author: JUSTICE WOODWARD JUSTICE INGLIS,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NICHOLAS GALDINE, Defendant-Appellant.
    Second District
    No. 2—90—0097
    Opinion filed April 22, 1991.
    Rehearing denied May 28, 1991.

      INGLIS, J., specially concurring.
    Douglas R. Roberts, of Law Offices of Douglas R. Roberts, of Waukegan, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Nicholas Galdine, appeals his convictions of unlawful possession of cocaine (Ill. Rev. Stat. 1989, ch. 56½, par. 1402) and possession with intent to deliver cocaine (Ill. Rev. Stat. 1989, ch. 56½, par. 1401.2(2)). The sole issue on appeal is whether the denial of defendant’s motion to suppress the evidence was against the manifest weight of the evidence.

Defendant was charged by indictment with unlawful delivery of cocaine (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)) in addition to the other two offenses. All three charges arose out of a raid on defendant’s office on March 4, 1989. Defendant filed a motion to suppress the evidence obtained by a warrantless search of his office. Defendant also filed a motion to suppress the contents of several recordings made of conversations of an informant, Alan Lothar.

The following facts were adduced from the evidence presented at the hearing on the motion to suppress. Sylvester Hampton, a member of the Lake County Metropolitan Enforcement Group (LMEG), met Lothar in February 1989. Lothar was working for LMEG, making purchases of cocaine from defendant. By the end of February, Lothar had purchased cocaine from defendant twice. On March 2, 1989, Hampton and Lothar attempted to arrange a sale of cocaine by defendant at which time he would be arrested. The purchase was to have been made at defendant’s office in Antioch, Illinois. LMEG officers obtained judicial authorization to record telephone conversations between Lothar and defendant. Lothar was unable to arrange a meeting on March 2, 1989, because defendant did not have any cocaine at that time. Defendant informed Lothar that he would page Lothar when the cocaine arrived. Lothar was then to page Hampton.

Hampton did not get a search warrant on March 2 for the office because he was told by an assistant State’s Attorney that there was no need for a search warrant. Hampton presented an affidavit to the trial court seeking authorization for the eavesdropping, which was granted.

At 10 a.m. on March 4, 1989, Lothar paged Hampton. Lothar informed Hampton that defendant had the cocaine and Lothar was to buy 16 ounces for $16,800 at 2 p.m. that afternoon. Hampton then called Agent Mason and told him they “were ready to do the deal” and to contact various law enforcement personnel to meet at the Antioch police department, from which they would proceed to the place of the purchase and arrest.

Sixteen officers from several different agencies were present at the noon meeting at the Antioch police department. In addition, a photojournalist from a local newspaper had also been called to the meeting to participate in the arrest as an observer. The officers discussed the plan that Lothar would wear a “wire” when he went to defendant’s office. The officers planned that the buy would take place in the parking lot, but if defendant would not leave the office building, the officers “would break in and arrest Mr. Galdine and get the cocaine.” Lothar drew a diagram of the office building and pointed out which office belonged to defendant.

The police in Kenosha County, Wisconsin, had a search warrant for defendant’s home in Twin Lakes. The LMEG officers advised the Kenosha County officers that they should wait to execute the search warrant until after defendant was arrested in Antioch.

After the meeting, the officers set up surveillance outside defendant’s office. Mason and an evidence technician monitored the electronic eavesdropping device that Lothar was wearing. At 2 p.m., Mason called Lothar and told him to go to defendant’s office. Hampton picked up Lothar and drove him there. Lothar entered the building and asked for defendant. Shortly thereafter, defendant arrived and met with Lothar.

Lothar told defendant that his buyer had the money. Defendant said he had the 16 ounces and he had 2 more ounces at his home. Defendant asked if Lothar still wanted 16 ounces, and Lothar stated that he did. Defendant asked if Lothar wanted to see the goods before Lothar went to get the money. Upon seeing the chunk of cocaine, Lothar remarked on its solidity and odor. Lothar told defendant that he had to call his buyer and then called Mason on his car phone and told Mason he had seen the cocaine. Lothar attempted to get defendant to come out of the building to deliver the cocaine, but defendant refused. Lothar exited the building and said:

“ ‘Well, folks, he’s not going for it. Do you like just wanna bust in? It was the office we thought it was. It’s adjoined to the reception room, so you are just going to have to come in and, ah, take it.’ ”

Mason then gave the signal to the other officers to make the arrest.

The evidence is controverted regarding whether the officers entered through the front and back doors of the building or just through the front. One of the officers kicked open a locked inner door. The security guard and defendant were told to lie down. Lothar told Hampton that the cocaine was in the right drawer of defendant’s desk. Hampton recovered the cocaine. Defendant was then arrested and taken into custody.

Defendant argued that the police should have obtained a search warrant for the office and, since they made a warrantless entry and search, the evidence must be suppressed. The court took judicial notice of the weekend warrant procedures in Lake County and noted that a warrant could be obtained in two hours. According to defendant, at 10 a.m. on March 4, 1989, the police knew that there was cocaine in defendant’s office. Defendant asserted that the police had ample time to get a search warrant before the meeting at the police department at 1 p.m. The State responded that the police could not have gotten a search warrant because they did not have probable cause prior to the time Lothar saw the cocaine in the office. Thus, according to the State, the warrantless entry was proper because of exigent circumstances.

The court found that there would not have been probable cause to issue a warrant until someone knew there were drugs in the building. The warrant could not have issued on March 2 because there were no drugs in the office on March 2, 1989. The court stated, “it wasn’t until the informant was there with the wire on him that the police for the first time would have had probable cause to get a warrant.” The court denied the motion to suppress on the ground that there were exigent circumstances which justified the warrantless entry.

Defendant filed a motion to reconsider the ruling. The court, in denying the motion to reconsider, explained that the warrant question was moot because a crime was committed in the police officers’ presence and, therefore, they had a right to enter the building to make the arrest. The court concluded that the search was incident to the arrest of defendant.

The State nol-prossed count I of the indictment, and defendant proceeded to a stipulated bench trial on the remaining two counts. In addition to the evidence presented at the suppression hearing, the parties stipulated to the following testimony. Agent Hampton would have testified that after defendant was arrested, he asked for his coat. Hampton searched the pockets before giving the coat to defendant and found two ounces of cocaine.

Lothar would have testified that he used to work for defendant and that on January 30, 1989, defendant asked Lothar to sell cocaine. Lothar contacted his stepfather, a police officer, who contacted Hampton. Lothar agreed to work with LMEG until defendant would be arrested. On February 28, 1989, Lothar and defendant agreed that defendant would obtain 16 ounces of cocaine and that Lothar would give defendant $16,800 for it. On March 2, 1989, Lothar had several telephone conversations with defendant which were recorded. The transaction did not take place on March 2 as anticipated. Defendant informed Lothar on March 4, 1989, that the deal was ready to proceed. Lothar informed Hampton and then met with other LMEG agents at the Antioch police department. An evidence technician placed a wire on Lothar.

Lothar met defendant at his place of business. They discussed the transaction of 16 ounces of cocaine for $16,800. Defendant indicated that the cocaine was in the ceiling of the office. Lothar stood on a chair, lifted a ceiling tile and retrieved the 16 ounces of cocaine. Defendant put the cocaine in the desk drawer. Lothar then telephoned Agent Mason to inform him that Lothar had seen the cocaine. Lothar left the building, the arrest signal was given, and Lothar returned to the building after the police officers went in. Lothar showed Hampton where defendant had put the cocaine.

The parties submitted into evidence transcripts of the telephone conversations between defendant and Lothar on March 2, 1989, and of the conversations Lothar had when he wore the wire on March 4, 1989. The first telephone call was made on March 2, 1989, at 3:28 p.m. Lothar called defendant at work. Lothar indicated that he had been waiting for defendant to page him. Defendant told Lothar that their plans would probably not go through for that evening. Defendant was waiting for someone to call him. Defendant said, “[D]on’t come up here. As it stands, don’t waste your time, don’t come up here *** till I call you.” Defendant said he would page Lothar, who responded that if he did not hear from defendant in a few hours, Lothar would call defendant.

At 5:10 p.m., Lothar again called defendant at work. Defendant still had not received the phone call, so while Lothar was on hold, defendant tried to call the person again. Defendant returned to the line and said that no one answered the telephone. They discussed the quantity Lothar needed to purchase and agreed that Lothar would call defendant back a short while later.

Lothar called defendant’s office a third time at 6:10 p.m. Defendant still had not heard anything. Defendant told Lothar that he could not “make up a time and say ya, and then have you drive all the way over and *** it doesn’t happen.” Defendant believed that they would be able to do it the following day. However, if not, they would “have to go back to plan A,” dealing with small amounts. Defendant said he would page Lothar if he found out anything and that defendant was going home.

At 7 p.m., Lothar called defendant at home. Defendant had made contact with the person, who “said he’d need one[,] maybe two more days.” Defendant explained that he believed it would be the next day or Saturday, March 4. Defendant thought it was probably the next day, but noted that he still had to wait for the phone call the next afternoon because nothing was definite. Defendant said he would page Lothar as soon as he found out. Lothar told defendant, “When you come up with it, try and make a definite absolute time *** [and] make sure you have it.” Defendant agreed. Lothar said that if defendant got “it” the next day, Lothar would meet defendant “at work and take care of it.”

The court found defendant guilty. Defendant filed a post-trial motion preserving the suppression issue. The court denied the motion before proceeding to sentencing. Defendant was sentenced to 24 years’ imprisonment for the unlawful possession with the intent to deliver conviction and 10 years’ imprisonment for the unlawful possession conviction. Both sentences were to run concurrently with each other and with the sentence imposed by the court in Wisconsin. The court also ordered defendant to pay a street value fine of $55,470. Defendant’s timely appeal followed.

On appeal, defendant contends that the circuit court’s denial of his motion to suppress was against the manifest weight of the evidence. Initially, we note that a trial court’s denial of a motion to suppress will not be overturned on review unless it is clearly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153, 162.) However, when neither the facts nor the credibility of the witnesses is controverted, the question presented is a legal one which the reviewing court may consider de novo. People v. Foskey (1990), 136 Ill. 2d 66, 76.

In presenting a motion to suppress, the burden of proof is on the defendant to make a prima facie showing that the police illegally obtained the evidence. (People v. Neal (1985), 109 Ill. 2d 216, 218.) Once the defendant has sustained his burden, the State must then show the legal justification for the search. Village of Gurnee v. Gross (1988), 174 Ill. App. 3d 66, 69.

It is well established that warrantless searches are per se unreasonable unless one of the limited exceptions to the warrant requirement applies. (Payton v. New York (1980), 445 U.S. 573, 586, 63 L. Ed. 2d 639, 651, 100 S. Ct. 1371, 1380; see also Minnesota v. Olson (1990), 495 U.S. 91, 100, 109 L. Ed. 2d 85, 95-96, 110 S. Ct. 1684, 1690.) This rule applies to commercial premises as well as homes. (Marshall v. Barlow’s, Inc. (1978), 436 U.S. 307, 311-12, 56 L. Ed. 2d 305, 310-11, 98 S. Ct. 1816, 1819-20.) When the police have knowledge of the existence and location of property which they have probable cause to believe is possessed illegally and they have an opportunity to obtain judicial authorization for the search, the fourth amendment requires that they follow this procedure. Coolidge v. New Hampshire (1971), 403 U.S. 433, 472-73, 29 L. Ed. 2d 564, 586-87, 91 S. Ct. 2022, 2041-42.

Defendant argues that it was unreasonable for the police to enter the premises and search for the cocaine without a warrant because at 10 a.m. on March 4, 1989, they had probable cause to believe there would be cocaine in the office. The State responds that the officers could not have obtained a search warrant prior to the time Lothar informed the officers that he saw the cocaine in the office because they did not have probable cause to believe the cocaine would be there. In support of its argument, the State points to the facts that the two previous transactions between defendant and Lothar occurred in defendant’s home and that the efforts to set up the transaction for March 2 had been unsuccessful.

“[Pjrobable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts ***.” (Illinois v. Gates (1983), 462 U.S. 213, 232, 76 L. Ed. 2d 527, 544, 103 S. Ct. 2317, 2329.) A probable cause determination should be based on a “totality-of-the-eircumstances analysis.” (Gates, 462 U.S. at 233, 76 L. Ed. 2d at 545, 103 S. Ct. at 2329.) The trial court in the present case concluded that there was no probable cause to issue a search warrant prior to the time the police actually knew the cocaine was on the premises.

The warrant requirement acts as a check on police officers “engaged in the often competitive enterprise of ferreting out crime” by interposing a “neutral and detached magistrate” into the process. (Johnson v. United States (1948), 333 U.S. 10, 14, 92 L. Ed. 436, 440, 68 S. Ct. 367, 369.) “Those suspected of drug offenses are no less entitled to that protection than those suspected of nondrug offenses.” United States v. Karo (1984), 468 U.S. 705, 717, 82 L. Ed. 2d 530, 543, 104 S. Ct. 3296, 3304.

A warrant based on an affidavit showing probable cause that at some future time certain evidence of crime will be located in a specified place is termed an “anticipatory search warrant.” (2 W. LaFave, Search & Seizure §3.7(c), at 94 (2d ed. 1987).) Illinois courts have not yet addressed the question whether an “anticipatory search warrant” is permissible. The majority of courts which have confronted this issue have concluded that such warrants are constitutional. (United States v. Garcia (2d Cir. 1989), 882 F.2d 699, cert. denied sub nom. Grant v. United States (1989), 493 U.S. 943, 107 L. Ed. 2d 336, 110 S. Ct. 348; United States v. Dornhofer (4th Cir. 1988), 859 F.2d 1195, cert. denied (1989), 490 U.S. 1005, 104 L. Ed. 2d 155, 109 S. Ct. 1639; United States v. Hale (9th Cir. 1986), 784 F.2d 1465, 1468, cert. denied (1986), 479 U.S. 829, 93 L. Ed. 2d 59, 107 S. Ct. 110; United States v. Lowe (6th Cir. 1978), 575 F.2d 1193, 1194, cert. denied (1978), 439 U.S. 869, 58 L. Ed. 2d 180, 99 S. Ct. 198; United States ex rel. Beal v. Skaff (7th Cir. 1969), 418 F.2d 430, 432-34; Johnson v. State (Alaska 1980), 617 P.2d 1117, 1124-25; State v. Cox (1974), 110 Ariz. 603, 608, 522 P.2d 29, 34; Alvidres v. Superior Court (1970), 12 Cal. App. 3d 575, 581, 90 Cal. Rptr. 682, 686; Bernie v. State (Fla. 1988), 524 So. 2d 988, 991; State v. Wright (1989), 115 Idaho 1043, 1049-53, 772 P.2d 250, 256-59; Russell v. State (1979), 182 Ind. App. 386, 390-401, 395 N.E.2d 791, 798-800; Commonwealth v. Soares (1981), 384 Mass. 149,_, 424 N.E.2d 221, 224-25; State v. Doyle (Minn. 1983), 336 N.W.2d 247, 252; State v. Mier (1977), 147 N.J. Super. 17, 20, 370 A.2d 515, 517-18; People v. Glen (1972), 30 N.Y.2d 252, 258-59, 331 N.Y.S.2d 656, 661, 282 N.E.2d 614, 617, cert. denied (1972), 409 U.S. 849, 34 L. Ed. 2d 91, 93 S. Ct. 58; Commonwealth v. Reviera (1989), 387 Pa. Super. 196, 201-05, 563 A.2d 1252, 1254-56; State v. Sachs (1975), 264 S.C. 541, 566 n.12, 216 S.E.2d 501, 514 n.12; State v. Coker (Tenn. 1987), 746 S.W.2d 167, 170, 172, cert. denied (1988), 488 U.S. 871, 102 L. Ed. 2d 149, 109 S. Ct. 180; McNeill v. Commonwealth (Va. App. 1990), 395 S.E.2d 460, 463.) Moreover, the Supreme Court has indicated that such anticipatory search warrants are permissible, if not required, in certain cases. See Karo, 468 U.S. at 718, 82 L. Ed. 2d at 543, 104 S. Ct. at 3305; Katz v. United States (1967), 389 U.S. 347, 354-56, 19 L. Ed. 2d 576, 584-85, 88 S. Ct. 507, 512-14; Berger v. New York (1967), 388 U.S. 41, 62-63, 18 L. Ed. 2d 1040, 1054-55, 87 S. Ct. 1873, 1885.

In United States v. Garcia (2d Cir. 1989), 882 F.2d 699, the United States Court of Appeals for the Second Circuit examined the question in depth. The defendant in Garcia challenged an anticipatory search warrant, arguing that such warrants are unconstitutional per se because they are not based on probable cause but on the expectation that, at some point in the future, probable cause would arise when the contraband would be delivered to the subject premises. In rejecting this argument, the Garcia court explained:

“An anticipatory warrant, by definition, is a warrant that has been issued before the necessary events have occurred which will allow a constitutional search of the premises; if those events do not transpire, the warrant is void.
This is not to say, however, that such warrants are not based on probable cause. To the contrary, when a government official presents independent evidence indicating that delivery of contraband will, or is likely to, occur, and when the magistrate conditions the warrant on that delivery, there is sufficient probable cause to uphold the warrant. [Citation.] Thus, the fact that the contraband is not ‘presently located at the placed described in the warrant’ is immaterial, so long as ‘there is probable cause to believe that it will be there when the search warrant is executed.’ ***
* * *
Courts — though not yet the Supreme Court, to be sure— have upheld the anticipatory warrant, in large part, because they see it as desirable, whenever possible, for police to obtain judicial approval before searching private premises.” (Garcia, 882 F.2d at 702-03.)

The court concluded that the objective of the fourth amendment is better served by allowing the police to obtain a warrant in advance of a delivery, rather than have the police go to the scene and proceed under the exigent circumstances exception to the warrant requirement. Garcia, 882 F.2d at 703.

When issuing an anticipatory search warrant, the judge must assure that the warrant will not be executed prematurely by making the execution of it contingent on the occurrence of specific events or the passage of a specific period of time. (Garcia, 882 F.2d at 703-04; Reviera, 387 Pa. Super. at 203, 563 A.2d at 1256.) For a valid search warrant to have issued in this case, the police would have had to present an affidavit showing that the informant believed a transfer of cocaine would be made on March 4, 1989, at 2 p.m. at defendant’s office; how he arrived at this belief; the reliability of the informant; and the part the law enforcement officers would play in the controlled buy. See Garcia, 882 F.2d at 703.

The State maintains that the trial court was correct in denying the motion to suppress because there were exigent circumstances to justify the warrantless search and arrest (Payton, 445 U.S. at 583, 63 L. Ed. 2d at 648, 100 S. Ct. at 1378; People v. Abney (1980), 81 Ill. 2d 159, 168). According to the State, People v. Eichelberger (1982), 91 Ill. 2d 359, controls the issue in this case.

We believe that Eichelberger is distinguishable from the present case in several crucial respects. First, as noted above, there was probable cause for a warrant to be issued in advance in this case. Unlike Eichelberger, where the police did not know if the defendant had any contraband, here the deal was already set up, including the amount and price. In addition, there was an unjustifiable delay in procuring a warrant, as the trial court took judicial notice of the fact that a search warrant could be obtained within two hours in Lake County on a weekend and the officers learned at 10 a.m. that the buy would take place at 2 p.m., and the officers in charge had time to notify a photojournalist and wait 45 minutes to an hour for him to make the trip from his home to the Antioch police department. Finally, the entry in this case was not peaceful, since the officers had to kick open a locked door.

This case is more similar to United States v. Paul (7th Cir. 1986), 808 F.2d 645, wherein a confidential informant arranged to buy an amount of drugs from the defendant for a set price. In three taped telephone conversations between the defendant and the informant, the defendant indicated that the sale would take place on September 6. In the last call, made at 9 a.m. on the day of the sale, the defendant told the informant to bring the money to the defendant’s home at 11 a.m. The informant was equipped with a beeper, which he was to activate upon seeing the drugs. The informant entered the house, saw the drugs, and activated the beeper. The agents entered the house, saw the drugs and arrested the defendant. The United States Court of Appeals for the Seventh Circuit found that the search of the defendant’s house was not within the exigent circumstances exception to the warrant requirement. Paul, 808 F.2d at 647.

Our supreme court has considered similar factors when determining whether exigent circumstances exist in a particular case. (See People v. Foskey (1990), 136 Ill. 2d 66.) Even though the offense may be grave, if the suspect’s conduct does not constitute “an immediate and clear danger to the police or to the safety of those around him,” there is no exigency. (Foskey, 136 Ill. 2d at 78.) Similarly, “no exigency is created simply because there is probable cause to believe that a serious crime has been committed.” (Welsh v. Wisconsin (1984), 466 U.S. 740, 753, 80 L. Ed. 2d 732, 745, 104 S. Ct. 2091, 2099.) When determining the existence of exigent circumstances, the overriding concern is the reasonableness of the police conduct. People v. Cobb (1983), 97 Ill. 2d 465, 484.

Although the offense at issue here is a serious one, there was nothing to suggest that defendant was an immediate danger to the police or to the informant. There was nothing to indicate that defendant might have had a weapon, as he was not known to be dangerous and the informant never saw a weapon. There is no evidence to suggest that defendant was aware that Lothar was an informant, and defendant’s suspicions would not have been aroused by Lothar’s departure from the office, as Lothar informed defendant that he had to get the money from his customers. Thus, it was unlikely that his immediate apprehension was necessary to prevent defendant’s flight or the destruction of the evidence. Finally, the police had probable cause and ample time to obtain a warrant. Under such circumstances, the police cannot set up a controlled buy of drugs and then claim that exigent circumstances justify a warrant-less entry.

Although exigent circumstances which would justify the warrantless search of defendant’s premises do not exist in this cause, nevertheless, there is another basis upon which the lawfulness of the search can be sustained. In United States v. Paul, Moore, a confidential police informant, arranged with Paul to buy a bale of marijuana. Moore, equipped with an electronic transmitting device, went to Paul’s house, where Paul took him to the basement and showed him the bale of marijuana. Moore activated the transmitter, and the police, after knocking, entered the house and arrested Paul. The reviewing court, while determining that the warrantless entry was not justified by exigent circumstances, upheld the search on the basis of consent, stating as follows:

“Paul invited Moore into his house and down to the basement, where the marijuana was in plain view. If Moore had been a police undercover agent rather than a confidential informant, he could have arrested Paul then and there, and being lawfully in the basement could have seized the drugs because they were in plain view. [Citations.] Moore in fact could have made a citizen’s arrest. [Citation.] We held in United States v. Janik, 723 F.2d 537, 548 (7th Cir. 1983), that when one invites an undercover agent into his home, the agent can summon other agents to assist in the arrest, and the other agents are not guilty of a violation of the Fourth Amendment. We think the principle extends to the case where the initial, consensual entry is by a confidential informant. The interest that the Payton [(445 U.S. 573, 63 L. Ed 2d 639, 100 S. Ct. 1371)] decision protects is the interest in the privacy of the home, and has been fatally compromised when the owner admits a confidential informant and proudly displays contraband to him. It makes no difference that the owner does not know he is dealing with an informant. ‘A government agent may obtain an invitation onto property by misrepresenting his identity, and if invited, does not need probable cause nor warrant to enter so long as he does not exceed the scope of his invitation.’ United States v. Scherer, 673 F.2d 176, 182 (7th Cir. 1982).” 808 F.2d at 648.

Likewise, in the case before us, Lothar was present in defendant’s office with the defendant’s consent as they were going to consummate a drug purchase. Defendant asked Lothar if he wanted to see the “goods” and displayed the cocaine to Lothar. At that moment the cocaine was in plain view, and Lothar could have effected a citizen’s arrest of the defendant. (Paul, 808 F.2d at 648; Ill. Rev. Stat. 1989, ch. 38, par. 107—3.) Having viewed the offense taking place, Lothar left defendant’s office to summon assistance to effect defendant’s arrest. As the court in Paul explained:

“Hence Moore could have testified to what he saw in the basement. Having seen it he could as we said have arrested Paul on the spot. He could have grabbed some marijuana and run out and handed it to the agents. He could have been an undercover agent and summoned 100 other agents to enter forcibly the second after Paul showed him the marijuana. Had Moore done (or been) any of these things, Paul would have had no recourse under the Fourth Amendment. With all these risks assumed, the incremental risk that Moore would be an informant rather than an agent but would invite agents in to protect him and arrest Paul is too slight to bring the requirement of obtaining a warrant into play.” 808 F.2d at 648.

Thus, we conclude, as did the court in Paul, that the warrant-less entry into defendant’s office did not violate the defendant’s rights under the fourth amendment. Thus the trial court was correct in denying defendant’s motion to suppress.

The judgment of the circuit court is affirmed.

Affirmed.

NICKELS J., concurs.

JUSTICE INGLIS,

specially concurring:

I concur in the judgment but write separately because I respectfully disagree with certain statements and conclusions in the majority opinion. It is my opinion that there was no probable cause to issue a search warrant in this case before the police officers actually became aware that cocaine was at defendant’s office. However, I also believe that exigent circumstances existed such that the search and subsequent arrest were justified.

The majority correctly points out that warrantless searches, such as the one in the case at bar, are per se unreasonable unless exigent circumstances are present. (Payton v. New York (1980), 445 U.S. 573, 586, 63 L. Ed. 2d 639, 651, 100 S. Ct. 1371, 1380; Marshall v. Barlow’s, Inc. (1978), 436 U.S. 307, 311-12, 56 L. Ed. 2d 305, 310-11, 98 S. Ct. 1816, 1819-20.) Our supreme court has recently provided a lengthy, but not exhaustive, list of factors to consider when determining whether exigent circumstances are present. In People v. Foskey (1990), 136 Ill. 2d 66, the court set out several factors to consider, including:

“(1) whether the offense under investigation was recently committed; (2) whether there was any deliberate or unjustifiable delay by the officers during which time a warrant could have been obtained; (3) whether a grave offense is involved, particularly one of violence; (4) whether the suspect was reasonably believed to be armed; (5) whether the police officers were acting upon a clear showing of probable cause; (6) whether there was a likelihood that the suspect would have escaped if not swiftly apprehended; (7) whether there was strong reason to believe that the suspect was on the premises; and (8) whether the police entry, though nonconsensual, was made peaceably.” Foskey, 136 Ill. 2d at 75.

See also People v. White (1987), 117 Ill. 2d 194, 216-17, cert. denied (1988), 485 U.S. 1006, 99 L. Ed. 2d 698, 108 S. Ct. 1469.

An examination of this list of factors leads me to conclude that several are present in this case. It is apparent that the offense under investigation (cocaine possession and distribution) was recently committed; there was no deliberate or unjustifiable delay during which a warrant could have been obtained; and there was more than a “strong reason” to believe that the suspect was on the premises.

Unlike the majority, I find the decision in People v. Eichelberger (1982), 91 Ill. 2d 359, cert. denied (1982), 459 U.S. 1019, 74 L. Ed. 2d 514, 103 S. Ct. 383, supports a finding that exigent circumstances existed in this case. In Eichelberger, police officers, through an informer, set up a “controlled buy” of LSD from the defendant’s hotel room. The officers heard the informer and the defendant talking about the drug sale and entered the hotel room, arrested the defendant and seized LSD from the defendant’s pocket. The supreme court upheld the warrantless arrest and seizure, holding that “[t]he fact that the officers reasonably believed that a felony was being committed in their presence demanded prompt police action and constituted an exigent circumstance which justified the warrantless entry into the hotel room and the arrest.” Eichelberger, 91 Ill. 2d at 369.

I would agree with the State that Eichelberger controls the disposition of this case and would therefore affirm on this basis.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    NORTHERN ILLINOIS GAS COMPANY, Plaintiff-Appellant, v. MURPHY EXCAVATING et al., Defendants-Appellees.
    Second District
    No. 2—90—0727
    Opinion filed April 26, 1991.

      W.H. Major, Jr., of Major, Fennell & Associates, Ltd., of Wheaton, for appellant.
    William J. Wylie and James M. Roche, both of William J. Wylie & Associates, of Wheaton, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

The plaintiff, Northern Illinois Gas Company, appeals from a directed verdict entered for the defendants, Murphy Excavating and Dennis Murphy, individually and d/b/a Murphy Excavating, by the trial court of Du Page County. The plaintiff presents these issues on appeal: (1) whether Supreme Court Rule 287(a) (134 Ill. 2d R. 287(a)) requires that a proponent receive leave of court to utilize a request to admit pursuant to Supreme Court Rule 216 (134 Ill. 2d R. 216) in small claims matters; and (2) whether Supreme Court Rule 287(a) applies to a notice to produce at trial pursuant to Supreme Court Rule 237(b) (134 Ill. 2d R. 237(b)) since a notice to produce is not a discovery procedure.

On January 29, 1990, the plaintiff filed suit in small claims court to recover for damages sustained by the plaintiff when the defendants allegedly damaged the plaintiff’s property. On May 16, 1990, the plaintiff filed a notice to produce at trial under Supreme Court Rule 237(b) and a request to admit under Supreme Court Rule 216. On June 5, 1990, the defendant filed a motion to strike the plaintiff’s request to admit and notice to produce. The defendant argued that the plaintiff was attempting to elicit discovery in violation of Supreme Court Rule 287(a), which states: “No depositions shall be taken or interrogatories or other discovery proceeding be used prior to trial in small claims except by leave of court.” 134 Ill. 2d R. 287(a).

On June 11, 1990, the trial court granted defendant’s motion to strike plaintiff’s request to admit and its Rule 237(b) notice to produce, On June 24, 1990, the plaintiff presented a motion for the trial court to reconsider its previous decision. The trial court denied the plaintiff’s motion.

On June 27, 1990, the cause came to trial. At the close of the plaintiff’s case, the defendant moved for a directed verdict which the trial court granted. The plaintiff then timely appealed. The plaintiff first claims on appeal that the trial court erred in refusing to allow the plaintiff to use a request to admit under Supreme Court Rule 287(a). The plaintiff bases its argument on the language of Rule 287(b). The language states:

“(b) Motions. Except as provided in Rule 216 or sections 2— 619 and 2 — 1001 of the Code of Civil Procedure, no motion shall be filed in small claims cases, without prior leave of court.” 134 Ill. 2d R. 287(b).

The plaintiff argues this allows the plaintiff to serve the defendant with a request to admit without leave of court and, therefore, the trial court erred in refusing to allow the request to admit under Supreme Court Rule 287(a).

We first note that the proceeding below was a small claims action and the rules governing such actions are meant to be expeditious, inexpensive and simplified as regards to procedure. (Ahern v. Knecht (1990), 202 Ill. App. 3d 709, 714.) Also, since this was a small claims matter, the record is somewhat scanty. However, the plaintiff, as appellant, still has the burden of presenting a sufficiently complete record of the proceedings to support his claim of error; therefore, if there is any doubt arising from the incompleteness of the record, that doubt will be resolved against the plaintiff. Capsonic Group v. Swick (1989), 181 Ill. App. 3d 988, 992.

This court has previously held that a request to admit facts is a discovery procedure and that a trial court has wide discretion in controlling it. (Homer G. Dickson & Co. v. Barraza (1983), 115 Ill. App. 3d 5, 7.) Therefore, under Supreme Court Rule 287(a) in a small claims matter, the proponent of a request to admit must receive leave of the trial court before he can proceed with the request. Rule 287(b) requires the trial court’s approval before a motion may be filed in a small claims matter. In a nonsmall claims action one does not need to make a motion before the court in order to serve a request to admit on an opposing party. A party simply serves the request to admit on the opposing party. (134 Ill. 2d R. 216(a).) Only when the opposing party objects to the request to admit, or when the proponent objects to an answer to his request to admit, must that objection be presented as a motion before the trial court. 134 Ill. 2d R. 216(c).

Therefore, under Supreme Court Rule 216(a) a request to admit is still a discovery device which requires leave of the trial court to utilize in small claims matters. However, if leave is granted to allow a request to admit, then under Supreme Court Rule 287(b) the opposing party may oppose the request or the proponent of the request may challenge the answers to the request by motion without asking the court for permission to do so.

We also note that Supreme Court Rule 287(b) states that “[ejxcept as provided in Rule 216 ***, no motion shall be filed in small claims cases, without prior leave of court.” (Emphasis added.) (134 Ill. 2d R. 287(b).) The only motions provided for in Supreme Court Rule 216 are contained in Supreme Court Rule 216(c), which states: “Any objection to a request or to an answer shall be heard by the court upon prompt notice and motion of the party making the request.” (Emphasis added.) (134 Ill. 2d R. 216(c).) Therefore, under a request to admit, the motions which can be allowed by leave of court in a small claims matter are those that are provided for in Rule 216(c), i.e., those motions which object to a request to admit or to an answer to a request to admit.

Finally, as noted above, under Homer G. Dickson & Co., a request to admit is a discovery device, and a trial court has wide discretion in controlling it. Here, the plaintiff has failed to allege any circumstances under which the plaintiff was prejudiced by the trial court’s holding except for the fact that the plaintiff lost. There was no abuse of discretion by the trial court court in refusing to allow a request to admit where the plaintiff cannot claim he was prejudiced by the trial court’s actions.

The plaintiff next argues that the trial court erred in barring the use of the plaintiff’s notice to produce at trial pursuant to Supreme Court Rule 237(b) which the plaintiff had served on defendant. The plaintiff argues that a notice to produce at trial is not a discovery device and, therefore, the trial court erred in finding that the notice to produce was discovery pursuant to Supreme Court Rule 287(a) and in ordering that the notice to produce be stricken.

Although Supreme Court Rule 237(b) may not be a general discovery device (see Yassin v. Certified Grocers of Illinois, Inc. (1986), 150 Ill. App. 3d 1052, 1067), there is no question that courts have recognized that parties have used Supreme Court Rule 237(b) as a method to elicit discovery. Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App. 3d 576, 591-92; Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App. 3d 1031, 1036.

We agree a Supreme Court Rule 237(b) notice to produce is not a discovery device and normally would not require prior leave of cburt for its use. Here, however, regardless of what the plaintiff calls his notice to produce, it is for all practical purposes an attempt to elicit the discovery from the defendant that the plaintiff could not procure by more conventional discovery procedures (see 134 Ill. 2d Rules 201 through 224) because of the confines of Supreme Court Rule 287(a). Every request in the notice to produce presented by the plaintiff was couched in very general terms and indicated that the plaintiff was attempting to find out how the incident complained of occurred.

“The law is well settled in Illinois that in matters of discovery, including notices to produce under Supreme Court Rule 237(b), the power vested in the trial court requires '*** a careful exercise of its discretion in order to balance the needs of seeking the truth against the needless harassment of a party litigant.’ ” Cedric Spring & Associates, Inc., 81 Ill. App. 3d at 1034.

Therefore, because the plaintiff was attempting to elicit discovery under Supreme Court Rule 287(a), the plaintiff was required to receive leave of the court to proceed. The trial court did not allow the plaintiff the right to continue in its discovery, and its decision was completely within the trial court’s authority under Supreme Court Rule 287(a). We see no need to allow plaintiff to procure through the back door of Supreme Court Rule 237(b) what it cannot get through the front door of regular discovery procedures because of the limitations of Supreme Court Rule 287(a). Furthermore, based on the general rules of discovery, there is simply no showing on the part of the plaintiff that the trial court abused its discretion in striking a balance between the needs of the plaintiff and the harassment of the defendant or that the plaintiff was prejudiced by the order of the trial court which forbade the use of the notice to produce.

Therefore the circuit court of Du Page County is affirmed.

Affirmed.

REINHARD, P.J., and NICKELS, J., concur.


author: JUSTICE GEIGER

text:
    AARDVARK ART, INC., Plaintiff-Appellee, v. LEHIGH/STECK-WARLICK, INC., Defendant-Appellant.
    Second District
    No. 2—90—0441
    Opinion filed April 16, 1991.
    Modified on denial of rehearing May 30, 1991.
    Howard R. Wertz and Frank J. DeSalvo, both of Botti, Marinaccio, DeSalvo & Tameling, Ltd., of Oak Brook, David A. Shapiro, of Poliak & Hoffman, Ltd., of Chicago, and Irving S. Segal and John E. McKeever, both of Schnader, Harrison, Segal & Lewis, of Philadelphia, Pennsylvania, for appellant.
    Robert E. Jones, of Greene, Jones & Brisske, of Wheaton, Kathleen T. Zellner, of Naperville, Robert G. Black, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Lisle, and D. Kendall Griffith, of Hinshaw & Culbertson, of Chicago, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Lehigh/Steck-Warlick, Inc. (Lehigh), appeals from a $1,695,833 jury verdict for the plaintiff, Aardvark Art, Inc. (Aardvark). The defendant raises several issues regarding the trial wherein Aardvark sought to recover its alleged diminished corporate value and its estimated loss of future profits. We reverse and remand.

The facts elicited during trial are as follows. In 1974, Gerald McGlothlin started a business called Able Art (Able) to sell framed art reproductions to department stores. In 1978, McGlothlin formed Aardvark as a separate division of Able to sell unframed prints. In 1981, McGlothlin incorporated Aardvark as a separate entity.

The businesses were organized so that McGlothlin, on behalf of Aardvark, contracted with artists for reproduction rights to their artwork. He then took the artwork to a service that would process the image into “transparencies” or “color separations.” McGlothlin returned the original art to the artist and took the color separations to a printer for reproduction. Aardvark sold the art reproductions.

Before Aardvark was separately incorporated, Able owned the business’ supply of color separations. When McGlothlin incorporated Aardvark in 1981, Able transferred all of its ownership interest in the business’ color separations to Aardvark.

In 1979 or 1980, Lehigh’s president, Gus Ivkovic, began soliciting Abie’s business “under their Aardvark *** division.” Lehigh possessed a state-of-the-art press which would allow it to do both color separation and printing for Able. Lehigh agreed to take the original artwork, to separate its colors, and then to print prints. Lehigh agreed to “open credit terms” with Able.

In the spring of 1981, McGlothlin sought to place a 100-page catalog of Aardvark’s color separations in the July annual master issue of “Decor” magazine. McGlothlin discussed his marketing plan and the catalog printing deadline with Ivkovic. It was agreed that Lehigh would make miniature color separations of Abie’s and Aardvark’s prints.

Lehigh did not meet the original deadline for the “Decor” magazine insertion. However, “Decor” delayed its publication and Aardvark’s advertisement was published. Aardvark received an “avalanche” of orders, and McGlothlin arranged with Lehigh that Lehigh produce and deliver 100,000 prints from color separations by August 10,1981.

The prints were not ready by August 10, but were completed five to six weeks thereafter. By then many of Aardvark’s customers had cancelled their print orders. Furthermore, McGlothlin testified that the quality and color reproduction of the finished prints were “poor.” Although he accepted the prints, he complained to Lehigh about their untimeliness and poor quality. Lehigh’s final printing bill for the catalog was $46,116.45. Lehigh had originally quoted a fee of $29,000 for printing the catalog.

In October 1981, McGlothlin wrote to Lehigh, disputing the bill and informing Lehigh of his substantial losses he claimed were a result of Lehigh’s failure to meet deadlines, the poor quality of the prints, and the catalog problems. In March 1982, McGlothlin and his attorney met with Lehigh to discuss past-due invoices and allowances for bad colors or late print delivery. Lehigh refused to return Aardvark’s color separations until McGlothlin paid its entire bill.

On March 31, 1982, Aardvark sought a preliminary injunction to retrieve its color separations from Lehigh; the trial court denied Aardvark’s request. Aardvark then filed both contract and tort claims for damages it allegedly had suffered as a result of Lehigh’s withholding the color separations. Lehigh filed a counterclaim seeking payment for its printing services. Aardvark’s claim for tort relief was dismissed prior to trial.

At the trial, McGlothlin opined that Aardvark’s profits had suffered “tremendously” as a result of Lehigh’s actions. He opined that sales declined because Lehigh had withheld the color separations. Also, McGlothlin estimated that from mid-1982 through 1988, Aardvark suffered lost profits of $5.2 million as a direct consequence of Lehigh’s actions. He further opined that Aardvark would continue to lose profits because it “was in essence, ruined” since Lehigh refused to return the color separations. According to McGlothlin, it would cost Aardvark $200,000 to replace the color separations that Lehigh retained. He calculated that Aardvark had suffered a $2,882,950 loss of future profits.

Aardvark’s certified public accountant, Steven Remy, testified that Aardvark had a diminished value as a result of its problems with Le-high. He testified that he considered five years of Aardvark’s actual pretax operating results, omitted reference to lost profits, and calculated that Aardvark’s corporate value was diminished $559,483 by Le-high’s “interference.”

At the close of Aardvark’s case, Lehigh moved for a directed finding on the issue of damages for future lost profits. The trial court granted the motion, ruling that Aardvark’s evidence .of future lost profits, given only through McGlothlin, was insufficient to establish the basis for those lost profits. However, the court denied Lehigh’s request to immediately admonish the jury to disregard evidence of future lost profits. The trial court also denied Lehigh a directed verdict on the question of the diminution of Aardvark’s value.

Plaintiff’s exhibit No. 36, which showed McGlothlin’s calculations of Aardvark’s lost profits and value diminution, was admitted into evidence. However, the trial court did not allow the exhibit to go to the jury because it referred, in part, to lost profits. The trial court specifically ruled that regarding Aardvark’s value diminution, the parties could argue from the exhibit and from the testimony.

During closing arguments, Aardvark’s counsel argued, over Le-high’s objection, that the jury could award damages between the $559,483 that Remy estimated as the business’ diminished value, and the $2,882,950 that McGlothlin calculated as lost profits. The jury was not instructed to disregard the evidence of lost profits. However, it was instructed that Aardvark’s “recovery is limited to the diminished value of the company.” The jury returned a verdict of $1,695,833 for Aardvark. After the court denied Lehigh’s post-trial motion, this appeal followed.

Lehigh’s first argument on appeal is that the trial court erred in failing to inform the jury of the directed finding precluding Aardvark’s recovery of any future lost profits. Lehigh argues that the trial court’s failure to admonish the jury to disregard McGlothlin’s testimony of future lost profits constitutes prejudicial error warranting a new trial. We note that Aardvark has not challenged the trial court’s directed finding on the lost profit issue.

Neither party cites an Elinois case that directly holds that faüure to advise a jury of a directed finding is reversible error. However, we find the case of Rudolph v. City of Chicago (1954), 2 Ill. App. 2d 370, to be of assistance. In Rudolph, the trial court allowed the plaintiff to introduce evidence charging the defendant’s attorney’s subornation of penury. (2 Ill. App. 2d at 375.) Although it later became clear that the subornation of perjury charge was baseless, the trial court did not instruct the jury to disregard the testimony. 2 Ill. App. 2d at 376.

On appeal, the Rudolph court found reversible error because of the trial court’s failure to adequately inform the jury. It observed the following:

“After it was apparent to the court that counsel for the plaintiff had no basis for his charge of subornation of perjury by defendant’s counsel, the court should have instructed the jury that it should not consider the testimony introduced by the plaintiff on this charge, and thereafter should not have permitted that matter to becloud the issues before the jury.” 2 Ill. App. 2d at 377.

We find that under these circumstances, as in Rudolph, the trial court committed reversible error by not adequately informing the jury. The trial court never specifically informed the jury that it had directed a finding on the issue of lost profits. The jury had heard McGlothlin’s testimony estimating Aardvark’s lost profits to be $2,882,950 and Aardvark’s argument for. damages based on that figure. The highest estimate of Aardvark’s damages, disregarding the opinion of the value of lost profits, was Remy’s estimate of $559,483. Since the jury’s verdict of $1,695,833 exceeded any amount it could have reasonably awarded Aardvark if it had not been influenced by the evidence of lost future profits, the insufficiency of the instruction to the jury is apparent. Although the jury was instructed that recovery was limited to the company’s diminished value, the jurors clearly were confused on the issues.

If a fair trial is to be had before laymen jurors, the issues must be presented fairly and simply. (Rudolph, 2 Ill. App. 2d at 377; Manninger v. Chicago & Northwestern Transportation Co. (1978), 64 Ill. App. 3d 719, 730.) We find that the fairness of this trial was compromised when the jurors were insufficiently instructed. We find, consequently, that the case, on the issue of damages only, must be retried. (See American National Bank & Trust Co. v. Thompson (1987), 158 Ill. App. 3d 478, 488.) Based on our decision to reverse and remand, we need not address Lehigh’s other claimed errors.

The decision of the circuit court of Du Page County is reversed, and the cause is remanded for a new trial on the issue of damages only.

Reversed and remanded.

McLAREN and INGLIS, JJ., concur.


author: PRESIDING JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD F. HEWITT, Defendant-Appellant.
    Second District
    No. 2—90—0574
    Opinion filed April 26, 1991.

      Joseph T. Bugos, of Donahue, Sowa & Bugos, of Lisle, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, and Kathleen V. Riccio, of counsel), for appellee.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Following a bench trial conducted by the circuit court of Du Page County, defendant, Ronald F. Hewitt, was convicted of driving while under the influence of alcohol (DUI) (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501(a)(2)), driving with a suspended driver’s license (Ill. Rev. Stat. 1989, ch. 95½, par. 6—303(a)) and driving with only one headlight (Ill. Rev. Stat. 1989, ch. 95½, par. 12—201(b)). Defendant was fined a total of $250 for the three offenses and was also sentenced on the DUI offense to one year of probation conditioned on 14 days’ imprisonment in the county jail and alcohol dependency treatment as determined by the probation department.

Defendant appeals his DUI conviction and presents the following issues for review: (1) whether the trial court properly allowed the State to amend its information after the close of its case; (2) whether the amended information was invalid because it was not reverified; and (3) whether defendant was proved guilty beyond a reasonable doubt of DUI.

Defendant filed a motion to suppress evidence but this motion is not part of the record. However, the transcript of the proceedings on the motion and some additional testimony at trial formed the basis of the evidence at the bench trial.

Kerry Florian, a co-worker of defendant, testified that he and defendant were working on a carpentry job in Naperville, Illinois, from approximately 4 p.m. to 8 p.m. on June 14, 1989. After leaving work at about 8 p.m., the two proceeded to a 7-Eleven store and picked up a six-pack of beer. They then went to the shop of a friend, Ken Lore. During this trip of 13 to 14 miles, Florian drove behind defendant, who was driving a Chevy pickup truck. Florian testified that the spring on the truck was broken at the time he and defendant left the jobsite in Naperville.

Once at the garage, the three men each drank two cans from the six-pack of beer. Florian testified that defendant had not consumed any alcoholic beverage before this. Shortly before 10 p.m., Florian and defendant left, and Florian agreed to follow defendant most of the five or six miles to defendant’s home. Florian testified that, because of the broken spring, defendant’s truck leaned to one side. Florian did not observe defendant commit any traffic violations. Florian followed defendant as far as the intersection of 63rd and Cass, which is near defendant’s home, and he did not see defendant being pulled over by the police.

Defendant testified that he showed up at the Naperville jobsite at about 7 a.m. and worked until 8 p.m. He stated that he consumed no alcoholic beverages during this period. Defendant further stated that he, Ken Lore and Florian split a six-pack of beer at Lore’s garage. Defendant’s 1979 Chevy pickup truck, which had 130,000 miles on it, had broken a rear spring at about 2 or 2:30 p.m. on the day in question. Defendant estimated that the truck leaned about 8 or 10 inches as a result. Defendant testified that, as he drove home with Florian following him, he did not violate any traffic laws.

After Florian left him, and about two or three houses from his home, defendant was stopped by the police. He got out of the truck but then leaned back in to place his glasses on the dashboard. Defendant did not have problems with his balance, but his knees sometimes “get stiff.” The police informed him that one of his truck’s headlights was out. When asked, he refused to take a field sobriety test. Defendant refused to take the test because he does not “have good balance.” Defendant admitted that he told the police, “we had a couple of beers,” and that “[i]t’s been a late day. All I want to do is go home and go to bed.” Defendant was then arrested by the police officers.

Officer Ross Brenza of the Village of Westmont police testified that, at approximately 10:30 p.m. on June 14, 1989, he observed a pickup truck with only one headlight turning onto 59th Street. As Officer Brenza followed the truck westbound on 59th Street, he noticed the truck weaving to within inches of the right-hand curb and back over the center line into the eastbound portion of the road. He estimated that the vehicle weaved in this manner approximately four to seven times.

Officer Brenza activated his emergency lights and spotlight, and, after proceeding another two blocks, the truck pulled over to the side of the road. Officer Brenza exited his car at the same time the driver of the truck exited his vehicle. The driver “appeared to be hanging onto the driver’s door for support” and, after letting go of the door, “fell against the truck.” As Officer Brenza began speaking with the driver, he observed that the driver’s speech was slurred, his eyes were “glossy [sic] and bloodshot,” and he had a strong odor of alcohol on his breath. The driver was swaying and staggering. When Officer Brenza asked the driver to perform a field sobriety test, he refused, stating that he “had a bad night and he just wanted to go home.” The driver admitted having a few beers.

Officer Brenza ran a check on the driver’s license and found that it was suspended. Officer Brenza then advised the driver that he was under arrest for DUI and driving with a suspended license. The driver refused to take a breathalyzer test. Officer Brenza opined that the driver, whom he identified as defendant, was under the influence of alcohol at the time of his arrest. On cross-examination, Officer Brenza testified that 59th Street is marked by a center line but is not a laned roadway. After being arrested and taken to the police station, defendant told Officer Brenza that he had taken Sinutab sometime in the preceding six hours. Defendant never complained about problems with his knees, his eyesight or the spring on his truck.

Officer Randy King of the Village of Westmont police testified that, as he rode in the passenger seat of Officer Brenza’s squad car on the night of June 14, 1989, he observed defendant’s truck weaving between the center line and the curb. As defendant exited his truck after being pulled over, he leaned on the door for support and fell against the truck after taking a step. Officer King never saw defendant reach into the cab of the truck. Defendant was staggering and swaying in a circular manner, and he never complained of physical problems or problems with the truck.

After being placed under arrest, defendant gave Officer King permission to drive his truck to his house. Officer King testified that, although the truck had a “little bit of tilt,” he had no problem driving it. The odor of alcohol on defendant’s breath was “strong,” although Officer King did not smell alcohol on defendant’s breath until they were in the squad car because he was not face-to-face with defendant until that time. Officer King was of the opinion that defendant was under the influence of alcohol.

After the State rested, defendant asked the court to enter a directed finding of not guilty on the charge of DUI. Defendant argued that he had been charged in the information with a violation of section 11 — -501(a)(1) of the Illinois Vehicle Code (Vehicle Code), which requires the State to prove defendant had a blood-alcohol concentration of .10 or more. (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501(a)(l).) The assistant State’s Attorney asked leave to amend the statutory section alleged in the information to reflect the statutory provision of “under impairment,” stating:

“MR. ESTES [assistant State’s Attorney]: Judge, at this time, I would be moving to amend the information to be under 11 — 501.1. It would be (a).”

Defense counsel responded:

“MR. BUGOS [defense counsel]: *** Mr. Estes wants to fill in new information that would correct the error by the State. This is substantive. This isn’t merely formal. The document, as it stands now, is sufficient to charge a violation of 11— 501(a)(1). The only way to make it (a)(2) is to amend. They never made a motion prior to trial.”

The prosecutor subsequently stated that “[i]t is clear that the People are moving to amend to that section of the information to be under impairment not the per se, under 11 — 501(a)(1).” The trial court reserved its ruling on the State’s motion to amend.

The parties then stipulated to the admission of the transcripts of the testimony of Florian and defendant from the hearing on defendant’s motion to suppress. Defendant also testified for the purpose of identifying photographs of his pickup truck. The court took the case under advisement.

On March 7, 1990, the trial court heard further argument on the issue of amending the information. The court found that the defect in the information was formal, not substantive, and was more in the nature of a scrivener’s error. The trial court granted the State leave to amend the information, although no written amendment appears on the face of the information, and denied defendant’s motion for a directed finding.

On March 13, 1990, the court found defendant guilty of all three offenses charged. On April 5, 1990, defendant filed a motion to reconsider or, in the alternative, for a new trial. Defendant presented the motion at a hearing on April 25, 1990, at which time he also indicated he was presenting a motion in arrest of judgment. The record contains a motion in arrest of judgment which was not filed until May 2, 1990.

The motion for reconsideration contended that the State was improperly allowed to amend the information and that the evidence was insufficient to prove defendant guilty beyond a reasonable doubt of DUI. The motion in arrest of judgment contended that, although the “State was allowed to amend its information to read a violation of section 11 — 501(a) instead of 11 — 501(a)(1) after it had rested,” there was no reverification of the complaint as required by section 111 — 3 of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (Ill. Rev. Stat. 1989, ch. 38, par. 111—3). The trial court denied both motions, and defendant now appeals.

Defendant’s first contention on appeal is that the trial court erred in denying his motion for a directed finding at the close of the State’s case. This contention is, in turn, comprised of two separate elements: (1) the propriety of allowing the State to amend the information; and (2) the effectiveness of the State’s purported amendment.

Defendant contends that section 111 — 5 of the Code of Criminal Procedure allows the State to correct formal, but not substantive, defects in the charging instrument. Section 111 — 5 provides, in pertinent part, as follows:

“§111 — 5. Formal Defects in a Charge. An indictment, information or complaint which charges the commission of an offense in accordance with Section 111 — 3 of this Code shall not be dismissed and may be amended on motion by the State’s Attorney or defendant at any time because of formal defects, including:

(a) Any miswriting, misspelling or grammatical error.” (Ill. Rev. Stat. 1989, ch. 38, par. 111—5.)

Defendant contends that the defect here was substantive and not formal.

We believe this court’s decision in People v. Sergey (1985), 137 Ill. App. 3d 971, 485 N.E.2d 506, controls our resolution of the issue here. In Sergey, the defendant, who refused to take a breathalyzer test, was issued a traffic ticket for DUI under section 11 — 501(a) of the Vehicle Code. After the State had called two witnesses, but prior to the end of its case, the prosecution successfully moved over defense objection to amend the traffic ticket by adding subsection (2) to the statutory citation of section 11 — 501(a). (Sergey, 137 Ill. App. 3d at 973, 485 N.E.2d at 507-08.) This court held that, where a traffic citation informs a defendant of the offense with which he is charged, the failure to cite the precise subsection applicable is a technical defect which is of no avail if defendant is aware of the charge. Noting that the traffic citation “charged the offense in the exact terms” of section 11 — 501(aX2) and did not make any reference to blood-alcohol content, the court held that defendant could not have been misled and that amendment was proper. Sergey, 137 Ill. App. 3d at 977-78, 485 N.E.2d at 510.

Here, too, the allegation in the information that defendant, “WAS DRIVING OR IN ACTUAL PHYSICAL CONTROL OF A MOTOR VEHICLE WITHIN THE STATE OF ILLINOIS WHILE UNDER THE INFLUENCE OF ALCOHOL,” is sufficient to apprise him of a prosecution under section 11 — 501(a)(2). As was the case in Sergey, there is no reference to blood-alcohol content, and “it is difficult to see how defendant could have believed that the State might have charged him under subsection (1), when he had refused to take a breathalyzer test.” (Sergey, 137 Ill. App. 3d at 977, 485 N.E.2d at 510.) Thus, the trial court properly allowed the State to amend the information to correct this formal defect. Sergey, 137 Ill. App. 3d at 978, 485 N.E.2d at 510.

Defendant further contends that the State’s attempt to amend the information was ineffective. Although the State never filed a written amendment to the information, the prosecutor stated orally that he was “moving to amend the information to be under 11 — 501.1. It would be (a).” Defendant correctly notes that section 11 — 501.1 of the Vehicle Code is the implied-consent provision (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.1(a)) and does not even embody an offense. The State maintains, however, that the record as a whole, including the prosecutor's stated intention to charge defendant “under impairment” and not under section 11 — 501(a)(1), clearly indicates the State’s intention to amend the information to charge defendant under the proper provision, section 11 — 501(aX2).

We note that defendant did not raise before the trial court any issue regarding the substance of the State’s amendment to the information, either during argument on the propriety of the amendment or in his post-trial motions. Both parties proceeded below as if the amendment sought was the proper one. The citation to an incorrect statutory provision is not necessarily fatal, and reversal is not required unless the citation is so misleading that defendant could have been prejudiced. (People v. Ryan (1987), 117 Ill. 2d 28, 37, 509 N.E.2d 1001.) This is especially true where, as here, the alleged error is raised for the first time on appeal. Cf. People v. Pujoue (1975), 61 Ill. 2d 335, 339, 335 N.E.2d 437.

It is clear that defendant was not prejudiced. Although defendant argued that the State should not have been allowed to amend the information, it is nonetheless clear that defendant proceeded under the assumption that the State sought to amend the information to the correct provision, section 11 — 501(a)(2). When the State first sought the amendment, defense counsel stated that the original information “is sufficient to charge a violation of 11 — 501(aXl). The only way to make it (a)(2) is to amend.” (Emphasis added.) Given that defendant’s own position was based on the assumption that the State sought to amend the information to section 11 — 501(aX2), it is impossible to find prejudice in the State’s failure to name the proper section.

Defendant’s next argument is that the amendment to the information was a substantive change and required reverification of the information. (See People v. Troutt (1977), 51 Ill. App. 3d 656, 366 N.E.2d 370.) As we have already concluded, however, the miscited statutory provision in the original information was merely a formal defect. (Sergey, 137 Ill. App. 3d at 978, 485 N.E.2d at 510.) Accordingly, no reverification was required. Troutt, 51 Ill. App. 3d at 661, 366 N.E.2d at 373-74.

Finally, defendant contends that the evidence presented at trial was insufficient to prove him guilty beyond a reasonable doubt of DUI. Defendant contends that the evidence below “is consistent with someone driving a truck with mechanical problems after a long and physically exhausting work day.”

In assessing whether the evidence against a defendant was sufficient to prove guilt beyond a reasonable doubt, the relevant question on review is whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Furby (1990), 138 Ill. 2d 434, 455, 563 N.E.2d 421.) Here, the evidence viewed in the light most favorable to the State shows that defendant’s truck weaved between the center line to the curb four to seven times. Defendant stumbled getting out of his truck and leaned against it for balance. Defendant swayed in a circular manner, and Officer Brenza testified that defendant’s speech was slurred, his eyes were “glossy [sic] and bloodshot,” and his breath smelled of alcohol. Both of the experienced police officers were of the opinion that defendant was under the influence of alcohol.

We believe the evidence was sufficient to permit a rational trier of fact to have found defendant guilty beyond a reasonable doubt of DUI. While defendant presented testimony to show that his actions did not reflect intoxication, the assessment of the credibility of witnesses and the resolution of factual disputes are properly made by the finder of fact. (People v. Hendricks (1990), 137 Ill. 2d 31, 65, 560 N.E.2d 611.) The finder of fact is not required to accept any possible explanation compatible with defendant’s innocence and elevate it to the status of reasonable doubt. People v. Herrett (1990), 137 Ill. 2d 195, 206, 561 N.E.2d 1.

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

Affirmed.

INGLIS and UNVERZAGT, JJ., concur.