author: JUSTICE WOODWARD

text:
      In re MARRIAGE OF MARGARET M. ZWART, Petitioner-Appellant, and MARTEN ZWART, Respondent-Appellee.
    Second District
    No. 2 — 92—0778
    Opinion filed May 28, 1993.

      James M. Allen, of Palatine, for appellant.
    Michael C. Poper, Thomas M. Foley, and Stephen M. Haugh, all of Michael C. Poper, P.C., of Crystal Lake, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Petitioner, Margaret M. Zwart, appeals the judgment of the circuit court which dissolved the marriage of petitioner and respondent, Marten Zwart. Petitioner challenges the property distribution as inequitable.

The parties were married on December 16, 1990. Petitioner filed for dissolution of the marriage on August 20, 1991. At the time of the dissolution, in July 1992, respondent was 53 years old and petitioner was 35 years old. Petitioner had three children from a former marriage who lived with the parties in the marital home. In her petition, petitioner alleged that she was employed as a legal secretary.

According to an affidavit filed on March 12, 1992, respondent stated that he was unemployed. His total living expenses were $2,755.48 per month, and his sole debt was the mortgage on the marital home. Respondent had no income. His assets were $2,500 in a savings account in Barrington and $1,600 in a Swiss bank account.

On April 29, 1992, the court entered an agreed order of stipulation. According to the order, the parties stipulated that the purchase price of the marital residence was $240,000; respondent paid $60,000 plus costs of $5,760.76 to purchase the property; petitioner owned a house as nonmarital property (Palatine house); both parties were in title as joint tenants for the marital home and both signed the mortgage; petitioner would assume responsibility for all credit card debts in her name; petitioner made no claim to any property respondent owned or purchased prior to the marriage; respondent made no claim to the diamond rings he gave petitioner; petitioner received $1,030 from respondent and she signed a promissory note acknowledging the debt; and prior to the marriage petitioner received from respondent $8,748.34 to purchase a car and $2,884 to repair the roof of the Palatine house. The parties did not stipulate that these latter sums were a gift or a loan.

At the hearing, petitioner testified that she had custody of three children from a prior marriage, and she received $115 per week in child support from her former husband. Petitioner estimated that the Palatine house was worth $70,000. It was vacant because it was in need of repair. There were no loans or mortgages against the Palatine house. Petitioner brought no furniture to the marital home, and respondent bought bedroom sets for two of petitioner’s children.

When the parties met in 1988, petitioner’s financial condition was poor. She was working part-time and earning between $140 and $160 per week. Because petitioner was driving a rusty car, respondent took her to buy a new car. Respondent paid for the car because, according to petitioner, respondent wanted to give it to her. Petitioner offered to pay respondent back for the car if she sold the Palatine house.

In November 1989, after they broke off their relationship, petitioner asked respondent for a loan to fix the roof on the Palatine house. Respondent wrote her a letter advising her to come get the money. Instead, petitioner got a loan from her credit union. After they reconciled, respondent paid off the loan and all of petitioner’s other bills.

The parties got engaged in October 1990. They discussed petitioner selling the Palatine house and putting the proceeds into the marital home; however, petitioner did not sell the house. At that time, petitioner secured full-time employment and was making $16,000 per year, gross. Petitioner signed the $180,000 mortgage for the marital home, although she did not make any of the payments. During the marriage, petitioner paid for groceries, her children’s needs, her own needs and expenses for the Palatine house. The promissory note was for money to repair the Palatine house. The house had been in need of repair to make it salable, and the taxes were delinquent. Before the marriage, petitioner spent $520 per month for groceries, and during the marriage petitioner spent $640 per month. During the marriage, petitioner did the cleaning, the cooking and the laundry.

After petitioner filed for dissolution, respondent asked her to disclaim any interest in the marital home. She refused. At the time of the hearing, petitioner was making $20,000 per year. Petitioner testified that a realtor estimated that the listing price for the marital home should be $289,000.

Testifying as an adverse witness, respondent stated that he was a citizen of the Netherlands. He had been a part owner of a European corporation, Contiweb. In 1983, that company was bought out by another corporation and became Stork Contiweb. Respondent received fll00,000 (Dutch guilders) from the sale of Contiweb, which respondent estimated as $56,000 or $59,000. Respondent worked for that corporation in the United States on a limited work visa. Respondent was the vice-president of marketing for Stork Contiweb, making $87,000, when his employment was terminated in July 1989. He received severance pay until the end of January 1990. The visa respondent had did not allow him to work for any company in the United States other than Stork Contiweb.

According to respondent, when he met petitioner, the car she was driving was unsafe. He thought she should get a new car, but she said she could not afford to do so. Respondent told her he would take care of it, so he wrote a check to the car dealership for the car. Later, petitioner said she would repay him when she sold the Palatine house.

Respondent testified that he purchased the marital home because they needed a large house to accommodate petitioner’s children. In January 1991, the parties closed on the sale of the marital residence. Respondent put petitioner’s name on the deed to the home because petitioner promised to sell the Palatine house and apply the proceeds to the new house. Respondent expected that to result in lower mortgage payments. He purchased all of the furniture for the marital home. Respondent made the down payment for the home and paid for the furniture by transferring funds from European bank accounts into his local account. During the marriage, respondent paid for everything for the house and paid petitioner’s car insurance. He also bought $250 worth of groceries each week. In July 1991, respondent told petitioner he wanted a joint account with her. In September 1991, she executed the promissory note. Respondent admitted that he asked petitioner to disclaim any ownership interest in the marital residence after petitioner filed for dissolution.

On his 1990 income tax return, respondent reported an income of approximately $11,000. At the time of the hearing, in addition to the bank account in Barrington and the account in Switzerland, respondent had an account in the Netherlands into which his father deposited money. Respondent deposited over $150,000 in the Barrington account in 1990; from January through October 1991, he deposited $66,000. The current balance in his Barrington account was $5,000. Respondent also admitted that he gave petitioner over $29,000 prior to the marriage.

Testifying in his own behalf, respondent explained that the money for the car was a loan, and they discussed that at the dealership. In the summer of 1990, during one of their break-ups, respondent asked petitioner for an IOU for the car loan. Respondent also testified that he paid off petitioner’s loan to the credit union because she showed him that she had to pay interest on the loan and she was behind in the payments. Respondent told her that the money to pay off the credit union was a loan, but she would not owe him interest on it. Respondent “bailed out” petitioner several times because she was not good at managing her finances.

When respondent was in the process of purchasing the marital home, petitioner told him he would have trouble getting a mortgage because he was unemployed and was not a permanent resident of the United States. Respondent got the money for the down payment from the Dutch account. Respondent explained that his father deposited money into that account under a Dutch tax law. His father had use of the account and received all the interest. Respondent would not have use of the account until his father’s death. Respondent’s father transferred money from the Dutch account to the Swiss account. Respondent also used those funds for living expenses.

Respondent submitted a list of all the personal property purchased for the marital home. Most of the items were purchased before the marriage. Respondent paid $9,000 to $10,000 for the new furniture. Respondent stated that he paid $3,000 for the installation of a deck on the marital home, $900 for doors, $1,000 for a central humidifier and an electronic air cleaner, and $2,000 for window blinds. Between January and October 1991, respondent paid $28,000 for the mortgage, taxes and insurance on the marital home. According to respondent, one realtor’s market analysis suggested a listing price of $253,000 for the home, and another estimated $280,000 or $260,000 for the listing price. The house needed interior and exterior painting and carpet cleaning, which respondent estimated to cost $5,200. The mortgage balance on the home as of December 1991 was $179,831.36, and the annual taxes were $5,424.10. Respondent stated that he wanted to give the bedroom furniture he bought for petitioner’s children to them. Respondent indicated that he had to leave the United States because his visa was about to expire.

In the judgment, in addition to the stipulations, the court found that petitioner did not owe respondent anything for money transferred to her prior to the marriage; the marital home was marital property and respondent failed to overcome the presumption of a gift to the marriage; the two bedroom sets given to petitioner’s children were gifts to the children; neither party requested permanent maintenance, although respondent requested temporary maintenance; and respondent made the down payment of $60,000 plus costs, made capital improvements, and testified that the house needed repairs of approximately $5,000 to prepare it for sale. The court stated that it based its property distribution decision on the contribution each party made to the marital estate, the value of the property given to each spouse, “the very short length of the marriage having been only approximately eight months” when petitioner filed for dissolution, what each party put into the marriage and the totality of the circumstances.

The court ordered: (1) both parties were forever barred from maintenance; (2) two of the children were to retain the bedroom furniture given them by respondent; (3) petitioner was allowed to live in the marital home until 45 days after the end of the school year; (4) beginning two weeks after the end of the school year, petitioner would pay rent of four-fifths of the principal and interest of the mortgage until she vacated the house; (5) petitioner received the Palatine house free and clear from any claim by respondent; (6) petitioner would receive from proceeds of the sale of the marital residence $7,500 less the $1,030 petitioner owed respondent; (7) respondent received all the property in the marital residence except for the kitchen table and chairs and a few minor items; and (8) each party would pay his or her own attorney fees. Petitioner timely appealed.

Petitioner contends that the court abused its discretion in distributing the marital property and that the cause should be remanded for a new property distribution.

Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Act) allows the trial court discretion to divide the marital property in just proportions, considering all relevant factors, including statutory factors. (Ill. Rev. Stat. 1991, ch. 40, par. 503(d); In re Marriage of Asckwanden (1980), 82 Ill. 2d 31, 37.) A division of property need not be mathematically equal to be equitable. (In re Marriage of Tietz (1992), 238 Ill. App. 3d 965, 979.) We will not reverse such an order unless the court abused its discretion. (In re Marriage of Eidson (1992), 235 Ill. App. 3d 907, 911.) A court has abused its discretion only when no reasonable person could take the view adopted by the trial court. Eidson, 235 Ill. App. 3d at 911.

The sole asset of the marital estate was the marital home. The evidence shows that respondent was the sole source of funds for the purchase of the home and for the payments and improvements for the home. Although petitioner asserts that the fair-market value of the house is $280,000, the trial court did not make any finding in that regard, nor was any evidence presented of the value of the house. No appraisal was done on the house; the evidence related only to the listing price. Thus, we cannot speculate as to the value of the house. The evidence showed that there was an outstanding mortgage balance of over $179,000, the annual taxes were over $5,000, the suggested listing price for the house ranged from $253,000 to $289,000, and the realtor would take a 5% commission.

Petitioner argues that the award of $7,500 (less $1,030) was substantially disproportionate to the amount of money available to distribute from the equity in the marital residence. However, as noted above, there was no evidence from which the court could determine the amount of equity in the marital home. The parties purchased the home in 1991 for $240,000, and there was no evidence of how much the value of the home increased in IV2 years. The trial court may have concluded that the equity in the home increased by a minimal amount, if at all.

Petitioner next argues that the court erred in distributing the property because it did not apply properly the statutory factors and there were no unusual circumstances to warrant a substantial distribution to respondent.

The following factors from section 503(d) of the Act apply here:

“(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective ***;
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income.” (Ill. Rev. Stat. 1991, ch. 40, par. 503(d).)

The evidence shows that respondent made the entire contribution to the acquisition, preservation and appreciation in value of the marital home. Petitioner argues that the trial court placed too much emphasis on this factor. We disagree.

The record shows that the court considered all of the relevant factors. The court emphasized the very short duration of the marriage. We reject petitioner’s assertion that she should be given credit for her contributions as a homemaker. This factor has little relevance when the spouse claiming homemaking contributions worked outside the home during the marriage. (See In re Marriage of Tatham (1988), 173 Ill. App. 3d 1072, 1085; see also In re Marriage of Philips (1990), 200 Ill. App. 3d 395, 405.) Petitioner was employed throughout the marriage, while respondent was not. In addition, it is when the marriage is long term that the source of the assets becomes less of a factor and the spouse’s role as the homemaker becomes greater. (In re Marriage of Scoville (1992), 233 Ill. App. 3d 746, 758.) The marriage was of such short duration that this factor has little, if any, weight. See In re Marriage of Cecil (1990), 202 Ill. App. 3d 783, 790-91.

The other factors support the court’s determination. At the time of the hearing, petitioner was 35 years old, was employed full-time as a legal secretary and was earning $20,000 per year. She owned a home worth approximately $70,000, which was unencumbered. She received $115 per week in child support. Respondent, by contrast, was 53 years old and unemployed. He cannot work in this country and must return to the Netherlands. He had no income and depleted most of his liquid assets in purchasing and maintaining the marital home and the furniture in it. At the time of the hearing, respondent had less than $5,000 in his bank account in Barrington. We cannot consider the Dutch bank account as an asset of respondent because, as he testified, the money in that account actually belongs to his father, and he has no access to that account until his father dies. There was no evidence of the value of that account, nor can it be assumed that respondent’s father will continue to contribute to that account. We conclude that the court’s determination of the property distribution award was not an abuse of discretion.

The judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT and COLWELL, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
      In re MARRIAGE OF LEWIS DUANE KERN, Respondent and Counter-petitioner-Appellant, and CHERYL JANE KERN, Petitioner and Counter-respondent-Appellee .
    Fourth District
    No. 4 — 92—0855
    Opinion filed June 10, 1993.

      Theodore J. Harvatin, of Gramlich Law Offices, P.C., of Springfield, for appellant.
    Bruce D. Locher, of Springfield, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

The parties were married on July 3, 1971. Four children were born of the marriage, Timothy (May 31, 1974), Jeremy (March 20, 1976), Ryan (August 19, 1978), and Chad (September 7, 1979). A judgment of dissolution of marriage was entered September 9, 1985, awarding custody to petitioner Cheryl Jane Kern (Cheryl), and requiring respondent Lewis Duane Kern (Lewis) to pay child support of $800 per month. On February 25, 1992, Lewis filed a petition for reduction of child support based on Timothy’s reaching age 18, and on his own reduced income. The trial court reduced support to $600 per month. Lewis appeals, arguing support should have been set at $403.73 (a figure he did not cite to the trial court), and that the trial court deviated upward from the child support guidelines without making an express finding in violation of section 505(a)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(2)). We affirm.

Lewis is 44 years of age. The affidavit he filed at the time of the judgment of dissolution showed that his annual gross income was $26,312, and his annual net income was $20,270.64. At that time Lewis was working as a mechanic at Hawes Implement Company. The affidavit Lewis filed at the time of the petition to modify shows an annual gross income of $15,140, and annual personal expenses of $34,791.12, which included expenses for his wife Janet and her child. Janet testified that with her income as an accountant she and Lewis were able to “break even.” Lewis left his job at Hawes in 1990 to work a grain farm previously worked by his uncle, purchasing his uncle’s equipment. Lewis testified he had a loss from farming in 1990. He also testified he had a loss in 1991, but his 1991 Federal income tax return showed a net farm profit of $15,140. Lewis left Hawes once during the parties’ marriage to try farming, but it did not work out and he returned to Hawes after a year. Lewis testified there is no reason why he could not return to Hawes again. The trial court found “the evidence at least supports” the fact that Lewis’ decision to farm was made in good faith.

Cheryl’s affidavit, filed in response to the petition to modify, indicates that she is employed as a clerk at Blue Cross/Blue Shield, and that her annual net income is $14,991.60. At trial, however, she responded affirmatively to the question whether she took home, without any overtime, something in excess of $1,400 a month ($16,800 per year). When she testified that she might have to give up some overtime to be with the parties’ son, Jeremy, she indicated that she had overtime of $10,000 per year. The parties failed to clearly establish whether Cheryl’s annual net income is closer to $16,800 per year or $26,000 per year. Cheryl estimates her annual living expenses are $19,819.08. Although Timothy is 18, he is living at home while attending Lincoln Land Community College. Jeremy, the 16-year-old, is blind in one eye, overweight, slow moving, and has a learning disability. Jeremy recently began treatment with a psychologist, which costs Cheryl $20 per visit in excess of what is covered by insurance. Lewis argues that the visits are unnecessary, based on the fact they only began after his petition was filed.

Lewis argues the trial court erred in deviating upward from the guidelines without making any express finding. Lewis, however, waived that issue by failing to raise it before the trial court. (In re Marriage of Baptist (1992), 232 Ill. App. 3d 906, 918, 598 N.E.2d 278, 286; In re Marriage of Harper (1989), 191 Ill. App. 3d 245, 246, 547 N.E.2d 574, 575.) In his reply brief Lewis admits that the trial court made findings, but argues those findings are not supported by the evidence. In any event, the requirement that the court make “express findings” (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(2)) is not a requirement that the findings be written or incorporated into the court’s order. (Cf Ill Rev. Stat. 1991, ch. 40, par. 610(b) (“court shall state in its decision specific findings of fact in support”) (modification of custody); In re Marriage of Wright (1991), 212 Ill. App. 3d 392, 399, 571 N.E.2d 197, 201 (express findings are required).) The statements made by the court in announcing its decision from the bench — that (1) Jeremy had special needs, (2) it was difficult to determine the net income of a self-employed farmer, especially one sharing expenses with a new family, and (3) suggesting that Cheryl had additional expenses with a college student living in her home — were sufficient to satisfy the statutory requirement for express findings.

The burden of showing a substantial change in circumstances sufficient to justify a modification of a child support award is on the party seeking the relief. (In re Marriage of Bean (1989), 181 Ill. App. 3d 671, 673, 537 N.E.2d 342, 344.) Lewis complains there is little evidence in the record regarding Jeremy, and that we are only left “to speculate about the dollar amount of the ‘special needs.’ ” Sufficient evidence was presented that Jeremy has some physical and mental difficulties for which he is being treated. If Lewis truly disputes the existence of the condition, or the fact that the condition is a matter of substantial expense to Cheryl, then it was his burden to introduce evidence supporting his position; it is not enough for Lewis to criticize the evidence presented by Cheryl, or to criticize the trial court for doing its best on the evidence presented to it. Lewis argues that where a trial court deviates from the guidelines the burden of proof shifts to the party benefited. We disagree. While the burden of producing evidence will shift after sufficient evidence has been presented, the burden of persuasion never shifts. (Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 462, 448 N.E.2d 872, 876.) There was evidence in the record upon which a decision to deny modification could be based. The burden of persuading the trial court that modification (and reduction) of child support was justified was at all times on Lewis, irrespective of how the trial court eventually ruled on it.

Lewis argues that the trial court relied on evidence outside the record when it noted that he had “some benefits available to him through his self-employment status as a farmer.” A jury is instructed to take into account its own observation and experience in the affairs of life (Illinois Pattern Jury Instructions, Civil, No. 1.04 (3d ed. 1992)), and judges are entitled to do the same. Because a farmer’s professional life is so intertwined with his personal life, it may be possible for a farmer to claim tax deductions which would not be available to nonfarmers. Lewis argues that “if [he] is under-reporting his income and/or receiving financial aid from family members, it is incumbent upon [Cheryl] to present evidence as to those matters.” Again we point out that the burden of persuading the trial court to reduce maintenance was at all times on Lewis. If the trial court found Lewis’ evidence was weak, the trial court was not required to accept it. Lewis’ evidence was certainly deficient in listing expenses not just for himself, but for his wife Janet and her child. (See Fedun v. Kuczek (1987), 155 Ill. App. 3d 798, 803, 508 N.E.2d 531, 535.) Lewis deducted those expenses but did not consider the benefit of Janet’s income.

Lewis argues the trial court did not consider Cheryl’s ability to contribute to the support of the minor children. Because the guidelines do not factor in the income of the custodial spouse, the argument is sometimes made that they discriminate against noncustodians, that they impose the entire burden of support upon the noncustodian. Nothing could be further from the truth. That argument assumes that a child may be fully supported on the amount paid by the noncustodian as child support. We reject that assumption. Custodial parents bear a substantial portion of the financial obligation for raising children even when support is paid regularly.» “[T]he custodial parent’s responsibility for the child’s support as well as care is general and plenary, while the noncustodial parent’s responsibility is usually limited to the requirements of the support order.” (In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 1047, 492 N.E.2d 622, 630.) Lewis’ argument that an award of $600 per month for three children is excessive translates to an argument that an award of $46 to feed, clothe, shelter, and transport one child for one week is excessive. We reject that argument. The guideline amounts have some inadequacies at both ends: just as following the guidelines may produce an excessive amount of support where the noncustodian is a high-income earner (People ex rel. Graham v. Adams (1993), 239 Ill. App. 3d 643, 646, 608 N.E.2d 614, 616; In re Marriage of Scafuri (1990), 203 Ill. App. 3d 385, 391, 561 N.E.2d 402, 406), following the guidelines may produce an insufficient amount of support where the noncustodian is a low-income earner.

While we respect Lewis’ right to choose his field of employment, there are limitations to that right. In an intact family, a father would be reluctant to leave a job by which he supported his family for one where he could not. Lewis’ closing argument that “it should be fairly evident that a new business does not always make money the first couple of years” is disturbing. Parents in intact families might wait until their children are raised before they change careers. A divorced parent should not see the fact that his child support obligation has been limited to a fixed payment based on his income as an opportunity to change careers. This is espedally true where the noncustodian continues to enjoy his previous lifestyle due to the income of a current spouse. If all a parent has is a crust of bread, he should share it with his child.

The trial court’s decision to reduce child support to $600 per month was not an abuse of discretion.

Affirmed.

STEIGMANN, P.J., and McCULLOUGH, J., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    JACK B. TOOMBS, Plaintiff-Appellant, v. THE CITY OF CHAMPAIGN, Defendant-Appellee.
    Fourth District
    No. 4 — 92—1012
    Argued May 19, 1993.
    Opinion filed June 3, 1993.

      Glenn A. Stanko (argued), of Reno, O’Byrne & Kepley, EC., of Champaign, for appellant.
    Michael R. Cornyn (argued), of Thomas, Mamer & Haughey, of Champaign, for appellee.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiff, Jack B. Toombs, the former director of operations for the Champaign Department of Public Works (Department), sued defendant, the City of Champaign (City), for wrongful discharge. His complaint alleged that an employee manual granted him a right, pursuant to Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, to be fired only for certain specified reasons, and that the City did not fire him for any of those reasons. Defendant filed motions to dismiss under sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 615, 2 — 619). The trial court granted both motions, and plaintiff appeals.

We affirm.

I. Background

In October 1980, the City hired plaintiff as the superintendent of operations for the Department. In April 1987, the City changed plaintiff’s job title to “Director of Operations for the Department of Public Works,” but his responsibilities remained the same. He supervised all employees in the operations division of the Department. Among other duties, the Department repaired and maintained city streets, cared for trees along the streets and on city-owned property, provided emergency-repair services to public equipment, and provided snow and ice removal.

In January 1981 — four months after plaintiff started working for the City — the city council adopted an employee manual entitled “Personnel Policies for Non-Bargaining Unit Employees” (the manual). As explained in the manual’s statement of purpose, the City wanted to “standardize and formalize, for the benefit of the City and its employees, the benefits and conditions of employment for those employees of the City who are not represented by any of the City’s designated bargaining units.” The City thus published the manual “to recognize, by providing slightly different benefits in certain instances, the additional responsibility and differing characteristics of managerial employees.” The City issued the manual to all its non-bargaining-unit employees, which included plaintiff. In his complaint, plaintiff alleged that he had read and relied upon the manual and its contents.

In October 1990, plaintiff received a letter from Jim Carney, the public works director and plaintiff’s supervisor, stating that Carney recommended that the city manager fire plaintiff because of plaintiff’s failure to adequately supervise and discipline his employees. In November 1990, plaintiff received a letter from Steven Carter, the city manager, informing plaintiff that he was fired. In March 1991, plaintiff filed this lawsuit for wrongful discharge.

In June 1991, defendant filed a motion to dismiss under section 2 — 615 of the Code, claiming that the manual did not create a contract. Defendant also filed a motion to dismiss under section 2 — 619 of the Code. Defendant attached a city council ordinance, which amended the Champaign Municipal Code (Municipal Code) by revising and codifying the structure of the Champaign city government. Section 2 — 362 of the Municipal Code created plaintiff’s position, and section 2 — 363 stated that “[t]he Director of Operations shall be appointed by and serve at the pleasure of the City manager.” (City of Champaign, Ill., Municipal Code ch. 2, §§2 — 362, 2 — 363 (1987).) Defendant thus argued that this amendment to the Municipal Code modified any Duldulao contract that the 1981 manual might have created. Plaintiff responded by submitting an affidavit stating that “[d]uring the course of his employment with the defendant, plaintiff was never advised in any fashion, including orally or in writing, that the City *** had passed an amendment to the Champaign Municipal Code providing that his position *** would ‘be appointed by and serve at the pleasure of the City Manager.’ ”

In December 1992, the trial court granted the section 2 — 615 motion because the manual did not create a contract and granted the section 2 — 619 motion because the 1987 amendment negated any contractual right that might have existed under the 1981 manual. Plaintiff appeals both rulings.

II. Analysis

A. Standard of Review

When ruling on a motion to dismiss under either section 2 — 615 or section 2 — 619 of the Code, the trial court must interpret all pleadings and supporting documents in the light most favorable to the non-moving party. The court should grant the motion only if plaintiff can prove no set of facts that would support a cause of action. (Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 542, 582 N.E.2d 108, Ill.) Because this process does not require the court to weigh facts or determine credibility, appellate courts do not give a trial court’s judgment deference, but instead review the matter de novo. See Weil, Freiburg & Thomas v. Sara Lee Corp. (1991), 218 Ill. App. 3d 383, 389, 577 N.E.2d 1344,1349.

B. The Duldulao Contract

In Duldulao, the Illinois Supreme Court held that when an employer makes a clear policy statement to its employees in a written policy statement, an enforceable contract right may arise between the employer and its employees. (Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.) The court set forth the following elements a plaintiff must prove to establish such a contract:

“First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement.” Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.

The present case primarily focuses on the first element — the clear promise. Plaintiff claims that the manual listed the only reasons for which the City could fire him. Defendant responds, first, that the manual contains no such clear promise, and, alternatively, that it modified the manual to clarify that plaintiff worked at the whim of the city manager. We need not address this latter response because we agree with the City that the manual contains no “clear promise” as required by Duldulao.

The manual explained that the “types of termination” that could end an employee’s job “includes [sic]” resignation, dismissal, discharge, retirement, and death. (Emphasis added.) From this list, only discharge and dismissal apply, and the City does not dispute that it did not “discharge” plaintiff under the definition of that term in the manual. Regarding “dismissal,” the manual read as follows:

“Dismissal of an employee may result because of:
a. Conclusion or termination of the employee’s layoff status
b. Termination or unsatisfactory completion of the employee’s probationary period
c. Termination or elimination of the employee’s position (unless the employee is eligible and elects to go on layoff status)
d. The employee’s unsatisfactory job performance
e. The employee’s failure to report or return to work” (Emphasis added.)

We hold that this manual did not contain a clear promise. At two crucial places, the manual uses terms that indicate that the lists of the types of termination and dismissal were not exhaustive. In particular, using the term “includes” when introducing the list of the types of termination indicates that other types of termination might exist. Further, the manual also clearly stated that the employee “may” be dismissed for certain enumerated reasons, which similarly does not specifically preclude dismissal for any number of other reasons. Because no clear promise existed, no Duldulao contract arose granting plaintiff a purported right to be fired only for the listed reasons.

In support of this holding, we note that the United States Court of Appeals for the Seventh Circuit recently considered the same manual in Campbell v. City of Champaign (7th Cir. 1991), 940 F.2d 1111, which involved the same issue now before us. The court wrote the following:

“The idea behind Duldulao is that if an employee handbook contains a promise on which a reasonable employee would rely, the employee’s action in taking up or continuing the employment after receiving the handbook is the acceptance of a unilateral offer and makes a legally enforceable contract. *** The question for us is whether the employee manual of the City of Champaign could fairly be interpreted as promising the plaintiff that her job was secure as long as she didn’t misbehave. It could not. ***
The plaintiff asks us to infer such an intention from the fact that the handbook lists various grounds for dismissal or discharge and contains no catch-all that would make clear that she could also be terminated for no ground at all. This misunderstands the purpose of the handbook. It is not to confer rights but to warn employees about conduct or circumstances that will result in termination or other adverse personnel action. ***
The City’s commitment to ‘progressive disciplinary action’ is too loose and vague to confer a legally enforceable right to [‘progressive discipline’]. Nor is that the focus of the plaintiff’s argument, which is rather that since the handbook contains a finite list of grounds for termination (either by way of dismissal or by way of discharge), it contractually entitles her to continued employment provided none of those grounds is established. But if the handbook had meant to do this it would not we think have left the matter to be inferred from silence.
In essence the plaintiff is claiming that if a handbook doesn’t expressly disclaim contractual obligation it creates such an obligation, so that if the City of Champaign wanted to reserve the right to fire employees on grounds not stated in the handbook — or on no grounds — it had to say so, had to add a provision stating in substance that, ‘by the way, don’t think that if we fire you on a ground not stated in the handbook you have a right to sue us.’ Such a disclaimer might be prudent but it is not a sine qua non for avoiding liability.” (Emphasis added.) Campbell, 940 F.2d at 1112-13.

We find the above analysis well reasoned and adopt it as part of our holding in this case.

III. Conclusion

For the reasons stated, we affirm the judgment of the trial court.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


author: JUSTICE LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH PATTERSON, Defendant-Appellant.
    Fifth District
    No. 5 — 91—0881
    Opinion filed June 2, 1993.

      Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William Haine, State’s Attorney, of Edwardsville (Norbert J. Goetten, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

Defendant, Joseph Patterson, was found guilty by a jury of four counts of aggravated criminal sexual assault and was sentenced to four consecutive terms of 20 years’ imprisonment. Defendant appeals from his convictions, raising the single issue of whether the trial court erred in denying his motion to sever the two counts of the indictment referring to one victim from the other two counts of the indictment referring to the other victim. For reasons more fully explained below, we affirm the trial court’s denial of defendant’s motion to sever the charges.

Defendant was charged with two counts of aggravated criminal sexual assault against his son and two against his daughter. In summary, the evidence at trial established that, for at least three years, defendant had regularly and frequently sexually assaulted both children from the time each reached approximately age five, the offenses always occurred in the family home outside the presence of the mother, and defendant threatened both children with physical harm if they did not comply.

A defendant may be tried on more than one charge in the same trial if the offenses could have been joined in a single charge (Ill. Rev. Stat. 1991, ch. 38, par. 114 — 7 (now see 725 ILCS 5/114 — 7 (West 1992))), and the charges may be joined if the offenses are based on two or more .acts which are part of the same comprehensive transaction (Ill. Rev. Stat. 1991, ch. 38, par. 111 — 4(a) (now see 725 ILCS 5/111 — 4(a) (West 1992))), unless it appears that the defendant will be prejudiced by the joinder of separate charges (Ill. Rev. Stat. 1991, ch. 38, par. 114 — 8 (now see 725 ILCS 5/114 — 8 (West 1992))). If the trial judge determines, in his sound discretion, that the joinder will prejudice the defendant, he can order separate trials or provide any other relief justice requires. (Ill. Rev. Stat. 1991, ch. 38, par. 114 — 8 (now see 725 ILCS 5/114 — 8 (West 1992)); People v. White (1984), 129 Ill. App. 3d 308, 472 N.E.2d 553.) The trial court is entitled to substantial discretion when deciding whether to sever charges, and that discretion is to be exercised so as to prevent injustice. People v. White (1984), 129 Ill. App. 3d 308, 472 N.E.2d 553.

When a trial judge grants or denies a motion to sever, that decision is not to be overturned absent an abuse of discretion. (People v. McLemore (1990), 203 Ill. App. 3d 1052, 561 N.E.2d 465.) When considering a motion to sever charges, the court should look to several factors to determine if the acts charged are part of the “same comprehensive transaction.” (Ill. Rev. Stat. 1991, ch. 38, par. 111— 4(a) (now see 725 ILCS 5/111 — 4(a) (West 1992)).) The factors to be considered are: proximity in time and location, the identity of evidence needed to demonstrate a link between the offenses and to establish the elements of the offenses, and whether there exists a common method of perpetrating the offenses. (People v. Duncan (1987), 115 Ill. 2d 429, 505 N.E.2d 307, vacated on other grounds (1987), 484 U.S. 806, 98 L. Ed. 2d 18, 108 S. Ct. 53 (memorandum), decision on remand (1988), 124 Ill. 2d 400, 530 N.E.2d 423.) The trial judge should also consider whether the defendant is in a similar position of authority in relation to each victim (People v. White (1984), 129 Ill. App. 3d 308, 472 N.E.2d 553), whether the victims are similar (People v. Trail (1990), 197 Ill. App. 3d 742, 555 N.E.2d 68), and whether the severance will promote judicial efficiency (People v. McLemore (1990), 203 Ill. App. 3d 1052, 561 N.E.2d 465). Because the decision is left to the trial judge’s sound discretion and because there are so many factors for the court to consider, the decision to sever or not turns on the facts of each particular case. People v. White (1984), 129 Ill. App. 3d 308, 472 N.E.2d 553.

Defendant first argues that the decision not to . sever the charges herein was an abuse of the trial court’s discretion because the acts against the son were not part of the same comprehensive transaction as the acts against the daughter. We note that all of the acts alleged by the State occurred within the same time period and in the same location. Although some of the assaults on the son occurred prior to the assaults on the daughter, defendant regularly and frequently assaulted both children in the family home between October 1986 and October 1989. Thus, the charges were connected in time and place. Second, the evidence necessary to establish the elements of each charge was essentially one and the same although the assaults were directed at two different children. Third, the evidence established a common method in perpetrating the offenses: defendant waited until the children’s mother was out of the home; although the children were not assaulted at the same time, they were each told that they were going to play a “game” and were shown sexually explicit magazines or videos during at least some of the assaults; the assaults occurred regularly and frequently against each child; and defendant threatened each child with physical punishment or death if he or she did not comply with his demands. Fourth, defendant used his position of authority to create an atmosphere of fear in the home such that both children were afraid of the physical punishment they would receive from defendant if they did not comply with his demands. Fifth, the victims are similar. Each child was around five years of age when the assaults started, and defendant was the father of and lived in the same home as the children during each assault.

Finally, trying the charges together promoted judicial efficiency. We acknowledge that the question of promoting judicial efficiency cannot be the only or main factor in a trial judge’s decision not to sever charges, because the question is present each time a severance is requested. However, where the victims of a heinous crime such as this are young children who must testify in a court of law in order to convict the defendant, then the issue becomes more significant. While we do not encourage the trial court to go beyond the relevant factors as outlined by case law, a judge can and should understand that, when a child comes to a courthouse to testify openly against someone who has violated him or her sexually, this experience can be very traumatic for the child, especially where the perpetrator is someone that the child should have been able to love and trust. The child victim could be called to testify not only in his or her own case but also in the sibling’s case, as we will discuss later. Therefore, we feel that where the other factors in a case establish that the acts charged are part of the same comprehensive transaction, a trial court can legitimately consider whether the trauma of requiring a child to testify more than once is justified when balanced against the possibility of prejudice to the defendant. See Maryland v. Craig (1990), 497 U.S. 836, Ill L. Ed. 2d 666, 110 S. Ct. 3157 (wherein the Supreme Court held that a State’s interest in the well-being of child-abuse victims may be sufficiently important, at least in some cases, to outweigh a defendant’s right to confront the child accuser face to face in the trial).

Based upon our assessment of all of the relevant factors, and in light of the evidence presented at trial, we agree with the trial court that the offenses charged in this case were part of the same comprehensive transaction. Therefore, the trial court did not abuse its discretion in denying defendant’s motion to sever.

Defendant also argues that the judge erred on another basis. He claims that if the cases had been tried separately, the evidence concerning the daughter would not be admissible in the trial for the charges relating to the son, and vice versa. Defendant argues that the prejudice from the admission of evidence concerning crimes other than that charged is well established, and to that extent, defendant is correct. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) However, it is equally well established that, although evidence of other crimes is inadmissible if relevant only to show the defendant’s propensity to commit crime, such evidence is admissible if relevant to prove something other than propensity to commit crime, such as modus operandi, intent, identity, motive, or absence of mistake. People v. Brown (1991), 214 Ill. App. 3d 836, 574 N.E.2d 190.

Defendant’s contention is without merit. Defendant bases this argument upon People v. Woltz (1992), 228 Ill. App. 3d 670, 592 N.E.2d 1182, a case we find to be factually distinguishable and not controlling. In Woltz, this court held that the admission of evidence concerning a sexual assault on one girl should not have been allowed in the trial of a charge of sexual assault against another girl, and we reversed on that basis. (People v. Woltz (1992), 228 Ill. App. 3d 670, 592 N.E.2d 1182.) There, the two crimes did not share any similarities, except that both girls were young, one under 13 and the other 14 at the time of the assaults. There the similarities stop. The victim of the crime charged in Woltz was walking on a public road with defendant when he put his hands down her pants, inserted his fingers into her vagina, and fondled her breast. The other victim testified that when she was visiting the defendant’s home, he came up behind her, grabbed her, and dragged her into his son’s room, where he threw her onto the floor and raped her. Additionally, the other victim was noticeably pregnant at the time of trial, and the father of the baby was not identified, although the timing of the attack on the other victim could have led the jury to believe the defendant was the father, thereby unduly prejudicing him. In finding that there was no proper purpose for admitting the other-crimes evidence, the court noted: “[W]hen the outcome of a trial depends entirely on the credibility of the complainant and the defendant, as here, no error should be permitted to intervene.” (Emphasis added.) Woltz, 228 Ill. App. 3d at 676, 592 N.E.2d at 1186-87.

We do not find the facts of Woltz applicable to the case sub judice, in that the facts presented in this case, and previously detailed herein, showed numerous similarities between the assaults committed upon the boy and girl. Rather, as the State points out, the facts of People v. Trail (1990), 197 Ill. App. 3d 742, 555 N.E.2d 68, are more applicable to and instructive for this case. In Trail, the court upheld the trial court’s denial of the defendant’s motion to sever one charge of criminal sexual assault against one of the defendant’s stepdaughters from the same charge relating to the other stepdaughter. There, the court acknowledged that no precise criteria exist for determining whether severance of charges should be granted, but the court went on to base its decision upon a consideration of the relevant factors as set forth in other cases. In Trail, as in this case, both victims lived in the same household at the time of the assaults, the time periods of the attacks were closely related, and the victims were related to the defendant in the same way (stepdaughters). Based upon these similarities, the court in Trail held that the evidence pertaining to one sexual assault count would have been admissible as other-crimes evidence for the other count on at least the basis of similar modus operandi, and the court concluded that the trial court did not abuse its discretion in trying the offenses together. Trail, 197 Ill. App. 3d at 746, 555 N.E.2d at 71.

The court in Trail went on to note that the potential prejudice to a defendant is lessened if the other-crimes evidence would be admissible in separate trials, and the court reasoned that, if the other crimes evidence would be admissible anyway, then that is a significant, although not determinative, factor in deciding whether or not to sever charges. (Trail, 197 Ill. App. 3d at 746, 555 N.E.2d at 71.) The defendant in this case could not have been prejudiced by not having separate trials, if the evidence in one trial merely duplicated the evidence in the second.

Finally, the evidence against the defendant was so overwhelming that even if he had been granted separate trials, there is nothing to suggest that the results would have been different. (People v. Smith (1991), 222 Ill. App. 3d 473, 584 N.E.2d 211.) Defendant does not claim that the evidence is insufficient to support his convictions. Thus, even if we were to assume that the trial court erred in not granting the severance, the error would be harmless.

For all the reasons stated herein, the judgment of the circuit court of Madison County is affirmed.

Affirmed.

WELCH and RARICK, JJ., concur.


author: PRESIDING JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD COLEMAN, Defendant-Appellant.
    Fifth District
    No. 5 — 91—0081
    Opinion filed June 7, 1993.

      Leon G. Scroggins, of Granite City, and William A. Mudge, of Lucco, Brown & Mudge Law Offices, of Edwardsville, for appellant.
    Henry Bergman, State’s Attorney, of Carlyle (Norbert J. Goetten, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant, Donald Coleman, was convicted of committing the offense of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 4(a)(3)). The information charging the defendant with the offense was filed eight years after the defendant purportedly committed the crime. Defendant appeals, raising, among other things, the issue of whether the information filed May 14, 1990, charging him with indecent liberties with a child occurring between May 1, 1982, and October 1, 1982, should have been dismissed because the applicable statute of limitations had expired. The State counters that defendant waived this issue because he failed to move to dismiss on this ground before trial and failed to raise the issue in his post-trial motion.

The State cites People v. Williams (1979), 79 Ill. App. 3d 806, 398 N.E.2d 1013, and section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 114 — 1) in support of its position that a defendant who does not file a motion to dismiss alleging the expiration of the statute of limitations waives the issue. Section 114 — 1 of the Code of Criminal Procedure of 1963 provides that failure to file a timely motion to dismiss on any of the enumerated grounds waives that defense. People v. Williams (1979), 79 Ill. App. 3d 806, 398 N.E.2d 1013, held that the affirmative defense of the statute of limitations is subject to waiver if not raised at trial. Defendant contends, however, that he did not waive the statute of limitations issue. Donald Coleman’s pretrial motion to dismiss, while not specifically containing the words “statute of limitations,” does challenge the fact that the information was filed eight years after the alleged offense occurred:

“2. That the constitution^] of the United States and the State of Illinois prohibits [sic] the bring [sic] of a charge of the magnitude represented by this charge for a period of time the duration [sic] represented by this charge.
3. That the defendant cannot be expected to adequately defend the charge ***.”

At the hearing regarding the motion to dismiss, counsel both for the defendant and the State argued for and against the applicability of the extended statute found in section 3 — 6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 3 — 6). Moreover, in his post-trial motion defendant alleged that he “could not adequately defend the information presented to him in this cause when confronted by the testimony of the witnesses and the time frame set forth therein.” In view of these facts, we conclude that the defendant did not waive the statute of limitations issue.

We now turn to whether the information charging defendant should have been dismissed. The information, filed May 14, 1990, alleges that Coleman committed lewd fondling of a child under the age of 16 in the period between May 1, 1982, and October 1, 1982. It is undisputed that the general limitations statute applicable to this case provides:

“General Limitations, (a) A prosecution for first degree murder, second degree murder, involuntary manslaughter, reckless homicide, treason, arson, or forgery may be commenced at any time.
(b) Unless the statute describing the offense provides otherwise, or the period of limitation is extended by Section 3 — 6, a prosecution for any offense not designated in Subsection (a) must be commenced within 3 years after the commission of the offense if it is a felony, or within one year and 6 months after its commission if it is a misdemeanor.” (Ill. Rev. Stat. 1991, ch. 38, par. 3 — 5.)

We note that the provisions of section 3 — 5 pertinent to this case have not changed since the time of defendant’s alleged criminal conduct. Giving the prosecution the benefit of a doubt, in view of section 3 — 5, we will assume the statute of limitations for Coleman’s offense expired on October 1, 1985, three years after the last alleged act. The question then arises, can defendant be charged with the alleged criminal conduct after the statute of limitations had expired. The State argues that section 3 — 6 of the Criminal Code of 1961 (the Code) extended the time for charging defendant.

Section 3 — 6 of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 3— 6) provides for extensions of the statute of limitations for certain crimes. However, sections 3 — 6(c) and 3 — 6(d), extending the statute of limitations applicable to the type of offense defendant is charged with in this case, did not become effective until January 1, 1986. (Pub. Acts 84 — 169, 84 — 506, eff. January 1,1986.)

“Extended limitations. The period within which a prosecution must be commenced under the provisions of Section 3 — 5 or other applicable statute is extended trader the following conditions:
(c) A prosecution for any offense involving sexual conduct or sexual penetration *** where the victim and defendant are family members *** may be commenced within one year of the victim attaining the age of 18 years.
(d) A prosecution for child pornography, indecent solicitation of a child *** may be commenced within one year of the victim attaining the age of 18 years. However, in no such case shall the time period for prosecution expire sooner than 3 years after the commission of the offense. When the victim is under 18 years of age, a prosecution for criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse or aggravated criminal sexual abuse may be commenced within one year of the victim attaining the age of 18 years. However, in no such case shall the time period for the prosecution expire sooner than 3 years after the commission of the offense.” (Ill. Rev. Stat. 1991, ch. 38, par. 3 — 6.)

The effective date of the extended limitations period for the type of offense with which defendant was charged was three months after the expiration of the three-year statute of limitations period applicable to defendant under section 3 — 5.

The facts upon which an extension of the limitations period is sought are material allegations to the criminal charge which not only must be proved but must be pleaded as well. (People v. Meier (1992), 223 Ill. App. 3d 490, 491, 585 N.E.2d 232, 234; People v. Hawkins (1975), 34 Ill. App. 3d 566, 340 N.E.2d 223; People v. Munoz (1974), 23 Ill. App. 3d 306, 319 N.E.2d 98.) The information here is devoid of any facts or allegations which would bring it under the extended limitations provisions of section 3 — 6. We find the information, which shows on its face that the alleged offense was committed beyond the limitations period and outside the scope of the extension provisions of section 3 — 6, is fatally defective.

The State asserts that in this case there was testimony that the illegal conduct was ongoing from 1980 until 1985. The State argues that, given this testimony, the general limitations period would not have expired until three years after 1985. Because the extended statute of limitations became effective in 1986, the State contends, it could have charged the defendant with the alleged criminal offense without being subject to an objection that the statute of limitations had expired. We find the State’s argument to be without merit. As previously set forth, the facts upon which an extension of the limitations period is sought are material allegations to the criminal charge which not only must be proved but must be pleaded as well. (Meier, 223 Ill. App. 3d at 491, 585 N.E.2d at 234.) In addition, the grounds upon which the State seeks “to wrest from a defendant the protection *** of the [statute of limitations] should be stated in the information with sufficient specificity to enable him to defend against them.” People v. Strait (1978), 72 Ill. 2d 503, 506, 381 N.E.2d 692, 693.

The State also suggests that sections 3 — 6(c) and 3 — 6(d) should be applied retroactively in this case. We find no merit to this argument, as it is generally recognized that the legislature may not extend a statute of limitations for criminal offenses if the defendant has acquired, as of the effective date of the extension, a right to acquittal through the running of the original statute. See People v. Anderson (1973), 53 Ill. 2d 437, 292 N.E.2d 364.

In light of our disposition, we need not reach the other issues defendant raises on appeal. For the reasons stated, the judgment of the circuit court of Clinton County is reversed, this cause is remanded, and the circuit court is instructed to dismiss the information.

Reversed and remanded with directions.

WELCH and GOLDENHERSH, JJ., concur.


author: JUSTICE RARICK JUSTICE GOLDENHERSH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAVID W. MILLNER, Defendant-Appellee.
    Fifth District
    No. 5 — 89—0510
    Opinion filed June 7, 1993.
    GOLDENHERSH, J., dissenting.
    Paul Hillis, Jr., State’s Attorney, of Salem (Kenneth R. Boyle, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    R. Edward Veltman, Jr., of Crain, Cooksey & Veltman, Ltd., of Centralia, for appellee.
   JUSTICE RARICK

delivered the opinion of the court;

This case began with the arrest of defendant, David W. Millner, in Marion County for driving under the influence of alcohol. At the time of his arrest, defendant was warned that refusal to take a breath test would result in summary suspension of his driver’s license. Whether defendant was also warned that evidence of his refusal could be used against him is contested. Defendant refused the test. After being charged with driving under the influence of alcohol, defendant filed a motion in limine to prevent the State from using evidence of his refusal to take the breathalyzer test, claiming he had not been warned such a refusal could be used against him. The trial court, finding defendant had not been warned that evidence of his refusal could be used against him, granted the motion in limine, ruling the use of such evidence by the State would violate defendant’s due process rights as well as his right against self-incrimination. The State appealed this decision to our court. We remanded the case back to the trial court for the purpose of an explicit ruling on whether section 11 — 501.2(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95x/2, par. 11 — 501.2(c)) violates our Illinois Constitution by depriving defendant of due process rights and his right not to incriminate himself. (People v. Millner (1991), 239 Ill. App. 3d 8.) The trial court, on remand, found the statute as applied to be constitutional and reaffirmed its position that the State was barred from using defendant’s refusal to take the breath test. Defendant then filed a motion to supplement the record with the ruling of the circuit court per our opinion. Defendant’s motion was granted. We now address the question whether evidentiary use of a defendant’s refusal to submit to a breath test deprives that defendant of due process of law or of his right not to incriminate himself as guaranteed by the Hlinois Constitution.

We initially note defendant has conceded that the admission into evidence of a person’s refusal to submit to a breath test does not offend the Illinois Constitution’s prohibition against compelled self-incrimination. (See People v. Rolfingsmeyer (1984), 101 Ill. 2d 137, 141-42, 461 N.E.2d 410, 412; see also South Dakota v. Neville (1983), 459 U.S. 553, 74 L. Ed. 2d 748, 103 S. Ct. 916.) Consequently, we need not address this aspect further, other than to say the trial court erred in ruling to the contrary.

Turning to the other contention on appeal, in accordance with our supreme court’s recent decision in People v. Wegielnik (1992), 152 Ill. 2d 418, 605 N.E.2d 487, we further hold that the evidentiary use of a defendant’s refusal to take a breath test also does not deprive that defendant of due process under the Illinois Constitution. The trial court therefore erred in granting defendant’s motion in limine in this instance.

It is true that a driver’s license is a protectable property interest and that the due process clause applies to the suspension of driving privileges. (In re Summary Suspension of Driver’s License of Rakers (1989), 187 Ill. App. 3d 27, 31, 542 N.E.2d 1311, 1314; People v. Honaker (1984), 127 Ill. App. 3d 1036, 1038, 469 N.E.2d 1120, 1122.) Because a person can be required to submit to a breath test without his consent, however, a warning that a person’s driving privileges will be suspended for failure to submit to the test is not constitutionally mandated. (Rakers, 187 Ill. App. 3d at 32, 542 N.E.2d at 1314; Honaker, 127 Ill. App. 3d at 1039, 469 N.E.2d at 1123.) Simply because our legislature has by statute granted a driver the right to refuse to take a breath test does not mean this “right” is constitutionally mandated. (Wegielnik, 152 Ill. 2d at 427-28, 605 N.E.2d at 491; Rakers, 187 Ill. App. 3d at 32, 542 N.E.2d at 1314.) A defendant’s statutory right to refuse to take such a test is “simply a matter of grace.” (Wegielnik, 152 Ill. 2d at 428, 605 N.E.2d at 491.) Consequently, due process does not require that the person be warned, either orally or in writing, of the consequences of his refusal. (Wegielnik, 152 Ill. 2d at 428, 605 N.E.2d at 491; Rakers, 187 Ill. App. 3d at 32, 542 N.E.2d at 1314; Honaker, 127 Ill. App. 3d at 1039, 469 N.E.2d at 1123.) More specifically, due process does not require that a defendant be informed his refusal to submit to a breath test could be used against him at trial. (See People v. Thomas (1990), 200 Ill. App. 3d 268, 283, 558 N.E.2d 656, 667; see also State v. Superior Court (Ariz. App. 1986), 149 Ariz. 601, 721 P.2d 149.) Therefore, even if we were to agree with the trial court that defendant here had not been warned his refusal could be used against him, we still would reach the same result that the trial court erred in granting defendant’s motion in limine on the grounds of due process.

For the aforementioned reasons, we reverse the order of the circuit court of Marion County granting defendant’s motion in limine. We therefore remand this cause for further proceedings.

Reversed and remanded.

CHAPMAN, P.J., concurs.

JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent. Nearly all of the authorities cited by the majority, with the exception of People v. Thomas (1990), 200 Ill. App. 3d 268, 558 N.E.2d 656, deal with the suspension of one’s driving privileges, not with the admission into evidence of the refusal by a motorist to take the breath test. This is true also of People v. Wegielnik (1992), 152 Ill. 2d 418, 605 N.E.2d 487. A close reading of this latest pronouncement by our supreme court actually provides support for the trial court’s decision. For example, the court states:

“For the reasons set forth below, we find that the implied-consent statute requires only that the summary suspension warnings be given in order for motorists suspected of drunken driving to have been properly warned. The statute does not require that a motorist understand the consequences of refusing to take a blood-alcohol test before the State may summarily suspend his or her driver’s license for failure to take the test.” (152 Ill. 2d at 424, 605 N.E.2d at 489-90.)

The court further states:

“The threat of summary suspension for refusing to take a blood-alcohol test motivates drivers to take the test, thereby allowing the State to obtain objective evidence of intoxication. [Citation.] For this reason, it is in the State’s best interest for law enforcement officials to fully explain the consequences of refusal.” (Emphasis added.) (152 Ill. 2d at 425, 605 N.E.2d at 490.)

Our supreme court then proceeded to explain that a motorist need not understand the consequences of refusal to take the test before the State may summarily suspend the driver’s license, and the court noted:

“Although Illinois courts have not previously confronted this precise issue, they have, under somewhat similar circumstances, consistently held that a defendant need not understand the consequences of refusing to take a blood-alcohol test before the State may summarily suspend his or her driver’s license. (See, e.g., People v. Kirby (1986), 145 Ill. App. 3d 144, 146-47[ ,495 N.E.2d 656, 658]; People v. Carlyle (1985), 130 Ill. App. 3d 205, 211[, 474 N.E.2d 9, 12].) Refusals to take such tests are valid even where drivers are so intoxicated or disoriented because of injuries that they later have no memory of the statutory warnings. People v. Goodman (1988), 173 Ill. App. 3d 559, 561[, 527 N.E.2d 1055, 1057-58], People v. Solzak (1984) 126 Ill. App. 3d 119, 123[, 466 N.E.2d 1201, 1204].” (152 Ill. 2d at 426, 605 N.E.2dat490.)

The focus of our supreme court’s opinion in Wegielnik, in considering the statute and due process, was the suspension of a motorist’s driving privileges resulting from a refusal to take the test.

One authority supporting admissibility of that refusal is People v. Thomas (1990), 200 Ill. App. 3d 268, 558 N.E.2d 656, cited with approval by the majority. The Thomas court cited and refused to follow the earlier case of People v. Naseef (1984), 127 Ill. App. 3d 70, 468 N.E.2d 466, in which our colleagues in the third district affirmed an order refusing admission into evidence of a motorist’s refusal to take the breath test when that motorist later took the breath test. The Naseef court stated the General Assembly’s intent was to promote the use of the test, which intent was furthered by the trial court. Our colleagues in the second district in People v. Thomas did allow the admission into evidence of an initial refusal to take the breath test followed by a change of mind and taking of the test. In my view, the treatment of this question in Naseef is much better reasoned and should be followed by this court, rather than the opinion in Thomas-, neither Naseef nor Thomas directly deals with the question before this court, which is whether a refusal to take a breath test by a motorist may be admitted in evidence against that motorist consistent with the Illinois Constitution’s due process clause when the motorist was not warned of this consequence of his refusal to take the test — regardless of what, if anything, transpired concerning a suspension of that motorist’s driving privileges.

The majority opinion also raises another question, but does not answer it. I agree with the majority that a driver’s license is a protectable property interest and that due process applies to the suspension of driving privileges. Given that those driving privileges are a protectable property interest, would not due process guaranteed by the Illinois Constitution support a bar to evidence of actions, such as refusal to take a breath test, that would impair that protectable property interest, if the motorist had not been warned that the refusal would be admissible and could be used to impair that protectable property interest in a court of law, not just an administrative procedure?

For the foregoing reasons, I would affirm the order of the circuit court of Marion County that granted defendant’s motion in limine.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. AMY TAYLOR et al., Defendants-Appellees.
    Third District
    Nos. 3 — 92—0487, 3 — 92—0488 cons.
    Opinion filed June 3, 1993.

      Larry VanDerSnick, State’s Attorney, of Cambridge (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendants, David Londergon and Amy Taylor, were each charged by information with unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1991, ch. 56V2, par. 1401(a)(ll)), unlawful possession of a controlled substance (Ill. Rev. Stat. 1991, ch. 56V2, par. 1402(a)(ll)), and unlawful possession of cannabis (111. Rev. Stat. 1991, ch. 56V2, par. 704(a)). In a consolidated proceeding, the defendants successfully moved to suppress the drug evidence as the product of an illegal search and seizure. The People appeal. We affirm.

Amy Taylor and David Londergon each filed motions to suppress drug evidence seized in the search of the car they were traveling in on February 17, 1992. In addition, Londergon filed motions to quash his arrest and suppress certain statements he is alleged to have made. The People filed a motion to dismiss Taylor’s motion to suppress on the grounds she did not have standing to challenge the stop or the search. A hearing on the motions was held on June 3, 1992.

At the hearing, Londergon testified he was a resident of Telluride, Colorado. On the afternoon of February 17, 1992, he and Taylor were traveling west on Interstate 80 in Henry County in his 1967 Volvo wagon. The Volvo carried Colorado license plates. Londergon and Taylor were returning to Colorado after visiting his parents in Joliet. Londergon testified that at the time he had waist-length hair and a beard.

At around mile marker 11, they were stopped by an Illinois State trooper. The trooper approached the car and stated, “no problem kids.” The trooper told them he noticed the car did not have a rear bumper. He asked Londergon to come back to his car so he could issue a warning ticket. In the trooper’s car, Londergon offered the trooper his Colorado driver’s license and insurance card. The trooper wrote out the warning ticket and Londergon signed it.

According to Londergon, as he was preparing to exit the trooper’s car, the trooper stated he was with “the Illinois Drug Enforcement Agency.” He asked Londergon if he could conduct a routine search of Londergon’s car. The trooper assured Londergon that he was not “a likely candidate,” but they “needed negative searches also.” Londergon testified, “In my exact words I told the officer that I had a long drive ahead of me. I would just as soon be on my way.” In response, the trooper stated it would only take a minute and he called on his radio for a backup.

After requesting the backup, the trooper exited the car and told Londergon to remain near the trooper’s vehicle. Londergon testified that the period of time between the trooper’s search request and the trooper’s exit from the patrol car was approximately 30 seconds. Londergon testified the trooper began searching the Volvo. A second trooper arrived about five minutes later. Subsequently, a third State trooper pulled up.

Londergon testified he never told the trooper he could search his car. He denied saying he had no objection to a search. He also conceded he did not directly tell the trooper he could not conduct the search. Londergon testified that while in the trooper’s car he was not offered a written search consent form. He subsequently refused to sign a statement which in part said he consented to the search.

Londergon further testified that while in custody at the Henry County jail, he wrote and signed a written statement claiming ownership of the drugs found in his car. Londergon testified he did this in the presence of the trooper who made the initial stop. He testified the trooper told him if he did not make such a statement his girlfriend — Taylor—would not be released. In rebuttal, Londergon testified he was mistaken about the identity of the trooper he made the statement to at the jail. He actually made the written statement to the third trooper, a woman officer.

Amy Taylor testified she was seated in the front passenger seat of Londergon’s car at the time they were stopped. She and Londergon were on their way back to Colorado. Her personal effects and luggage were in the car. Her luggage was in the area behind the front seats along with Londergon’s things. (Being a wagon, there was no trunk per se.)

Taylor testified that after they were stopped, the trooper approached their car and told them there was no problem; however, it was a law in Illinois that a car had to have a bumper. The trooper asked Londergon to step back to the trooper’s vehicle so he could issue a written warning. Eventually, the trooper returned to the passenger side of the Volvo and asked her to step out of the car. At the time, he was the only trooper present. The trooper did not ask her if he could search the car. Nor did he ask if any of the items in the car were hers.

Taylor walked back to where Londergon was standing near the trooper’s car. According to Taylor, the trooper began searching the Volvo. About 5 to 10 minutes later, a second male trooper pulled up.

Illinois State Trooper Joel Peters testified he stopped the Volvo because it did not have a rear bumper. He asked Londergon to step back to his car so he could issue a warning ticket. After issuing the ticket, Peters testified he told Londergon he was with the State Police Drug Interdiction Team and with Londergon’s permission he wanted to search the Volvo for weapons, drugs and open alcohol. Peters testified it was a routine request made to “most people” he stopped, and that the team focused on interstate traffic.

Although he could not remember Londergon’s exact words, Peters testified Londergon gave consent to the search of the Volvo. Because it was policy not to search a vehicle -without assistance, Peters called Trooper Gerald Stahr. When Stahr arrived he got into the back of Peters’ vehicle. Peters, in Stahr's presence, again asked Londergon for permission to conduct a search. Londergon gave oral permission.

Peters testified he went to the Volvo and opened the driver’s side door. Taylor was still seated in the front passenger seat. He immediately smelled the odor of burnt cannabis. With Taylor still in the car, Peters looked between the front passenger seats. Under a rag he found a small black tin can with a twist top. Peters opened the can. On looking inside, Peters saw what looked like marijuana seeds. He noted a strong smell of burnt cannabis. According to Peters, he went back to Trooper Stahr and told him what he had found. He indicated there was probably more and they would have to perform a further search. On a further search of the items in the back of the Volvo, the officers found a small marijuana pipe, a small amount of marijuana, and two large ziplock bags containing what appeared to be psilocybin mushrooms. After these things were found in the Volvo, Londergon and Taylor were placed under arrest and transported to the Henry County jail.

On cross-examination, Peters reiterated that he stopped the Volvo because it did not have a rear bumper. He stated he did not notice the driver prior to stopping the car. He denied using a suspect profile to determine which cars to stop and search. Peters agreed the search of Londergon’s car was based solely on the consent of the driver. He conceded he did not ask Londergon to sign a written consent even though he had copies of the form in his car. Peters denied he commenced the search of the Volvo prior to Stahr’s arrival. He further testified that Stahr arrived almost immediately after he asked Londergon for permission to search. He confirmed he conducted the initial search while Taylor was still seated in the car, even though members of the team are instructed to remove all passengers before conducting a search. He explained the weather was cold and windy that day.

Trooper Gerald Stahr testified he was called to the scene by Peters to serve as backup. He stated it took him three or four minutes to get there after he received the call from Peters. After getting into the back seat of Peters’ car, he heard Londergon give permission for a search, although he could not remember Londergon’s exact words.

Peters then went and searched the front seat area of the Volvo and returned with a small dark container which contained a substance suspected of being cannabis. Peters indicated they would need to do a further search. Peters returned to the Volvo. Stahr testified that after Trooper Anna Segura arrived, he got out of Peters’ car and assisted Peters in the search. Stahr also testified to standing near Taylor outside the Volvo. He could not remember whether this was before or after Segura arrived.

Trooper Anna Segura testified that as she pulled up, Taylor was being brought back from Londergon’s car. In her report, Segura stated that Peters removed Taylor and Londergon from the Volvo in order to conduct the search. Segura testified this was based on what Peters told her. She and Stahr were talking at a crossover prior to his going to the scene. She could not recall his being called by Peters. Instead, she thought he had left to do a “drive by.” Segura further testified she obtained the written statement from Londergon concerning ownership of the drugs found in the car.

Following the hearing, the trial court entered an order denying the People’s motion to dismiss Taylor’s motion to suppress, and granting the defendants’ suppression motions.

Initially, it must be borne in mind that we are dealing with a search based solely on the alleged consent of David Londergon. There is no assertion the search was premised on any of the grounds included in the so-called “automobile exception to the warrant requirement.” See Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280 (officers have probable cause to search; however, it is not practicable to secure a warrant because the vehicle can be quickly moved out of the jurisdiction in which the warrant must be sought); Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (search incident to a valid arrest); Harris v. United States (1968), 390 U.S. 234, 19 L. Ed. 2d 1067, 88 S. Ct. 992 (plain view doctrine).

On appeal, the People assert the trial court committed reversible error in imposing a heightened standard of proof on the State. The People maintain the trial court found the People had failed to carry their burden of showing consent to the search by Londergon by clear and convincing evidence. The People state that they have the burden of showing by a preponderance of the evidence that the consent was voluntarily given. See People v. Casazza (1991), 144 Ill. 2d 414, 581 N.E.2d 651.

However, here we are presented, as was the trial court, with the question of whether Londergon consented to the search, not with whether his alleged consent was voluntary. Substantive fourth amendment law requires that a consent be unequivocal and specific, as well as voluntary. (People v. Cardenas (1992), 237 Ill. App. 3d 584, 604 N.E.2d 953.) The trial court’s ruling on a motion to suppress will not be disturbed on review unless that ruling is manifestly erroneous. People v. Holloway (1981), 86 Ill. 2d 78, 426 N.E.2d 871.

In this case, Londergon testified that in response to Peters’ request to conduct a search, he told Peters he had a long drive ahead of him and he would just as soon be on his way. Peters then stated it would only take a minute, he called for a backup, and then went to the Volvo and began conducting a search.

Peters confirmed Londergon’s statements as to having a long drive ahead of him. Additionally, however, he maintained that Londergon gave oral permission to conduct the search. On the other hand, Peters could not remember the exact words Londergon used in giving that permission. Peters admitted to having had written consent forms with him, though he never offered one to Londergon for his signature. The trial court also noted the discrepancies in the troopers’ descriptions of events that day. For example, when the search was commenced, who was present and whether Taylor was seated in the Volvo during the search.

The trial court found the troopers’ testimony concerning the alleged consent by Londergon was not credible. On review of the record, we cannot say this finding was manifestly erroneous. Even judged under a preponderance of the evidence standard, Londergon’s statement to Trooper Peters was not an unequivocal and specific consent to search the Volvo. Given there were no other grounds upon which to justify the search, Londergon suffered a violation of his rights under the fourth amendment to the United States Constitution (U.S. Const., amend. IV) to be free from an unreasonable search and seizure by government authorities. Thus, the trial court correctly granted his motion to suppress the evidence seized and his subsequent statements.

Regarding the standard utilized by the trial court, we note on reviewing the report of the proceedings that in closing argument, the prosecutor did not disagree with defense counsel’s assertion that the consent had to be shown by clear and convincing evidence. In fact, the prosecutor opened his argument referring to what clear and convincing evidence required. Later he stated the People had met their burden by clear and convincing evidence. We find it rather disingenuous to argue a point of law before the trial court, and then on appeal contend that position is the basis for a reversal. We find the People’s argument before the trial court resulted in a forfeiture of this contention.

On appeal, the People also contend the trial court erred in denying their motion to dismiss Taylor’s motion to suppress, and granting Taylor’s motion, because she had no “standing” to challenge the search, even if the search was unconstitutional vis-a-vis Londergon. The People argue Taylor asserted no possessory interest in the car or the items searched. Therefore, she cannot claim a violation of her rights under the fourth amendment.

The fourth amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const., amend. IV.

The fourth amendment protects people, not places. (Katz v. United States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507.) In order to effectuate the protections of the fourth amendment, the United States Supreme Court has limited the use of evidence obtained in violation of the amendment’s requirements. Under the exclusionary rule fashioned in Weeks v. United States (1914), 232 U.S. 383, 58 L. Ed. 652, 34 S. Ct. 341, and extended to the States in Mapp v. Ohio (1961), 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, any evidence seized from a defendant in violation of his or her fourth amendment rights is excluded from that defendant’s criminal trial. (Alderman v. United States (1969), 394 U.S. 165, 22 L. Ed. 2d 176, 89 S. Ct. 961.) The deterrent values of preventing the incrimination of those whose rights government authorities have violated is considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. Alderman v. United States (1969), 394 U.S. 165, 22 L. Ed. 2d 176, 89 S. Ct. 961.

However, the Court has also held that the rights assured by the fourth amendment are personal rights and that they may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the unreasonable search and seizure. (See Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967.) In other words, a person who is aggrieved by an unreasonable search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not suffered any infringement of his fourth amendment rights. (Alderman v. United States (1969), 394 U.S. 165, 22 L. Ed. 2d 176, 89 S. Ct. 961.) Since the exclusionary rule is an attempt to effectuate the guarantees of the fourth amendment, it is proper to permit only defendants whose fourth amendment rights have been violated to benefit from the rule’s protections. Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421.

In Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421, the Supreme Court stated that the proper question was whether the challenged search or seizure violated the fourth amendment rights of the criminal defendant who seeks to exclude the evidence obtained during the search. This in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the fourth amendment was designed to protect. The analysis hinges on substantive fourth amendment doctrine, not on principles of standing. Thus, the question in the instant case is not whether Amy Taylor had “standing” to raise a fourth amendment claim, but rather whether the search and seizure violated her rights under the fourth amendment, therefore requiring suppression of the evidence illegally obtained. Under the circumstances, we find the search violated Taylor’s fourth amendment rights and that the trial court correctly granted her motion to suppress.

In Rakas, the defendants were convicted of the armed robbery of a clothing store in Bourbonnais, Illinois. The defendants were passengers in an automobile stopped shortly after the robbery. A search of the automobile turned up a sawed-off rifle under the front passenger seat and rifle shells in a locked glove compartment. Prior to trial, the defendants had unsuccessfully moved to suppress the sawed-off rifle and rifle shells found in the search. This court affirmed the trial court’s denial of the defendants’ motion to suppress, and the Illinois Supreme Court denied the defendants’ petition for leave to appeal.

On appeal to the United States Supreme Court, the Court rejected the “legitimately on the premises” standard announced in Jones v. United States (1960), 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725. The Court viewed “legitimately on the premises” as creating “too broad a gauge for measurement of fourth amendment rights.” (Rakas v. Illinois (1978), 439 U.S. 128, 142, 58 L. Ed. 2d 387, 400, 99 S. Ct. 421, 429.) Rather, the capacity to claim the protections of the fourth amendment depends on whether the person who claims those protections has “a legitimate expectation of privacy in the invaded place.” (Rakas v. Illinois (1978), 439 U.S. 128, 143, 58 L. Ed. 2d 387, 401, 99 S. Ct. 421, 430.) A subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable. See Katz v. United States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (Harlan, J., concurring).

The Rakas Court stated that a person can have a legally sufficient interest in a place other than one’s own home so that the fourth amendment provides protection from unreasonable governmental intrusion into that place. (See also Minnesota v. Olson (1990), 495 U.S. 91, 109 L. Ed. 2d 85, 110 S. Ct. 1684.) Determination of whether a person has such an interest is not governed or limited by reference to real and personal property law. (Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421.) The Rakas Court noted it had previously pointed out that cars “are not to be treated identically with houses or apartments for Fourth Amendment purposes.” Rakas v. Illinois (1978), 439 U.S. 128, 148, 58 L. Ed. 2d 387, 404, 99 S. Ct. 421, 433.

In the case before it, the Rakas Court found the defendants had asserted no property or possessory interest in the vehicle searched or the items seized. Nor did they make a showing that they had any legitimate expectation of privacy in the glove compartment or the area under the seats. The Court stated that “[l]ike the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy.” (Rakas v. Illinois (1978), 439 U.S. 128, 148-49, 58 L. Ed. 2d 387, 404, 99 S. Ct. 421, 433.) Nevertheless, in a final footnote the majority specifically rejects the dissent’s contention that the majority is holding that a passenger in an automobile could not invoke a fourth amendment claim unless he happens to own or have a possessory interest in the automobile. (Rakas v. Illinois (1978), 439 U.S. 128, 149 n.17, 58 L. Ed. 2d 387, 405 n.17, 99 S. Ct. 421, 433 n.17.) In the footnote, the majority notes the defendants did not claim a legitimate expectation of privacy in the areas searched, only that they were legitimately on the premises. They further reiterated the defendants’ status as simple passengers.

Therefore, we read the Rakas majority as holding circumstances exist under which a passenger in a vehicle may have a legitimate expectation of privacy in certain areas of that vehicle. (Cf Bates v. Maryland (1985), 64 Md. App. 279, 284, 494 A.2d 976, 978-79 (“Rakas by no means held that a passenger in an automobile for a three-week cross-country trip, with his luggage in the trunk, might not have a reasonable expectation of privacy in that trunk ***).) We find the case before us to be just such a case. Here, Taylor was traveling with Londergon on a long-distance trip from Joliet, Illinois, to Telluride, Colorado. Their trip had originated in Colorado. The record shows Londergon and Taylor were in a relationship. She testified her personal effects and luggage were in the car. Her luggage was in the back portion of the Volvo along with Londergon’s. The interior of the Volvo was in a sense their “home” for the duration of this trip. Common sense tells us that during the duration of this trip, Taylor would treat the interior of the Volvo as her own — sleeping, eating and moving about as she chose. She might move her belongings (and Londergon’s) about as needed and store or place them where convenient.

In sum, under these circumstances Taylor was not just a passenger in Londergon’s car. Her interest in the interior of the car was more than that of a mere passenger. In this context, we easily recognize that Taylor would have an expectation of privacy to the extent afforded to the interior of an automobile. (For example, one would not have an expectation of privacy in items left in plain view.) She had a legitimate expectation of privacy society is prepared to recognize as reasonable. Any of us traveling for an extended period of time in a car, in which we stored our belongings, would expect a certain amount of privacy over the duration of that trip. Thus, in this case, the search and seizure, if unreasonable, violated Taylor’s rights under the fourth amendment.

In the instant case, Trooper Peters did not ask for Taylor’s consent to conduct the search. As found above, the People failed to prove Londergon consented to the search. Peters did not have a search warrant. He conceded at the hearing he lacked probable cause to search the Volvo. No arrest had taken place prior to the search, and nothing incriminating lay in plain view. Under these circumstances, the search was unreasonable, Peters violated Taylor’s rights under the fourth amendment, and the trial court correctly granted Taylor’s motion to suppress.

For the forgoing reasons, the judgment of the circuit court of Henry County is affirmed.

Affirmed.

McCUSKEY, P.J., and LYTTON, J., concur.