In the present case, the trial court found credible the officers’ explanation that they were striving to assist in defendant’s emergency treatment by inspecting probable locations in the immediate area of defendant’s location for medications and drugs. We cannot conclude that the trial court was incorrect in its implicit assessment that a dresser drawer in defendant’s nearby bedroom would be a reasonably likely location for such substances. We conclude that the denial of defendant’s motion to suppress evidence was not manifestly erroneous.

Because we affirm the trial court’s ruling sustaining the search on the basis of exigent circumstances, it is unnecessary to consider the question of whether the search was conducted pursuant to a valid consent.

Based on the foregoing, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
    BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4 — 92—0077
    Opinion filed April 29, 1993.

      R. Theodore Clark, Jr. (argued), and Anthony B. Byergo, both of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jennifer A. Keller, Assistant Attorney General (argued), of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Stanley Eisenstein (argued), of Katz, Friedman, Schur & Eagle, of Chicago, for other respondent.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Joan Flynn, Assistant Corporation Counsel, of counsel), for amicus curiae City of Chicago.
    Melissa J. Auerbach, of Cornfield & Feldman, of Chicago, for amici curiae Illinois Federation of Teachers and AFSCME.
    Gregory J. Malovance and Lois H. Johnson, both of Winston & Strawn, of Chicago, and Mitch Roth and Sandra J. Holman, both of Illinois Education Association-NEA, of Springfield, for amicus curiae Illinois Education Association-NEA.
   JUSTICE COOK

delivered the opinion of the court:

Petitioner Board of Trustees of the University of Illinois (University) seeks direct administrative review of the opinion and order of the Illinois Educational Labor Relations Board (Board) finding it committed an unfair labor practice in violation of section 14(aX5) and, derivatively, section 14(a)(1) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1991, ch. 48, pars. 1714(a)(5), (a)(1)). (University of Illinois (Chicago), 8 Pub. Employee Rep. (Ill.) par. 1014, No. 91—CA—0008—C (Illinois Educational Labor Relations Board Dec. 26, 1991) (hereinafter 8 Pub. Employee Rep. (Ill.) par. 1014).) We affirm.

The facts are not in dispute. On August 20, 1990, respondent General Service Employees Union, Local 73, SEIU, AFL-CIO (Union), filed an unfair labor practice charge with the agency (IELRB), alleging that since January 21, 1990, the University had bargained in bad faith by bargaining to an impasse on a nonmandatory subject of bargaining: the University’s insistence that a provision for binding arbitration of grievances be excluded from the collective-bargaining agreement. (It could be said that the Union also refused to bargain, as both sides refused to give in. The Union, however, asserted that it had a right to refuse to bargain on this issue while the University did not.) The Union alleged binding arbitration of grievances is required by section 10(c) of the Act (Ill. Rev. Stat. 1991, ch. 48, par. 1710(c)). The Executive Director of the IELRB subsequently issued a complaint which alleged that since June 21, 1990, and continuing to date, the University had insisted to impasse to exclude certain subjects of collective bargaining from the grievance and arbitration procedure, i.e., discharge, demotion, position classification and discrimination, in violation of section 10(c) of the Act. The complaint alleged the University, due to this conduct, refused to bargain collectively in good faith in violation of section 14(a)(5) and, derivatively, section 14(a)(1) of the Act.

The charges stem from the University’s conduct during negotiations between the parties for a successor contract to their 1987-90 collective-bargaining agreement. Article VII, section 1, of that agreement, entitled “Reprimand, Suspension, Demotion and Discharge,” provided:

“Whenever an employee covered by this Agreement is given a written warning or reprimand, or is suspended, demoted, or discharged, a copy of the notice of such action, unless otherwise requested not to do so by the employee, will be given to the Union. Appeals from reprimand or suspension actions shall be in accordance with the Grievance Procedures outlined herein. Appeals from demotion or discharge actions shall be in accordance with the rules and procedures established by the State Universities Civil Service System.” (Emphasis added.)

Article VIII, section 2, outlined the grievance procedure. Under the procedure, the employee was first to discuss the complaint with his/ her supervisor. If the complaint was not satisfactorily resolved, the employee could then file a formal written grievance. The written grievance procedure provided a three-step review. After the third step, the grievance could be removed to arbitration. Section 4(f), however, stated: “Grievances relative to Discharge, Demotion, Position Classification and Discrimination are not subject to arbitration.” (Emphasis added.)

The parties first met to bargain a successor contract on June 21, 1990. At that session, the Union proposed a revision to the grievance procedure, suggesting that section 4(f) be deleted. The University’s counterproposal contained an election of remedies proposal: an employee could challenge demotion or discharge by electing to follow the procedures under the State University Civil Service System or by arbitrating the matter, but not both. If the employee chose to appeal the matter through the civil service system, the employee waived any rights he or the Union had to use the grievance procedure set forth in the collective-bargaining agreement. With respect to grievances over position classification and discrimination, the University’s position was, as in the previous contract, that such grievances would not be subject to arbitration. The University noted that position classification claims could be appealed to the Civil Service System Merit Board, and discrimination claims could be appealed to various State or Federal forums.

The Union took a firm position prior to reaching impasse that the University’s proposals were permissive subjects of bargaining. The Union rejected the University’s counterproposal, but the position of the University did not change. The Union then filed its unfair labor practice charge. The Board held a hearing on January 10, 1991. At the hearing, the parties stipulated they had reached impasse in collective-bargaining negotiations regarding the applicability of arbitration to discharge, demotion, position classification and discrimination disputes. At the conclusion of the hearing, the University moved pursuant to section 1120.40(f) of the Board’s rules and regulations that the case be removed directly to the Board for a decision. (80 Ill. Adm. Code §1120.40(f) (1991).) The Union agreed and the matter was removed to the Board.

The Board was notified via letter from the University on April 10, 1991, that the parties had returned to the bargaining table and had reached an agreement on the terms of a new contract. The new collective-bargaining agreement contained the exact provisions proposed by the University and objected to by the Union. The Union, however, made it clear it was unwilling to waive its statutory right to arbitration and intended to pursue the matter before the Board. The Board later rejected the University’s argument that the new agreement waived the issues raised on this appeal.

After hearing oral arguments, the Board issued its opinion and order. It concluded that the proposal to exclude discrimination and position classification issues from arbitration, and the election of remedies proposal, were permissive subjects of bargaining, and the University violated sections 14(a)(5) and (a)(1) of the Act by bargaining to impasse on them.

Parties must negotiate in good faith over mandatory subjects of bargaining but are not required to agree or make a concession on those subjects. An employer may bargain to impasse over a mandatory subject of bargaining, then unilaterally implement a change consistent with its pre-impasse proposal. In contrast, an employer may not bargain to impasse over a permissive subject of bargaining, a subject which the Union may absolutely insist upon. The Union may choose to give up its right, and the parties may negotiate for that concession, but if the Union refuses to give in the employer may not make the concession a condition of any agreement.

The Board found that any topic included in a collective-bargaining agreement was subject to the statutorily required arbitration clause unless the parties clearly and voluntarily excluded the topic from arbitration. (See Chicago Board of Education, 6 Pub. Employee Rep. (Ill.) par. 1048, No. 88—CA—0056—C (Illinois Educational Labor Relations Board Mar. 12, 1990).) The Board found it well settled that a proposal requiring the diminution of a statutory right was only a permissive subject of bargaining. Both the University’s proposals, to require an election of remedies on demotion or discharge issues and to exclude position classification and discrimination issues from arbitration entirely, were permissive subjects of bargaining; they did not come within the definition of a mandatory subject of bargaining and would potentially undermine the Union’s role in the collective-bargaining process. (8 Pub. Employee Rep. (Ill.) par. 1014, at IX-59 through IX-60.) The Board saw arbitration as a matter of importance not just to the individual with a grievance, but to the Union itself, as arbitration (including cases brought by the Union over the objection of the affected individual) was the method by which the contract was enforced. The Union could not be required to waive its right to arbitrate. Nor was it sufficient, for demotion or discharge actions, to give the individual member an election between arbitration and Merit Board review: “the Union’s exercise of its statutory rights as the exclusive representative to enforce the contract by collective action [could not be conditioned] on the approval of the individual employee affected by the discipline.” 8 Pub. Employee Rep. (Ill.) par. 1014, at IX-57.

The Board saw arbitration as a different, more advantageous remedy, for both unions and their members than the other remedies which were available. Despite this court’s previously expressed concern that dual dispute resolution procedures be avoided in the interests of judicial economy and to avoid problems of res judicata (Board of Governors of State Colleges & Universities v. Illinois Educational Labor Relations Board (1988), 170 Ill. App. 3d 463, 524 N.E.2d 758; cf. Ryherd v. General Cable Co. (1988), 124 Ill. 2d 418, 432, 530 N.E.2d 431, 438 (grievance and discharge claim not two bites at same apple)), the Board felt that an employee could not be precluded from pursuing a claim the right to which was provided by statute. (Ill. Rev. Stat. 1991, ch. 48, par. 1710(b).) Although the individual had a statutory right to Merit Board review which the Union and the University could not agree to waive, the Board found a proposal giving the individual the right to choose between arbitration and Merit Board review was a permissive subject of bargaining, not a prohibited one.

Bargaining to impasse over a permissive issue was “ ‘in substance, a refusal to bargain about the subjects that are within the scope of mandatory bargaining.’ ” (8 Pub. Employee Rep. (Ill.) par. 1014, at IX-58, quoting NLRB v. Woosler Division of Borg-Warner Corp. (1958), 356 U.S. 342, 349, 2 L. Ed. 2d 823, 829, 78 S. Ct. 718, 723.) Such conduct “essentially holds a mandatory subject hostage.” (8 Pub. Employee Rep. (Ill.) par. 1014, at IX-62.) The Board found the University violated sections 14(a)(5) and (a)(1) of the Act by bargaining to impasse and ordered it to cease from enforcing or giving effect to the provisions at issue. This appeal followed.

The supreme court in Central City Education Association v. Illinois Educational Labor Relations Board (1992), 149 Ill. 2d 496, 599 N.E.2d 892, recently considered whether (1) a school district’s decision to reduce in force, or (2) the implementation and impact of a teachers’ evaluation program was a mandatory subject of bargaining. The school districts argued they were not, that section 4 of the Act provided that employers were not required to bargain over matters of “inherent managerial policy.” (Ill. Rev. Stat. 1991, ch. 48, par. 1704.) Section 4 goes on to require collective bargaining, even as to matters of inherent managerial policy, “with regard to policy matters directly affecting wages, hours and terms and conditions of employment as well as the impact thereon.” (Ill. Rev. Stat. 1991, ch. 48, par. 1704.) Section 10(a) of the Act more generally imposes a duty upon educational employers to bargain “with respect to wages, hours and other terms and conditions of employment.” (Ill. Rev. Stat. 1991, ch. 48, par. 1710(a).) The supreme court observed that virtually every decision in collective bargaining could be characterized as either inherently managerial or as concerning wages, hours and terms and conditions of employment. Central City, 149 Ill. 2d at 522, 599 N.E.2d at 904.

In Central City, the supreme court set forth a three-part test to determine whether an issue is a mandatory subject of bargaining:

“After a thorough review of the legislative history, case law, and the experiences in our sister States and in the private sector, this court finds that the manifest intent of sections 4 and 10 can best be met by utilizing a three-part balancing test as a method for analyzing whether or not a given issue is a mandatory subject of bargaining.
The first part of the test requires a determination of whether the matter is one of wages, hours and terms and conditions of employment. This is a question that the IELRB is uniquely qualified to answer, given its experience and understanding of bargaining in education labor relations. If the answer to this question is no, the inquiry ends and the employer is under no duty to bargain.
If the answer to the first question is yes, then the second question is asked: Is the matter also one of inherent managerial authority? If the answer to the second question is no, then the analysis stops and the matter is a mandatory subject of bargaining. If the answer is yes, then the hybrid situation discussed in section 4 exists: the matter is within the inherent managerial authority of the employer and it also affects wages, hours and terms and conditions of employment.
At this point in the analysis, the IELRB should balance the benefits that bargaining will have on the decisionmaking process with the burdens that bargaining imposes on the employer’s authority. Which issues are mandatory, and which are not, will be very fact-specific questions, which the IELRB is eminently qualified to resolve.” Central City, 149 Ill. 2d at 523, 599 N.E.2d at 904-05.

Central City was decided after the Board rendered its decision in the present case. The University and amici, however, contend the Central City analysis applies literally here. Under that argument, using the language of Central City: (1) the matter of demotions, discharges, position classifications and discrimination “is one of wages, hours and terms and conditions of employment” (see Central City, 149 Ill. 2d at 523, 599 N.E.2d at 905); (2) the matter is not “one of inherent managerial authority” (see Central City, 149 Ill. 2d at 523, 599 N.E.2d at 905), and as "the answer to the second question is no, then the analysis stops and the matter is a mandatory subject of bargaining” (see Central City, 149 Ill. 2d at 523, 599 N.E.2d at 905). Accordingly there is no call for the Board to proceed to the third stage and balance benefits and burdens to the parties. The University’s argument is frivolous and fails to acknowledge a fundamental difference between Central City and this case. It was the school district which asserted a right not to bargain in Central City; it is the Union which asserts a right not to bargain here. Literal application of the Central City test here would deny the Union any opportunity to assert its statutory right to insist on arbitration.

We agree with respondents and their amici that Central City does not apply. The supreme court devised the three-part test to reconcile section 10(a) (Ill. Rev. Stat. 1991, ch. 48, par. 1710(a)), which sets out a duty of educational employers to bargain in good faith with respect to wages, hours and terms and conditions of employment, and section 4 (Ill. Rev. Stat. 1991, ch. 48, par. 1704), which states employers are not required to bargain over matters of inherent managerial policy. Recognizing the tension between these sections, the court created a balancing test to be applied where a matter concerns both wages, hours and terms and conditions of employment and a question of inherent managerial policy. In the present case, the proposals do not concern inherent managerial policy, no section 4 problem is presented, and therefore the Central City test does not apply.

Looking more broadly at Central City, it could be argued that statutory rights should seldom be viewed as absolute, that in every case the benefits and burdens of bargaining, and of allowing parties to bargain to impasse, should be balanced by the Board. It would be possible to devise a test, modeled after Central City, to deal with a situation where the Union (not the employer) asserts a right to refuse to bargain. The Board in fact followed a Central City analysis and balanced burdens and benefits in the present case, concluding that the strong policy favoring arbitration outweighed any interest of the employer. The Board rejected the argument that its decision would be harmful to the bargaining process by encouraging employers to refuse to include in the collective-bargaining agreement matters that are now included, rather than risk those matters be covered by an arbitration clause.

The University argues that it is clear that grievance and arbitration procedures and rights are within the scope of “other terms and conditions of employment,” and generally are mandatory subjects of bargaining. (Ill. Rev. Stat. 1991, ch. 48, par. 1710(a).) The University cites Federal cases allowing an employer to bargain to impasse over a proposal to exclude items from arbitration. Unlike the Illinois Act, however, the Labor Management Relations Act, 1947 (29 U.S.C. §151 et seq. (1988)), does not mandate binding arbitration. Management typically views the grant to an arbitrator of final authority to rule on grievances as a significant concession. (Maine Township High School District No. 207, 2 Pub. Employee Rep. (Ill.) par. 1068, No. 85—CA—0047—C (Illinois Educational Labor Relations Board May 30, 1986).) Nevertheless, the legislature has determined that concession shall be made, that collective-bargaining agreements “shall provide for binding arbitration of disputes.” (Ill. Rev. Stat. 1991, ch. 48, par. 1710(c).) Unions likewise view giving up their right to strike as a significant concession, but the same statute requires the collective-bargaining agreement to contain language “prohibiting strikes for the duration of the agreement.” Ill. Rev. Stat. 1991, ch. 48, par. 1710(c).

“Determination of whether specific issues are mandatorily bargainable or not is best left to the [IELRB], which has the knowledge and experience to balance the equities in a given case.” (Central City, 149 Ill. 2d at 522, 599 N.E.2d at 904.) Considerable deference must be given to the IELRB because of its expertise in educational labor matters. (Decatur Federation of Teachers v. Illinois Educational Labor Relations Board (1990), 199 Ill. App. 3d 190, 197, 556 N.E.2d 780, 784; Decatur Board of Education, District No. 61 v. Illinois Educational Labor Relations Board (1989), 180 Ill. App. 3d 770, 775, 536 N.E.2d 743, 746.) To do otherwise would transform appellate review into trial de novo. Such a result would substitute the court’s general knowledge for the expertise required of Board members by section 5 of the Act (Ill. Rev. Stat. 1991, ch. 48, par. 1705). (Decatur Board of Education, 180 Ill. App. 3d at 775, 536 N.E.2d at 746.) We affirm the Board’s decision that the proposals to exclude matters from arbitration were only permissive subjects of bargaining in this case.

The University also argues that, whether or not its proposals are considered permissive subjects of bargaining, section 4 of the Act should be construed to “grandfather” the proposals into mandatory subjects of bargaining. Section 4 of the Act provides:

“To preserve the rights of employers and exclusive representatives which have established collective[-]bargaining relationships or negotiated collective[-]bargaining agreements prior to the effective date of this Act, employers shall be required to bargain collectively with regard to any matter concerning wages, hours or conditions of employment about which they have bargained for and agreed to in a collective[-]bargaining agreement prior to the effective date of this Act.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 48, par. 1704.)

The University maintains that prior to the effective date of the Act the parties had bargained and agreed to exclude certain terms of the collective-bargaining agreement from arbitration. Therefore, under section 4 such exclusions are “grandfathered in” as mandatory subjects of bargaining which may be bargained to impasse.

The Board found the University’s position contrary to the plain language of the statute, because section 4 does not establish a mutual duty to bargain as to both employers and exclusive representatives. Only employers are required to bargain about matters included in preAct agreements. The legislative history demonstrated the legislature intended to focus on the employer’s duty to bargain. (8 Pub. Employee Rep. (Ill.) par. 1014, at IX-63 through IX-64.) The Board also noted the University’s position sought to “neutralize the implications of the Act” and would allow “contracts which excluded certain subjects from arbitration before the Act [to] carry such exclusions indefinitely, forever avoiding the statutory mandate. Such a rationale [would subvert] the purpose of Section 4, since the Legislature did not intend to decrease the scope of bargaining by enacting the [Act].” 8 Pub. Employee Rep. (Ill.) par. 1014, at IX-64.

The role of a court in interpreting a statute is to ascertain the intent of the legislature and to give effect to that intent. In determining legislative intent, the court should first consider the statutory language; where the language is clear and unambiguous, the courts must enforce the law as enacted without resort to other aids of statutory construction. (Kraft, Inc. v. Edgar (1990), 138 Ill. 2d 178, 189, 561 N.E.2d 656, 661.) As a general rule, the interpretation placed on a statute by the agency charged with its administration and enforcement is accorded deference by the courts. (City of Burbank v. Illinois State Labor Relations Board (1989), 128 Ill. 2d 335, 345, 538 N.E.2d 1146, 1149.) The agency’s interpretation is not, however, binding and will be rejected when it is erroneous. Hardin County Education Association v. Illinois Educational Labor Relations Board (1988), 174 Ill. App. 3d 168, 174, 528 N.E.2d 737, 740.

Based upon the language of the statute, and the Board’s construction of the statute, its determination that the prior exclusions from arbitration were not “grandfathered in” are supported by the Act. The clear language of section 4 imposes a duty only upon the employer to bargain collectively with regard to matters included in a collective-bargaining agreement agreed to prior to the effective date of the Act. The exclusive representative of the bargaining unit does not have a corresponding duty to bargain. An “employer” is defined by the Act and does not include the exclusive representative of the bargaining unit. (See Ill. Rev. Stat. 1991, ch. 48, par. 1702(a).) Had the legislature intended both parties to have a mutual duty to bargain, it could have included exclusive representatives in this section.

For the foregoing reasons, the decision of the Board is affirmed.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    MICHAEL E. MARTIN, Plaintiff-Appellant, v. STATE JOURNAL-REGISTER, a Division of the Copley Press, Inc., Defendants-Appellees.
    Fourth District
    No. 4 — 92—0915
    Opinion filed April 29, 1993.

      Frank B. Schweitzer (argued), of Taylorville, for appellant.
    Barry 0. Hines (argued) and R. Kurt Wilke, both of Barber, Segatto, Hoffee & Hines, of Springfield, for appellees.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In July 1986, plaintiff, Michael E. Martin (an. officer with the Illinois Department of Conservation (DOC)), sued defendants, the State Journal-Register (a Springfield newspaper) and Pam Portado Gibson (a free-lance writer for the State Journal-Register), for libel. Plaintiff’s suit arose out of an article Gibson wrote that accused Martin of abusing his position as a conservation officer. In June 1992, defendants moved for summary judgment under section 2 — 1005 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005), claiming in essence that no genuine issue of material fact existed regarding whether Gibson wrote the article with actual malice as required by New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710. In August 1992, the trial court conducted a hearing on this motion and granted it. Plaintiff appeals from the order granting summary judgment for defendants.

We affirm.

I. Background

During 1986, Gibson wrote a weekly free-lance column on environmental issues for the State Journal-Register, entitled “Wildlife window.” During this time, plaintiff worked as a DOC officer. In January and February 1986, Commonwealth Edison used fenthion to kill an estimated 270,000 starlings at its plant near Lake Sangchris State Park. However, several other wild and domestic animals, including some great horned owls and a mink, died from secondary poisoning when they preyed on the starlings.

Gibson wrote a series of articles about this incident. The fifth article, entitled “Legislation needed to avert another wildlife tragedy,” accused Martin of taking two of the owls that died from fenthion poisoning to a taxidermist for stuffing to add to “his decor.” In pertinent part, the article stated the following:

“But now sources report Conservation Police Officer Mike Martin sent ‘his own owl,’ found dead on New Year’s Eve, to a taxidermist for stuffing for ‘his decor.’ Martin is reported to have sent a second owl to the same taxidermist. A dead mink, found with the first owl, was reportedly ‘trashed.’ Apparently it didn’t fit in with the Martin’s [sic] decor.
The DOC then sent Martin to take statements from the taxidermist and the veterinarians. Now that’s covering your bases or something. The matter takes on more weight when it was left up to me to tell Temple Reynolds [the Director of the DOC Law Enforcement Division, who was on vacation during the fenthion crisis], after five weeks of ‘investigation,’ how long the DOC had really known a secondary wildlife kill was occurring.” (State Journal-Register, Feb. 28, 1986, at 29.)

Although the article did not so state, Martin’s conduct as described in the article arguably constituted the crimes of official misconduct (Ill. Rev. Stat. 1985, ch. 38, par. 33 — 3) and possession of a protected bird of prey without a permit (Ill. Rev. Stat. 1985, ch. 61, pars. 2.4, 3.5). His conduct also would have violated several DOC regulations.

In July 1986, plaintiff sued the State Journal-Register and Gibson, claiming that the following four statements from Gibson’s article libelled him: (1) that plaintiff took the first owl to a taxidermist; (2) that plaintiff sent a second owl to a taxidermist; (3) that plaintiff threw a dead mink in the garbage; and (4) that plaintiff did not faithfully and correctly fulfill his duties as an officer when he interviewed the taxidermist. Plaintiff further alleged that (1) he did not take the owls to a taxidermist, someone else did; (2) he did not throw a mink away; and (3) he “did take statements from the taxidermist and from all persons having contact with the owls in question.” He also alleged that the only time he possessed the owls was when he confiscated them from the taxidermist (pursuant to orders from his supervisor) and brought them to the Springfield DOC office.

In addition, plaintiff claimed that Gibson failed to verify her sources by checking her story with the taxidermist, the people who found the dead owls, the University of Illinois (which tested the dead owls for fenthion poisoning), or plaintiff. Plaintiff alleged that as a result of Gibson’s failure to verify her sources, she knowingly, intentionally, willfully, and maliciously published “false, scandalous and malicious libels concerning Plaintiff *** with the intent to injure Plaintiff’s good name and *** reputation.” In addition to general damages, plaintiff sought $750,000 in punitive damages from Gibson and the State Journal-Register.

In June 1992, defendants moved for summary judgment under section 2 — 1005 of the Code. In support of their motion, defendants attached five affidavits. The first came from James Moak, who served as the Chief of the Wildlife Resources Division of the DOC at the time of the article. His affidavit confirmed the facts regarding the fenthion poisoning and Martin’s connection to the owls. In pertinent part, it stated the following:

“As reported by Pam Portado Gibson in The State Journal-Register, in early 1986 many species of wildlife, and some domestic animals, died in the area of the Commonwealth Edison Plant and the Lake Sangchris State Park. Great horned owls and other protected species of wildlife were killed. *** Pam Portado Gibson investigated and reported this story. I spoke frequently with her in connection with this story. We discussed the importance of recovering sick and dead wildlife to test them as quickly as possible for poisoning ***. We discussed the fact that two great horned owls and a mink had been located at the Norris Hill Taxidermy Shop in Taylorville, that the Department had not been notified of the deaths of these predators, and that these carcasses had not been tested for fenthion poisoning.
*** Prior to publication of the February 28, 1986[,] article[,] Ms. Gibson requested that I explain to her the procedure for handling carcasses of protected species. I explained that there was a formal procedure, even in the absence of the fenthion crises [sic], and that collection permits and tags were required for the collection or transportation of protected species. *** Prior to the publication of the *** article, Ms. Gibson asked me whether the Division of Wildlife Resources had received a request for a permit relating to the two owls which were located at Norris Hill’s Taxidermy Shop ***, and I informed her of my findings that no permits had been applied for or issued which would have allowed for the transportation of the owls. I then subsequently checked almost daily and found that no permit was ever applied for.
*** I investigated this matter at Ms. Gibson’s request. My investigation revealed that Conservation Police Officer Mike Martin had improperly authorized the collection and transfer of the owls to the Norris Hill Taxidermy Shop in Taylorville, to be prepared for decor, at the height of the fenthion crisis. I informed Ms. Gibson prior to the publication of the *** article that a conservation police officer does not have the authority to permit citizens to take possession and transport the carcass of a protected species, even in the absence of the fenthion crises [sic]. The Department immediately ordered the owls retrieved from the taxidermist and sent them for testing upon learning of their existence.
*** Prior to the publication of the *** article, Ms. Gibson contacted me concerning the accuracy of her article. In a telephone conversation, she read to me the article in its entirety, prior to its publication. The article was truthful, and I verified and confirmed it. Mike Martin [had] referred to the owls as his own owls, I referred to the owls as ‘Martin’s own owls, ’ and I informed Ms. Gibson of these facts. ” (Emphasis added.)

The second affidavit came from Dan Troemper, the Chief of Public Lands for the DOC. He swore that on February 19, 1986 (over a week before the State Journal-Register published the article in question), Gibson asked him to investigate whether the taxidermist possessed the owls. Troemper stated that he phoned Norris Hill, the taxidermist, who told Troemper that he did have the owls, which Hill called “Martin’s own owls.” Troemper also stated that “Taxidermist Hill [also] said to me *** that a dead mink found with the first owl was ‘trashed’.” He added that he had referred to the owls as “Martin’s owls” in several separate conversations, including one with Gibson. Troemper did not mention anything in his affidavit about Martin’s alleged desire to use the owls for “his decor.”

The third affidavit came from Charles Tamminga, who worked as the head of the DOC Public Information Division and was in charge of press releases and communications with the press. Tamminga swore that Gibson customarily contacted him regarding the factual accuracy of her articles before she published them, and that she did so regarding the February 28 article. She had read to him the entire article, and he “investigated its truth.” He contacted Larry Closson (one of plaintiff’s supervisors at the time) and Troemper, who told him that “two owls had been delivered to a taxidermist on Mike Martin’s instructions.” Tamminga therefore “[contacted] Pam Fortado Gibson and informed her that I had checked every part of her story and my investigation on behalf of the Department of Conservation could not refute or disprove her story.”

The fourth affidavit came from Phil Chiles, a DOC employee who worked under Tamminga. He also swore that Gibson customarily checked the accuracy of her articles with him, and that she did so regarding the February 28 article. He added that he told her that people within DOC had referred to the owls as “ ‘Martin’s owls,’ in that he had authority over the owls in questions.”

The fifth affidavit came from Rick Wenneborg, a minister of a church in Chatham. He swore that he spoke to an employee of the Chatham Veterinary Clinic from whom plaintiff had taken statements about the owls. The employee told Wenneborg that as plaintiff asked questions of the employee and others at the clinic, plaintiff had referred to the owls as “ ‘his owls.’ ” Wenneborg added that “[a] reference was also made to the effect that at least one owl was to be used in his ‘decor’ ” and that he “relayed [all] the above information to Pam Fortado Gibson by phone later that same day.”

Defendants also attached a transcript of Gibson’s discovery deposition to their motion. In that deposition, Gibson testified that she had continued writing her column for the State Journal-Register until January 1991, when the managing editor cut her column. She testified that she had submitted the column weekly, and Ed Armstrong would edit it for grammar, syntax, and coherence. Although Armstrong would sometimes discuss with her the tact involved in writing about sensitive topics, he did not do so regarding the February 28 article because they did not consider it a sensitive topic. She added that Armstrong trusted her generally and thus did not often request her to verify her sources.

Regarding the February 28 article, Gibson stated in her deposition that she spoke to all of the people who provided the above affidavits and used them and others as sources for her article. In particular, Moak had told her that no one had obtained a permit to transfer the owls to the taxidermist (as required by law), and that plaintiff and others had referred to the owls as if they were plaintiff’s own owls. She testified that Orville Gosnell and Dan Troemper told her that plaintiff planned to use the owls for “his decor.” (The record does not reveal who Orville Gosnell was other than that he passed away prior to the litigation in this case.)

She also said that she spoke to Jim Helfrich, whom Gibson identified as “the second top man in [DOC],” about the article because she respected Helfrich’s desire to not make “law enforcement look bad.” She claimed that, despite these concerns, Helfrich suggested that she “go forward with the article,” and that Helfrich told her that “he [had] checked it all out.” She later added that Troemper, Chiles, and Tamminga — whom she identified as the three people responsible for DOC relations with the media — had all informed her that plaintiff had sent “his own owl” to the taxidermist. She also noted that she had seen notes written by Mike Connalin — whom she identified as the acting head of the DOC Law Enforcement Division in Temple Reynolds’ absence — that identified the owls as “Martin’s own owls.”

In response to defendants’ motion for summary judgment, plaintiff submitted two affidavits. The first came from Larry Closson, the Chief of the DOC Law Enforcement Division, who swore that Gibson contacted him the week after she published the article, saying that she wanted to present plaintiff’s side of the story in the next week’s column because “she had printed her people’s side” of the story. (The record does not reveal whether Gibson ever did publish “plaintiff’s side” of the story.) Closson added that “Gibson said she felt that [plaintiff] had misused the word ‘my’ when referring to the owls and that her people interpreted that as meaning the owls were Martin’s personally. She stated that she knew for sure that one was mounted for a schoolf,] but that she writes what her people told her.” (Emphasis added.)

The second affidavit from plaintiff came from A1 Mickelson, an employee who worked at the DOC during the time at issue. Mickelson swore that Gibson spoke to him at least three times before the article appeared in the State Journal-Register, speaking in terms that indicated that she thought the owls would be stuffed for a school, not for Martin’s decor. Mickelson also swore that other information he received from her indicated that — independent of the fenthion crisis and the owl stuffings — Gibson did not like Martin and considered him a bad and dishonest conservation officer, thereby revealing a suggested bias Gibson held against plaintiff.

At the August 1992 hearing on their motion for summary judgment, defendants argued that the trial court should grant their motions because no genuine issue of material fact existed regarding New York Times malice, a required element of plaintiff’s case. After considering the above affidavits and deposition, the trial court granted summary judgment for defendants, and plaintiff appeals that order.

II. Analysis

A court appropriately grants summary judgment when the pleadings, depositions, affidavits, and admissions on file reveal that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Miller v. Danville Elks Lodge 332 (1991), 211 Ill. App. 3d 145, 151, 569 N.E.2d 1160, 1163.) When considering a motion for summary judgment, a court should interpret the record in favor of the party opposing the motion. (Miller, 211 Ill. App. 3d at 151, 569 N.E.2d at 1163.) Because a motion for summary judgment involves only legal issues and does not require the trial court to use its discretion regarding fact-finding or assessing the credibility of witnesses, an appellate court reviews a trial court’s grant of summary judgment de novo and affords the trial court’s decision no deference. Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 823-24, 585 N.E.2d 1164, 1167.

In libel cases involving a reporter’s comments about a public figure, the United States Supreme Court held in New York Times (376 U.S. at 279-80, 11 L. Ed. 2d at 706, 84 S. Ct. at 726) that the plaintiff must prove that the reporter published the material at issue with “actual malice.” (See Costello v. Capital Cities Communications, Inc. (1988), 125 Ill. 2d 402, 418-19, 532 N.E.2d 790, 797.) New York Times “actual malice” exists if (1) the defendant knew that the statement was false, or (2) the defendant made the statement with reckless disregard as to its truth. (Miller, 211 Ill. App. 3d at 154-55, 569 N.E.2d at 1166.) If the plaintiff fails to prove New York Times “actual malice,” then a qualified privilege protects reporters from libel lawsuits. Further, although the plaintiff need only prove the common law elements of libel by a preponderance of the evidence, the plaintiff must prove New York Times “actual malice” by clear and convincing evidence in order to overcome the reporter’s qualified privilege. (Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 244, 91 L. Ed. 2d 202, 209, 106 S. Ct. 2505, 2508.)

“When determining if a genuine factual issue as to actual malice exists [at the summary judgment stage of a] libel suit brought by a public figure, a trial judge must bear in mind *** [that] there is no genuine issue [of material fact] if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence.” Anderson, 477 U.S. at 254, 91 L. Ed. 2d at 215, 106 S. Ct. at 2513.

Even though almost 30 years have passed since the Supreme Court decided New York Times, confusion still exists over the “actual malice” standard, mostly because the Supreme Court unfortunately chose the term “malice” to describe the mental state a reporter must possess to lose his qualified privilege. The “dictionary” meaning of the term “malice” — “[t]he desire to harm others, or to see others suffer; ill will; spite” (American Heritage Dictionary of the English Language 790 (1975))— differs completely from the meaning given to it by the Supreme Court as a term of art in libel cases involving a reporter’s comments about public figures. As commentators have noted, although “the Court used the word ‘malice,’ it was not referring to the old, common law libel meaning of ‘malice’ as hatefulness or ill will; [instead], from its definítion, the Court meant ‘scienter.’ ” (4 R. Rotunda & J. Nowak, Treatise on Constitutional Law §20.33, at 202 (2d ed. 1992).) To avoid confusion, we will refer to “actual malice” under New York Times as “New York Times malice.”

The confusion engendered by the Supreme Court’s unfortunate choice of “malice” as a term of art appears in this very case. Plaintiff argues several irrelevant matters regarding Gibson’s alleged bias, deficient reporting methods, and general lack of integrity. Regarding her bias, most of the facts in the affidavits submitted by plaintiff, as well as most of the arguments in plaintiff’s brief, focus on proving that Gibson did not like plaintiff or, at a minimum, did not want him to be a conservation officer because she considered him dishonest and uncommitted. Plaintiff also focuses on portions of Gibson’s deposition in which this ill will again manifests itself. However, none of these allegations pertains to whether Gibson made the statements at issue with New York Times malice. Gibson might very well have hated plaintiff — even though nothing in the record suggests she did — and thus wanted him removed from the DOC when she published the article in question, but such animosity would provide nothing more than a suggested motive behind her New York Times malice. More specifically, her ill will could not prove (or even suggest) that she published the statements in question either knowing they were false or with a reckless disregard for their truth.

As mentioned earlier, defendants attached to their motion for summary judgment several affidavits from people who all held positions of authority and knowledge regarding the incident at issue and who all swore in their affidavits that they served as sources for the article. The existence of these sources completely ends this matter. Indeed, Moak’s affidavit provided perhaps the strongest defense possible to claims of New York Times malice wherein it stated the following: “In a telephone conversation, she read *** the article [to me] in its entirety, prior to its publication. The article was truthful, and I verified and confirmed it.” (Emphasis added.)

We consider the existence of these affidavits, which reveal Gibson’s sources, wholly dispositive. Even assuming that everything Gibson wrote in the article regarding plaintiff was completely false, plaintiff’s complaint would rest with Gibson’s sources, not Gibson or the newspaper.

Plaintiff suggests that Gibson actually suspected or should have known that her sources did not provide her with accurate information. However, New York Times malice does not incorporate mere suspicions or what a reporter should have known. Instead, it requires that the reporter actually knew that the information was false or acted with such disregard for the truth as to rise to the level of recklessness. The record indicates that Gibson either believed her sources or — at the worst— merely suspected that they might not have provided her with the whole truth. This state of mind does not come close to New York Times malice.

Upon reviewing the record, we see only two items that relate to establishing New York Times malice. First, Closson swore in his affidavit that Gibson told him that she “knew for sure that one [of the owls] was mounted for a school [and not for plaintiff’s decor,] but that she writes what her people tell her.” Mickelson similarly swore that Gibson vaguely spoke in terms that indicated she knew the owls would be for “school usage.” If Gibson had printed that plaintiff intended to use both owls for “his decor” while she knew that one would instead go to a school, then she would have published a statement while knowing it to be false, and thereby published it with New York Times malice.

However, Gibson wrote in the article only that plaintiff intended to use the first owl for “his decor,” and then she added in a separate sentence that plaintiff sent another owl to the taxidermist without specifying why. Further, in her deposition, Gibson did not state that she knew which owl plaintiff intended to use for his decor, just that he intended to use “either one of the two” for his decor. The article is consistent with this interpretation, and therefore no New York Times malice exists with regard to her statement that plaintiff intended to use one of the owls for “his decor.”

Second, Gibson testified in her deposition that she spoke to Bob Rose, in the “Division Headquarters of Lands,” because she had heard that he held one of the owls. Apparently, she learned from him that Rose’s grandson wanted to keep the bird. Gibson testified that Rose informed her that he thus planned, pursuant to plaintiffs instructions, to bring the owl to a taxidermist “to have this protected federal species stuffed *** to keep [Rose’s] grandson from crying” about losing the bird. Combined with the above information that she allegedly knew that one owl would go to a school, this information provided some reason to believe that Gibson might have published the story knowing that someone other than plaintiff intended to use the second owl for “his decor.”

However, when plaintiff’s counsel confronted her on this matter, Gibson clarified that Orville Gosnell and Troemper had told her differently — namely, that Martin intended to use the owls for his own decor— and that Reverend Wenneborg had told her that he overheard some people talk about Martin using the owls for his decor. The question thus turns to whether these sources existed.

Plaintiff also argues that Gibson should bear responsibility for her deficient reporting methods in that she did not thoroughly check the accuracy of the information her sources provided. Plaintiff suggests that Gibson owed a duty to contact the taxidermist, the University of Hlinois (which conducted the fenthion poisoning tests), or plaintiff, himself, before publishing the article. We emphatically disagree.

Assessing New York Times malice in terms of how thoroughly a reporter checks the information a source provides to the degree plaintiff suggests would turn courts into editors, defining and describing the standards by which reporters perform their jobs. In the extreme, doing so could also effectively cut the public off from developing news stories that must — by their very nature — be reported on less than perfect information. If, as plaintiff suggests, courts require reporters to thoroughly check their facts so as to eliminate all doubt about their truth before going to print, such developing news stories would end up swallowed by the delay of this exhaustive investigation. We are confident that this reason is one which underlies the Supreme Court’s holding that a reporter libels a public figure only when that reporter prints a story knowing it to be false or with a reckless disregard for its truth. These exacting terms are meant to guarantee that a reporter will not bear liability merely because that reporter’s story turns out to be inaccurate.

Put bluntly, reporters do not and cannot guarantee the truth of their stories; instead, they serve as conduits through which information flows from the reporters’ sources to the public. The first amendment protects the right of the press to so serve without fear of punishment from the government or from lawsuits brought by public figures who dislike the information a reporter’s sources provided. Although good reporters exercise discretion and care in checking their facts, the first amendment sometimes requires us to suffer the consequences of irresponsible journalism. The alternative — that the courts become “super editors” — is both too heavy a price to pay and one which our Nation’s Founders rejected.

III. Conclusion

For the reasons stated above, we affirm the trial court’s order granting judgment.

Affirmed.

McCULLOUGH and COOK, JJ., concur.