text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER SCHULTZ, Defendant-Appellant.
    Second District
    No. 2—88—0010
    Opinion filed August 9, 1989.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

A jury found defendant, Walter Schultz, guilty of the offense of unlawful use of weapons by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1), and the trial court sentenced defendant to a four-year term of incarceration. On appeal, defendant contends that his trial counsel was incompetent because counsel failed to investigate fully the possibility that defendant might reasonably have been able to raise the defense of insanity. We affirm.

On June 17, 1987, defendant was charged by indictment with two counts of unlawful use of weapons by a felon. Count II of the indictment was nol-prossed by the State, and the cause proceeded to a jury trial on the remaining charge.

At trial, Cathy Frederick, a cashier at a Dominick’s food store located in Carol Stream, Illinois, testified that on June 2, 1987, at 1:30 a.m., she was working at one of the front registers when she saw defendant enter the store. Defendant went to the housewares aisle and then walked towards the checkout lanes. As defendant approached Frederick, she saw him take a knife out of its package and walk past her. Frederick directed defendant to her register. Defendant initially jerked away from Frederick but then followed her. Frederick stated that she tried to take the knife’s package from defendant so she could scan it on her register but defendant refused. Defendant then threw a $5 bill at Frederick and said he was “gonna fucking kill him.” Frederick stated that defendant sounded very excited or angry and walked out of the store very fast. Frederick followed defendant outside and heard him yelling and screaming in the parking lot. Frederick testified that she did not smell the odor of alcohol on defendant and that defendant had no difficulty either talking or walking. Frederick further testified that defendant did not brandish the knife at her and did not mention specific names when he talked about killing somebody.

Steven Foley, a security guard at the Dominick’s store, testified that while he was outside the store smoking a cigarette, he heard some noise by a Sears store located in the mall. About five minutes later, Foley saw defendant walk past a Walgreen’s store, kick over two shopping carts, and proceed into Dominick’s. Defendant went to the housewares aisle, picked up a knife, and headed towards the registers. Foley stated that defendant took the knife out of its package and put a $5 bill on the register. Foley heard defendant say, “I am going to kill some mother fucker,” and defendant then ran at an easy pace out of the store. After calling the police, Foley, who was accompanied by the assistant manager, the night porter, and Frederick, went outside after defendant. Foley stated that defendant stood in front of a Baskin-Robbins ice cream shop and yelled to Foley and those accompanying him, “[w]ho are you looking at; you want to fight[?]” Foley testified that he did not know if defendant was intoxicated.

Louis Zapata, who worked at both a Burger King restaurant and the Baskin-Robbins located in the mall, testified that after he left work at the Burger King, he heard the noise of bottles breaking. When Zapata arrived at the Baskin-Robbins on bicycle, he observed defendant throwing bottles at the store. After he identified himself as the assistant manager of the Baskin-Robbins, Zapata told defendant to stop throwing the bottles. Defendant then yelled at some people outside Dominick’s, called them “niggers,” and pulled out a knife. Defendant lifted the knife over his head, headed towards Zapata, and said, “Hey Amigo, I’m not going to hurt you. Come here.” Zapata told defendant not to come any closer, but defendant walked to within several feet from Zapata. Zapata testified that defendant lowered the knife to waist height and pointed it at him. Zapata then got on his bicycle and rode away. When Zapata saw a police car near the Sears store, he told Carol Stream Officer Frank Moore about defendant. Moore confronted defendant and ordered him to put the knife down. Defendant complied with Moore’s request and ran to a nearby Wendy’s restaurant. According to Zapata, defendant appeared to have trouble running and was drunk.

A stipulation was read to the jury that defendant had a previous conviction of a felony, and the defense rested without presenting any evidence. After a brief deliberation, the jury found defendant guilty of unlawful use of weapons by a felon.

In a letter dated September 4, 1987, defendant informed the trial court that he was dismissing his trial attorneys due to their incompetence. On September 24, 1987, the trial court granted the public defenders’ motion to withdraw as counsel; however, one of the public defenders, Wayne Brucar, was directed to remain as stand-by counsel while defendant proceeded through his post-trial motions pro se. On September 28, 1987, defendant filed a motion for a new trial. Concerning the allegation that his trial counsel was incompetent, defendant’s motion stated:

“In NICHOLSON vs RUSHEN, C.A. 9 (Cal.), 1985, 767 F 2d. 1526, alleged ineffective assistance by counsel could not be the basis for reversal or for a new trial, however, the following points, culmenated [sic] with POINTS and AUTHORITIES I— III are the basis for the defendant’s motion for a new trial.
(a) Defective performance of defense counsel (Attorney’s Wayne Brucar and Daniel Cummings) caused the defendant deprivation of his constitutional rights by depriving the defendant of adequate representation under U.S.C.A. Const. Amend. 6
(b) Substantansive [sic] due process violations and judicial actions.
(c) Misconduct under color of state law which violated defendant’s constitutional rights by providing for inadequate representation to indigent client.
(d) Allegedly violated, either intentionally or negligently, to gather information in preparing for defendant’s trial.
(e) Their negligence deprived the defendnat [sic] the right to access to the courts.”

On October 1, 1987, with defendant’s consent, the trial court appointed a private attorney, Frank Valenti, to represent defendant. Valenti filed a motion for a new trial which, with respect to defendant’s ineffective assistance of counsel claim, stated:

“5. The Defendant was denied effective assistance of counsel in that counsel:
a. failed to request a psychological examination of the Defendant to determine if he was fit to stand trial and/or participate in his own defense.
e. failed to request a psychological examination of the Defendant to determine if the Defendant had any defenses which related to his psychological and/or physical condition.
f. failed to present evidence to determine the Defendant’s psychological condition at the time of the alleged incident.”

At a November 20, 1987, hearing on defendant’s post-trial motion, Valenti stated that upon reading defendant’s presentence report, he believed that trial counsel should have requested a competency hearing prior to trial because defendant had psychological problems. Valenti admitted that defendant understood the charges against him and that defendant was taking Lithium. Valenti further argued that it was unclear whether defendant was presently in the same condition as the condition he was in the night of the incident. Valenti concluded that trial counsel’s failure to have defendant examined for competency to stand trial affected the outcome of defendant’s trial. At this point, the trial court did not rule on defendant’s post-trial motion.

On December 14, 1987, at defendant’s sentencing hearing, the trial court heard further testimony with respect to defendant’s motion for a new trial. Both of defendant’s trial attorneys testified at the December 14 hearing. When asked whether he discussed possible defenses with defendant, Wayne Brucar responded:

“A. Yes. Initially, at the beginning of it, I discussed the possibility of going with a voluntary intoxication; the possibility of having been evaluated for fitness for trial and the possibility of going with an insanity defense.”

Daniel Cummings, Brucar’s cocounsel, testified that Brucar explained to defendant the possible strategies of his case. After considering the evidence presented, the trial court denied defendant’s motion for a new trial. After concluding the hearing, the trial court sentenced defendant to a four-year term of incarceration. From that judgment, defendant has timely brought this appeal.

The sole issue raised in this appeal is whether trial counsel’s failure to investigate defendant’s mental history constituted ineffective assistance of counsel.

Defendant contends that revelations at almost every stage of the proceedings below should have led trial counsel to question defendant’s mental health and to conduct an investigation into defendant’s psychiatric history for use as a possible defense to the criminal charges against defendant. In support of that contention, defendant directs our attention to his irrational and inexplainable conduct leading to his arrest, his presentence report, and his use of several anti-psychotic drugs. Relying on People v. Howard (1979), 74 Ill. App. 3d 138, 392 N.E.2d 775, and People v. Murphy (1987), 160 Ill. App. 3d 781, 513 N.E.2d 904, defendant concludes that had his trial counsel properly investigated his mental history, which was apparent from his presentence report, trial counsel could have raised the insanity defense and thereby negated the mental state necessary for the commission of unlawful use of weapons by a felon.

The State asserts that because the record is silent with respect to whether trial counsel conducted an investigation into defendant’s mental history, defendant’s contention that his trial counsel was incompetent is without merit. Alternatively, the State argues that even if trial counsel failed to investigate defendant’s mental history, there was no cause to do so under the particular facts of this case.

To establish that counsel has been incompetent, a defendant must demonstrate that his counsel committed errors so serious that, judged by an objective standard, his performance was incompetent and that the errors caused prejudice to the defendant without which there is a reasonable probability that the result of the proceedings would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 693-98, 104 S. Ct. 2052, 2064-68; People v. Collins (1985), 106 Ill. 2d 237, 273, 478 N.E.2d 267, 283; People v. Hicks (1987), 162 Ill. App. 3d 707, 710, 516 N.E.2d 807, 809.) There is a strong presumption that trial counsel’s performance falls within the “wide range of reasonable professional assistance,” and “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065; see also People v. Mack (1984), 105 Ill. 2d 103, 129-30, 473 N.E.2d 880, 894.) The failure of trial counsel to investigate sufficiently and present to the trial court matters concerning a defendant’s possible mental illness deprives the defendant of the right to competent representation. People v. Murphy (1987), 160 Ill. App. 3d 781, 789, 513 N.E.2d 904, 910; People v. Howard (1979), 74 Ill. App. 3d 138, 142, 392 N.E.2d 775, 778.

Although defendant contends that Murphy and Howard are factually similar to this case and that we should follow the results reached in those cases, we consider People v. Thompson (1988), 166 Ill. App. 3d 909, 520 N.E.2d 1146, to be dispositive of the issue raised on appeal.

In Thompson, the defendant argued that a reasonable investigation by his defense counsel with respect to the defendant’s prior mental problems would have likely enabled him to put on an effective insanity defense. (Thompson, 166 Ill. App. 3d at 913, 520 N.E.2d at 1148.) In affirming the dismissal of the defendant’s post-conviction petition, the Thompson court stated that the defendant failed to produce any medical opinion testimony which indicated that, at the time the offense was committed, he lacked the capacity to recognize the criminality of his conduct or lacked the power to conform his conduct to the requirements of the law; no lay testimony to that effect was presented either. The Thompson court further determined that, at best, only circumstantial evidence of the defendant’s sanity was available to trial counsel. (Thompson, 166 Ill. App. 3d at 913, 520 N.E.2d at 1148.) Because the record did not indicate that further investigation by defendant’s trial counsel would have revealed any evidence in support of the insanity defense, the Thompson court concluded that the defendant failed to show a “reasonable probability” that the result of his cause would have been different. Thompson, 166 Ill. App. 3d at 915-16, 520 N.E.2d at 1149-50.

Like the defendant in Thompson, defendant here has failed to show that further investigation of his mental history would have supported an insanity defense. Defendant makes much of the fact that his presentence report “cried out” for the presentation of an insanity defense. We do not share that view. Defendant’s presentence report indicates that although he spent a great deal of time in a variety of institutions, with the exception of one, all of those institutions diagnosed defendant as being anti-social and suicidal. Defendant was further diagnosed as having a borderline personality disorder and as suffering from acute alcohol abuse. We fail to see how defendant’s diagnoses in any way indicate that he was suffering from a severe mental illness which would support an insanity defense. More importantly, there is no evidence in the record which demonstrates that defendant was insane at the time the offense was committed. Because the record in this case fails to indicate that further investigation of defendant’s mental history would have adduced any evidence in support of an insanity defense, we conclude that defendant has not satisfied the “reasonable probability” prong of the Strickland test. (See Thompson, 166 Ill. App. 3d at 915, 520 N.E.2d at 1150.) Consequently, defendant has not demonstrated that his trial counsel was incompetent.

Finally, we note that even if we were to accept defendant’s contention that the circumstances of this case warranted an investigation into his mental history, the record indicates that trial counsel made a proper investigation. At the hearing on defendant’s post-trial motion, defendant’s trial counsel, Wayne Brucar, and cocounsel, Daniel Cummings, testified that Brucar discussed the possibility of raising the insanity defense with defendant. Such testimony leads us to conclude that trial counsel did make an investigation into defendant’s mental history, and, in the absence of specific factual allegations tending to show how counsel’s investigation was inadequate, we shall presume that trial counsel properly represented defendant.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL S. VILCES, Defendant-Appellant.
    Second District
    No. 2—88—0325
    Opinion filed August 9, 1989.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Charles R. Hartman, State’s Attorney, of Freeport (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Michael S. Vilces, appeals from an order of the circuit court of Stephenson County revoking his probation on a burglary conviction and sentencing him to six years’ imprisonment. Defendant alleges that the trial court abused its discretion in sentencing him to six years’ imprisonment on the basis that the sentence was imposed as a penalty for the conduct constituting the probation violations rather than for the underlying burglary conviction. We affirm.

Defendant was originally charged with burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1(a)) and attempted theft (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4(a)) for conduct occurring on November 26, 1985. At that time, defendant, then 17 years old, and two other 17-year-olds, broke into a car with the intent to commit a theft. Defendant pleaded guilty to the burglary charge, and the State dismissed the attempted theft charge. On March 14, 1986, the trial court sentenced defendant to 30 months’ probation. In setting the sentence, the trial court warned defendant that he could be sentenced to three to seven years’ imprisonment if he violated the terms of his probation.

On August 21, 1987, the State filed a petition to revoke defendant’s probation. The State alleged that on June 29, 1987, defendant violated the terms of his probation by committing the offenses of criminal sexual assault, battery, and unlawful restraint. On January 21, 1988, the court held a hearing on the State’s petition to determine whether defendant’s conduct constituted a violation of probation. The State introduced testimony indicating that defendant forced a former girlfriend to have vaginal intercourse with him. Defendant did not deny having intercourse with the complaining witness, but rather asserted that she was a willing participant. The trial court determined that the State met its burden of proving lack of consent and use of force and found that defendant violated the conditions of probation by committing all three offenses alleged in the petition.

The trial court held a sentencing hearing on the State’s petition on February 17, 1988. An updated presentence report did not list any adult convictions but did contain several juvenile court delinquency adjudications including battery, burglary, and theft. The presentence report further indicated that a petition to revoke defendant’s probation for the juvenile offenses was filed on the basis that defendant violated his probation by committing a residential burglary and theft one month prior to defendant’s conviction as an adult in the instant action. A prior presentence report included a description of the underlying burglary in the instant action.

After consideration of the presentence report and brief argument by counsel, the court noted its alternatives for sentencing. The court first stated that burglary was a Class 2 felony and punishable by not less than three and not more than seven years’ imprisonment. The court then discussed the seriousness of probation and its violation. The court stated that it would consider not only the original offense, but also the circumstances of the three subsequent offenses. The court then discussed the criminal sexual assault, battery, and unlawful restraint and commented on the serious threat of injury to the victim. The court also commented on factors in mitigation such as defendant’s youth, employment, and lack of an extensive adult criminal record. The court then noted that while the original offense was a property crime, the court was more concerned with the serious nature of the violations. The court concluded that defendant demonstrated that probation would deprecate the seriousness of the offense and therefore sentenced him to six years’ imprisonment. The court subsequently denied defendant’s motion to withdraw his guilty plea, and we granted defendant’s motion to file a late notice of appeal.

Defendant contends that the trial court abused its discretion in sentencing him to six years’ imprisonment on the basis that the sentence was imposed as a penalty for the conduct constituting the probation violations rather than for the underlying burglary conviction. Defendant directs our attention to the court’s comments at the sentencing hearing to show that the court’s focus was on the offenses which resulted in the revocation of his probation rather than his burglary conviction. Defendant notes that the court discussed the nature of the criminal sexual assault, battery, and unlawful restraint, but never mentioned the facts and circumstances of his underlying conviction for burglary. Defendant maintains that these comments, rather than addressing his rehabilitative potential, show that the court abused its discretion in punishing him for his subsequent conduct. We disagree.

When a defendant’s probation is revoked, the trial court may sentence the defendant to any term that would have been appropriate for the underlying offense. (People v. Gaurige (1988), 168 Ill. App. 3d 855, 868; see Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6— 4(e).) A defendant may not be sentenced on revocation of probation for the conduct which constituted the probation violation; however, it is proper for the trial court to consider the defendant’s conduct while on probation to assess his “rehabilitative potential.” (People v. Young (1985), 138 Ill. App. 3d 130, 135; see Gaurige, 168 Ill. App. 3d at 868-69; People v. Butler (1985), 137 Ill. App. 3d 704, 722.) Thus, while a trial court may consider the defendant’s acts while on probation as a factor in assessing his rehabilitative potential, it may not punish the defendant for those acts. In reviewing a sentence following revocation of probation, the appellate court must determine whether the trial court improperly “commingled” the underlying offense and the defendant’s subsequent acts. (See Young, 138 Ill. App. 3d at 135.) However, meaningful review has been hampered by the absence of a consistent approach in analyzing such cases. (See 138 Ill. App. 3d at 135.) After reviewing the numerous decisions in this area, we believe that the best approach is offered by the Appellate Court for the Fourth District in People v. Young (1985), 138 Ill. App. 3d 130, 142. The rule set forth in Young provides that “a sentence within the statutory range for the original offense will not be set aside on review unless the reviewing court is strongly persuaded that the sentence imposed after revocation of probation was in fact imposed as a penalty for the conduct which was the basis of revocation, and not for the original offense.” (Emphasis in original.) Young, 138 Ill. App. 3d at 142.

Applying this standard to the instant action, we conclude that the court did not abuse its discretion in sentencing defendant to six years’ imprisonment. First, we note that the sentence falls within the statutory range for the Class 2 felony of burglary. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(5).) Moreover, when the court’s remarks are read in their entirety, it becomes clear that the court was sentencing defendant for the underlying burglary conviction and only looked at his subsequent conduct and the severity of those offenses to assess defendant’s rehabilitative potential. The court expressly stated that it was sentencing defendant for his underlying conviction of burglary, which it classified as being in the middle range of the felonies. The record indicates that the court was well aware of the nature and circumstances of the underlying crime. While the court did discuss the nature of the probation violations, those comments were made to show that the violations were crimes against the person and therefore more serious than the original property crime of burglary. The court’s comments indicate that it considered those offenses as demonstrating the degree to which defendant’s rehabilitative potential had diminished. The court expressly noted the factors in mitigation, but found those factors outweighed by defendant’s diminished rehabilitative potential. Particularly telling is the court’s statement that defendant “demonstrated that probation would depricate [sic] the seriousness of the offense in this case.” Based on this record, we are not persuaded that the court imposed the six-year sentence for the conduct constituting the probation violations rather than the underlying burglary. Accordingly, we find that the trial court did not abuse its discretion in sentencing defendant to six years’ imprisonment.

For the above reasons, we affirm the judgment of the circuit court of Stephenson County.

Affirmed.

NASH and DUNN, JJ., concur.


author: JUSTICE NASH

text:
    OUR SAVIOUR’S EVANGELICAL LUTHERAN CHURCH OF NAPERVILLE, Plaintiff-Appellant, v. THE CITY OF NAPERVILLE, Defendant-Appellee.
    Second District
    No. 2—88—0996
    Opinion filed August 1, 1989.
    John F. Philipchuck, of Dommermuth, Brestal, Cobine, Roth & West, of Naperville (Craig J. Cobine, of counsel), for appellant.
    Ancel, Glink, Diamond, Murphy & Cope, P.C., and Judith N. Kolman, of Joseph, Susman & Myers, both of Chicago (Marvin J. Glink, of counsel), for appellee.
    Walter C. Ramm, of Wilmette, for amicus curiae Metropolitan Chicago Synod of the Evangelical Lutheran Church.
    John W. Pleta, of Stinespring, Lambert, Schroeder & Associates, of Chicago, for amicus curiae Northern Illinois Annual Conference of the United Methodist Church.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Our Saviour’s Evangelical Lutheran Church of Naperville (Church), appeals from a declaratory judgment that defendant, the City of Naperville, lawfully rejected the Church’s request for a conditional-use permit to add property to its parking lot.

A trial was held in this action where plaintiff sought declaratory judgment and injunctive relief against Naperville. At the close of the Church’s case, the court entered a directed finding for defendant as to count II of the Church’s complaint on the ground that sufficient evidence had not been presented to show that the classification of the Church’s property as a conditional use was a denial of equal protection of the law under the Illinois and United States Constitutions. At the conclusion of the trial, the court held for defendant under plaintiff’s count I, finding that the Church failed to meet its burden of presenting clear and convincing evidence to sustain its allegations that the refusal of Naperville to grant a conditional use for the parking lot was arbitrary, capricious, and unreasonable.

On appeal, the Church contends that (1) Naperville’s refusal to grant a conditional use of the property for a church and religious school parking lot was arbitrary, capricious, and unreasonable; and (2) the classification of such use of the church property as conditional was unconstitutional. We find the first argument to be dispositive and need not address the Church’s second argument. Family Christian Fellowship v. County of Winnebago (1986), 151 Ill. App. 3d 616, 618, 503 N.E.2d 367.

Our Saviour’s Evangelical Lutheran Church of Naperville is an Illinois not-for-profit corporation which owns and operates a church and a school for Christian education in the City of Naperville and adjacent to the subject property. The Church has been at its present location since 1957 and fronts on Washington Street, the principal north/south thoroughfare in Naperville, and is several blocks south of the downtown central business district. The north line of the Church property abuts the Edward Hospital complex, and the south and west lines of the Church property abut single-family residential homes in the same subdivision. The Church originally acquired and improved approximately 135,000 square feet of land and, in 1980 and 1981, two lots improved with single-family residences at the corner of Washington Street and Robin Hill Drive, and adjoining the Church property, were purchased by it, adding approximately 20,000 square feet of land to the church complex.

At the time the Church first acquired property at that location, Naperville’s zoning ordinance allowed churches as permitted uses in the R-l district in which it was located. In January 1980, Naperville adopted a new zoning ordinance in which the Church property and its subdivision are classified as R1A low density single-family residence district. Elementary, junior and senior high schools, golf courses, parks, playgrounds, forest preserves, and single-family detached dwellings are all permitted uses in the R1A district. Religious institutions, civic buildings, nursery schools, preschools and day-care centers, planned unit developments, public and private utility facilities, swim and tennis clubs not-for-profit and senior citizens’ group homes are conditional uses which may be permitted in the R1A district.

Each week there are four religious services in the church, one on Saturday evening and three on Sunday morning. There are three church school classes held at the same time as the Sunday services, and classes are also held on Wednesday evening for young adults. There are also Tuesday night adult classes, and the Church has approximately 10 choirs that rehearse in the building during the week. The adult education program involves several hundred adults, and there are 500 to 600 children through grade six and another 100 to 200 children who participate in the religious educational program. Weddings and funerals take place throughout the week as needed, and the Church facility is also used for individual counseling by the pastors. A number of community organizations regularly use the Church for meetings throughout the week, rent-free.

In 1985, a 17,000-square-foot addition was made to the church building, and Naperville then granted the Church a permit for this new construction. Approximately 6,000 square feet of the structure now serves as a sanctuary, providing seating for 520 people, another 6,000 square feet is used for administration purposes and the balance of the 34,000-square-foot structure is used for educational purposes. In 1985, the parking lot was also expanded by the addition of 15 parking spaces. The Church has plans for another major building addition on the site of 12,000 to 14,000 square feet, which will include an expansion of the Church entrance and the addition of a fellowship hall, and is expected to be built in 1990.

The record discloses that at the time the Church was first located at that place it had approximately 100 members and in 1988 membership was approximately 2,900; there are currently 191 car parking spaces on the site, which is inadequate to meet the peak time parking demands. In March 1986, the Church filed an application with Naperville for the conditional use by a religious institution of the two adjoining lots containing single-family residences acquired in 1980 and 1981 as an additional parking area which would provide approximately 57 new parking spaces. In April 1986, the Naperville planning commission by a vote of 4 to 3 recommended that the conditional use requested be granted so as to permit additional parking, subject to the elimination of access onto Robin Hill Drive. In June 1986, however, the Naperville city council denied the Church’s application for the conditional use, and this action subsequently ensued.

Factors to be considered in determining the validity of a zoning decision are: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals, or general welfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65.) The court must also determine whether the proposed use complies with all of the standards of the ordinance in question. (La Salle National Bank, 12 Ill. 2d at 46.) The standards for granting a conditional use under the Naperville Zoning Ordinance are set forth in its section 6 — 3—8—2, which provides:

“2.1. The establishment, maintenance or operation of the conditional use will not be detrimental to, or endanger the public health, safety and general welfare; and
2.2. The conditional use will not be injurious to the use and enjoyment of other property in the immediate area for the purposes already permitted, nor substantially diminish and impair the property values within the neighborhoods; and
2.3. The establishment of the conditional use will not impede the normal and orderly development and improvement of the adjacent property for uses permitted in the district.” Naperville, Ill., Municipal Code tit. 6, Zoning Regulations (Jan. 1980).

The Church contends that the proposed conditional use for parking and the site plan for the lots met all the requirements of the Naperville Municipal Code and complied with all recommendations of the Naperville planning staff and planning commission. At trial, an expert witness called by the Church testified that the additional parking lot would have no effect on property values in the neighborhood, as it was an extension of an existing use, and would not impede the orderly improvement, development and enjoyment of adjacent property for the uses permitted in the district. A second expert, a city planning and zoning consultant, testified on behalf of the Church that if built in accordance "with plans submitted, the parking lot would not be injurious to the public or to the use and enjoyment of other property, and would not impede the development and improvement of property in the area.

Naperville argues that the evidence supports the city council’s denial of the conditional-use permit and the findings that the property values within the area of the proposed parking lot would be diminished; the granting of the conditional-use permit would be injurious to the use and enjoyment of the surrounding property; and that the parking lot would be an intrusion into a well-established residential neighborhood.

The Naperville city planner testified that the existing land use, the comprehensive plan, the surrounding land uses, the impact of the proposed use on the immediate area and the setting of precedent for other areas were all taken into consideration in determining whether the application should be approved. However, she also testified that she had never expressed any objections to the concept of the parking lot until asked to testify against it, and stated that the landscaping for the proposed parking lot was in accordance with ordinance requirements and that every recommendation, suggestion and criterion of the Naperville planning staff had been complied with by the Church.

Residents from the neighborhood where the Church is located testified they were concerned about the visual aspects of the proposed lot, property values, and safety. There was also concern about the fact that the Church is located at an entrance to the subdivision and that the new parking lot would reduce the attractiveness of the entrance-way. Neighbors feared the possible future expansion of the Church if this expansion was allowed, and Naperville officials expressed concern that allowing this use might start a trend with other churches similarly situated.

Naperville introduced the testimony of real estate appraisers who stated that, with regard to the home immediately adjacent to the proposed parking lot, there would be a minimal negative value impact of from 2% to 7% or 2% to 3%, and that properties across the street would receive a negative impact of 1% to 2% in value. However, diminution in value of nearby property does not necessarily justify denial of a conditional use. (Jeisy v. City of Taylorville (1980), 81 Ill. App. 3d 442, 450, 401 N.E.2d 627.) Here, there is some conflicting evidence as to the possibility of diminution, and the trial court did not specifically find that the diminution in value of neighborhood residences justified the denial of the conditional use.

Naperville argues that need is a factor that may also be considered in deciding whether to allow a conditional use (Cech Builders, Inc. v. Village of Westmont (1983), 118 Ill. App. 3d 828, 833, 455 N.E.2d 817) and that there is a written agreement between the Church and nearby Edward Hospital for shared parking on hospital property which should be sufficient for any overflow parking requirements. However, whether or not any type of contractual parking agreement currently exists has no bearing on whether the Church has the right to use its land as it chooses. Similarly, Naperville’s argument that the Church only needs the parking spaces during periods of high attendance begs the question of the Church’s right to use its property. Additionally, the city ordinance relating to conditional uses does not require a showing of need as a condition of granting the use.

The trial court found that the defendant’s act of denying the use of the church property for additional parking for its parishioners did not place a limitation on the free exercise of religion and, therefore, the Church would be held to a standard of clear and convincing proof of the issues. The court further found under that standard that the Church had failed to overcome the presumption of the validity of the city ordinance and entered judgment for defendant.

There is a presumption that Naperville’s zoning ordinance is valid, and it can only be overcome by clear and convincing proof that the ordinance has been applied in an arbitrary and unreasonable manner that bears no substantial relation to the public health, safety, and welfare. (Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 179-80, 354 N.E.2d 899.) However, a presumption of validity diminishes when the impact of the zoning decision limits the free exercise of religion, and, where the decision of the city council has to do with the free exercise of religion, it is not necessary for the church to produce evidence by clear and convincing proof. Family Christian Fellowship v. County of Winnebago (1986), 151 Ill. App. 3d 616, 619, 503 N.E.2d 367.

The trial court determined here that even though the need for a conditional use for the subject premises arose from the intent of persons parking there to attend the church, the denial of parking did not limit the Church members from the practice of their religion in this location and did not serve to limit the free exercise of religion, finding that the Church had not stated a claim under the establishment or free exercise clauses of the constitution. The court thus found that denying the Church additional parking space was not a limit upon the free exercise of religion, and, based on the analysis of the court in Family Christian Fellowship, it applied a standard of clear and convincing proof upon the Church in establishing the issues. However, in Family Christian Fellowship, this court did not hold that a church must state a cause of action under the establishment or free exercise clauses of the constitution, but noted that the strong presumption of validity accorded to a municipal ordinance is significantly diminished when the impact of a zoning decision in some way limits the free exercise of religion. In Family Christian Fellowship (151 Ill. App. 3d at 622), and Columbus Park Congregation of Jehovah’s Witnesses, Inc. v. Board of Appeals (1962), 25 Ill. 2d 65, 72, 182 N.E.2d 722, cases in which parking was among the issues discussed by the courts, neither court suggested that the parking needs of a church should be considered on different legal principles than those applied to the church building itself.

The location of a church can be regulated by zoning ordinances in proper cases; however, in determining whether this is a proper case for such a restriction, we must take into account that the freedom of religion, and other first amendment freedoms, rise above mere property rights. In addition, first amendment rights and freedoms outweigh considerations of public inconvenience, annoyance, or unrest. (Lubavitch Chabad House of Illinois, Inc. v. City of Evanston (1982), 112 Ill. App. 3d 223, 227, 445 N.E.2d 343.) We find that the trial court erred in its conclusion that the denial of a conditional-use permit at this location was not an infringement of the Church’s right to freedom of religion and in its imposition of a clear and convincing standard of proof upon plaintiff.

The nature of the conditional use does not make the issuance of a permit mandatory upon compliance with statutory standards. Rather, when a conditional use is proposed, a legislative body must make an independent determination that the particular use in the proposed location is designed in such a way as to be compatible with the surrounding area. Each case of this kind must be decided on its own facts and circumstances. (LaSalle National Bank v. County of Kendall (1977), 55 Ill. App. 3d 219, 224, 370 N.E.2d 1283.) An applicant for a conditional-use permit has the burden of proving that the proposed use meets all the standards required by the controlling zoning ordinance. (Hope Deliverance Center, Inc. v. Zoning Board of Appeals (1983), 116 Ill. App. 3d 868, 872, 452 N.E.2d 630.) On the evidence here presented, we find that the Church met the standards of the Naperville conditional-use ordinance and that the denial of the conditional-use permit for the addition to the Church parking area does not bear a real and substantial relation to the public health, safety, or general welfare and was against the manifest weight of the evidence. For these reasons, the judgment of the circuit court is reversed, and the cause is remanded to it with directions to order the issuance of the conditional-use permit for parking purposes.

Reversed and remanded.

INGLIS and WOODWARD, JJ., concur.


author: JUSTICE CHAPMAN

text:
    THE ENVIRONMENTAL PROTECTION AGENCY, Appellant, v. THE POLLUTION CONTROL BOARD et al., Appellees.
    Fifth District
    No. 5—88—0035
    Opinion filed July 21, 1989.

      Neil E Hartigan, Attorney General, of Springfield (William Seltzer and Charles Mikalian, Special Assistant Attorneys General, of counsel), for petitioner.
    John M. Yandlik, of Pollution Control Board, of Urbana, for respondent Pollution Control Board.
    No brief filed for respondent James Presnall.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Petitioner, the Illinois Environmental Protection Agency (Agency), pursuant to section 31.1 of the Illinois Environmental Protection Act (Ill. Rev. Stat., 1986 Supp., ch. 111½, par. 1031.1), filed an administrative citation against James Presnall, alleging that James Presnall had violated sections 21(p)(4), 21(p)(5) and 21(p)(9) of the Act. The Environmental Protection Agency’s citation was initiated after inspection by the Agency unveiled that Presnall’s purported sanitary landfill facility had openly burned refuse, had uncovered refuse remaining from a prior operating day, and had deposited refuse at improper portions of its facility. Presnall filed a petition for review with the Illinois Pollution Control Board. The Board’s opinion, issued September 17, 1987, ruled that the Agency’s administrative citation was improperly issued to James Presnall. The citation was ordered stricken and the matter was accordingly dismissed. Upon motion for reconsideration filed by the Agency, the Board issued a supplemental opinion on December 17, 1987, affirming the Board’s September 17, 1987, order. The Environmental Protection Agency does not appeal the Board’s decision as to dismissal of the charge of open burning under section 21(p)(4) of the Act. However, the Agency does appeal the dismissal of the other charges brought pursuant to sections 21(p)(5) and 21(p)(9).

It is undisputed that James Presnall owns the property in question, which is located in Centreville, Illinois. Mr. Presnall testified at the hearing before the Illinois Pollution Control Board that he operates an asphalt paving and salvage business at the site. The property was at one time a swampy low area, and portions of it continue to lie in a low area which is periodically subjected to flooding. Mr. Presnall testified that, during his 27 years of operation at the site, he has brought in loads of “hard fill” to fill the marshy ground to render it useful for conducting business operations. He described “hard fill material” as dirt, wood, concrete and asphalt. The Environmental Protection Agency inspectors, on the other hand, testified that they observed quantities of refuse on the site. Site inspector Kenneth Mensing testified that in his opinion, said refuse consisted of non-salvageable material including construction or demolition debris, wood, boards, metal, concrete, asphalt and bricks.

Mr. Presnall denies the Agency’s allegations that he dumps refuse on his land. He contends that he has the right to dump “hard fill material” on his property. He admits, however, that residents of Centreville dump their trash outside the fence surrounding his property and that instead of leaving the trash in the street, he testified that he often has his employees bring the trash onto his property.

After the hearing, the Pollution Control Board issued its opinion, wherein it ordered the citation against James Presnall stricken and the matter dismissed. The Board based its finding on its statutory interpretation of a section 21(p) offensé as enforced by the administrative citation process. The Agency argues on appeal that the Board erroneously interpreted those portions of the Environmental Protection Act pertinent to this case. The Agency contends that James Presnall does in fact operate a sanitary landfill operation and is required to have an Agency permit. Although a permit has not been issued to Mr. Presnall, the Agency contends Mr. Presnall is subject to the administrative citation process under section 31.1 for the alleged violations of Environmental Protection Act sections 21(p)(5) and 21(p)(9).

The statutory language at issue is section 21(p) of the Illinois Environmental Protection Act, which reads in pertinent part:

“§21. No person shall:
(p) Conduct a sanitary landfill operation which is required to have a permit under subsection (d) of this Section, in a manner which results in any of the following conditions: ***.” (Ill. Rev. Stat., 1986 Supp., ch. 111½, par. 1021(p).)

The statute then lists 12 conditions that are prohibited. Subsection (d), which is referred to in section 21(p), states:

“§21. No person shall:
(d) Conduct any waste-storage, waste-treatment, or waste-disposal operation:
(1) without a permit granted by the Agency or in violation of any conditions imposed by such permit, including periodic reports and full access to adequate records and the inspection of facilities, as may be necessary to assure compliance with this Act and with regulations and standards adopted thereunder; provided, however, that no permit shall be required for any person conducting a waste-storage, waste-treatment, or waste-disposal operation for wastes generated by such person’s own activities which are stored, treated, or disposed within the site where such wastes are generated; or,
(2) in violation of any regulations or standards adopted by the Board under this Act.
This subsection (d) shall not apply to hazardous waste.” (Ill. Rev. Stat., 1986 Supp., ch. 111½, par. 1021(d).)

The dispute on appeal arises because of the Pollution Control Board’s interpretation of the phrase “conduct a sanitary landfill operation.” Although section 21(p) refers to “sanitary landfill operation,” the Act does not define such term per se. The Act does provide a definition of “sanitary landfill”:

“§3.41. ‘Sanitary landfill’ means a facility permitted by the Agency for the disposal of waste on land meeting the requirements of the Resource Conservation and Recovery Act, P.L. 94 — 580, and regulations thereunder, and without creating nuisances or hazards to public health or safety, by confining the refuse to the smallest practical volume and covering it with a layer of earth at the conclusion of each day’s operation, or by such other methods and intervals as the Board may provide by regulation.” (Ill. Rev. Stat., 1986 Supp., ch. 111½, par. 1003.41.)

The Pollution Control Board found no distinction between the terms “sanitary landfill operation” and “sanitary landfill” as used in the Act. The Board reasoned that in excluding the term “sanitary landfill operation” in the definitional section of the Act, the legislature did not intend to create a term with new legal significance. Rather, the Board concluded, the legislature intended for the terms “sanitary landfill operation” and “sanitary landfill” to be used interchangeably.

The Agency contests the Board’s determination of the legislature’s intent to render the terms “sanitary landfill” and “sanitary landfill operation” interchangeable under the Act. As a general rule, the legislature has authority to define for the purpose of the statute the terms used therein, and these definitions prevail in interpretation of the statute. (Osco Drug, Inc. v. Department of Registration & Education (1977), 54 Ill. App. 3d 936, 939, 370 N.E.2d 59, 62.) It is obvious that “sanitary landfill” and “sanitary landfill operation” are two distinct, although recognizably similar, terms. It is arguable that the term “sanitary landfill operation” is capable of a different meaning than the definitional meaning of “sanitary landfill” as provided in the Act. We recognize the general rule that where more than one construction is apparent, the court will choose that interpretation which leads to a logical result. (City of Chicago v. Strauss (1984), 128 Ill. App. 3d 193, 194, 470 N.E.2d 563, 564.) The aid to statutory construction which logically applies herein is noscitur a sociis, that a word is known by the company it keeps. (Jarecki v. G.D. Searle & Co. (1961), 367 U.S. 303, 309 L. Ed. 2d 859, 864, 81 S. Ct. 1579, 1583.) This aid contemplates that where two words or phrases of analogous meaning are employed together in a statute, they are understood to be used in their cognate sense, to express the same relations, and give color and expression to each other. (People v. Goldman (1972), 7 Ill. App. 3d 253, 255, 287 N.E.2d 177, 179.) Each section and provision should be construed in connection with every other part or section. (Osco Drug, 54 Ill. App. 3d at 939-40, 370 N.E.2d at 62.) We conclude therefore that the term “sanitary landfill operation” is synonymous with “sanitary landfill” as used in the Environmental Protection Act.

Upon finding that “sanitary landfill” and “sanitary landfill operation” were synonymous, the Pollution Control Board found “sanitary landfill operation” in section 21(p) to include only those permitted by the Agency. The Board explained its decision as one based on its “plain reading” of section 3.41. It is this reasoning upon which the Board based its conclusion that if a person is conducting a sanitary landfill operation without a permit, the operation is not a sanitary landfill as defined by the Act, and thus that person may not be issued an administrative citation for enforcement of section 21(p), since section 21(p) refers specifically to persons conducting sanitary landfills. The Agency argues that the Board’s decision is based upon a fallacious interpretation of the definition of “sanitary landfill.” The Agency contends that unpermitted sanitary landfills are equally subject to the administrative citation process. It argues that all permitted facilities are required to be permitted, and thus the Board’s interpretation of section 3.41 as applying only to permitted facilities is redundant. We disagree.

When the language of a statute is clear on its face, its meaning should be given effect without resort to supplemental principles of statutory construction. (People v. Singleton (1984), 103 Ill. 2d 339, 341, 469 N.E.2d 200, 202.) Words will be given their plain and ordinary meaning. (Midwest Television, Inc. v. Champaign-Urbana Communications, Inc. (1976), 37 Ill. App. 3d 926, 932, 347 N.E.2d 34, 39.) The definition of “sanitary landfill” provided in section 3.41 expressly refers to a facility “permitted” by the Agency. Furthermore, we cannot overlook the statute read as a whole. Provisions of a statute must be construed in light of the statute as a whole, to effectuate the intent of the legislature. (People v. Ortega (1982), 106 Ill. App. 3d 1018, 1023, 436 N.E.2d 606, 610.) Had the legislature wanted unpermitted disposal facilities to be subject to section 21(p), it could easily have adopted language consistent with section 21(d), instead of employing the term “sanitary landfill,” which is statutorily defined as a “permitted facility.” Section 21(d) employs the phrase “waste-disposal operation.” “Waste-disposal site” is defined in the Act as a site on which solid waste is disposed. (Ill. Rev. Stat., 1986 Supp., ch. 111½, par. 1003.54.) No requirement of a permit is imposed on a “waste-disposal site” under the statutory definition. Had the legislature desired section 21(p) to apply to both permitted and unpermitted facilities as section 21(d) applies, the legislature should have adopted the same or similar language as used in section 21(d). To ignore the obvious distinction the legislature imposed between a “sanitary landfill operation” and a “waste-disposal operation” would be to ignore the plain language of the statute. We conclude that if a person is conducting a landfill operation without a permit, that landfill operation is not a sanitary landfill as defined by the Act, and therefore that person may not be issued an administrative citation for enforcement of section 21(p). It would be an act of judicial law making to conclude that the legislature did not mean what it said but intended something far beyond the obvious and literal reach of the statutory words. Midwest Television, Inc., 37 Ill. App. 3d at 932, 347 N.E.2d at 39.

In reaching this conclusion we are not unmindful of the Agency’s stance that discounting application of section 21(p) to unpermitted facilities is contrary to the legislature’s intent in making available effective enforcement procedures for those in violation of the environmental laws. We note that the Agency is not without a remedy in acting to correct violations such as were alleged against James Presnall, even though Mr. Presnall did not have an Agency permit. A person acting without a permit may still be subject to sanctions for violations of environmental laws under the traditional enforcement procedures espoused in the Act. It is argued that the administrative citation process allows a relatively quick procedure for enforcement of environmental laws. However, absent specific statutory authority for applying the citation process, we are forced to conclude that the agency must operate under the traditional, albeit slower, enforcement process provided by the Act.

Subsequent to petitioner in this case filing for notice of appeal with this court, Illinois enacted Public Act 85 — 1346. Revisions of section 21 of the Environmental Protection Act are therein made. In particular, section 21(q) has been revised. Although section 21(q) is not specifically at issue in this case, it is pertinent to our decision. That section now reads:

“(q) In violation of subdivision (a) of Section 21, cause or allow the open dumping of any waste in a manner which results in any of the following occurrences at the dump site:
(1) litter;
(2) scavenging;
(3) open burning;
(4) deposition of waste in standing or flowing waters;
(5) proliferation of disease vectors;
(6) standing or flowing liquid discharge from the dump site.
The prohibitions specified in this subsection (q) shall be enforceable by the Agency either by administrative citation under Section 31.1 of this Act or as otherwise provided by this Act. The specific prohibitions in this subsection do not limit the power of the Board to establish regulations or standards applicable to open dumping.” (Ill. Rev. Stat., 1988 Supp., ch. 111½, par. 1021(q).)

In enacting this amendment to section 21, the legislature has expressed its desire to expand the statutory authority to issue administrative citations. This further supports our opinion that the legislature intended the administrative citation process to apply only where specifically authorized. In view of the foregoing, we affirm the decision of the Illinois Pollution Control Board.

Affirmed.

RARICK and HOWERTON, JJ!, concur.


author: PRESIDING JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RONALD H. COLE, Defendant-Appellee.
    Fifth District
    No. 5—87—0458
    Opinion filed July 24, 1989.

      Charles Garnati, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    James L. Karraker, of Finch & Karraker, P.C., of Anna, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

The State appeals the order entered June 9, 1987, in the circuit court of Williamson County suppressing a tape recording of a conversation between Marion Chief of Police Ron Swafford and defendant Ronald Cole.

On September 2, 1986, defendant was charged with criminal damage to property, burglary, theft, and armed violence. On October 29, 1986, the theft charge was amended to include an attempt charge. The armed violence charge was also amended, but did not amount to the addition of a separate charge. Additionally, charges of unlawful use of firearms by a felon, intimidation, and another armed violence charge were amended to the information.

On September 23, 1986, a preliminary hearing was held on the pending felony charges. Testimony from Detective Jeff McCoskey was presented and established probable cause to try the defendant for the offenses of criminal damage to property over $300, burglary, theft, and armed violence.

On December 19, 1986, a second preliminary hearing was held on the amended armed violence charge, and the additional charges of unlawful use of firearms by a felon, intimidation, and the second count of armed violence. At this hearing, testimony was presented from Detective Jeff McCoskey, Deputy Sheriff Robert McCluskey, and Chief of Police Ron Swafford. Chief Swafford testified that he was called to the Marion police department after a burglar alarm had been triggered at a local sporting goods store. Officers at the scene of the sporting goods store telephoned and requested that Chief Swafford attempt to establish communication with the defendant, who was inside the store and who had been observed to be armed. The chief made a telephone call from the police station to the store in which the defendant was located. When the defendant answered the telephone, the chief identified himself and proceeded to convince defendant to surrender. When asked if he was armed, defendant told Chief Swafford the type of weapons defendant claimed to be in his possession. The chief recommended a procedure to be followed by the defendant in surrendering. Defendant told the chief that prior to his surrender he was going to finish his wine. At one point during the conversation, defendant became agitated and spoke abusively to the chief, claiming that he would blow the chiefs brains out. This and other incriminating statements made by the defendant during the telephonically transmitted conversation were recorded by the telephone system at the Marion police station. The telephone lines at the station, as part of standard procedure, are connected to a tape recorder so that information transmitted to the station may be verified when necessary.

On January 23, 1987, defendant filed a motion to suppress the tape recording of his conversation with Chief Swafford, arguing that the recording constituted eavesdropping in violation of section 14 — 2 of the Criminal Code of 1961 and section 108A — 1 et seq. of the Code of Criminal Procedure of 1963, respectively (Ill. Rev. Stat. 1987, ch. 38, pars. 14 — 2, 108A — 1 et seq.), and was, therefore, inadmissible as evidence under section 14 — 5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 14 — 5). The State argued that the recording was made from a police station in an emergency situation and should not be suppressed. Further, the State argued that the recording was not eavesdropping because it was not obtained in a surreptitious manner and the defendant had no reason to expect privacy during the recorded conversation.

After arguments, the trial court found that there was no emergency situation presented to except the recorded conversation from the purview of the eavesdropping statute (Ill. Rev. Stat. 1987, ch. 38, par. 14 — 2), and that the State did not attempt to obtain consent for the taping of the conversation within 48 hours after the taping, as required by statute when eavesdropping devices are used in emergency situations. (Ill. Rev. Stat. 1987, ch. 38, par. 108A — 6.) The trial court ordered that the recording and transcripts made therefrom be suppressed. The State timely filed a notice of appeal and a certificate of impairment in objection to the trial court’s suppression of the recorded conversation between Chief Swafford and the defendant, alleged by defendant to have been obtained by illegal eavesdropping.

An eavesdropping device is defined as “any device capable of being used to hear or record oral conversation.” (Ill. Rev. Stat. 1987, ch. 38, par. 14 — 1(a).) Section 14 — 2 provides that a person commits eavesdropping when he:

“(a) Uses an eavesdropping device to hear or record all or any part of any conversation unless he does so (1) with the consent of all of the parties to such conversation or (2) with the consent of any one party to such conversation and in accordance with Article 108A of the ‘Code of Criminal Procedure of 1963’, approved August 14, 1963, as amended.” Ill. Rev. Stat. 1987, ch. 38, par. 14 — 2(a).

Following our supreme court’s ruling in People v. Beardsley (1986), 115 Ill. 2d 47, 503 N.E.2d 346, and also the ruling in Smith v. Associated Bureaus, Inc. (1988), 177 Ill. App. 3d 286, 532 N.E.2d 301, which relied on Beardsley, we must reverse the order of the trial court. In Beardsley, the defendant was initially arrested for a speeding violation (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 601(b)), and while sitting in the back seat of a patrol car while in custody, defendant proceeded to record, by means of a small tape recorder which he happened to have in his possession, a conversation undertaken by two police officers in the front seat of the vehicle. Consequently, defendant was also cited for eavesdropping. (Ill. Rev. Stat. 1987, ch. 38, par. 14 — 2(a).) Although the officers were aware that defendant possessed a tape recorder, it was their testimony at trial that they were unaware that defendant was recording during the arrest procedure, and further, that they did not consent to defendant’s recording.

The defendant in Beardsley countered, relying on People v. Klingenberg (1975), 34 Ill. App. 3d 705, 339 N.E.2d 456, by arguing that eavesdropping occurs only when a conversation is intended by the declarant to be private. (Beardsley, 115 Ill. 2d at 51, 503 N.E.2d at 349.) The appellate court in Klingenberg, in determining whether the audio portion of a video tape made of the defendant while he performed various field sobriety tests pursuant to an arrest for driving under the influence of alcohol constituted eavesdropping, referred to the Committee Comments following section 14 for the proposition that “ ‘[t]he reason for this legislation has, of course, been to protect the privacy of the individual, ***.’ (Committee Comments, Ill. Ann. Stat. ch. 38, art. 14, at 581 (Smith-Hurd 1972).)” (Klingenberg, 34 Ill. App. 3d at 708, 339 N.E.2d at 458.) The Klingenberg court was unable to conclude that the defendant intended his statements to be of a private nature, and held that where there is no interception of communication intended by the declarant to be private, there is no eavesdropping. Klingenberg, 34 Ill. App. 3d at 708, 339 N.E.2d at 459.

The supreme court in Beardsley, apparently in agreement with defendant’s argument based on Klingenberg, explained that the primary factor in determining whether eavesdropping has been committed is not whether all parties to the recorded conversation consented, but whether the complaining conversant or conversants justifiably expected their conversation to be private. (People v. Beardsley (1986), 115 Ill. 2d at 54, 503 N.E.2d at 350.) The supreme court expressed its reasoning that a party to a conversation cannot be accused of listening secretly to what is said in private, or of surreptitiously intercepting a private conversation, because that party is competent to testify concerning the contents of the conversation, and could have taken notes or transcribed the conversation, rather than record it. Beardsley, 115 Ill. 2d at 58-59, 503 N.E.2d at 352.

The supreme court fortified its conclusion in Beardsley with the reasoning of the United States Supreme Court in Lopez v. United States (1963), 373 U.S. 427, 10 L. Ed. 2d 462, 83 S. Ct. 1381. In Lopez, an agent equipped with a pocket wire recorder recorded defendant’s unsolicited offer of money to a revenue agent for the purpose of obtaining the revenue agent’s assistance in concealing certain tax liability. There, the Supreme Court ruled that eavesdropping was not involved because the government did not use the electronic device to listen in on conversations it could not otherwise have heard. Instead, the Supreme Court concluded, the electronic device was only a means of obtaining the most reliable evidence possible of a conversation in which the government’s own agent was a participant and which that agent was fully entitled to disclose. (Lopez, 373 U.S. at 439, 10 L. Ed. 2d at 470, 83 S. Ct. at 1388.) Likewise, our supreme court in Beardsley concluded that the eavesdropping statute should not prohibit the recording of a conversation by a party to that conversation or one known by the parties thereto to be present. Beardsley, 115 Ill. 2d at 56, 503 N.E.2d at 351.

In the case now before us, defendant had no reason to expect that his recorded conversation with Chief Swafford was private, or would otherwise be held in confidence. There is no indication in the record that Chief Swafford promised defendant that their conversation was to be confidential. Thus, we find it unreasonable, for a defendant who reveals inculpating statements during a conversation with a police officer to claim these statements were of the private nature deserving of protection offered by the eavesdropping statute. This privacy expectation is even more questionable when we consider that while the defendant freely offered inculpatory statements to Chief Swafford, at some points even raising his voice in anger or agitation, defendant was aware that the premise from where he did so was surrounded by other police officers by whom the defendant’s statements expectably could have been heard. Therefore, focusing on the primary consideration enumerated in Beardsley, we are unable to find that defendant justifiably expected and intended his conversation with Chief Swafford to be private, and the ruling of the circuit court suppressing the recording of this conversation must be reversed.

For these reasons, the order of the circuit court of Williamson County is reversed and this cause is remanded for further proceedings.

Reversed and remanded.

HARRISON and GOLDENHERSH, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES PATRICK MANIKOWSKI et al., Defendants-Appellees.
    Fifth District
    No. 5—87—0823
    Opinion filed July 27, 1989.

      Mark C. Hunter, State’s Attorney, of Metropolis (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Joseph Jay Jackson, of Metropolis, for appellee James Patrick Manikowski.
    Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, and Lori L. Mosby, of State Appellate Defender’s Office, of Springfield, for appellee Allan Bernard Manikowski.
   JUSTICE RARICK

delivered the opinion of the court;

The State appeals from the decision of the circuit court of Massac County granting the motions of defendants, James Patrick and Allan Bernard Manikowski, to suppress evidence in connection with their charges of unlawful possession of a controlled substance and unlawful delivery of a controlled substance. We reverse.

On June 28, 1987, defendants were en route from Ft. Lauderdale, Florida, to Chicago, Illinois, pursuant to a drive-away contract. Just across the Illinois border, defendants were stopped by the State police for traveling 70 to 75 miles per hour in a 65-miles-per-hour zone. Allan was driving the car. Upon running a check of defendants’ identifications, the troopers learned both defendants had criminal arrest records for narcotics. Because both defendants appeared to be nervous, the troopers asked if the vehicle contained any firearms or drugs. Allan replied no. The troopers then asked to search the vehicle and its contents. The troopers testified both defendants gave verbal permission and Allan signed a written consent form. Both defendants denied any such consent at the suppression hearing. The troopers proceeded to search the car when they learned bad weather was approaching. They asked defendants to drive to a police weigh station some 40 miles up the road in order to finish the search undercover. En route, the troopers signaled defendants to turn off at a garage in Vienna, in Johnson County, approximately 20 miles away from the initial stop. Additional troopers and a canine unit met defendants there. Continued search of the car produced a shaving kit underneath the left front wheel well. The shaving kit contained a clear plastic bag with gray duct tape around it which appeared to contain rice and a white substance. The white substance subsequently was identified as cocaine. Both defendants filed motions to quash their arrests and to suppress the evidence stemming from the search of the car. The trial court granted defendants’ motions to suppress, finding that the troopers did not have valid consent to search the auto at the garage in Vienna.

The State first argues on appeal the trial court erred in granting James’ motion to suppress. The State believes James lacked standing to raise the issue of whether the search was proper because he had no reasonable expectation of privacy in the drive-away car in which he was riding. We agree with the State’s contention.

A person who has been aggrieved by an illegal search and seizure and the subsequent introduction of damaging evidence secured by a search of a third person’s premises or property has no “standing” to claim any infringement of his fourth amendment rights unless he had a legitimate expectation of privacy in the invaded place. (See Rakas v. Illinois (1978), 439 U.S. 128, 135, 144, 58 L. Ed. 2d 387, 396, 402, 99 S. Ct. 421, 426, 431. See also United States v. Salvucci (1980), 448 U.S. 83, 96, 65 L. Ed. 2d 619, 631, 100 S. Ct. 2547, 2555; People v. Thomas (1980), 89 Ill. App. 3d 592, 595, 411 N.E.2d 1076, 1079-80.) James had no property or possessory interest in the car, was not driving the car when stopped by the troopers, and even though he had paid half of the traveling expenses and had personal items in the car, was not even listed as a potential passenger on the drive-away contract. As such, regardless of whether contributions to expenses had been made or not, James had no reasonable expectation of privacy in the left wheel well of the car. Consequently, James also had no “standing” to challenge the search. (See People v. Mezo (1988), 170 Ill. App. 3d 679, 681, 525 N.E.2d 134, 135; People v. Carlton (1985), 133 Ill. App. 3d 1061, 1064, 479 N.E.2d 1178, 1180; People v. Flowers (1982), 111 Ill. App. 3d 348, 353, 444 N.E.2d 242, 246; People v. Norris (1981), 101 Ill. App. 3d 664, 668-69, 428 N.E.2d 987, 990-91. See also Rakas, 439 U.S. at 149-50, 58 L. Ed. 2d at 405, 99 S. Ct. at 433-34.) The trial court erred in holding otherwise, and James’ motion to suppress should have been denied.

James argues, however, the totality of the police conduct amounted to an unlawful seizure of his person in violation of his fourth amendment rights, thereby conferring standing upon him for yet another reason. (See People v. Kunath (1981), 99 Ill. App. 3d 201, 205, 425 N.E.2d 486, 489-90.) This argument ignores the fact that the car in which he was riding was stopped for speeding. A traffic violation provides more than a reasonable basis for stopping a vehicle. (See Flowers, 111 Ill. App. 3d at 354, 444 N.E.2d at 247.) Likewise, an officer’s request to produce identification is not unreasonable, nor does it constitute a fourth amendment seizure. (See People v. Long (1983), 99 Ill. 2d 219, 229-30, 457 N.E.2d 1252, 1256.) More importantly, however, neither defendant’s freedom of movement was restricted. No guns were drawn, no handcuffs were used. One of the troopers testified defendants could have left at any time once the warning ticket had been issued. The narcotics supervisor who met defendants at the garage in Vienna testified he told defendants they were not under arrest and they could go off and eat at a restaurant across the street if they so desired. There simply was no unlawful arrest or seizure of either defendant in this instance. (See United States v. Mendenhall (1980), 446 U.S. 544, 555-56, 64 L. Ed. 2d 497, 510, 100 S. Ct. 1870, 1877-78; Long, 99 Ill. 2d at 231, 457 N.E.2d at 1257. Cf. Florida v. Royer (1983), 460 U.S. 491, 502-03, 75 L. Ed. 2d 229, 239-40, 103 S. Ct. 1319, 1326-27; People v. Wiseman (1974), 59 Ill. 2d 45, 50, 319 N.E.2d 225, 227; People v. Reynolds (1981), 101 Ill. App. 3d 576, 579, 428 N.E.2d 694, 696.) Consequently, any argument that the cocaine should have been suppressed as the “fruit” of an illegal arrest is also without merit. Moreover, the search which produced the cocaine was based upon a valid written consent, unrelated to any possible illegal arrest. See People v. Brumfield (1981), 100 Ill. App. 3d 382, 387-88, 426 N.E.2d 1012, 1016-17.

The State next finds fault with the trial court’s ruling that the search conducted at the garage in Vienna exceeded the scope of Allan’s written consent to search. The State contends the troopers made only one continuous search within the scope of consent given which neither defendant ever withdrew. Again we must agree with the State.

Allan, as driver of the car, signed a blanket comprehensive written consent form allowing the troopers to search the car in which defendants were riding as well as its contents. At no time was this consent ever withdrawn or limited. While both defendants denied giving their consent and Allan denied signing the consent form, credibility is an issue for the trier of fact which we will not disturb on review. (See, e.g., People v. Clark (1982), 92 Ill. 2d 96, 99, 440 N.E.2d 869, 871.) The trial court here specifically found Allan gave the troopers valid written consent to search the auto. The trial court ruled only the search at the garage in Vienna exceeded the scope of that consent.

A consent to search which is unlimited as to time and number of searches must be judged under a rule of reason. (People v. Shelton (1982), 110 Ill. App. 3d 625, 629, 442 N.E.2d 928, 932.) Generally, a consent to search is given with the understanding that the search will be conducted forthwith and that only a single search will be made. Under appropriate circumstances, however, second or subsequent searches are acceptable. (See People v. Wilson (1985), 133 Ill. App. 3d 265, 271-72, 478 N.E.2d 561, 566; People v. Lee (1981), 93 Ill. App. 3d 894, 896-97, 417 N.E.2d 1090, 1092.) We need not concern ourselves with the latter situation in this instance, for we find the search conducted at the garage in Vienna to be part of one continuous search. The search began on the highway at the site of the initial traffic violation stop, was suspended temporarily because of approaching bad weather, and was finished at the garage in Vienna. There were not two separate searches here, only one, albeit interrupted. The troopers simply had not completed their search when forced to stop because of circumstances beyond their control, i.e., approaching bad weather. The troopers’ decision to move the site of the search was not unreasonable under such circumstances, and in fact, was for the protection of all involved. Moreover, an auto which could have been properly searched on a highway can be searched as well without a warrant at a police station or garage. (See Wiseman, 59 Ill. 2d at 48-49, 319 N.E.2d at 226-27; People v. Canaday (1971), 49 Ill. 2d 416, 421, 275 N.E.2d 356, 359.) The object of the search in this instance never changed, only the location. Even this did not inconvenience defendants as the garage in Vienna was on their way to Chicago. More importantly, defendants never withdrew or limited the consent to search the car and its contents. This was also true after defendants learned a canine unit was on its way to meet them. We further note that in general the use of a trained narcotics dog is viewed as inoffensive to an individual’s rights. (See People v. Campbell (1977), 67 Ill. 2d 308, 317, 367 N.E.2d 949, 953-54.) We therefore find the search begun on the highway and concluded at a garage in Vienna was both reasonable and within the scope of the written consent to search. We accordingly reverse the decision of the trial court suppressing the cocaine seized from defendants pursuant to a valid search of the car in which they were riding.

As for defendants’ arguments that a copying error in the vehicle identification number rendered the consent to search form invalid and that the officers had no authority to open the shaving kit once found are specious at best. The car was correctly described by color, make, year, body style and license number so as to identify sufficiently the object to be searched. Any misdescription as to the vehicle number therefore was harmless. (See People v. Laws (1972), 7 Ill. App. 3d 826, 827-28, 288 N.E.2d 890, 891.) In addition, the consent form specifically authorized search of luggage and contents of the car, thereby permitting the officers to look into the shaving kit. In any event, once the shaving kit was found, its location and peculiar packaging provided sufficient probable cause to open and search its contents. See Texas v. Brown (1983), 460 U.S. 730, 743-44, 75 L. Ed. 2d 502, 514-15, 103 S. Ct. 1535, 1543-44.

For the aforementioned reasons, we reverse the order of the circuit court of Massac County and remand for further proceedings.

Reversed and remanded.

WELCH, P.J., and HARRISON, J., concur.