author: PRESIDING JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 1991 DODGE RAM CHARGER et al., Defendants (Richard Dietterich et al., Claimants-Appellants).
    Second District
    No. 2 — 92—0721
    Opinion filed September 7, 1993.
    Rehearing denied October 21, 1993.
    Peter A. Savitski, of Rockford, for appellants.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Lisa Anne Hoffman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

The trial court ordered the forfeiture of a vehicle owned jointly by claimants Richard and David Dietterich pursuant to section 505(a)(3) of the Illinois Controlled Substances Act (Controlled Substances Act) (Ill. Rev. Stat. 1991, ch. 56½, par. 1505(a)(3) (now 720 ILCS 570/ 505(a)(3) (West 1992))). On appeal from the trial court’s order, claimants argue that they were not responsible for, nor did they acquiesce in, the use of their vehicle to facilitate drug activity.

On February 5, 1992, the State filed a complaint for the forfeiture of a 1991 Dodge Ram Charger which was owned jointly by Richard Dietterich and his son David. The State also sued for the forfeiture of $264 in United States currency. The forfeiture hearing took place on April 16, 1992.

The following evidence was contained in the testimony of Officer Curtis Wilson of the Loves Park police department and in the police report of Officer C. Lynde of the Loves Park police department. At approximately 3:50 a.m. on January 4, 1992, Officer Lynde investigated a car alarm that had been activated in the parking lot of the Clayton House motel. Lynde observed a woman, Cheri Rucker, leaning against a gray Dodge Ram Charger in front of Room 26. A man, Henry Barbary, was standing nearby and another man, David Dietterich, was standing in the doorway of Room 26. Rucker informed Lynde that the alarm had been activated accidentally. Lynde left the scene. A few minutes later, a “concerned citizen” advised Lynde that he had interrupted a drug deal when he investigated the car alarm. Lynde called Wilson for assistance.

Wilson and Lynde parked across from the motel. They observed Rucker and Barbary enter the truck and drive out of the city limits. The officers did not pursue the truck. Sometime thereafter, they observed the truck returning to the parking lot. The officers made a traffic stop of the truck after Rucker, the driver, turned left into the parking lot without activating her turn signal. As the officers approached, they observed Rucker reach down toward the floor of the vehicle. Lynde saw Rucker put something into her mouth. After Rucker exited the truck, Lynde recovered a white plastic baggie, containing a white residue, from Rucker’s mouth. Rucker also produced a clear plastic baggie containing a white powdery substance.

The officers then knocked on the door of Room 26 and spoke to David Dietterich. David stated that he knew that the subjects in the truck had possibly used the truck to purchase cocaine or heroin. David denied using drugs. He stated, however, that the driver of the vehicle was his girlfriend, and she had a serious drug problem. David consented to a search of the truck. The officers recovered from the center console of the truck a small amount of a substance which appeared to be cocaine and a syringe containing a red substance. David also consented to a search of Room 26. The officers recovered syringes, a scale, and a glass jar containing plastic baggie comers which are commonly used to package cocaine.

David later admitted in a written statement that he knew that Rucker and Barbary had taken the vehicle because they planned to purchase an “eight-ball” of cocaine. He further admitted in this statement that he had used his truck to drive Rucker to purchase cocaine during the previous few days. He also admitted that in the past he had given her money to purchase cocaine. On these occasions, she would consume a portion of the cocaine, sell the rest, and give him the proceeds. After consulting with an assistant State’s Attorney, Lynde seized and secured the truck.

Rucker made a written statement that she and Barbary used David Dietterich’s truck to drive to Rockford to purchase an “eight-ball” of cocaine. She stated that Barbary actually purchased the cocaine and put it next to her in the truck. She also stated that David often either allowed her to use his truck to make drug purchases or drove her to the drug purchases.

The officers subsequently learned from an informant that there was cocaine remaining in the truck that they had not recovered. David consented to a second search of the truck. The officers found a substance, which later tested positive for cocaine, inside the truck. Wilson described the quantity of that cocaine as an “eight-ball,” valued at between $400 and $800. The officers also recovered $264 from David. Other than the “eight-ball” recovered from the console, none of the substances that the officers recovered tested positive for cocaine. The substance that they recovered from Rucker turned out to be baking powder.

After the State rested, the trial court denied complainants’ motion for a directed verdict. Claimants both testified for the defense.

Richard Dietterich, David’s father, was 75 years old at the time of the hearing. Richard had paid for the truck with $22,000 from his savings. Richard testified that he did not know Rucker, he did not acquiesce in her use of the vehicle, and did not acquiesce in her use of the vehicle to transport cocaine.

David Dietterich testified that he had been with Rucker on the night of January 3, 1992, and they had gone to the motel. After taking a prescription for a sore back and Nyquil for a bad cold, he fell asleep. He later awoke and saw Rucker leaving the room. He then heard his truck’s alarm go off. He looked outside and saw Rucker speaking with Barbary. He fell back to sleep and did not wake up until the police officers knocked on the door of his room.

David denied giving Rucker permission to use the truck that night. He knew nothing of the “eight-ball” that was recovered from the truck. He also claimed that none of the items that the officers found in the room belonged to him. He claimed that when he made the statements to police, he did not know what he was doing because he was groggy from the medication he had taken. David also claimed that he was not certain that Rucker had ever purchased cocaine when they were together.

The court ordered the forfeiture of the truck. The court found no basis for the forfeiture of the $264 and ordered that the money be returned to David. The only issue on appeal is whether the trial court was correct in ordering the forfeiture of the truck.

Section 505(a)(3) of the Controlled Substances Act provides for the forfeiture of “all conveyances, including *** vehicles *** which are used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of” controlled substances. (Ill. Rev. Stat. 1991, ch. 56½, par. 1505(a)(3) (now 720 ILCS 570/505(a)(3) (West 1992)).) That section further provides, however, that “no conveyance is subject to forfeiture under this Section by reason of any act or omission which the owner proves to have been committed or omitted without his knowledge or consent.” Ill. Rev. Stat. 1991, ch. 56½, par. 1505(a)(3)(ii) (now 720 ILCS 570/ 505(a)(3)(ii) (West 1992)).

Section 8 of the Drug Asset Forfeiture Procedure Act (Forfeiture Procedure Act), which applies to forfeitures under the Controlled Substances Act, provides that personal property is not subject to forfeiture if its owner can show by a preponderance of the evidence that he or she:

“(A)(i) *** is not legally accountable for the conduct giving rise to the forfeiture, did not acquiesce in it, and did not know and could not reasonably have known of the conduct or that the conduct was likely to occur [and]
* * *
(C) with respect to conveyances, did not hold the property jointly or in common with a person whose conduct gave rise to the forfeiture.” Ill. Rev. Stat. 1991, ch. 56½, pars. 1678(A)(i), (C) (now 725 ILCS 150/8(A)(i), (C) (West 1992)).

Forfeiture proceedings are civil in nature. (People v. United States Currency $3,108 (1991), 219 Ill. App. 3d 441, 444; People v. 1984 BMW 528E Automobile (1991), 208 Ill. App. 3d 930, 936.) In order to secure the forfeiture of a vehicle under section 505(a)(3) of the Controlled Substances Act, the State must show by a preponderance of the evidence probable cause that the vehicle was used in the commission of an offense that violates the Act. People ex rel. Daley v. 1986 Honda (1989), 182 Ill. App. 3d 322, 324.

When a person places a controlled substance in a vehicle, that person uses the vehicle to facilitate the possession and concealment of a controlled substance, within the meaning of section 505(a)(3) of the Act. (People v. One 1986 Ford Ranger Pickup Truck (1991), 213 Ill. App. 3d 1085, 1088; People ex rel. Broch v. Hogg (1991), 213 Ill. App. 3d 188, 192-95.) This is so because a vehicle “ ‘adds a dimension of privacy’ ” to the illegal conduct involved. People v. 1946 Buick (1989), 127 Ill. 2d 374, 377, quoting People ex rel. Mihm v. Miller (1980), 89 Ill. App. 3d 148, 150; accord People ex rel. Vandersnick v. One 1987 Dodge Charger Automobile (1990), 193 Ill. App. 3d 547, 552.

The trial judge is in the best position to evaluate the testimony of the witnesses, and he or she is entitled to draw reasonable inferences from the evidence presented. (People v. One 1980 Mercedes Automobile (1988), 166 Ill. App. 3d 467, 470.) We will not disturb the trial judge’s factual findings in a forfeiture proceeding unless they are against the manifest weight of the evidence. People v. One 1990 Chevrolet Suburban (1992), 239 Ill. App. 3d 815, 817.

The trial court’s finding, that David Dietterich knew about, or consented to, an activity which subjected the truck to forfeiture, was not against the manifest weight of the evidence. The State presented evidence that David allowed both Rucker and Barbary to use his truck to drive to a location where they could purchase an “eight-ball” of cocaine and then return with the drugs to the motel. The officers recovered an “eight-ball” of cocaine from the console of the truck. The State further presented evidence that David had permitted Rucker to use the truck to purchase cocaine and that he had driven her on prior occasions to a place where she purchased cocaine. The trial judge apparently concluded from this evidence that, more probably than not, Rucker or Barbary used the truck to facilitate the transportation, possession, or concealment of cocaine. David failed to prove that he neither knew about, nor acquiesced in, the use of his truck for the facilitation of the possession, purchase, or concealment of cocaine.

Claimants argue that the fact that there were substances in the truck that appeared to be cocaine, but which did not test positive for cocaine, defeats the trial judge’s conclusion. Claimants postulate that when David permitted Rucker to use the truck to purchase cocaine, she purchased a substance that was not cocaine. According to claimants, therefore, the actual “eight-ball” of cocaine could have found its way into the truck without David’s knowledge or consent. Claimants presented no evidence, however, that the cocaine was put into the truck without David’s knowledge or consent.

Claimants misunderstand the burden of proof under the forfeiture statute. Under section 8 of the Forfeiture Procedure Act, the property owner has the burden of proving, by a preponderance of the evidence, that his or her property is exempt from forfeiture. (Ill. Rev. Stat. 1991, ch. 56½, par. 1678 (now 725 ILCS 150/8 (West 1992)).) The State, therefore, need not prove that the exemptions do not apply in order to establish that it is entitled to the forfeiture of the property. Claimants cannot avoid the forfeiture of their property by sheer speculation that the cocaine made its way into the truck without David’s permission.

The evidence in this case, however, does not support the forfeiture of Richard Dietterich’s interest in the truck. It is clear that Richard knew nothing about, nor had reason to know about, the use of the truck for any drug-related activity. The State never attempted to argue that Richard knew about, or acquiesced in, the drug activity that took place in the truck. The State argues, rather, that under section 8(C) of the Forfeiture Procedure Act, Richard’s interest in the truck is subject to forfeiture because he owned the truck jointly with “a person whose conduct gave rise to the forfeiture.” Ill. Rev. Stat. 1991, ch. 56½, par. 1678(C) (now 725 ILCS 150/8(C) (West 1992)).

In interpreting section 8(C) of the Forfeiture Procedure Act, we first note that it seems to conflict with section 505(a)(3)(ii) of the Controlled Substances Act. Under section 505(a)(3)(ii) of the Controlled Substances Act, a vehicle is not subject to forfeiture if its owner can prove that he or she did not know of, or consent to, the act or omission which triggered the forfeiture. (Ill. Rev. Stat. 1991, ch. 56½, par. 1505(a)(3)(ii) (now 720 ILCS 570/505(a)(3)(ii) (West 1992)).) For property to be exempt from forfeiture under section 8 of the Forfeiture Procedure Act, on the other hand, the owner must not only show that he or she did not acquiesce in, or know about, the conduct giving rise to the forfeiture. He or she must also satisfy other conditions, including the condition found in section 8(C) that he or she did not own the property jointly with a person whose conduct gave rise to the forfeiture. Ill. Rev. Stat. 1991, ch. 56½, par. 1678 (now 725 ILCS 150/8 (West 1992)).

We see no way to read these two provisions so that they are harmonious. (See Williams v. Illinois State Scholarship Comm’n (1990), 139 Ill. 2d 24, 52.) Nor do we conclude that one provision applies because it is the more specific. (See Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 195.) However, section 8 of the Forfeiture Procedure Act is the legislature’s most recent pronouncement on the issue. As such, we determine that it controls. See People v. Bailey (1983), 116 Ill. App. 3d 259, 264; 2B N. Singer, Sutherland on Statutory Construction §51.02 (5th ed. 1992).

We now construe section 8 of the Forfeiture Procedure Act. Under that section, an innocent owner of a conveyance cannot defeat its forfeiture if he or she owns the conveyance jointly with a person whose conduct gave rise to the forfeiture. Section 8(A)(i) of the Forfeiture Procedure Act uses the word “conduct” to refer to the illegal activity itself, not the acquiescence in, or knowledge of, that activity. In this case, the evidence established that the conduct giving rise to the forfeiture occurred when either Rucker or Barbary placed the cocaine in the truck and then used the truck to conceal and transport the cocaine. The State did not prove that David himself ever placed cocaine in the truck, or that he used the truck to transport or conceal cocaine. Because David permitted Rucker and Barbary to use the truck to purchase cocaine, his behavior prevented his property from being exempt from forfeiture under section 505(a)(3)(ii) of the Controlled Substances Act and under section 8(A)(i) of the Forfeiture Procedure Act. However, David himself did not engage in conduct which gave rise to the forfeiture, at least as the term “conduct” is used in section 8(A)(i) of the Forfeiture Procedure Act. Because Richard owns the truck jointly with David, rather than with Rucker or Barbary, Richard can qualify as an innocent owner whose property is exempt from forfeiture under section 8(A)9i) of the Forfeiture Procedure Act.

Furthermore, even if we found an ambiguity as to whether “conduct” in section 8(C) of the Forfeiture Procedure Act applied to David’s actions, we would still conclude that section 8(C) did not prevent Richard from being an innocent owner. The law generally disfavors forfeitures, and statutes authorizing them must be strictly construed in favor of the property owner. (United States Currency $3,108, 219 Ill. App. 3d at 446.) Construing any ambiguity in the word “conduct” in Richard’s favor would lead us to conclude that Richard did not own the property jointly with a person whose conduct gave rise to the forfeiture.

In addition, because we presume that the legislature intended an interpretation that renders the statute valid, we interpret statutes, where possible, so that they are constitutional. (Collins v. Board of Trustees of the Firemen’s Annuity & Benefit Fund (1993), 155 Ill. 2d 103, 110.) The United States Supreme Court recently held that criminal forfeitures constitute punishments which are subject to the limitations of the eighth amendment’s excessive fines clause. (Austin v. United States (1993), 509 U.S____,____, 125 L. Ed. 2d 488, 494, 113 S. Ct. 2801, 2803.) In light of Austin, we seriously doubt whether it would be constitutional to require Richard to forfeit a truck whose value exceeds $20,000 when he was completely innocent of any criminal activity and his co-owner did not himself engage in criminal activity.

Because section 8(C) of the Forfeiture Procedure Act does not prevent Richard from claiming that the truck was exempt from forfeiture, Richard, as an innocent co-owner of the truck, can avoid its forfeiture. (See People ex rel. Barra v. Wiebler (1984), 127 Ill. App. 3d 488, 491-92 (interpreting a similar forfeiture provision).) The resolution of whether section 8(C) of the Forfeiture Procedure Act prevented Richard from avoiding the forfeiture of his truck turned on the interpretation of the statute rather than on a question of fact. Thus, we reverse the trial court’s finding as a matter of law. 1946 Buick, 127 Ill. 2d at 378.

We reverse that portion of the order of the circuit court of Winnebago County requiring forfeiture of the truck.

Reversed.

UNVERZAGT and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    TYRRELL GRAVEL COMPANY, Plaintiff-Appellant, v. DEAN E. CARRADUS et al., Defendants-Appellees.
    Second District
    No. 2 — 92—1076
    Opinion filed September 13, 1993.

      William P. Brady, of Gallagher, Klein & Brady, of De Kalb, for appellant.
    Norman H. Racine, of Racine & Racine, of Sycamore, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Tyrrell Gravel Company, sued defendants, Dean and M. Frances Carradus, for a declaratory judgment. Plaintiff sought a declaration that it had a property interest in fish that were contained in man-made bodies of water on real property that plaintiff had conveyed to defendants. The trial court granted summary judgment in defendants’ favor on the grounds that (1) the fish were part of the real property; and (2) Tyrrell had abandoned the fish.

For the purposes of this appeal, we take the following allegations in the plaintiff’s pleadings as true. On December 30, 1983, plaintiff entered into a deed in lieu of foreclosure with the National Bank and Trust Company of Sycamore (Bank) whereby plaintiff conveyed certain of its property to the Bank. This property contained three man-made lakes, or quarries, which were completely within the property and unconnected to any other bodies of water. Plaintiff had operated a “fee fishing and camping” business on the property. Plaintiff maintained and increased the population of fish in these quarries by stocking them with fish that it had purchased. The fish also reproduced naturally.

On October 17, 1986, defendants purchased the property from the Bank. Thereafter, defendants prohibited plaintiff from removing any fish from the lakes.

Plaintiff sued for a declaration that it had a property interest in the fish and therefore had a right to remove the fish from the property. Plaintiff argues on appeal that the fish were part of its business inventory and that it did not convey the fish to the Bank along with the real property. Plaintiff claims, therefore, that even though defendants own the property, plaintiff still has a property interest in the fish.

Defendants argue, on the other hand, that (1) the fish, as wild animals, are the properly of the State; (2) even if the fish are not wild animals, they are part of the real property and were conveyed along with the property itself; and (3) even if Tyrrell could have retained a property interest in the fish after conveying the property to the Bank, Tyrrell abandoned the fish by not attempting to remove them prior to October 17, 1986.

Under section 5 — 5 of the Fish and Aquatic Life Code (Code) (515 ILCS 5/5 — 5 (West 1992)), all “aquatic life within the boundaries of the State” is the property of the State and the State regulates the “taking, killing, possession, use, sale, and transportation” of such aquatic life. (515 ILCS 5/5 — 5 (West 1992).) Section 5 — 5 applies to aquatic life “in or from any of the lakes, rivers, creeks, sloughs, bayous, or other waters or watercourses or lands” in Illinois. (515 ILCS 5/5 — 10(i) (West 1992).) Section 5 — 5 provides an exception, however, for aquatic products which are “bred, hatched, propagated, or raised” pursuant to an aquaculture permit issued by the Department of Conservation. 515 ILCS 5/5 — 5 (West 1992).

Section 5 — 5 of the Code did not become effective until January 17, 1992. The predecessor to section 5 — 5 of the Code was section 2.1 of the Fish Code of 1971 (Fish Code) (Ill. Rev. Stat. 1989, ch. 56, par. 2.1). Section 2.1 of the Fish Code did not recognize an exception for aquatic products until the adoption of Public Act 85 — 856, which became effective on January 1, 1988. Therefore, we need not consider whether the fish in this case are aquatic products exempt from State ownership under section 5 — 5 of the Code.

Defendants persuasively argue that if the fish were, by statute, the property of the State, then plaintiff could have no property interest in them. As the owner of the property plaintiff may have had fishing rights (515 ILCS 5/5 — 20 (West 1992)), but these rights terminated when plaintiff relinquished the ownership of the land. Beckman v. Kreamer (1867), 43 Ill. 447, 448.

Plaintiff argues, however, that the State does not own the fish in the lakes in question because those lakes are located entirely on private property and they are unconnected to any other bodies of water. Plaintiff’s argument is well taken. Section 2.1 of the Fish Code is a reflection of the common-law principle that fish which are ferae naturae are the property of the State. We can therefore read section 2.1 with reference to the common law. (2B N. Singer, Sutherland on Statutory Construction §50.01 (5th ed. 1992).) Fish which swim freely are generally considered the property of the State in whose waters they are located. (People v. Booth Fisheries Co. (1912), 253 Ill. 423, 428-29; accord Washington Kelpers Association v. State (1972), 81 Wash. 2d 410, 415, 502 P.2d 1170, 1173; 36A C.J.S. Fish §2 (1961).) The State owns the fish:

“not as a proprietor, but in its sovereign capacity, as the representative and for the benefit of all its people in common, and the ownership thereof cannot be claimed by any particular individual. ***
***
When a fish has been legally appropriated and reduced to possession, it ceases to be a wild animal in the legal sense. Accordingly, title to fish reduced to one’s possession by lawful means is released by the state to the taker; but an individual may acquire only such limited or qualified property interest as the state chooses to permit. ***
The mere fact that a person owns land surrounding water in which there are fish gives him no property in the fish, unless the water is so inclosed as to be absolutely within his control, and the free passage of fish to and from it is entirely and rightfully obstructed. *** If, however, fish escape after being confined, and are found at large in their proper element, they again become public property and subject to appropriation by the first person who takes them.” 36A C.J.S. Fish §2 (1961).

The State, therefore, can regulate the right of individuals to catch even the fish that have swum onto their property. (35 Am. Jur. 2d Fish & Game §1 (1967).) It is the ability of the fish to “roam” to and from other bodies of water that invests the State with such an interest in regulating them. See United States v. Long Cove Seafood, Inc. (2d Cir. 1978), 582 F.2d 159,163-64.

A case which our supreme court decided over 100 years ago is relevant to our analysis here. (People v. Bridges (1892), 142 Ill. 30.) In Bridges, defendant was accused of violating a statute which prohibited the use of a seine for catching fish, except during certain months of the year. The lake on which defendant fished, with the owner’s permission, was entirely surrounded by private property. This lake was only connected to any navigable waters during periods of high water or flooding. The court held that although the lake was entirely within private property, the law prohibiting seining applied to the fish in the lake. The court in Bridges reasoned that before fish are captured they are not the property of the owner of the land surrounding the body of water, but are ferae naturae. (Bridges, 142 Ill. at 40.) According to the court, the fish in the lake in question were ferae naturae because, during periods of high water, fish could swim back and forth between the lake and a nearby river and therefore did not remain within the control of the property owner. Bridges, 142 Ill. at 40-41.

The court recognized that “the power to protect and preserve the fish in the waters of the State” rests upon the following grounds:

“It is because of the great importance of fish as an article of human food, that their protection and preservation has been regarded as a matter of public concern, and it is upon that ground that Legislatures have assumed the right to interpose their authority by way of preventing any undue or improper hindrance in the way of their natural increase, and of prohibiting the use of improper means for their extirpation.” Bridges, 142 Ill. at 39-40.

A 1933 Wisconsin case, conversely, considered whether the State had the same interest in a lake which was entirely separate from any other body of water. (State v. Lipinske (1933), 212 Wis. 421, 424-25, 249 N.W. 289, 291.) The court in Lipinske stated:

“It is well established that the title to all wild animals within its borders is held by the state in its capacity as sovereign for the benefit of the people of the state. [Citations.] When, however, a wild animal or fish has been legally appropriated and reduced to possession, it ceases to be a wild animal in the legal sense. *** When the animal or fish ceases to be wild in the legal sense, the power of the state over it ceases except such power as the state has with respect to the general property of its citizens. This seems elementary. Whether a landowner propagates fish in a glass bowl, a water tank, or a pond, such fish are not wild so long as they have no connection with navigable waters and so long as they are subject to the dominion and control of the owner. *** The habits of the animal do not determine whether or not it is ferae naturae. The circumstance that determines whether or not one has property in an animal ordinarily regarded as ferae naturae is the fact that it has been appropriated and reduced to possession.” Lipinske, 212 Wis. at 424-25, 249 N.W. at 291.

That case held that a statute prohibiting the taking of fish from a certain geographic area did not prevent defendant from taking fish from a pond entirely within his own land. Lipinske, 212 Wis. at 425, 249 N.W. at 291.

For the purposes of this appeal we take as true plaintiff’s contention that the quarries are completely contained within the relevant parcel of property and that there is no connection between the water in the quarries and any navigable waters. If there is no connection between the water in the quarries and any other bodies of water, then the State’s interest in regulating the fish is limited to its interest in regulating any type of animal or food. No fishing that takes place within the quarries has any impact on any other fishery in the State. None of the fish inside the quarries have come from any other body of water, and none of the fish in the quarries can leave the quarries of their own volition. Therefore, the fish in the quarries are sufficiently within the control of the owner of the property to divest the State of title.

In light of the historical rationale behind sections 2.1 and 2.2 of the Fish Code, a sensible interpretation of those provisions would exclude their application to a body of water which is totally within private property and totally separate from any other body of water.

At the time that plaintiff owned the property, therefore, the fish were its property. We now must determine whether plaintiff retained its property rights in the fish after it sold the parcel of real property in which the fish were located. Courts consider three factors when determining whether an item is personal property or whether it is part of the real estate:

“(1) the nature of its attachment to the realty; (2) its adaptation to and necessity for the purpose for which the premises are devoted; and (3) whether it was intended that the item in question should be considered part of the realty.” (Harrisburg Community School District No. 3 v. Steapleton (1990), 195 Ill. App. 3d 1020, 1024.)

(Accord B. Kreisman & Co. v. First Arlington National Bank (1980), 91 Ill. App. 3d 847, 852.) The difficulty of the item’s removal is relevant to both the nature of its attachment and the intent of the property owner. See Harrisburg Community School District, 195 Ill. App. 3d at 1024.

Harrisburg Community School District and B. Kreisman involved inanimate structures, and therefore the analysis employed in those cases does not fit easily into the facts of the instant case. It is also relevant, however, that growing and standing crops are considered part of the real estate and their ownership is with the owner of the land. (Loepker v. Wesselman (1991), 210 Ill. App. 3d 908, 909.) Trees are similarly considered part of the real estate. (98 C.J.S. Woods & Forests §2 (1957).) “ ‘[T]he conveyance of the fee carries with it whatever is attached to the soil, be it grain growing, or anything else, and *** exceptions to the rule *** rest upon reservations to be made by the vendor.’ ” (Firebaugh v. Divan (1904), 207 Ill. 287, 290, quoting 4 Kent’s Commentary 468.) Crops and trees, however, provide an imperfect analogy because fish are generally not attached to the soil.

Common sense dictates, however, that while the fish are at large in the lakes, they are part of the real property. We have already discussed that the fish in this case are not ferae naturae because they are not free to roam throughout the waterways of Illinois. Nonetheless, they are not contained within a trap or tank, and therefore they are free to roam throughout whichever lake in which they are located. We do not mean to imply that there are no situations in which fish that are located in an inland body of water, and which are not the property of the State, are always real property. If a landowner placed fish in a pond with the purpose of raising them and then harvesting them to sell commercially, there may be an issue of fact as to whether the fish were movable personal property or business inventory.

We conclude, however, that the only reasonable inference from the facts in this record is that plaintiff placed the fish in the quarries with the intention of permanently improving the property. Joseph Tyrrell, part owner of plaintiff, states in his affidavit that plaintiff has stocked the quarries with fish and operated a “fee fishing and camping operation” on the property. This implies that the fish were game fish and that plaintiff allowed people to fish in the quarries in exchange for a fee. Certainly plaintiff intended some of the fish to be removed from the quarries in the course of the fishing activity of its guests. But if the fish that plaintiff stocked in the quarries were not, to some extent, “wild animals” and an integral part of the quarries, then there would be no sport to fishing for them. Therefore, we conclude that the fish are too much a part of the real property to be considered personal property.

Because plaintiff did not reserve its property right in the fish, the fish passed automatically to defendants along with the rest of the real property. We need not consider whether the trial court was correct in finding that plaintiff had abandoned the fish.

The judgment of the circuit court of De Kalb County is affirmed.

Affirmed.

QUETSCH and COLWELL, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN ROBINSON, Defendant-Appellant.
    Second District
    No. 2 — 92—0242
    Opinion filed September 13, 1993.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and Nancy W. Owen, of Mattoon (William L. Browers and Norbert J. Goetten, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

A jury convicted defendant, Brian Robinson, of six counts of armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A — 2 (now 720 ILCS 5/33A — 2 (West 1992))) and six counts of aggravated discharge of a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 24 — 1.2(a)(2) (now codified, as amended, at 720 ILCS 5/24 — 1.2(a)(2) (West 1992))). He was sentenced to concurrent terms of 10 years’ imprisonment for each offense. On appeal, defendant raises the following issues: (1) whether the State proved beyond a reasonable doubt that defendant’s actions were without legal justification; (2) whether the trial court reversibly erred when refusing to provide defendant with the addresses of the prospective jurors; (3) whether the convictions of six counts of aggravated discharge of a firearm must be vacated pursuant to the one-act-one-crime rule; (4) whether the trial court relied upon improper aggravating factors when sentencing defendant; and (5) whether defendant is entitled to an additional day of credit toward his sentence.

A grand jury indicted defendant of 14 counts of armed violence and 7 counts of aggravated discharge of a firearm for an incident occurring on the border of Waukegan and North Chicago on June 30, 1991. The cause proceeded to trial on December 16,1991.

The State’s first witness was Officer Louis Rodriguez of the Waukegan police department. He testified that at approximately 1:20 a.m. on June 30, 1991, he was patrolling in a squad car when a citizen stopped him and stated that there was going to be a fight between black and Hispanic gang members in the area of 10th Street and Lincoln, including a drive-by shooting. Tenth Street divides Waukegan and North Chicago. Rodriguez testified that shortly after arriving he dispersed a crowd of 15 to 20 Hispanic individuals. The individuals were not wearing gang-related attire. Some individuals walked toward 10th and Prescott, one block east. He then heard three shotgun blasts come from 10th Street and Prescott. He observed a group of male Hispanics running toward him and that three males were bleeding from their arms, legs and chest area. Rodriguez did not see one group of individuals running toward the other group prior to the shotgun blasts. Rodriguez further testified that he and other officers dispersed a crowd of approximately 60 to 100 people on each side of 10th Street. He took one of the injured males, Guillermo Macias, to the hospital.

Allen Jordan testified that he was at the comer of 10th and Lincoln at about 1:30 a.m. on June 30, 1991. He was there with friends, and a group of individuals on the North Chicago side of 10th Street was throwing bottles. He moved toward Prescott, and while he was standing there, a black sports car pulled up, the doors opened and an individual started shooting. Jordan testified that he heard two shots and then ran toward his car. Jordan was shot in the right lower thigh. Jordan testified that prior to the shooting, he saw possibly three individuals running toward the car. On cross-examination, Jordan acknowledged that he is familiar with gangs in the area and that he associates with gang members, although he is not a gang member. He also stated on cross-examination that he heard three shotgun blasts and that he heard a pistol shot in addition to the shotgun blasts.

Humberto Magano testified he has never been a gang member but was on probation for mob action. On June 30, he was with friends at 10th and Prescott at approximately 1:30 a.m. He had just left a bar and was talking with friends when they were “sprayed” with bullets. He was shot in the legs, arm and neck. Magano saw no cars drive into the area. Officer Rodriguez took him to the hospital. On cross-examination, Magano testified that he heard a pistol shot around the same time he was shot.

Michael Edwards testified that he used to be a member of the Gangster Disciples street gang and was on probation for unlawful delivery of a controlled substance. He was a gang member on June 30, 1991. At 1:30 a.m., he had left a party at the Puerto Rican Society and was standing at 10th and Prescott. Individuals from across 10th Street were yelling gang names and “other gang stuff.” Edwards testified that he crossed to the North Chicago side of 10th Street and told that group that “Nobody want no static.” He returned to the Waukegan side of 10th Street and someone yelled “That’s Mike-Mike.” Edwards looked up and saw a gun pointed toward him. A friend pushed Edwards out of the way when shots were fired. Edwards testified that he was not shot. Edwards testified that he heard three or four shots. Edwards could not identify the shooter in court; however, Edwards identified defendant as the shooter when he spoke with the police after the incident. Edwards further testified on cross-examination that he did not hear a pistol shot.

Hector Ramos testified that he was at 10th and Prescott on the Waukegan side on June 30, 1991, at about 1:30 a.m. He also had attended the party at the Puerto Rican Society. Ramos was standing there just after a fight had occurred down the street. He testified that he heard two or three shots but did not see the shooter. Ramos heard no other shots. At the hospital, he learned that he was hit with buckshot. Ramos further testified that there were a couple seconds between the first shot and the second and third shots. Ramos thought that he was hit by the first shot because at the first firing he covered his eyes with his hands. He was hit on the right palm, through his pinky finger, and in his right leg. On cross-examination, Ramos testified that he did not see any cars drive into the area before the shooting. He also testified that he was not sure if he may have been hit by the second or third shots.

Otonel Martinez testified that he was on the Waukegan side of 10th between Lincoln and Prescott on the day and at the time in question. He had just left a bar on the North Chicago side of 10th Street. There were individuals on each side of 10th Street yelling and screaming gang signs to each other. Martinez further testified that a black male riding a bike threw a bottle at the comer where he was standing. He thought it was a shot because it made a popping noise. Three cars parked on Prescott and some people got out of the cars. He described the cars as a small red car with a smashed out rear window, a black “small, like, Datsun, Mazda,” and a beige car. Martinez turned around and he heard shots. He ran after the first shot and hid in an abandoned building. Martinez testified that he heard three shots. Martinez was shot in the stomach and the legs. He spent four days in the hospital.

Eslido Salinas testified that he was also at the scene of the shooting. He had been at the bar on the North Chicago side of 10th Street after attending the party at the Puerto Rican Society. He reiterated that groups on each side of 10th were “throwing gang signs.” Salinas further testified that two or three cars pulled up, one being what he believed was a black Toyota. Salinas also recalled one vehicle was tan or beige. He saw two or three people exit the black car. He testified that, before the shooting, words were exchanged between the people from the car and the people on the street. He testified that that was when he heard shots and saw the shooter was one of the people from the black car. Salinas stated that it was about 30 seconds from the time the shooter exited the car until he produced a weapon. Salinas heard three shots and was hit in both legs. Salinas testified that he was hit with the first shot. Salinas identified defendant as the shooter.

On cross-examination, Salinas testified that he is a member of the Maniac Latin Disciples. He also testified that the back window of the black Toyota was not smashed out, and the vehicle did not have tinted windows.

Renee Andrzejewski testified that she was dating defendant and was in her car with him on the night of the shooting. They were returning from the Taste of Chicago festival in Renee’s black Toyota Célica. A friend of defendant’s, Tim, was sitting in the backseat. Renee testified that the rear window was not smashed out. She further testified that they circled 10th Street looking for a party. She observed many people standing on both sides of 10th Street. They parked the car and were starting to exit the vehicle when some people approached them. Defendant told Renee to get back in the car, which she did. When the people continued to walk toward them, defendant returned to the car and took out a friend’s gun from the car. Renee testified that defendant shot once in the air. Renee did not recall the group shouting anything as they approached but there was a lot of noise in the area. After the first shot was fired, Renee did not see anything as she was not looking in that direction. She further testified that she heard two shots fired in all but did not see where the second shot was pointed.

Detective Donald Meadie of the Waukegan police department testified that he took a statement from defendant at 8:30 a.m. on July 15, 1991. Defendant was advised of his Miranda rights and signed a waiver form. Meadie then read defendant’s statement to the jury. In the statement, defendant acknowledged that he had a sawed-off shotgun in his girlfriend’s car and that they parked at 10th and Prescott in the early morning of June 30, 1991. Defendant stated that he took five steps after exiting the car and saw about five Hispanic males, who he knew were members of the Maniac Latin Disciples, yelling “Disciples, Disciples.” He further stated that 20 or 30 other gang members appeared from around a building and started to move in his direction. He went back to the car, got the shotgun and fired one round in the air. The group kept proceeding in his direction so he fired a round in their direction, which he stated, had slowed them down. Defendant stated that he fired another round at them. The group stopped, turned around and ran away. Defendant got back in the car and Renee drove off. Defendant read about the injuries in the newspaper the following day. Defendant agreed with the statement but did not sign it.

Among the witnesses for the defense was Officer Paul Hendley. He testified that he believed the shooter was 20 to 25 feet away from the victim when he fired the shotgun. Hendley stated that number six birdshot, which was the ammunition used, has a tendency to spread widely after discharge, which could cause injury to numerous victims. Hendley acknowledged that while testifying in front of the grand jury, he stated that the victims were closer than 20 to 25 feet from the shooter because the victims were able to describe the vehicle that the shooter stood by.

Defendant testified consistently with the previous statement he gave to the police. Defendant also stated that he is acquainted with gang members but is not a member of a gang. He testified that his girlfriend’s car did not have a broken rear window. After the incident, defendant called the police to give his version of the story. An officer he spoke with told him to get a lawyer and turn himself in. Defendant did not get a lawyer and he was apprehended 15 days after the shooting. That is when defendant gave his statement to the police.

The jury found defendant guilty of six counts of armed violence and six counts of aggravated discharge of a firearm. He was sentenced to 10 years’ imprisonment for armed violence and a concurrent term of 10 years’ imprisonment for aggravated discharge of a firearm. After sentencing, defendant filed a timely notice of appeal.

The State concedes two issues on appeal. First, the State agrees that defendant was convicted improperly of both six counts of armed violence and six counts of aggravated discharge of a firearm because both charges arose from the act of shooting six individuals. (See People v. Johnson (1989), 128 Ill. 2d 253, 288, quoting People v. King (1977), 66 Ill. 2d 551, 566.) Thus, we vacate defendant’s six convictions of and sentence for aggravated discharge of a firearm. The State also agrees that defendant is entitled to receive credit toward his sentence for being held in custody on July 15, 1991. Defendant shall receive one additional day of credit for time served.

Defendant contends that the State failed to prove beyond a reasonable doubt that he shot the victims without legal justification. He argues that the evidence shows that he fired two rounds of bird-shot at an advancing crowd chanting gang slogans at 1:30 a.m. in a dangerous neighborhood after firing a warning shot. The State argues that any rational jury could have found no legal justification based on the State’s witnesses’ testimony that no one was advancing toward defendant prior to the shooting.

If an affirmative defense, such as the justifiable use of force, is raised at a defendant’s trial, the State must prove the defendant guilty beyond a reasonable doubt as to that issue and all other elements of the offense. (Ill. Rev. Stat. 1991, ch. 38, par. 3 — 2(b) (now 720 ILCS 5/3 — 2(b) (West 1992)); People v. Durden (1992), 231 Ill. App. 3d 84, 86.) The defendant must present evidence to support the affirmative defense if the State fails to raise the issue. Ill. Rev. Stat. 1991, ch. 38, par. 3-2(a) (now 720 ILCS 5/3-2(a) (West 1992)).

A reviewing court will not set aside a conviction unless the evidence was so improbable and unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) The evidence is viewed in the light most favorable to the prosecution to determine whether it was sufficient to convince any rational trier of fact that the defendant is guilty beyond a reasonable doubt. People v. Albert (1993), 243 Ill. App. 3d 23, 26.

We are presented with a classic case of a credibility dispute. The various victims testified that they were not approaching defendant’s vehicle before the shooting. Allen Jordan testified that three people ran toward the car before the shooting. Defendant’s girlfriend testified that a group of individuals was approaching but was not shouting at defendant. Defendant testified that the group was approaching and shouting gang slogans. He further testified that the group ran away only after he fired the second shot in its direction. The victims testified that they began running away after the first shot, which defendant claimed was not aimed in the group’s direction.

It is not the reviewing court’s function to retry the defendant. (Collins, 106 Ill. 2d at 261.) The trier of fact weighs the credibility of the witnesses, draws reasonable inferences from their testimony, and resolves the conflicts in the evidence. (People v. Felella (1989), 131 Ill. 2d 525, 534.) The reviewing court will not substitute its judgment for that of the trier of fact. Felella, 131 Ill. 2d at 534.

The jury heard the conflicting testimony. It was within the province of the jury to resolve the conflicts in the evidence in favor of rejecting the affirmative defense of justifiable use of force. We will not disturb the findings of guilt.

Defendant contends, relying on In re S.M. (1981), 93 Ill. App. 3d 105, that a claim of self-defense is not refuted when someone fires a warning shot on an advancing crowd and fires into the crowd when they continue to advance. However, his argument assumes that the evidence of an advancing crowd is undisputed. Here, there was conflicting evidence of whether a group was advancing toward defendant before the shooting. Defendant also relies on People v. McGrath (1989), 193 Ill. App. 3d 12. McGrath also is distinguishable because the victims admitted that they followed the defendant to retaliate for a previous incident. McGrath, 193 Ill. App. 3d at 27.

Defendant next contends that the trial court reversibly erred when it disallowed defendant’s request for the street addresses of the prospective jurors. Defendant claims that this action violates section 115 — 4(c) of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 4(c) (now 725 ILCS 5/115 — 4(c) (West 1992))) and Supreme Court Rule 434(b) (134 Ill. 2d R. 434(b)). The State argues that People v. Partee (1987), 157 Ill. App. 3d 231, is the only case that has interpreted section 115 — 4(c) and Rule 434(b), finding that the requirement of providing prospective jurors’ addresses is permissive, not mandatory.

Section 115 — 4(c) of the Code of Criminal Procedure and Supreme Court Rule 434(b) identically provide:

“Upon request the parties shall be furnished with a list of prospective jurors with their addresses if known.” Ill. Rev. Stat. 1991, ch. 38, par. 115-4(c) (now 725 ILCS 5/115-4(c) (West 1992)); 134 Ill. 2d R. 434(b).

Our research has revealed no pertinent case other than Partee (157 Ill. App. 3d 231). There, the Appellate Court, First District, held that section 115 — 4(c) is permissive in nature, stating:

“The committee comments for this section [115 — 4(c)], however, provide that ‘[t]he additional provision for addresses if known is for the convenience of both parties.’ We hold that this provision is permissive in nature. Moreover, it is evidence that the exclusion of addresses in no way prejudiced defendant.” (Partee, 157 Ill. App. 3d at 259-60.)

Notwithstanding any issue presented pertaining to the timeliness of defendant’s post-trial motion and the preservation of issues on appeal, we hold that the trial court did not err in denying the request for the prospective jurors’ addresses. We adopt the rationale of Partee, particularly in a case like this where the trial judge denies the defendant’s request to prevent possible or juror-perceived gang reprisal. Defendant argues that without the street addresses of the prospective jurors he is unable to determine their socioeconomic status. However, there are other questions, such as asking prospective jurors about their jobs, that will provide insight into their socioeconomic status. Thus, defendant has not demonstrated that he was prejudiced by the trial court’s decision. In fact, defense counsel was granted his request to see the address of one prospective juror because he believed that the prospective juror and he had been involved in a previous matter. We find no cause for reversal.

Finally, defendant contends that the trial court abused its discretion when sentencing him to concurrent 10-year terms for armed violence and aggravated discharge of a firearm. Because the convictions of aggravated discharge of a firearm have been vacated, we will address defendant’s sentencing issue only as it relates to his sentence for armed violence.

Defendant argues that his sentence is excessive given his nonviolent criminal history, his age, and his substantial employment record. He also argues that the trial judge erroneously relied on factors implicit in the offense, namely, his use of a firearm and the threat of serious harm, as aggravating factors in sentencing. Defendant claims that his sentence is excessive in light of the circumstances of the offense, that he fired birdshot toward an advancing crowd in order to protect himself.

The State counters by arguing that defendant has waived the sentencing issue by failing to object at the sentencing hearing or filing a motion to reconsider the sentence. Alternatively, the State argues that the aggravating factors relied upon by the trial court are not factors implicit in the offense of armed violence. The State claims that the trial court also properly considered the mitigating factors in imposing the 10-year sentence.

We first address waiver. The general rule is that an objection related to a defendant’s sentence first must be presented to the trial court before review may be sought. (People v. Hess (1993), 241 Ill. App. 3d 276, 281.) Sentencing issues are waived on appeal unless challenged in the trial court either by objection at the sentencing hearing or by way of a motion to reconsider the sentence. Hess, 241 Ill. App. 3d at 281; People v. Bolden (1991), 210 Ill. App. 3d 940, 947.

Defendant did not object to any aspect of his sentence either at the sentencing hearing or in a post-sentencing motion. Thus, the issue has been waived. Further, we find that no plain error has occurred.

The use of a weapon was a proper factor to consider in aggravation and is not an element of armed violence. (See People v. Estrella (1988), 170 Ill. App. 3d 292, 297 (actual use of weapon to cause serious harm is not an implicit element of armed violence).) Also, the threat of serious bodily harm is a statutorily recognized aggravating factor that existed in this case. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.2(a)(1) (now codified, as amended, at 730 ILCS 5/5 — 5—3.2(a)(1) (West 1992)).) The commission of any offense has varying degrees of harm or threatened harm, and this varying degree constitutes an aggravating factor even where serious bodily harm is implicit in the offense. (People v. Allan (1992), 231 Ill. App. 3d 447, 458.) The trial court did not plainly err in relying on either of the above-mentioned aggravating factors.

We also find that the trial court did not plainly err when imposing the 10-year sentence for armed violence. The judge considered the mitigating evidence and clearly stated that he thought the self-defense theory was “basically non-existent.” A reviewing court will modify a sentence within the statutory limits only when there has been a “clear departure from the spirit and purpose of the fundamental law and the constitutional requirement that the sentence be proportionate to the nature of the offense and that the possibilities for rehabilitation be taken into account.” (Bolden, 210 Ill. App. 3d at 947.) Defendant’s 10-year sentence was four years over the statutory minimum sentence of six years for armed violence, a Class X felony when committed with a category I weapon such as a shotgun (Ill. Rev. Stat. 1991, ch. 38, pars. 33A— 1, 33A — 3 (now 720 ILCS 5/ 33A-1, 33A-3 (West 1992)); Ill. Rev. Stat. 1991, ch. 38, par. 1005-8 — 1(a)(3) (now 730 ILCS 5/5 — 8—l(a)(3) (West 1992))), and one-half of the 20-year sentence sought by the State. We will not disturb the sentence.

For the foregoing reasons, defendant’s convictions of and sentence for six counts of aggravated discharge of a firearm are vacated. Defendant shall be given one day’s credit toward his sentence for time served. His convictions of and sentence for six counts of armed violence are affirmed.

Affirmed in part; vacated in part.

DOYLE and COLWELL, JJ., concur.


author: JUSTICE COLWELL

text:
      In re C.K., a Minor (The People of the State of Illinois, Plaintiff-Appellee, v. C.K., Respondent-Appellant).
    Second District
    No. 2 — 92—0130
    Opinion filed September 16, 1993.
    G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Kathleen T. Zellner and Douglas H. Johnson, both of Kathleen T. Zellner & Associates, of Naperville, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and Basil G. Greanias, of Decatur (William L. Browers, Lisa A. Hoffman, and John X. Breslin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COLWELL

delivered the opinion of the court:

Respondent, C.K., appeals the circuit court’s orders finding that he committed the offense of unlawful possession of a controlled substance (Ill. Rev. Stat. 1991, ch. 56½, par. 1402(c) (now 720 ILCS 570/ 402(c) (West 1992))) and committing him to the Department of Corrections. Respondent contends that the court erred in denying his motion to suppress evidence obtained from a search of respondent during the execution of a search warrant. We affirm.

Respondent was arrested on November 7, 1990, and charged with unlawful possession of a controlled substance. The adjudicatory hearing commenced December 3, 1991. After the first day of testimony, defense counsel filed a motion to suppress evidence. The court thereafter conducted the adjudication hearing and the hearing on the motion to suppress simultaneously.

The evidence adduced at the joint hearing demonstrated that early in the morning of November 7, 1990, respondent went to apartment 7 at 565 Genesee Street in Waukegan. Respondent stated that he went to the apartment to wake up Sheriff Banks so the two could go to school. After waking up Banks, respondent met Demetrius Wilson, who was also in the apartment. Wilson gave respondent three bags of what appeared to be rock cocaine. Wilson, however, said that they were “dummies.” Wilson asked respondent to hold them because he had to go somewhere.

Respondent then talked with Banks again. Eventually he went to another bedroom of the apartment, where he fell asleep. He did not notice any drugs in the room before he fell asleep.

Respondent was awakened a short time later by the police, who were executing a search warrant for the premises. The warrant authorized a search of the premises and a male black, who was approximately 5 feet 10 inches tall, weighed 150 pounds and was 16 to 19 years of age.

As Officer Charlie Hunt searched the bedroom where respondent was sleeping, she saw what she believed could be contraband. She summoned Officer Wayne Steven Hunter, who observed eight baggies containing a white, powdery substance on a table. Hunter escorted respondent downstairs, although he did not place him under arrest. At the bottom of the stairs, Detective Lamell Farmer searched respondent. Farmer removed the three baggies from respondent’s pocket. Two of the baggies later proved to contain cocaine.

The trial court denied respondent’s motions for directed findings on the motion to suppress and on the substantive offense. The court subsequently denied the motion to suppress and found that respondent was responsible for the offense of unlawful possession of a controlled substance. The court committed respondent to the Department of Corrections.

On appeal, respondent contends that the court erred in denying his motion to suppress the cocaine obtained during Farmer’s search. Respondent contends that he was not the person named in the search warrant. Moreover, since he was merely a social guest at the premises he could not be searched incident to the execution of the warrant absent independent probable cause. He maintains that such probable cause was lacking where he was asleep in the room and not acting suspiciously. He further contends that he was not validly arrested, so the search cannot be justified as a search incident to a lawful arrest.

The State responds that the officers executing the warrant reasonably believed respondent had some connection with the premises where he was found sleeping in an interior bedroom. Alternatively, the State contends that independent probable cause existed where the police found respondent in a room with cocaine in plain view a few feet away. As a final alternative, the State suggests that respondent was lawfidly arrested. Thus, the search was justified as a search incident to arrest, regardless whether it took place before or after respondent’s formal arrest.

Section 108 — 9 of the Code of Criminal Procedure of 1963 provides that a person executing a search warrant may detain and search any person in the place at the time to protect himself from attack or to prevent the disposal or concealment of any evidence described in the warrant. (Ill. Rev. Stat. 1991, ch. 38, par. 108 — 9 (now 725 ILCS 5/108 — 9 (West 1992)).) This statute does not authorize the search of any person who happens to be on the premises at the time a search warrant is executed. (Ybarra v. Illinois (1979), 444 U.S. 85, 91, 62 L. Ed. 2d 238, 245, 100 S. Ct. 338, 342.) Either the person must have some connection with the premises or independent probable cause must exist to search that person. (People v. Simmons (1991), 210 Ill. App. 3d 692, 699.) Factors to be considered include the status of the person, where he resided, his conduct, and the purpose of his presence. People v. Gutierrez (1985), 109 Ill. 2d 59.

A trial court’s decision on a motion to suppress evidence will not be overturned on review unless that decision is clearly erroneous. Although respondent has the burden of proof to make a prima facie showing that the police obtained the evidence illegally, once respondent satisfies his burden, the burden shifts to the State to show that the search was legal. Warrantless searches are per se unreasonable; thus, when respondent challenges a warrantless search and demonstrates that he was doing nothing unusual at the time of the search, the State must demonstrate the legal justification for the search. People v. Spann (1992), 237 Ill. App. 3d 705, 708.

Whether probable cause exists depends on the facts known to the officer at the time of the search. Probable cause is a commonsense determination, based on the factual and practical considerations of everyday life. People v. Thompson (1981), 93 Ill. App. 3d 995, 1001-02.

Based on these considerations, the trial court did not err in refusing to suppress the evidence. The officers executing the warrant could reasonably have believed either that respondent resided at the premises or that independent probable cause existed to search respondent.

As the officers executed the warrant, a number of people were in the apartment in addition to the officers. Officer Hunt located respondent asleep in a bedroom located on the second floor of the unit. Based on a commonsense appraisal of these facts, it was reasonable for the officers to conclude that respondent had some connection with the premises beyond that of a social guest.

Respondent contends, however, that he did not resemble the person described in the search warrant and in fact did not reside in the apartment. Respondent also points out that he was wearing a jacket at the time he was arrested. Respondent contends that this fact refutes any inference that respondent was a resident of the apartment.

Again, we emphasize that the determination of probable cause is a commonsense one, based on the facts known to the officers at the time. Respondent was found asleep in a bedroom on the second floor, where one would not normally expect to encounter a social guest. Also, it was 5:30 a.m., not a normal time for a social visit. This information was sufficient to support a search. The officers were not required to conduct a thorough investigation of defendant’s connection with the premises and his sleeping attire.

In addition, the police discovered eight bags containing a controlled substance that were in plain view on a table a few feet from where respondent was sleeping. This fact gave the officers probable cause to believe that respondent constructively possessed the cocaine on the table. Where drugs are found on premises under a person’s control, this fact alone gives rise to an inference of knowledge and possession which may be sufficient to sustain a conviction of possession of the narcotics beyond a reasonable doubt. (People v. Nettles (1961), 23 Ill. 2d 306, 309; People v. Butler (1993), 242 Ill. App. 3d 731, 733.) In this case, the State was not required to prove respondent’s possession of the cocaine beyond a reasonable doubt; it merely had to show that the officers had probable cause to believe that respondent possessed the cocaine. The fact that respondent was asleep in a bedroom where the cocaine was in plain view provided probable cause to believe respondent constructively possessed the cocaine. Therefore, the court did not err in denying respondent’s motion to suppress the cocaine obtained as the fruit of the search.

The cases respondent cites are distinguishable. In People v. Simmons (1991), 210 Ill. App. 3d 692, defendant was found with several other persons in the bedroom of a home being searched for narcotics. In that case, it was more readily apparent that defendant and the others were social guests at the house. Moreover, no drugs were in plain view in the room. In People v. Gross (1984), 124 Ill. App. 3d 1036, defendant was seated on a couch in the home being searched. Police searched defendant and her purse, located on a table nearby. There, too, defendant was clearly a social guest, was doing nothing -unusual, and there were no drugs in plain view.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

BOWMAN and QUETSCH, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRONE WILSON, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0643
    Opinion filed September 9, 1993.

      Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Richard Norris, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Tyrone Wilson appeals his conviction on drug charges handed down by the circuit court of Champaign County claiming Judge Jensen erred in denying a motion to suppress evidence obtained as a result of a warrantless arrest. Following a stipulated bench trial before Judge Townsend, defendant was found guilty of unlawful possession with intent to deliver more than 1 gram but less than 15 grams of a substance containing cocaine (Ill. Rev. Stat. 1991, ch. 56½, par. 1401(c)(2)) and sentenced to 15 years’ incarceration in the Department of Corrections.

Defendant was arrested on the basis of tips supplied by his girlfriend, Rebecca Ambrose. Officer John Murphy, of the Champaign police department, testified he knew Ambrose because he had been involved in a number of controlled drug purchases from her. In July or August 1991, Murphy executed a search warrant at the home she shared with defendant. At this time Ambrose provided information regarding defendant’s drug activities, telling Murphy that defendant sold drugs out of a room at the Budgetel Hotel in Champaign. This information was partially confirmed when Murphy visited the hotel and found a registration card under defendant’s name. A hotel employee told him that defendant was a regular guest.

On November 25, 1991, Murphy received a call from Ambrose, who said there were certain “activities taking place,” but no specific details were given. The information provided was insufficient to place a specific person at a specific location. Later in his testimony Murphy provided these details, saying Ambrose had told him an apartment in the 300 block of West Columbia was going to be used to weigh and bag cocaine. Ambrose also described defendant’s car and gave him the license plate number. The following day Ambrose called again, but Murphy was unable to take the call. She called back later and spoke with Illinois State Police Officer Willie Gartrell, who was assigned to the same drug task force as Murphy. Gartrell did not know the identity of the caller.

The caller told Gartrell that defendant and Lee Creighton were bagging cocaine at a house on Columbia Street, just west of State Street. She did not know the exact address of the house, but described it as brown in color with a brown Toyota parked in the back alley. She also provided the license number of the car. Gartrell notified Murphy of the call, and they began a search of the area in separate cars. Although they were able to locate a house matching the description by Ambrose, no brown Toyota was found. Gartrell testified he could not recall if the brown house they found was the only brown house on the 300 block of Columbia Street. No description of the house was included in Murphy’s police report.

After searching for 20 minutes and finding nothing, Gartrell received another call from the same woman he had spoken to earlier that day. Gartrell had talked with Murphy about the first call and determined that the caller was most likely Ambrose. Gartrell had never spoken with Ambrose before, but he recognized the voice in the second call as the same person who had called him earlier that day. During the second call Gartrell asked the caller if she was Rebecca Ambrose, but she refused to say.

Murphy’s testimony differs in that he claims Gartrell already knew Ambrose’s identity. According to Murphy, Gartrell thought he was the only officer to receive a call from Ambrose and knew her name before speaking with Murphy about the call. Gartrell, however, testified the caller never identified herself and that it was Murphy who supplied him with a name.

Gartrell learned from the second call that defendant and Creighton had left the house on Columbia and were driving to the 1500 block of Holly Hill to pick up Creighton’s brother and take him to work. After this, the two planned to drive to Ambrose’s trailer. Gartrell responded to the call by heading for Ambrose’s trailer at 25 Sycamore Street. Murphy headed for the Holly Hill address, located northwest of the Columbia Street address. On the way to Holly Hill, Murphy spotted defendant’s vehicle traveling east in the 700 block of West Bradley Street, about eight blocks from the Holly Hill residence. Murphy followed the vehicle long enough to bring in other officers in order to feel secure in stopping the car. The vehicle was under continuous observation, and he observed that the vehicle made no stops other than for traffic control and no individuals approached the vehicle. Murphy recognized defendant as the passenger in the car.

Defendant’s vehicle was stopped by Murphy. A car carrying Gartrell and Officer Eckhardt participated in the stop. Eckhardt testified he saw no indication of criminal activity or suspicious behavior. After the stop, Eckhardt ordered defendant to exit the vehicle and, shortly thereafter, he conducted a search of his person by patting him down and then looking in the coat pockets of the leather jacket he was wearing. He did not feel anything that may have been a weapon during the pat-down search. Eckhardt testified that at the time of the search defendant was not under arrest, but this was only because he had not said the “magic words.” After looking through defendant’s inside jacket pocket, Eckhardt found what appeared to be a controlled substance. At this point, he placed defendant under arrest.

Eckhardt testified the reason for stopping the car was to determine whether defendant was in possession of drugs. He had no personal knowledge of whether defendant would be in possession of drugs, and he was unable to verify any of the information supplied to him in the investigation up to that point. He could not say that defendant had ever visited the Columbia Street address, nor could he say whether defendant had been to the Holly Hill address. Gartrell, who was riding in the car with Eckhardt, was similarly unable to corroborate any of the information he had received in the two calls, other than the fact that defendant would be riding in a particular color Toyota with a specific license plate number.

Officer Murphy testified that the only information provided by the caller that he was able to independently verify was defendant’s presence in a particular vehicle on a particular date. When asked if the caller was certain the controlled substance had been secured or whether she believed it had been secured, Murphy responded that he could not testify to her frame of mind. Also, he did not know where she was calling from. When asked to state his basis for stopping the vehicle, Murphy replied it was the caller’s description of the vehicle alleged to be involved in the movement of cocaine and, once the vehicle was spotted, the fact that he was able to positively identify defendant as the passenger in the car. Defense counsel then asked:

“Q. But isn’t it true, Officer Murphy, that there was not definitive information provided to you that there was any contraband in this vehicle; is that correct?
A. It was definitive in my mind based on the location of the vehicle, based on, as my report reflects, that the caller had indicated that the bulk portion of the cocaine was being stored at Lee Creighton’s house on Holly Hill; the proximity of the vehicle being 8 blocks from Holly Hill traveling in an eastbound direction, I felt that it was a very high chance that that’s where the vehicle had just come from. The time frame involved between the call stating that the vehicle was in the 300 block of *** West Columbia and the time that myself and the other officers located my vehicle, I felt it was very consistent] *** with the information that we were receiving.”

The State called one witness, Troy Daniels, an investigator with the Champaign County sheriff’s office. He testified he had interviewed Ambrose on October 2, 1991, in regard to an unrelated murder investigation focusing on a person named Reyes Carabello. Ambrose told him that while counting defendant’s money a few months earlier, she saw what appeared to be blood on some of the bills. Later, defendant allegedly told her that he had received this money from the “Louisiana people.” Frank and Betty James were neighbors of defendant and came from Louisiana. Ambrose told Daniels she spoke with Frank James, who told her the money came from the person who killed a man at the Thomasboro motel. Daniels spoke with Betty James, who told him that she had taken money from Carabello and purchased cocaine from defendant. She did not recall that the money had blood on it. Significantly, Ambrose would not confirm that cocaine was purchased with the alleged bloody money. She would only say that defendant was in possession of bloody money and that he said he had received it from the Louisiana people. Although she would not say what was purchased with the money, she did not deny that cocaine may have been purchased with it.

On appeal, defendant contends the warrantless arrest violated his fourth amendment rights, as it was based upon uncorroborated information which was largely disproved during the police investigation prior to the arrest. The tipster, a known drug dealer, had never before supplied the police with information leading to an arrest, although she had previously given information about defendant which did not lead to an arrest. Defendant argues that none of the information provided by Ambrose on the day of the arrest could be corroborated and cites numerous inaccuracies in the information itself: (1) police were told defendant was in the 300 block of Columbia Street, but he was never found there; (2) a brown Toyota was supposedly parked in the alley behind this house, but a 20-minute search produced nothing; and (3) Ambrose told police that defendant was presently driving to thé Holly Hills address, which would involve driving northwest, but the police spotted his car driving east — away from the Holly Hills address. Defendant argues the only accurate information supplied was that defendant and Creighton were together, driving a brown Toyota with a specific license plate number. This information, defendant argues, was not evidence of a crime and would not warrant a person of reasonable caution to believe that defendant had committed a crime.

The State argues that information provided by Ambrose had proved reliable in the past, citing defendant’s activities at the Budge-tel Hotel in Champaign. Ambrose had told police he dealt drugs from this hotel, and a police investigation confirmed that he had indeed visited the hotel regularly. Furthermore, defendant was a known drug dealer, and the tip leading to his arrest was provided by his live-in girlfriend.

The State also notes Murphy’s testimony that Ambrose had provided information resulting in the arrest of defendant. The State asked defendant:

“Q. Had she provided information either to you or to the Champaign Police Department concerning criminal activity that resulted in any arrests?
A. Yes, she did.
Q. Specifically, who was arrested as a result of her information?
A. Tyrone Wilson.”

At first glance, the trial transcript indicates Murphy is referring to defendant’s arrest in the case at hand. However, the State emphasizes in its brief that defendant had been arrested as a result of Ambrose’s information on more than one occasion, and this arrest apparently occurred prior to the arrest in the case at hand. No detail, date, or other information is provided as to when this other arrest occurred or for what reason. We also note that defendant was still living with Ambrose at the time of the November 26, 1991, arrest. It requires a stretch of imagination to believe that defendant would still be living with the person responsible for his prior arrest, if he knew of it. Defendant’s brief directly contradicts the State’s claim, stating that Ambrose had never given information leading to anyone’s arrest.

Another factor establishing Ambrose’s reliability is Daniels’ testimony that she had told him of bloody money in defendant’s possession. The State contends that the value of this information is shown by the fact that Daniels referred to Carabello as “the defendant.” Because Carabello was apparently charged with a crime, the State would have us assume the information provided by Ambrose must have played a significant role in his arrest. No such assumption is warranted. The reason Daniels referred to Carabello as a defendant was because the prosecution framed the question, “What was the name of the defendant in that murder case?” Furthermore, the information supplied by Ambrose may very well have played no role whatsoever in Carabello’s arrest, especially since Ambrose’s information was contradicted by Betty James, who said the money was not bloody.

The State contends this case is similar to People v. Beck (1988), 167 Ill. App. 3d 412, 521 N.E.2d 269, which reversed a trial court’s ruling that an informant’s tip was insufficient to establish probable cause for a warrantless arrest. In Beck, a drug enforcement agent received a call at 8:15 a.m. from a confidential informant, advising that defendant had approximately 10 pounds of cannabis in the trunk of his car. The informant had seen the cannabis that morning and said that defendant was leaving home as he spoke. The informant provided the license number, the make and color of the car, and the anticipated direction of travel. The car was eventually stopped by police on a highway the informant thought they might be using and within the anticipated time frame. This confidential informant had provided information leading to arrests and/or convictions a minimum of four times prior to the information given in this case.

The Beck court found that even though the corroborative facts were few and pertained to innocent activities, the proper focus was whether the suspect’s actions gave rise to an inference that the informant was credible and that he obtained his information in a reliable manner. The court ruled that the informant’s veracity and reliability were given support by corroborated details of his tip. The fact that the informant provided information concerning criminal activity on a fairly regular basis and that this information had led to arrests and/or convictions on at least four occasions was strongly emphasized in the court’s decision. The court found the' corroborated details of the informant’s tip — that a particular car was at a particular location at a given time — was sufficient to establish probable cause, especially because the police officer had worked with the informant in the past and information he received was reliable. Beck, 167 Ill. App. 3d at 419, 521 N.E.2d at 274.

The Beck decision is distinguishable from the case at hand, in that the informant actually saw the cannabis. In this case, no one knew where Ambrose was calling from, and there was no indication that she had ever seen the drugs. Additionally, in Beck, each detail of the informant’s tip was corroborated, unlike the case at hand where many details were not. Finally, and perhaps most significant, is the fact the informer in Beck had, in the past, given information that led to at least four arrests.

Defendant cites People v. Adams (1989), 131 Ill. 2d 387, 546 N.E.2d 561, where the supreme court affirmed the appellate court’s reversal of a trial court’s decision denying a motion to suppress. In Adams, the informant told police that defendant would be leaving for Kentucky to obtain some cocaine. Surveillance was set up around Adams’ house, but he never left home on that evening. The informant called back to say the plan had changed. Sometime later, the informant contacted police and advised them that defendant had left for Kentucky and would return to Will County, Illinois, with cocaine. He warned that defendant would probably be armed with a handgun. The informant had earlier described defendant’s car and given the license plate number. He also named the person from whom Adams would buy the cocaine, and police recognized the name as that of a local cocaine distributor. Police attempted to obtain a search warrant for defendant’s vehicle, but were told that before a warrant could issue they would have to corroborate the fact that the vehicle was indeed traveling back from Kentucky. As a result, drug agents stationed themselves on highways throughout Indiana that might be used by a person returning from Kentucky. Defendant’s car was spotted on Interstate 65, just south of Gary, Indiana. Police followed him back to Will County, stopped his car, and arrested him with the assistance of some 20 patrol cars. A handgun was recovered in the arrest.

In Adams, the police had numerous contacts with the informant, including a face-to-face meeting in which police collected personal information about him. The informant had never provided information to the police about anyone else before and did not have a police record. However, the informant was able to tell police that Adams had served time in prison for manslaughter, a fact which was confirmed by police prior to his arrest. The trial court found that because the informant was ah ordinary citizen, his information was presumptively reliable and defendant’s presence on Interstate 65 (a possible route from Kentucky) supported information that he possessed cocaine and a gun.

The supreme court disagreed, citing the fact that the informant gave no information regarding the time of Adams’ departure from Illinois, nor did he reveal where in Kentucky Adams would meet his drug connection, Collins. Because they had no idea where in Kentucky that Adams would travel, it was impossible to estimate the time Adams would be expected to return to his home — information which could then be supported by his presence on the highway in Indiana at a certain time. The court also noted the fact that police were so uncertain of defendant’s route that officers were placed on several highways in Indiana. Furthermore, Adams’ presence in Kentucky was never corroborated; nor was there corroboration that Collins and Adams knew each other or that Adams was even known to be involved in drug trafficking. Additionally, there was no information that Adams was traveling with a passenger.

Because the informant was not a witness to the transaction, and since the information he provided did not implicate himself, thereby increasing his reliability, the court found the situation required further verification. If the State had been able to verify that Adams had indeed been in Kentucky and had met Collins there, this would tend to support the informant’s other information that Adams had cocaine and a gun in his possession. Such verification was not forthcoming, and the court concluded that Adams’ mere presence on Interstate 65 did not create an inference that Adams was in Kentucky. Accordingly, the supreme court granted defendant’s motion to suppress evidence as a result of the warrantless arrest.

We find the facts in the instant case similar to those of the Adams decision. The State was unable to verify that defendant ever visited the house on Columbia Street, nor is there any indication this house was ever located with any certainty. No proof exists that defendant ever traveled to the residence at Holly Hills and, at the time his car was spotted, he was roughly a mile away from the Holly Hills address and traveling in the opposite direction than anticipated. Defendant argues in his brief that Ambrose has never provided information leading to an arrest. The State’s argument to the contrary is unsupported by the record. Like Adams, the police in the instant case knew only that defendant would be driving in a particular car, with a particular license plate. The only other verified information was that defendant would be traveling with a passenger (Creighton). Police had no description of Creighton and, prior to the arrest, were unable to identify anyone in the car other than defendant.

We also find it significant that in Adams the informant claimed the car would be transporting cocaine back to Illinois. In the case at hand, the informant only knew that cocaine was being bagged at the Columbia Street house. No indication was given to police that drugs were to be transported in the brown Toyota, and Ambrose gave no indication she ever saw the drugs. Officer Gartrell had no idea where she was calling from or how she obtained her information. Had he not spoken with Murphy, he would not have known anything about the identity or background of the caller. The fact that Ambrose refused to identify herself cannot be ignored in evaluating her reliability.

A trial court’s ruling on a motion to suppress will not be disturbed on review unless it is manifestly erroneous. In a determination of probable cause, the trial court must apply standards at least as stringent as those that guide a magistrate in issuing a warrant. The test is to determine whether “ ‘ “a reasonable and prudent man, having the knowledge possessed by the officer at the time of the arrest, would believe the defendant committed the offense.” ’ ” (People v. Williams (1991), 147 Ill. 2d 173, 209, 588 N.E.2d 983, 995, cert. denied (1992),_U.S__, 121 L. Ed. 2d 156, 113 S. Ct. 218, quoting People v. Tisler (1984), 103 Ill. 2d 226, 237, 469 N.E.2d 147, 153, quoting People v. Wright (1968), 41 Ill. 2d 170, 174, 242 N.E.2d 180, 183.) This analysis must focus on the facts available to officers prior to the arrest and must not be affected by hindsight. The standard for evaluating a warrantless arrest based upon an informant’s tip is summarized in Williams, where the court stated:

“Whether the necessary probability exists is governed not by technical legal rules, but rather by commonsense considerations that are factual and practical. ***
*** Under the totality of the circumstances analysis, a deficiency in one prong of the traditional test of an informant’s tip (credibility or reliability) may be compensated for in determining the overall reliability of the tip by a showing as to the other (the basis of knowledge). [Citation.]
Substantial corroboration would not only establish an informant’s veracity, but would also support an inference that an informant obtained his story reliably. [Citation.] Whether such corroboration consists of innocent or incriminating activity is not the question. Instead, the proper focus is ‘ “whether the actions of the suspects, whatever their nature, give rise to an inference that the informant is credible and that he obtained his information in a reliable manner.” ’ ” Williams, 147 Ill. 2d at 209-10, 588 N.E.2d at 995, quoting Tisler, 103 Ill. 2d at 251, 469 N.E.2d at 160, quoting Illinois v. Gates (1983), 462 U.S. 213, 269, 76 L. Ed. 2d 527, 568, 103 S. Ct. 2317, 2348 (White, J., concurring).

In denying the motion to suppress, the trial court noted that the facts in this case present a close call. Based upon the officer’s prior experiencé of dealing with Ambrose and her uncanny ability to know so much about defendant’s actions, the court found probable cause for the arrest.

Ambrose’s lack of reliability is clearly demonstrated by her inability to predict defendant’s location at particular times or, as in the case with the Columbia Street home, at a particular address. This deficiency is balanced against the accurate information she relayed concerning defendant’s frequent presence at the Budgetel Hotel and the fact that defendant had received money from his neighbors, Frank and Betty James. The fact that she lived with defendant also adds to her credibility and presents a solid basis of knowledge underlying her tip. However, her refusal to identify herself to Gartrell severely diminishes her reliability. So, too, does the fact that she never stated how she knew the information or where she was calling from. We have no indication she ever saw any drugs, and her tip gives no indication that these drugs were to be found anywhere but the unknown address on Columbia Street. Accordingly, we find the trial court’s denial of the motion to suppress manifestly erroneous.

Reversed.

STEIGMANN, P.J., and COOK, J., concur.