author: JUSTICE DUNN

text:
    DAVID MALESA, Plaintiff-Appellant, v. ROYAL HARBOUR MANAGEMENT CORPORATION, Defendant-Appellee.
    Second District
    No. 2—88—1150
    Opinion filed August 25, 1989.
    Rehearing denied September 26, 1989.

      Kenneth Franson, of Bartlett, for appellant.
    John W. Demling, of Demling & Eckhardt, of Glen Ellyn, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, David Malesa, filed an action against defendant, Royal Harbour Management Corporation, for an alleged breach of a construction contract. The circuit court of Du Page County granted summary judgment to defendant on the basis of plaintiff’s failure to provide a sworn contractor’s statement pursuant to section 5 of the Mechanics’ Liens Act (Act) (Ill. Rev. Stat. 1987, ch. 82, par. 5). On appeal, plaintiff contends that the trial court erred in granting summary judgment because: (1) defendant failed to establish that plaintiff was a contractor as that term is defined in the Act; (2) defendant did not present any evidence that it requested a contractor’s statement; and (3) plaintiff’s mechanic’s lien claim contains information sufficient to comply with the requirement. We affirm.

Plaintiff’s second amended complaint alleged in relevant part as follows. On June 2, 1986, plaintiff and defendant entered into an agreement relating to a construction project on a parcel of land in Oak Brook. The contract referred to plaintiff as a contractor, but one provision stated his duties would be more akin to those of a construction supervisor. Those duties included assembling bids, selecting subcontractors with the owner’s approval, supervising and coordinating construction, and maintaining expense records. Plaintiff’s fee was 6% of the actual cost of construction.

The complaint alleged further that on or about September 5, 1986, defendant, acting through an attorney, purported to cancel the contract. Plaintiff was ready, willing, and able to perform his contractual obligations at all times. Plaintiff sought $4,656 in damages.

Defendant filed an answer to the complaint and a counterclaim. Defendant subsequently filed a motion for summary judgment supported by the affidavit of Dean Homer, one of its agents. Homer’s affidavit stated that plaintiff never provided defendant or any of its employees or agents with a sworn contractor’s statement as required by section 5 of the Act (Ill. Rev. Stat. 1987, ch. 82, par. 5). Plaintiff’s response was not supported by any affidavits. Plaintiff argued in the response that the Act was not applicable because the contract provided that he would be acting as a construction supervisor rather than a general contractor.

The trial court granted the motion for summary judgment. Plaintiff then filed a motion to reconsider and a supporting memorandum in which he argued that summary judgment was improper because defendant never requested a contractor’s statement and because defendant presented no evidence that plaintiff performed lienable services. Plaintiff also asserted in the memorandum that the information in his mechanic’s lien claim was sufficient to comply with the requirements of section 5 of the Act. The trial court denied the motion to reconsider and found there was no just reason to delay enforcement or appeal from the order. Plaintiff now appeals.

Defendant contends that the only issue properly preserved for appeal is whether defendant was a construction supervisor rather than a contractor under section 1 of the Act and whether this would render the requirements of the Act inapplicable to the case at bar. According to defendant, plaintiff did not raise any of the other issues in the trial court. Issues not raised in the trial court are considered waived and may not be raised for the first time on appeal. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500.) Our review of the record reveals, however, that plaintiff mentioned the other issues raised on appeal in either his motion to reconsider or the supporting memorandum, and we therefore reject defendant’s contention.

A motion for summary judgment should only be granted if the pleadings, depositions, admissions, and affidavits on file show that no genuine issue exists as to any material fact and that the movant is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) Summary judgment is a drastic means of disposing of litigation and should only be granted if the right of the movant is clear and free from doubt. Purtill, 111 Ill. 2d at 240.

The trial judge granted summary judgment because he believed the case was governed by the decision in Ambrose v. Biggs (1987), 156 Ill. App. 3d 515. In Ambrose, this court held that a contractor’s failure to provide an owner with the sworn statement required by section 5 of the Act precludes recovery by the contractor in a breach of contract action against the owner. (156 Ill. App. 3d at 518.) Section 5 requires a contractor to provide an owner with a written statement under oath or verified by affidavit of the names and addresses of all parties furnishing materials and labor and the amounts due or to become due each. Ill. Rev. Stat. 1987, ch. 82, par. 5.

Plaintiff contends that the requirements of section 5 of the Act did not apply to him because the contract provided that he would act as a construction supervisor rather than a contractor. Plaintiff has cited no authority in support of his contention that a construction supervisor is not a contractor under the Act and has therefore waived it for purposes of this appeal. (113 Ill. 2d R. 341(e)(7); In re Marriage of Strauss (1989), 183 Ill. App. 3d 424, 428.) Additionally, the contention is without merit.

Section 1 of the Act (Ill. Rev. Stat. 1987, ch. 82, par. 1) provides that anyone who contracts with an owner of land or the owner’s duly authorized agent to “furnish or perform *** services as superintendent *** in the building, altering, repairing or ornamenting” of the subject property is a contractor and has a lien thereon. An individual who contracts to supervise construction on a project therefore has a mechanic’s lien on the subject property under section 1. (BRL Carpenters, Ltd. v. American National Bank & Trust Co. (1984), 126 Ill. App. 3d 137, 143.) Even if plaintiff was a construction supervisor under the terms of the contract, he comes within the definition of contractor for purposes of the Act, and the requirements of section 5 therefore applied to him.

Plaintiff also argues that section 5 does not apply because defendant failed to present any evidence that plaintiff hired any subcontractors or performed any lienable services. Although it is true that defendant failed to present any such evidence, no material issue of fact existed in this regard because plaintiff was required to provide a sworn contractor’s statement under section 5 of the Act even if he had not performed any lienable services or hired any subcontractors.

Section 5 of the Act states in relevant part as follows:

“It shall be the duty of the contractor to give the owner, and the duty of the owner to require of the contractor, before the owner or his agent, architect or superintendent, shall pay or cause to be paid to said contractor or to his order any moneys or other consideration, due or to become due such contractor, or make or cause to be made to such contractor any advancement of any moneys or any other consideration, a statement in writing, under oath or verified by affidavit, of the names and addresses of all parties furnishing materials and labor, and of the amounts due or to become due each.” (Ill. Rev. Stat. 1987, ch. 82, par. 5.)

It is apparent from the above language that all contractors must provide the sworn statement described in section 5. Section 1 defines the term contractor for purposes of the Act as anyone who contracts to provide certain listed services or to furnish labor or materials. Thus, an individual does not actually have to perform any of the listed services or furnish labor or materials in order to become a contractor, but merely has to enter into an agreement to do so. This point is further illustrated by the fact that section 1 grants a lien on the subject property to the contractor and specifically states “[t]his lien attaches as of the date of the contract.” (Ill. Rev. Stat. 1987, ch. 82, par. 1.) Even if no lienable services were performed, this would not excuse compliance with section 5.

Plaintiff contends further, however, that he could not have provided a list of “the names and addresses of all parties furnishing materials and labor” if there were no such parties. We are not persuaded by this argument. It is readily apparent that under such circumstances plaintiff could have submitted a sworn statement certifying that no subcontractors had been hired. The purpose of requiring contractors to submit the sworn statements described in section 5 is to protect owners from potential claims of subcontractors. (Ambrose v. Biggs (1987), 156 Ill. App. 3d 515, 518.) Section 5 requires contractors to provide information that is within their knowledge but which may not be known to the owner. Since the owner may not be aware whether subcontractors have been hired, it is consistent with the purpose of section 5 to require a contractor’s sworn statement even if none have been employed.

We realize that plaintiff’s contract required him to receive the owner’s consent before hiring any subcontractors. Plaintiff argues that defendant should have been aware that he had hired no subcontractors, rendering the requirement of a sworn statement meaningless under the circumstances. It is still conceivable, however, that a contractor could breach such a provision and hire subcontractors without an owner’s approval. Defendant is entitled to be provided with a sworn statement certifying that plaintiff had complied with the above provision and had not hired any subcontractors.

Plaintiff also argues that even if he had a duty to provide a contractor’s sworn statement, section 5 provides that defendant had a concurrent duty to request one and there is no evidence defendant made such a request. In making this argument, plaintiff misstates the nature of the owner’s duty under section 5. This provision states that the owner has a duty to require a sworn contractor’s statement prior to paying any consideration to the contractor. Section 32 of the Act (Ill. Rev. Stat. 1987, ch. 82, par. 32) states that if an owner makes a payment to a contractor without first fully enforcing his rights under section 5, the payment will not be regarded as rightfully made as against any subcontractor, laborer, or party furnishing labor or materials. If the owner makes such a payment before receiving the contractor’s sworn statement, the owner may be compelled to pay subcontractors even if he or she has paid the contractor in full. Brady Brick & Supply Co. v. Lotito (1976), 43 Ill. App. 3d 69, 73.

Thus, the duty of an owner under section 5 is a duty to refrain from paying the contractor until the owner receives the contractor’s sworn statement. This is a duty owed to the subcontractors, and a breach of the duty can result in liability to the subcontractors under section 32 of the Act. Section 5 does not explicitly require the owner to make an oral or written request for the contractor’s statement, nor does it condition the contractor’s duty to provide the statement on receiving such a request. We must therefore reject plaintiff’s contention.

Plaintiff’s final argument is that his mechanic’s lien claim contained the information required by section 5 of the Act and that he thereby complied with the requirement of providing a sworn contractor’s statement. The lien claim only provides information concerning plaintiff and his claim; it does not provide any information whatsoever concerning subcontractors. If, as plaintiff contends, there were no subcontractors, we have already stated that defendant was entitled to a sworn statement to that effect. The mechanic’s lien claim contains no such statement. The claim did not constitute compliance with plaintiff’s duties under section 5 of the Act.

The trial court correctly concluded that plaintiff was required as a matter of law to provide defendant with a contractor’s sworn statement and failed to do so. Summary judgment was therefore appropriate. Accordingly, the judgment of the circuit court of Du Page County is'affirmed.

Affirmed.

INGLIS and LINDBERG, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY WALTERS, Defendant-Appellant.
    Second District
    No. 2—88—0106
    Opinion filed July 28, 1989.
    Rehearing denied September 27, 1989.

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

delivered the opinion of the court:

Following a jury trial, defendant, Jeffrey Walters, was found guilty of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2), attempted armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4(a)), and aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(1)). Defendant was sentenced to 11 years on the armed violence convietion and to 8V2 years for attempted armed robbery, both sentences to run concurrently. The court did not impose a sentence on the aggravated battery conviction. Defendant filed a timely notice of appeal.

On appeal, defendant contends that: (1) the trial court erred in denying his motion to suppress; (2) his aggravated battery conviction should be vacated; and (3) the trial court erred in failing to appoint independent counsel to review defendant’s claim of ineffective assistance of counsel. We reverse and remand.

Joseph Imbrogno testified at trial that he was the owner of Pal Joey’s Restaurant in West Chicago, Illinois. On February 4, 1987, at approximately 1:30 a.m., Imbrogno was approached by two men as he was sitting in his car behind his restaurant. One of the men told Imbrogno that they wanted his money and fired a shot into the car. The bullet hit Imbrogno in the face, and Imbrogno drove his car away from the restaurant and onto Roosevelt Road. Imbrogno managed to attract the attention of a West Chicago police officer, and he was taken to the emergency room of a nearby hospital. Imbrogno gave a brief description of the two men to the police, although he was unable to identify them because they were wearing ski masks.

Chester Fallin, a codefendant in the case, agreed to testify against defendant in exchange for a 10- to 15-year sentence on charges identical to those facing defendant. Fallin testified that he decided to rob Pal Joey’s Restaurant because he was familiar with Joseph Imbrogno’s habits. Fallin stated that he brought two ski masks, along with a gun, to the robbery scene. He further stated that after Imbrogno exited the restaurant, defendant grabbed the gun from him, approached Imbrogno’s automobile, and shot Imbrogno. Fallin took the gun back and later sold it to an individual identified as Ray Lamping. Fallin left West Chicago the following day and returned approximately one month later. He was arrested on March 14,1987.

On March 16, 1987, Fallin gave a statement to the police implicating himself, defendant, and Ray Lamping in the shooting. However, he later told the police that Lamping was not involved in the crime. Fallin admitted that he had implicated Lamping because Lamping gave the gun to the police.

Michael Hatchell testified that he was a friend of defendant and spoke to defendant on the phone two or three days after the shooting. Hatchell stated that defendant told him that Fallin shot Imbrogno during a robbery attempt and that defendant “wished he hadn’t done it.” In October 1987, Hatchell received another phone call from defendant. Defendant told Hatchell that he did not commit the crime but instead that Fallin and Lamping committed the crime.

The State’s final witness, Joseph Verive, agreed to testify against defendant after the State agreed to recommend a four-year sentence on an unrelated residential burglary charge and not to prosecute him for a bail bond violation. Verive testified that Fallin and defendant planned the Pal Joey’s robbery while at Verive’s apartment on February 3, 1987. Verive stated that Fallin and defendant left his apartment around 10 p.m., with Fallin returning about six hours later. Failin’s first words to Verive were “man, Jeff [the defendant] shot a guy.” Verive also stated that he saw defendant approximately two or three weeks after the robbery. Defendant told Verive that he had to leave the State because the police recovered the gun that was used in the shooting.

Defendant did not testify and did not present any evidence at trial. Following closing arguments, the jury returned guilty verdicts on all three counts. Defendant filed two post-trial motions, one by counsel and the other pro se, which were both denied. This appeal followed.

Defendant first contends on appeal that the trial court erred in denying his motion to suppress the ski masks found as a result of a search at his apartment. Defendant argues that he had standing to contest the search, that the search warrant was invalid, and that the consent given on the “search waiver” form was involuntary. For the reasons stated below, we agree.

Prior to trial, defendant filed a motion to quash the search warrant and to suppress the evidence seized as a result of the search. The search warrant was issued for 805 Burr Oak, apartment No. 204, but was changed by the police officers to read apartment No. 207. This change was made without notifying or obtaining the consent of the issuing magistrate. The trial court granted the motion to quash the search warrant. In addition, the court conducted a hearing on the validity of a consent-to-search form signed by defendant’s mother.

The State’s first witness at the suppression hearing was Detective William Waterfield of the Du Page County sheriff’s department. Detective Waterfield testified that he, along with eight other police officers, went to search defendant’s apartment on,.April 15, 1987. Waterfield stated that he had been to the apartment once before, and believed that defendant, along with his mother and two brothers, resided there. The officers knocked at the door, did not receive an answer, kicked down the door and entered the apartment. The officers began to search the apartment, and 15 minutes later, Detective Waterfield asked Barbara Ruenzel, defendant’s mother, if he could search her automobile and the apartment. Mrs. Ruenzel agreed, and Waterfield executed a “search waiver” form which Ruenzel signed.

A copy of the “search waiver” form was included in the record on appeal. An examination of the form shows that the consent was given to search the “person — vehicle—residence” of Ruenzel, with the words “person” and “residence” crossed out. However, Detective Waterfield wrote in “residence” above the typed word that had been crossed out. Ruenzel did not initial any of the changes made on the form.

Officer Donald Goncher of the West Chicago police department testified that he found two ski masks in the apartment, one in a closet and the other in a bedroom dresser. Officer Goncher stated that he found the ski masks approximately 15 minutes after Detective Waterfield announced that Mrs. Ruenzel had given her consent to the search.

Barbara Ruenzel testified that she was at the apartment on the day of the search. Ruenzel stated that the police did not knock on the door, but instead “the door came crashing in” and “police officers came charging in.” She was given a copy of the search warrant and was told to sit on the sofa while the officers searched the apartment. Ruenzel testified that she was asked to sign a consent form about one hour after the police arrived at the apartment. Ruenzel stated that she signed the consent form so that the police could only search her automobile. However, she also stated that there were no changes or words crossed out on the form at the time she signed it.

There was some confusion as to whether Ruenzel lived at the apartment that was searched. Ruenzel stated that she did not live at the apartment and did not personally know the woman who did live at the apartment. She further stated that she did not need an invitation to visit the apartment, but instead would just “show up.” However, Ruenzel also testified that she kept all of her jewelry and some clothing at the apartment, and her inoperative automobile was parked in the parking lot outside of the apartment. Furthermore, Detective Waterfield testified that Ruenzel identified the residence as “my apartment.”

At the close of the hearing, the State asserted that defendant failed to prove standing to challenge the search. The trial court agreed and denied defendant’s motion to suppress.

In order to have standing to challenge a search, a defendant must demonstrate that his own fourth amendment rights have been violated. (People v. Santana (1987), 161 Ill. App. 3d 833, 839.) To do so, a defendant must demonstrate that he has a reasonable expectation of privacy in the place searched or the property seized. (People v. Johnson (1986), 114 Ill. 2d 170, 191, cert. denied (1987), 480 U.S. 951, 94 L. Ed. 2d 802, 107 S. Ct. 1618; People v. Morrison (1988), 178 Ill. App. 3d 76, 82.) In determining whether an individual has a reasonable expectation of privacy, a court may look at property ownership, possessory interest in the area or property seized, ability to control use of the property, prior use of the property seized or area searched, and whether defendant had a subjective expectation of privacy in the property. (United States v. Salvucci (1980), 448 U.S. 83, 91, 65 L. Ed. 2d 619, 628, 100 S. Ct. 2547, 2553; Johnson, 114 Ill. 2d at 191-92; People v. Dowery (1988), 174 Ill. App. 3d 239, 242.) It has been held that a person possesses a reasonable expectation of privacy in the apartment where he or she resides. See Payton v. New York (1980), 445 U.S. 573, 589-90, 63 L. Ed. 2d 639, 653, 100 S. Ct. 1371, 1381-82; People v. Bolden (1987), 152 Ill. App. 3d 631, 635; People v. Seybold (1981), 98 Ill. App. 3d 236, 241-42; see also People v. Vought (1988), 174 Ill. App. 3d 563 (reasonable expectation of privacy in hotel room where defendant was a registered guest).

The State argues that defendant did not have standing to challenge the search because defendant did not present any evidence to show that he had a reasonable expectation of privacy at the apartment that was searched. At a suppression hearing, the defendant has the burden of proving that the search and seizure were unlawful. (People v. Wingren (1988), 167 Ill. App. 3d 313, 319; People v. Gross (1988), 166 Ill. App. 3d 413, 423, cert. denied (1988),_U.S--, 102 L. Ed. 2d 115, 109 S. Ct. 142.) Defendant argues that the evidence at the suppression hearing was sufficient to satisfy defendant’s burden of proof regarding standing to contest the search.

At the suppression hearing, Detective Waterfield testified that defendant lived at “805 Burr Oak, apartment 207 in West Chicago.” Waterfield stated that defendant was not present during the search, but he did reside at the apartment that was searched. Furthermore, Waterfield stated that he was acquainted with defendant because he had searched defendant’s apartment on one occasion prior to the April 15,1987, search.

Detective Charles Brinn also testified at the suppression hearing that he was present during the search of the apartment, and “was aware of a few people that lived in that apartment at that time; a Mrs. Barbra [sic] Runzel [sic], Jeffrey Walters [defendant].” In addition, Detective Brinn, in a sworn request for a search warrant, stated that a search of 805 Burr Oak, apartment Number 207, Jeffrey Walters’ apartment, would result in locating stolen property.

The State argues that the police officer’s testimony at the suppression hearing was insufficient to prove that defendant actually lived at the apartment. We disagree. The police officer’s unrebutted testimony established that defendant resided at the apartment that was the subject of the search. As such, defendant did have a possessory interest in the apartment and a reasonable expectation of privacy in the premises. Consequently, we believe that defendant had standing to assert a violation of his fourth amendment rights.

The State next contends that even if defendant had standing to contest the search, defendant’s motion to suppress would not have been granted because defendant’s mother signed the “search waiver” form. A search conducted pursuant to a valid consent is an exception to the requirements of both' probable cause and a valid search warrant. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 219, 36 L. Ed. 2d 854, 858, 93 S. Ct. 2041, 2043-44.) Consent to search a residence may be given by a, third party who has control over the premises to be searched. (United States v. Matlock (1974), 415 U.S. 164, 171, 39 L. Ed. 2d 242, 249-50, 94 S. Ct. 988, 993; People v. White (1987), 117 Ill. 2d 194, 221, cert. denied (1988), 485 U.S. 1006, 99 L. Ed. 2d 698, 108 S. Ct. 1469.) The validity of such a consent depends on whether the consent was voluntarily given. (People v. Bean (1981), 84 Ill. 2d 64, 69, cert. denied (1981), 454 U.S. 821, 70 L. Ed. 2d 93, 102 S. Ct. 106.) In determining whether the consent was voluntary, it must be shown that the consent was freely given, and not the result of duress or coercion. People v. Daugherty (1987), 161 Ill. App. 3d 394, 398-99.

In the case at bar, Barbara Ruenzel admitted that she authorized a search of her automobile and freely signed a consent-to-search form to allow the police officers to do so. However, she stated that she did not authorize the police to search anything but her automobile. Detective Waterfield disagreed, testifying that Ruenzel gave the police the authority to search the apartment in addition to the automobile. A consent search is reasonable only if kept within the constraints of the actual consent. People v. Porter (1986), 141 Ill. App. 3d 71, 73, cert. denied (1986), 479 U.S. 951, 93 L. Ed. 2d 387, 107 S. Ct. 439; People v. Sanders (1976), 44 Ill. App. 3d 510, 516.

Under the above-stated principles, we believe that the scope of the actual search exceeded Mrs. Ruenzel’s consent. While it is undisputed that Ruenzel did consent to a search of her automobile, it is disputed as to whether she consented to a search of the apartment. After a careful examination of the testimony and the “search waiver” form, we do not believe that Ruenzel consented to a search of the apartment. We make this determination by noting that the police officers already had a search warrant, albeit an invalid search warrant, to search the apartment. Thus, if the officers believed that they had a valid search warrant, they would not need Ruenzel’s consent to search the apartment.

If, however, the police officers did not believe that they possessed a valid search warrant at the inception of the search, the fact that the officers obtained consent to search the apartment would not alleviate the taint of the officers’ illegal entry. In Bumper v. North Carolina (1968), 391 U.S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788, the court stated that “[a] search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid.” (391 U.S. at 549, 20 L. Ed. 2d at 802, 88 S. Ct. at 1792; see also People v. Koniecki (1985), 135 Ill. App. 3d 394, 403 (consent obtained “by the exploitation of the prior illegal search” not sufficiently distinguishable to remove it from the original taint).) Furthermore, in People v. Day (1988), 165 Ill. App. 3d 266, the court held that a consent obtained after an illegal entry “is not sufficiently attenuated from the illegality as to remove the taint.” (Day, 165 Ill. App. 3d at 269.) In the present case, the testimony most favorable to the State is that the police officers knocked on the apartment door, did not announce their office, kicked down the door and began to actively search the apartment. After searching the apartment for approximately 15 minutes, the officers asked for and received Ruenzel’s consent to search her automobile and possibly the apartment. The officers altered the search warrant to such a degree to render it invalid. (See People v. Trantham (1977), 55 Ill. App. 3d 720, 722 (warrant would have to be quashed as a matter of law if the police had searched the desired apartment instead of the apartment listed in the warrant).) In addition, the officers did not announce their office prior to kicking down the door. (See People v. Trask (1988), 167 Ill. App. 3d 694, 704; People v. Marinez (1987), 160 Ill. App. 3d 349, 352 (purpose of announcing their office is to notify individuals of the police presence and impending intrusion so that vioIence can be avoided and privacy respected).) Thus, given the absence of exigent circumstances in this case, the officers violated the policy behind the “knock and announce” rule. See People v. Ouellette (1979), 78 Ill. 2d 511, 516-17.

After a review of all of the above-mentioned factors, this court is left with no alternative but to hold that Ruenzel’s consent to search the apartment, if given at all, was not voluntarily given. After the police entered the apartment, Detective Waterfield handed Barbara Ruenzel a search warrant, and the officers began to search the apartment. As the court in Bumper stated:

“When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.” (Bumper, 391 U.S. at 550, 20 L. Ed. 2d at 803, 88 S. Ct. at 1792.)

While it is true that not every consent to search is automatically vitiated when a tainted warrant is involved (see Comeaux v. Henderson (5th Cir. 1972), 462 F.2d 1345, 1346), a consent is deemed invalid if the consent itself is the fruit of the illegal search warrant. (United States v. Stine (E.D. Pa. 1978), 458 F. Supp. 366.) In Stine, the court held that the consent was the fruit of the illegality in that the police officers were searching the defendant’s home before obtaining the consent, leaving the defendant little time to make an independent decision or for intervening circumstances to lead him to conclude that he should consent to the search. (458 F. Supp. at 371.) In the case at bar, the officers claimed to have authority to search the apartment by possessing a search warrant. Thus, the occupants of the apartment, including Barbara Ruenzel, had no right to resist the search. Under the rationale enunciated in Bumper, Barbara Ruenzel’s consent was involuntary. Absent a voluntary consent, the police did not have authority to search the apartment. (See Bumper, 391 U.S. at 550, 20 L. Ed. 2d at 802-03, 88 S. Ct. at 1792; Daugherty, 161 Ill. App. 3d at 400.) Consequently, it was error for the trial court to admit the fruits of the search, namely the two ski masks, into evidence at trial. As a result, this cause must be remanded to the trial court for a new trial.

Having decided that the trial court erred in admitting the. ski masks into evidence at trial, we now need to address the question of the sufficiency of the evidence adduced at trial which was used to convict defendant. At trial, the gun used in the shooting was properly admitted into evidence, and the testimony of a friend, a codefendant, and a friend of the codefendant implicated defendant in the offense at issue. Pursuant to People v. Taylor (1979), 76 Ill. 2d 289, 309, we believe that the evidence at trial was sufficient for the jury to conclude that defendant was guilty beyond a reasonable doubt. This does not mean that we are making a determination as to defendant’s guilt or innocence which would be binding upon retrial; rather, our consideration of the evidence adduced at trial will remove the risk of subjecting defendant to double jeopardy. (See People v. Ferguson (1988), 172 Ill. App. 3d 1, 12; People v. Threzzy (1987), 163 Ill. App. 3d 180, 185.) Since we conclude that defendant is entitled to a new trial on this issue alone, we do not believe that it is necessary to address defendant’s other two contentions on appeal.

For the above stated reasons, the judgment of the circuit court of Du Page County is reversed, and this cause is remanded for a new trial.

Reversed and remanded.

UNVERZAGT, P.J., and NASH, J., concur.


author: JUSTICE NASH

text:
    ANGELA TODD et al., Plaintiffs-Appellants, v. STEPHEN H. KATZ et al., Defendants-Appellees.
    Second District
    No. 2—89—0074
    Opinion filed August 31, 1989.

      William J. Arendt and David M. Mattenson, both of Kanter & Mattenson, Ltd., of Chicago, for appellants.
    D. Kendall Griffith, Stephen R. Swofford, Nancy G. Lischer, and Mark W. Conrad, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellees.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiffs, Angela Todd, William Noble Todd, and Letitia Rei Todd, appeal from the dismissal of their complaint for legal malpractice against defendants, Stephen H. Katz, and Rawles, McKeown & LaMonaco, Ltd., after the trial court found that the doctrine of collateral estoppel barred the action. We affirm.

The facts leading to this appeal are set forth in In re Marriage of Todd (1985), 132 Ill. App. 3d 1164, 494 N.E.2d 960 (unpublished order under Supreme Court Rule 23), and will be briefly described herein. We note that the complaint in the previous case was brought by plaintiff, Angela Todd, individually, and as mother and next friend of William Noble Todd and Letitia Rei Todd. Plaintiffs retained defendant Katz, who was a partner of defendant Rawles, McKeown .& La-Monaco, Ltd., at the time of the alleged negligence, to represent them as their attorney in a divorce action. William S. Todd and Angela Todd were married in 1965 and had two children, William Noble Todd and Letitia Todd. A judgment of dissolution was entered in 1979 which incorporated their marital settlement agreement, which provided, inter alia:

“Certain life insurance policies presently owned and the premiums of which are paid by the Husband shall be continued in force and effect to insure that the terms of this marital agreement are carried out in the event of the Husband’s death. Accordingly, the Husband shall maintain the life insurance policies enumerated in Exhibit ‘A’ attached hereto; the Husband represents that the life insurance policies shall have a face amount of not less than One Hundred Thousand ($100,000.00) Dollars. The proceeds of these life insurance policies shall be payable to an irrevocable life insurance trust, so long as the Husband has any obligations hereunder; and the Husband shall maintain a quantity of life insurance of a face value of not less than One Hundred Thousand ($100,000.00) Dollars. If, at the time of the Husband’s death, the life insurance trust is funded with funds sufficient to carry out the Husband’s obligations under this marital settlement agreement, the Wife shall waive any claim against the Husband’s estate. The Husband shall cause a certificate evidencing such insurance to be furnished to the wife.”

Exhibit “A” was never attached to the marital settlement agreement, and William Todd did not establish an irrevocable trust or provide Angela Todd with a certificate of insurance.

William Todd subsequently died, and plaintiffs filed an “amended post-decree petition for relief” alleging that William Todd failed to comply with the terms of the marriage settlement agreement because he did not establish an irrevocable life insurance trust or designate insurance policies with a face value of $100,000 for the trust. Plaintiffs also alleged that of the $735,000 of life insurance proceeds due on William Todd’s death, Marlene Todd, who was William Todd’s wife at the time of his death, and John Reid Todd, William Todd’s son from a prior marriage, wrongfully received over $350,000 of the insurance proceeds upon which plaintiffs sought to impose an equitable lien and constructive trust.

Marlene Todd and the present plaintiffs filed cross-motions for summary judgment. Plaintiffs argued that at the time of William Todd’s death he owned five life insurance policies which he also had owned at the time the marital settlement agreement was entered into; that these policies were the policies referred to in the marital settlement agreement; that Marlene Todd was made beneficiary of some of these policies contrary to the judgment for dissolution of marriage; and that as a result of William Todd’s breach of the marital settlement agreement, Marlene Todd and John Reid Todd had wrongfully received $350,000 of life insurance proceeds. Marlene Todd argued that plaintiffs were not entitled to the relief requested in their complaint because they had received in excess of $100,000 of life insurance proceeds, and the marital settlement agreement only required William Todd to maintain $100,000 of life insurance for the benefit of plaintiffs.

In the earlier case, the trial court granted Marlene Todd’s motion for summary judgment, finding that William Todd’s obligations under the judgment for dissolution of marriage were contemplated and agreed to be discharged in the amount of $100,000 and that, because plaintiffs received in excess of $100,000, William Todd had complied with the terms and conditions of the judgment for dissolution of marriage. In a Rule 23 order (107 Ill. 2d R. 23), this court affirmed the trial court’s judgment, concluding that “[w]e believe that William agreed to be obligated only to the extent of the minor children’s needs and placed a limitation on the amount of insurance he would maintain to meet those needs and that the trial court properly interpreted that limitation.” We stated there that while William Todd’s intent was a question of fact, his intent was not material to a disposition of the case because the primary issue was whether his obligations under the settlement agreement were satisfied and that those obligations were apparent from the face of the settlement agreement. We rejected plaintiffs’ argument that the phrase “[cjertain life insurance policies” used in the marriage settlement agreement was intended to mean “all” of the life insurance policies owned by William Todd at the time the settlement agreement was entered into, and found that the parties to that agreement only intended that William Todd maintain life insurance policies in the amount of $100,000 for plaintiffs’ benefit. 132 Ill. App. 3d 1164, 494 N.E.2d 960.

Plaintiffs filed their present complaint alleging that they had retained attorney Katz to represent them in the divorce proceeding; that Katz owed them a duty of reasonable care and due diligence in negotiating and drafting the marital settlement agreement; that Katz breached his duty of care by failing to attach Exhibit “A”; and that as a proximate cause of Katz’s failure to attach the exhibit, plaintiffs did not receive in excess of $300,000 of additional insurance proceeds and have incurred attorney fees to maintain the prior post-decree proceeding. Defendants moved to dismiss the complaint pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), alleging that plaintiffs’ complaint was barred by collateral estoppel and estoppel by verdict. The trial court granted the motion, finding that the question of whether plaintiffs were entitled to receive additional life insurance proceeds was previously adjudicated and affirmed on appeal, and as this court held that plaintiffs had received in excess of $100,000, they could not show that they suffered any damages and did not state a cause of action.

The doctrine of collateral estoppel applies when a party participates in two separate cases where different causes of action are alleged and a controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit. (Housing Authority v. Young Men’s Christian Association (1984), 101 Ill. 2d 246, 252, 461 N.E.2d 959.) The parties need not be identical in both actions but the party against whom collateral estoppel is asserted must have had an opportunity to litigate the issue. The prior adjudication must also be final. (Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 7, 398 N.E.2d 9.) The plaintiffs in this case were all plaintiffs in In re Marriage of Todd (1985), 132 Ill. App. 3d 1164, 494 N.E.2d 960, where this court affirmed the trial court’s summary judgment in- favor of Marlene Todd on the basis that the marital settlement agreement only required William Todd to maintain life insurance policies for plaintiffs in the amount of $100,000, which he did maintain. Thus, a controlling fact in this case, whether plaintiffs suffered damage because of Katz’s failure to attach Exhibit “A” to the marital settlement agreement, has already been adjudicated against plaintiffs. Plaintiffs are estopped from claiming that they would have been entitled to collect additional insurance proceeds in excess of $100,000 but for Katz’s alleged negligence, and an essential element of their cause of action here is that they suffered an injury proximately caused by Katz’s alleged negligence. (See, e.g., Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 18, 440 N.E.2d 96 (complaint couched in terms of negligence for legal malpractice must set forth facts that establish an injury proximately resulting from a breach of a duty owed by the defendant to the plaintiff).) The trial court correctly found that plaintiffs failed to state a cause of action in this case.

Plaintiffs argue that while the issue of whether William Todd fulfilled his obligations under the marital settlement agreement may have been decided, the controlling factual issue in this case has not been decided. They assert that the issue here is which of the five policies owned by William Todd at the date of his death were intended to be included in Exhibit “A”. We see no distinction between this issue and the issue that has been previously decided and affirmed by this court.

Plaintiffs also argue, without citation to authority, that they are entitled to damages as a result of the attorney fees incurred in the prior post-decree proceeding. This issue has been waived as plaintiffs’ initial brief did not raise it and they offer it for the first time in their reply brief. 113 Ill. 2d R. 341(e)(7); Ray Dancer, Inc. v. DMC Corp. (1988), 175 Ill. App. 3d 997,1005, 530 N.E.2d 605.

Affirmed.

UNVERZAGT, P.J., and REINHARD, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER HOLLEN, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER HOLLEN, Defendant-Appellant.
    Second District
    Nos. 2—88—0109 through 2—88—0113 cons.
    Opinion filed August 31, 1989.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Fred Foreman, State’s Attorney, of Waukegan (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Walter Hollen, brought five separate appeals from convictions in the circuit court of Du Page County and the circuit court of Lake County. In case No. 2 — 88—0109, defendant appeals his conviction of armed robbery from the circuit court of Du Page County. In case Nos. 2 — 88—0110, 0111, and 0112, defendant appeals his convictions on three counts of armed robbery from the circuit court of Lake County. In case No. 2 — 88—0113, defendant appeals his convictions of home invasion and armed violence from the circuit court of Lake County. These matters have been consolidated for disposition. Defendant raises three issues on appeal. Defendant first argues that the trial courts erred in denying his motions to suppress post-arrest statements and evidence obtained through those statements on the basis that the statements were involuntary. Defendant also argues that his convictions from the circuit court of Lake County should be remanded for resentencing on the basis that the court improperly considered defendant’s receipt of proceeds from the armed robberies as an aggravating factor in sentencing. Finally, defendant argues that, should this court reverse his convictions from either county, his remaining convictions should be remanded for resentencing since each court referred to his convictions from the other during sentencing. We affirm.

In case No. 2 — 88—0109, defendant was convicted of armed robbery following a stipulated bench trial in Du Page County. At a subsequent stipulated bench trial in Lake County, defendant was convicted of home invasion, armed violence, and three counts of armed robbery in case Nos. 2 — 88—0110, 88 — 0111, 88 — 0112, and 88 — 0113. In case No. 2 — 88—0109, the circuit court of Du Page County sentenced defendant to 25 years’ imprisonment. In the remaining cases, the circuit court of Lake County sentenced defendant to 30 years’ imprisonment to be served consecutive to the Du Page County sentence. Prior to each trial, defendant brought a motion to suppress statements and evidence. The facts necessary for an understanding of our disposition can be summarized from the hearings on the motions to suppress brought in the respective actions.

CASE NO. 2-88-0109

The following evidence was presented at the hearing on the motion to suppress in the circuit court of Du Page County. On March 12, 1987, at approximately 1:10 a.m., Sergeant David Klenepaste of the Roselle police department received a call concerning an armed robbery at a gas station. Klenepaste proceeded to the area of the robbery and observed a subject wearing dark clothing standing behind some bushes. Klenepaste gave chase when the subject fled, but subsequently lost sight of him. At approximately 2:12 a.m., Klenepaste saw the same subject again. The subject walked around the corner of a house with his hands in the air and called out to Klenepaste. Klenepaste directed the subject to lie face down on the ground, and fellow Roselle police officer Robert Thomas conducted a pat-down search. The subject said that his shoulder was in pain and told the officers that he had fallen over a brick retaining wall. Both officers identified defendant as the subject they stopped and searched.

Klenepaste and Thomas testified that they observed defendant “wince” in pain and summoned an ambulance. Due to defendant’s complaints of shoulder pain, Klenepaste handcuffed only one of defendant’s hands. Klenepaste testified that he then read defendant his Miranda rights from a card and defendant stated that he understood those rights. An ambulance arrived within approximately five minutes of the call, and Klenepaste left defendant in the custody of Thomas and another police officer, George Kasnick.

Thomas testified that the paramedics initially treated defendant on the ground and then placed him on a stretcher and into the ambulance. Thomas stated that he entered the ambulance with defendant and asked him whether he recalled his rights as'read to him by Klenepaste. Thomas stated that defendant replied in the affirmative but made no statement at that time. Thomas testified that he asked defendant the time and that defendant looked at his watch and stated the correct time. Thomas then asked defendant where he had left his mask, gun, and money. Defendant responded that the items were left in a parking lot. Thomas then exited the ambulance to search the parking lot, while Kasnick remained in the ambulance with defendant.

Fireman-paramedic Burt Lancaster testified that he received a call for his advanced life support system ambulance at approximately 2:13 a.m. and arrived at the scene at 2:18 a.m. Lancaster examined defendant, took his vital signs, and placed a triangular bandage on his shoulder for a splint, while another paramedic examined defendant’s knee and placed ice on it. Lancaster stated that the treatment took approximately 8 to 10 minutes. Shortly thereafter, a basic life support system ambulance arrived, and the paramedics transferred defendant to the second ambulance. Lancaster stated that he did not delay or withhold treatment from defendant and was not instructed to do so.

Officer George Kasnick of the Roselle police department testified that he arrived at the scene as Thomas and Klenepaste were arresting defendant. Kasnick stated that defendant was read his rights and an ambulance was called because defendant complained of shoulder and knee injuries. Kasnick further testified that he remained in the ambulance with defendant throughout his treatment. Kasnick testified that his conversation with defendant continued contemporaneously with the treatment rendered by the Roselle fire department personnel. Kasnick stated that he asked defendant if he would show the police exactly where the gun and the money from the armed robbery were located. Kasnick testified that the ambulance transporting defendant drove to a parking lot and defendant told him that the gun, the money, and the mask were hidden beneath a red automobile in the lot. Kasnick relayed this information to Thomas, and the ambulance then proceeded to the hospital.

Daniel Schmidt, a fire fighter and emergency medical technician (EMT) in the basic life support system ambulance, testified that he received an ambulance call at approximately 2:15 a.m. Upon review of the dispatch records, Schmidt stated that his ambulance arrived at the scene at 2:26 a.m. Schmidt testified that he and a fellow EMT, John Niemman, talked with defendant and obtained his history. Schmidt recalled Kasnick asking defendant if he could tell him where he had put the gun, the money, and the mask, and defendant answering that he could. Schmidt stated that defendant appeared to be relaxed. Schmidt testified that the ambulance left for the hospital at 2:48 a.m. and arrived at 2:56 a.m. Schmidt testified that the ambulance first drove through a parking lot at Kasnick’s request, but stated that the detour resulted in a delay of only 30 to 60 seconds. The remaining fire fighters’ testimony corroborated that of Kasnick and Schmidt.

Sergeant Olliges, a detective with the Roselle police department, stated that he arrived at Alexian Brothers Hospital at approximately 3:45 a.m. Olliges testified that defendant was released at 4 a.m., whereupon Olliges transported defendant and Kasnick to the Roselle police station. Olliges testified that he advised defendant of his Miranda rights at the police station. The trial court sustained defendant’s objection to further testimony regarding Olliges’ conversations with defendant at the police station. Defendant noted that any questioning after defendant left the hospital was beyond the scope of his motion to suppress. Olliges’ remaining testimony revealed that defendant was given aspirin by a Roselle police officer at approximately 6:30 a.m.

Defendant subsequently testified that he was arrested by a Roselle police officer in the early morning hours of March 12, 1987. At the time of his arrest, defendant was suffering from previously sustained injuries to his shoulder and knee. Defendant conveyed this information to the police officer. Defendant stated that the police officer told him to “hit the ground,” and then put his knee on defendant’s back and grabbed his right arm to handcuff it. Defendant stated that he remained on the ground approximately five minutes before an ambulance arrived. The police then handcuffed him to a stretcher. Defendant testified that a police officer continuously questioned him about the location of a gun, to which he denied any knowledge. Defendant stated that the officer told him that the sooner he revealed the location of the gun the sooner they would leave. Defendant testified that this conversation took place in the first of two ambulances. Defendant stated that he was in the first ambulance approximately 10 minutes during which time the ambulance staff checked his vital signs but did not render any treatment. Defendant testified that he made continuous requests to see a doctor or to obtain medication for his pain but was told by the paramedics that they were unable to do anything and that he would have to wait until he saw a doctor. Defendant said that he did not remember being placed into a second ambulance; however, he did recall being transported to the hospital. Defendant testified that the ambulance took a detour into a parking lot that lasted approximately three minutes. Once in the parking lot, the ambulance door opened, and the police officer asked defendant if he recognized anything. Defendant answered in the affirmative, and the ambulance proceeded to the hospital. Defendant admitted that he was neither refused medical treatment nor denied transportation to the hospital. On cross-examination, defendant testified that the police did not do anything to cause his injuries, but stated that they did delay his transportation to the hospital.

Following arguments, the trial court concluded that the State satisfied its burden of proving that defendant’s statements were freely and voluntarily given and therefore denied defendant’s motion to suppress. The court observed that while the evidence showed that defendant’s injuries caused him pain, the weight of the evidence indicated that defendant’s condition was comfortable and there was no evidence of force, intentional delay, or deprivation of medical treatment. The court further found that the deviation taken by the ambulance from its direct hospital route was minimal.

CASE NOS. 2-88-0110, 0111, 0112, and 0113

The following evidence was presented at the hearing on the motion to suppress in the circuit court of Lake County. While defendant was in the custody of the Roselle police department, he reportedly confessed to numerous crimes committed in Lake County. Detective Gilbert Farrow of the Lake County sheriff’s department interviewed defendant at 10:22 a.m. in a room provided by the Roselle police department. Farrow was accompanied by Sergeant James Busch of the Fox Lake police department. Farrow testified that he reviewed defendant’s Miranda rights with him, and defendant signed a waiver form witnessed by Farrow and Busch. After some preliminary discussion, defendant agreed to answer questions concerning robberies committed in the Lake County area and consented to tape-recording the interview. Busch read defendant his Miranda rights a second time and then conducted a taped-recorded interview from 10:40 to 10:47 a.m. during which defendant confessed to an armed robbery that occurred on August 21, 1986. Farrow also conducted a taped-recorded interview from 11:10 to 11:15 a.m. during which defendant confessed to armed robberies that occurred on November 25, 1986, and December 5,1986. The tape recordings were admitted into evidence.

Sergeant James Simoncelli of the Round Lake Beach police department testified that he interviewed defendant at 12:05 p.m. concerning various crimes committed in his jurisdiction. Simoncelli stated that he reviewed defendant’s Miranda rights with him and defendant signed a waiver form witnessed by Simoncelli and Gary Bitler, also of the Round Lake Beach police department. Simoncelli testified that he was acquainted with defendant and recalled that they joked about defendant’s shoulder injury, as Simoncelli had previously injured his own shoulder when chasing defendant in an unrelated- incident. Simoncelli testified that defendant agreed to be interviewed and consented to tape-recording the interview. Simoncelli then conducted a taped-recorded interview during which defendant confessed to committing numerous crimes in the Round Lake Beach area. The tape recording was admitted into evidence.

All of the State’s witnesses indicated that defendant did not appear to be intoxicated or under the influence of drugs at the time of questioning. Each police officer testified that defendant’s speech was coherent and at no time did he request an attorney. The officers further testified that defendant never requested that questioning cease, nor did he state that he was in too much pain or too fatigued to continue the interviews.

Defendant subsequently testified that the night before his arrest he had worked all night helping a friend remodel a house. At approximately 2 a.m. on March 12, 1987, defendant was arrested by the Roselle police department. Defendant complained of shoulder and knee injuries and was placed in an ambulance. Defendant stated that a police officer in the ambulance read him his Miranda rights, and, after considerable questioning and driving around, he was taken to a hospital and treated. Defendant was released from the hospital at approximately 4 a.m. and transported to the Roselle police department, where a detective questioned him. Defendant stated that this conversation took V-k to 2 hours, after which he was taken to a cell where he remained until approximately 8 a.m. Defendant stated that the police then allowed him to visit with his girlfriend for approximately one-half hour. Thereafter, a Roselle police officer took defendant into a room and gave him a doughnut and a cup of coffee.

Defendant stated that he was eventually taken to another room to meet Detective Farrow and Sergeant Busch and was not given any further opportunity to sleep, eat, or drink. Defendant testified that he experienced a sharp, stabbing pain in his shoulder and knee as the interview progressed. He admitted that his shoulder was in a bandage and that he had an ice pack on his knee. He stated that he was tired throughout the interview, but did not ask that the interview cease or seek further medication for the pain. Defendant stated that he thought his fatigue and pain were obvious and that any efforts to end the interviews would be futile.

On cross-examination, defendant admitted that he received medical treatment from paramedics on the scene at the time of his arrest. Defendant further admitted that a doctor set his dislocated shoulder and that he was given two pain relievers. Defendant identified his signature at the bottom of two Miranda forms he had signed and recalled being read his rights by Farrow and Simoncelli. Defendant also identified his voice on the tape-recorded interviews and admitted that the conversations contained therein were accurate. Defendant stated that he did not request medical attention from any of the police officers with whom he spoke because he believed it would not do any good since they had driven such a long way to interview him.

At the close of evidence, the trial court denied defendant’s motion to suppress, stating:

“As the State’s Attorney pointed out, some six hours after that interrogation [by Roselle police officers] is when the statements here occurred, and that’s after he has received medical treatment, not only by the ambulance’s paramedics but by the doctors and nurses in the hospital. It is after he slept for some period of time, which could have been through his own testimony a time of up to two hours, although he says he thinks it was only half an hour. It is after he had a coffee, donut, after he had spent some time with his girlfriend alone I take it. He has been in the lounge during this statement. At one point, he was kidding with an officer that he has apparently known for some time. In fact, he says he didn’t terminate the statement because the police had come so far.
I think all in all that the statements he made to the Fox Lake Police, the County officers that testified, as well as the Round Lake officers, were done voluntarily, they were done knowingly, and I think they were done intelligently.”

I

Defendant first contends that the trial courts erred in denying his motions to suppress. In case No. 2 — 88—0109, defendant contends that the trial court erred in denying his motion to suppress the statements he made at the time of his arrest, and the physical evidence obtained through them, because the statements were made while defendant was in extreme pain and were the result of coercion on the part of the police who denied or delayed medical treatment for defendant’s injuries. In case Nos. 2 — 88—0110, 0111, 0112, and 0113, defendant contends that the trial court erred in denying his motion to suppress the confessions he made to the Lake County sheriff’s department and police officers from Fox Lake and Round Lake Beach while in the custody of the Roselle police department on March 12, 1987, on the basis that these confessions, like his earlier statements to the Roselle police, were the products of coercion and were made while defendant was in pain and suffering from an insufficiency of sleep and food. Defendant’s contentions are without merit.

The applicable standard of review of a trial court’s ruling on a defendant’s motion to suppress is whether that ruling is clearly erroneous. (People v. DeBlieck (1989), 181 Ill. App. 3d 600, 607.) When a defendant challenges the voluntariness of his statements made to police officers, including confessions, the State bears the burden of establishing that such statements and confessions were voluntarily made. (People v. Cleesen (1988), 177 Ill. App. 3d 103, 110; see People v. Brownson (1982), 103 Ill. App. 3d 476, 478.) The State must establish the voluntary nature of the defendant’s statements by a preponderance of the evidence. (People v. Hattery (1989), 183 Ill. App. 3d 785, 821; Brownson, 103 Ill. App. 3d at 479.) Voluntariness is a question for the finder of fact, whose determination will not be set aside unless it is contrary to the manifest weight of the evidence. People v. Bae (1988), 176 Ill. App. 3d 1065, 1074; Brownson, 103 Ill. App. 3d at 479.

As our supreme court has noted, “[v]oluntariness presupposes a willingness to talk uninfluenced by force, coercion, promise or intimidation of any kind.” (People v. Nemke (1970), 46 Ill. 2d 49, 55.) Thus, the trial court’s duty in considering the admissibility of a criminal defendant’s statements or confessions is to determine whether such utterances were made freely, intelligently, and without compulsion or inducement of any kind, or made at a time when the defendant’s will had been overcome. (People v. Brown (1989), 182 Ill. App. 3d 1046, 1052; see also Cleesen, 177 Ill. App. 3d at 110.) It is well established that the voluntary nature of a defendant’s statement or confession depends upon the totality of the circumstances under which such utterances were made. (People v. Prim (1972), 53 Ill. 2d 62, 70; Brownson, 103 Ill. App. 3d at 478.) Factors the trial court may consider in making this determination include the defendant’s age, education and experience, intensity of the interrogation, failure to warn of constitutional rights (Brownson, 103 Ill. App. 3d at 478), existence of threats, promises or physical coercion, and defendant’s physical condition at the time of the interrogation (People v. Rhodes (1983), 119 Ill. App. 3d 1002, 1008-09; see also People v. Hattery (1989), 183 Ill. App. 3d 785, 821).

Bearing in mind the standards set forth above, our review of the record in case No. 2 — 88—0109 convinces us that the State sustained its burden of proof and established that defendant’s statements and confessions were made voluntarily, knowingly, and intelligently, and were not the product of coercion, threats, or inducement on the part of any of the police officers in question. With regard to defendant’s statements made to Roselle police officers Thomas and Kasnick, the record is devoid of any indication that either officer threatened defendant with the delay of medical treatment or actually denied medical treatment. Defendant himself admitted as much. While defendant’s version of his conversations with Thomas and Kasnick differs somewhat from their testimony, we note that it is the trial court’s function to assess the credibility of the witnesses, and the court is not required to accept defendant’s account of the situation over contradictory testimony of the police. Cleesen, 177 Ill. App. 3d at 113.

The lengthy and detailed testimony of the various paramedics and emergency medical technicians who treated defendant provides overwhelming evidence that his injuries were attended to quickly and efficiently. Further, it is clear that defendant’s injuries were neither extreme nor life threatening and did not cause him to lose consciousness at any time. We also note that, although the paramedics’ and technicians’ treatment simply consisted of assessing defendant’s condition, monitoring his vital signs, and applying ice and splints, the treatment he received at the hospital comprised only the relocation of his shoulder by a physician and administration of pain relievers. Finally, we conclude, as did the trial court, that the ambulance’s detour through the parking lot was a minor deviation at best and took no more than one minute. Under these circumstances, we do not believe the trial court’s conclusion that defendant’s statements were voluntary was against the manifest weight of the evidence.

Defendant nonetheless characterizes the instant case as “one where treatment to a defendant in substantial pain was delayed until after he made a statement and led the police to other evidence.” As we noted above, the evidence does not support defendant’s claim of delay in his medical treatment. Additionally, that defendant was injured is simply one factor to be considered by the trial court. (Rhodes, 119 Ill. App. 3d at 1011.) The Rhodes court stated that “the mere existence of pain is not sufficient to render a statement involuntary.” (119 Ill. App. 3d at 1011.) The record establishes that the trial court noted that defendant was suffering from pain associated with his injuries. However, the trial court further noted that defendant received treatment, his condition was stabilized, and he was made comfortable. Thus, the trial court’s conclusion that defendant’s physical discomfort did not overcome his will so as to render his statements involuntary is supported by the record on the whole and, as such, shall remain undisturbed. See People v. Holloway (1985), 131 Ill. App. 3d 290, 307-08.

With regard to defendant’s confession made to Sergeant Olliges at 4:10 a.m. at the Roselle police station, we find that this issue has been waived. At the suppression hearing, defendant strenuously objected to Olliges’ testimony regarding any conversations he had with defendant while at the police station on the basis that these statements went beyond the scope of his motion to suppress. These objections were sustained on defendant’s representation that the motion to suppress was limited to defendant’s statements made at the time of his arrest up to and including his arrival at the hospital. The record contains no further information concerning this confession, and we find that defendant has waived the issue of voluntariness of this confession. See People v. Jimerson (1974), 18 Ill. App. 3d 177, 179-80.

We next consider defendant’s argument in case Nos. 2 — 88— 0110, 0111, 0112, and 0113 regarding the confessions made to Lake County sheriff’s police and representatives of the police departments of Round Lake Beach and Fox Lake. We conclude that the State established by a preponderance of the evidence that defendant’s confessions were voluntarily and intelligently made. Defendant’s own testimony reveals that, prior to the commencement of the interviews at 10:22 a.m. on March 12, 1987, he was taken to a cell and left alone for approximately two hours, was allowed to sleep, was offered food and drink, and was allowed to visit with his girlfriend for approximately one-half hour. We note that prior to each interview, defendant reviewed and signed a written waiver of his rights. We further note that defendant is not of tender years nor naive in his dealings with the criminal justice system, as evidenced by his prior criminal record, and he is of at least average intelligence according to the various presentence investigation reports contained in the record. (See Rhodes, 119 Ill. App. 3d at 1008-09; Brownson, 103 Ill. App. 3d at 478.) Careful review of the interview tapes convinces us that the police questioning, although lengthy, was neither intense nor threatening. Finally, there is no evidence to support defendant’s claim that medical treatment was withheld, denied, or delayed in order to coerce his confessions. In view of the totality of the circumstances, the trial court correctly denied defendant’s motion to suppress his confessions.

For the reasons set forth above, we conclude that the records on appeal are devoid of evidence tending to show that the trial courts’ findings regarding the voluntariness of defendant’s statements and confessions were manifestly contrary to the evidence.

II

We next consider defendant’s contention that the circuit court of Lake County erred in sentencing defendant when it considered as a statutory factor in aggravation that defendant received compensation in the form of proceeds as a result of committing the three armed robberies charged in that court. Defendant argues that the trial court’s improper reference to compensation requires that defendant’s Lake County convictions be remanded for resentencing. We disagree.

Section 5 — 5—3.2(a)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(a)(2)) permits a sentencing court to consider as one factor in aggravation that the defendant received compensation for committing the offense. In addressing the applicability of this factor in sentencing, our supreme court has stated that “receiving compensation for committing the offense under the statute applies only to a defendant who receives remuneration, other than proceeds from the offense itself, to commit a crime.” (Emphasis added.) (People v. Conover (1981), 84 Ill. 2d 400, 405.) The rule in Conover has been applied when remanding for resentencing convictions for armed robbery where the trial court found the defendant’s receipt of proceeds from the offense to be an aggravating factor. See People v. Teague (1981), 101 Ill. App. 3d 993, 996; People v. Hunt (1981), 100 Ill. App. 3d 553, 557-58.

In the instant action, the trial court considered three factors in aggravation, namely, that (1) defendant’s conduct caused or threatened serious harm; (2) defendant received the proceeds from the crimes; and (3) defendant had a prior criminal history. Clearly, the court’s consideration of defendant’s receipt of proceeds from the crime other than remuneration was improper.

However, a court’s reliance on an improper factor does not always require remandment for resentencing. (People v. Bourke (1983), 96 Ill. 2d 327, 332.) While remandment is necessary where the reviewing court is unable to determine the weight given to an improperly considered factor, such is not the case where it can be determined from the record that the weight placed on the improperly considered factor was so insignificant that it did not lead to a greater sentence. (Bourke, 96 Ill. 2d at 332.) In Bourke, the court found that remandment for resentencing was not necessary notwithstanding the trial court’s improper reference to compensation since the trial court and the State stressed the defendant’s prior violations of probation during the sentencing hearing. (96 Ill. 2d at 333.) The court stated that it was able to determine from the record that the length of the defendant’s sentence was not increased based on the trial court’s reference to the defendant’s receipt of proceeds from the offense. 96 Ill. 2d at 333.

The records in the instant actions similarly allow us to determine whether the trial court increased defendant’s sentence based on the improperly considered factor , in aggravation. In rendering sentence, the trial court found no mitigating factors and further stated:

“And with respect to the factors in aggravation, clearly the Defendant’s conduct caused or threatened serious harm. With respect to compensation, of course, he wasn’t paid to do this. However, he did receive some of the proceeds. Three, the Defendant has a history of prior delinquency and criminal activity. That’s pretty clear. I will go into that in more detail later. Pretty clearly the sentence here would deter others from committing the same crime.
***
However, when you look through the presentence investigation of the Defendant, in addition to the crimes he was found guilty of at the stipulated bench trial, he has a burglary, a theft in excess of $150 in 1980; again a burglary in 1980, a burglary in 1980 again, and the robbery out of Antioch in 1980; and he also has the sentence in Wisconsin.
As far as his rehabilitative potential, I think it is pretty clear it is non-existent, his [sic] probation was terminated unsuccessfully. We tried early in his history, Riverside Hospital. Again, that appears to have done him no good. He has served time in the Department of Corrections. That hasn’t seemed to deter him or rehabilitate him. So, I clearly find there is no likelihood of rehabilitation with respect to the Defendant.” (Emphasis added.)

The court went on to quote from social service and psychiatric reports that defendant was consumed by anger and hatred and possessed homicidal tendencies. The court concluded:

“Now, I have considered the nature and the circumstances of these offenses as well as the history and character of the Defendant, as I have outlined; and it is pretty clear to me that a term of imprisonment is necessary and that it should be consecutive to protect the public from further criminal conduct of the Defendant. I think what he has done here can only be characterized as a reign of terror in our county.
So, I am going to sentence the Defendant to 30 years ***.” (Emphasis added.)

Clearly, the court was focused on defendant’s prior history and rehabilitative potential, and not on the fact that defendant obtained proceeds from the armed robberies. In fact, the court never again mentioned the improper factor before rendering sentence. Accordingly, we conclude that defendant’s Lake County convictions do not require remandment for a new sentencing hearing.

In view of our conclusion that the trial courts did not err in denying defendant’s motions to suppress, we do not reach the third issue presented.

Accordingly, the judgments are affirmed.

Affirmed.

UNVERZAGT, P.J., and NASH, J., concur.


author: JUSTICE BARRY

text:
    RUSSELL PERKINSON, d/b/a Porkville, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Third District
    No. 3-88-0758
    Opinion filed August 24, 1989.

      Erwin, Martinkus, Cole & Ansel, Ltd., of Champaign (Marc J. Ansel, of counsel), for petitioner.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Patricia E. Collins, Michelle D. Jordan, and Matthew J. Dunn, Assistant Attorneys General, of Chicago, of counsel), for respondent Pollution Control Board.

      Thomas Davis, of Illinois Environmental Protection Agency, of Springfield, for respondent Illinois Environmental Protection Agency.
   JUSTICE BARRY

delivered the opinion of the court:

Russell Perkinson, the owner and operator of a swine farm, appeals from an opinion and order of the Illinois Pollution Control Board which found that he had caused or allowed an illegal discharge of swine waste into a stream. He was ordered to pay a fine of $10,000 and the cost of the resulting fish kill, an additional $10,376.

According to a stipulation of facts filed by the parties, on July 7, 1983, an estimated 400,000 gallons of liquid swine waste escaped from one of two lagoons where the waste was accumulated from Perkinson’s swine buildings and entered an unnamed tributary to Spring Creek near Thawville in Iroquois County, Illinois. As a result of the pollution, 101,219 fish were killed having a value of $10,376.

The parties further stipulated that the discharge was caused by a man-made trench or channel cut directly through the east dike of the north lagoon near its north end and that Perkinson did not cause or authorize the trench and has no knowledge of who was responsible for it. Additionally, it was stipulated that Perkinson learned of the discharge at about 2 p.m. on July 7, 1983, but he did not notify any authorities and did not send a report to the Environmental Protection Agency. On July 8 after the EPA was notified of the fish kill by an unnamed informant, the incident was investigated by Eric Ackermann.

The stipulation set forth Perkinson’s past compliance history and also described a second discharge incident which occurred on July 16, 1984, when a temporary obstruction in the drainage alley between buildings caused swine waste to flow into an adjacent field. In both instances of discharge, the waste entered field drain tiles which were connected to a discharge pipe into the water of the stream.

At the hearing before a hearing officer of the Pollution Control Board, a Perkinson employee, Ken Hanford, testified that he discovered the trench which had caused the liquid waste in the lagoon to drain into the adjacent field. He notified first Dave and then Russell Perkinson. The latter went out to view the trench and promptly filled it in by shoveling back into the trench the dirt piled beside it. The trench was described as being 18 inches wide, 16 inches deep, and 8 feet long.

The lagoons which held the swine waste were constructed with berms of compacted soil. Russell Perkinson stated that there had been some problems with seepage through the north berm due to the permeability of the soil used to construct that berm. A neighbor’s field adjoining the lagoon area had incurred some crop damage due to excessive seepage. Perkinson had constructed a ditch parallel to the berm so the liquid could be pumped back into the lagoon. He stated that in August of 1983 he replaced the loose permeable soil with clay to form a watertight, impermeable berm.

The witnesses testified that they did not know who would have dug the trench and that they did not do so and did not authorize any other employees to do so. The swine farm operation employed seven persons, but, other than Hanford, those employees were primarily involved with indoor work in the hog confinement buildings. Russell Perkinson stated that he did not suspect any of his neighbors or either of two former employees and that he did not report the vandalism to law enforcement authorities.

Eric Ackermann, an EPA investigator, testified that he came to Perkinson’s farm on July 8 to investigate the pollution of Spring Creek and its tributary. He observed a large wet area in Perkinson’s corn field and saw debris and erosion on the back side of the east dike. One of the documents stipulated to by the parties was Ackermann’s report of that investigation in which he determined that there had been seepage of wastewater through the dikes of the north lagoon, that the recent discharge through the trench occurred during dry weather and not during a catastrophic rainfall event, and that Perkinson failed to notify the EPA of the discharge.

The Pollution Control Board (PCB or Board) found that Russell Perkinson was in violation of sections 12(a) through 12(f) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1985, ch. 111½, pars. 1012(a) through (f)), several rules and regulations of the Pollution Control Board, and two of the conditions in Perkinson’s NPDES (National Pollutant Discharge Elimination System) permit requiring notification of any discharge. The Attorney General requested a fine of $10,000 for each of the nine counts in addition to the value of the fish killed. The Board noted that nine counts of the complaint involved only two instances of violations and that the penalties recommended could be an “unmanageable burden” on Perkinson. The Board then assessed a fine of $10,000 for the 1983 violation and $1,000 for the 1984 violation in addition to the payments required for the two fish kills: $10,376.84 for 1983 and $443.26 for 1984.

On appeal, Perkinson does not dispute the 1984 violation, but he does contend that he was not guilty of “causing or allowing” an unlawful discharge on July 7, 1983, and even if he were guilty, the imposition of a fine of $10,000 in addition to the value of the fish kill was an abuse of the discretion of the Pollution Control Board.

Perkinson argues that the only possible conclusion based on the evidence is that the trench was dug by a trespassing vandal and, consequently, that it was error to find that he caused or allowed the discharge to occur. He correctly notes that the law does not impose strict liability on property owners for pollution which results from a cause beyond the owner’s control. Phillips Petroleum, Co. v. Pollution Control Board (1979), 72 Ill. App. 3d 217, 390 N.E.2d 620.

Two cases involving railroad tank cars are cited by Perkinson in support of his contention that he neither caused nor allowed the swine waste discharge here. In Phillips Petroleum Co. v. Pollution Control Board, a tank car of anhydrous ammonia owned by Phillips was under the sole control of the transporting railroad when it was punctured in a derailment and released poisonous gas into the air. Since there was no evidence showing that Phillips, the alleged polluter, had the capability of controlling the pollution or was even in control of the premises where the pollution occurred, the appellate court affirmed a finding that Phillips did not cause or allow the pollution.

The second tank car case is Union Petroleum Corp. v. United States (Ct. Cl. 1981), 651 F.2d 734, where the valves on two cars were opened by vandals during a labor strike. The cars were at a loading rack at Union’s terminal in Massachusetts, and the spilled oil eventually reached Chelsea Creek. As soon as the oil spill was discovered, Union took appropriate measures to contain the spill and to clean up the oil. The litigation arose when Union sought to recover the cost of clean up from the United States government. The Court of Claims noted that, under the Federal statute, a claimant cannot recover where a vandal or third party caused the spillage if the claimant does not prove that reasonable actions were taken to prevent or forestall such intervention by a third party. The trial judge ruled in favor of Union, concluding that the discharge was caused by unknown vandals in spite of the company’s reasonable precautions against vandalism, and the Court of Claims affirmed. Union had fenced in the most accessible part of its terminal, had installed 1,000-watt mercury streetlights in the vicinity of the tank cars, and had employed additional security guards to patrol the area during the strike. There was also persuasive evidence that Union had adequate oil-containment facilities and took reasonable care to prevent the spill.

The evidence in the case at bar is far less favorable to the owner of the premises where the pollution occurred. There is nothing to indicate that Perkinson had taken any precautions against vandalism, and other than his disavowal of any knowledge or authorization for the digging of the trench, no evidence of the source of the trench was introduced at all. At most Perkinson’s evidence would permit the trier of fact to draw an inference of third-party intervention, but that evidence does not compel a finding that Perkinson took reasonable precautions to prevent such occurrences.

Many cases have held that the owner’s lack of knowledge of the discharge is no defense under the Environmental Protection Act. The leading case is Meadowlark Farms, Inc. v. Pollution Control Board (1974), 17 Ill. App. 3d 851, 308 N.E.2d 829, where water pollution was caused by seepage through mine refuse piles. The PCB found that Meadowlark Farms owned the surface rights of the property and thus owned the source of the pollution and had the capability of controlling the pollutional discharge. The reviewing court affirmed and stated:

“Petitioner’s so-called lack of knowledge that the discharge existed provides no defense. The Environmental Protection Act is malum prohibitum, no proof of guilty knowledge or mens rea is necessary to a finding of guilt.” 17 Ill. App. 3d at 861, 308 N.E.2d at 837.

A similar holding is found in Freeman Coal Mining Corp. v. Pollution Control Board (1974), 21 Ill. App. 3d 157, 313 N.E.2d 616, another case where water pollution occurred when rainwater seeped through a mine refuse pile. Again, the court ruled that the fact that pollution came from the seepage off the owner’s land was sufficient proof that the owner allowed the discharge within the meaning of the statute. It was no defense that the discharges were accidental and not intentional or that they were the result of an “Act of God” (rain) beyond its control. The court relied in part upon a case from another jurisdiction which held that the legislature had imposed a duty to take all prudent measures to prevent pollution.

In Hindman v. Pollution Control Board (1976) 42 Ill. App. 3d 766, 356 N.E.2d 669, the operator of a landfill site was held accountable for a fire that was not started by either the operator or his employees. The court relied upon the Meadowlark Farms case and upon Bath, Inc. v. Pollution Control Board (1973), 10 Ill. App. 3d 507, 294 N.E.2d 778, and ruled that a violation is not predicated upon proof of guilty knowledge or intentional harm. In the Bath case, the owner of a landfill was held to be responsible for underground burning even though the cause was unknown and not the result of the owner’s affirmative act.

The case before us is controlled by the long line of precedent in Illinois which holds that the owner of the source of the pollution causes or allows the pollution within the meaning of the statute and is responsible for that pollution unless the facts establish the owner either lacked the capability to control the source, as in Phillips Petroleum, or had undertaken extensive precautions to prevent vandalism or other intervening causes, as in Union Petroleum. Here Perkinson plainly had control of the lagoons and the land where the pollutional discharge occurred. The PCB concluded that he is liable for the pollution that had its source on his land and in a waste facility under his control. Under well-established Illinois law, that is sufficient to support a finding of a violation of the Environmental Protection Act.

We note that the PCB also found violations consisting of several months of seepage of swine waste through the lagoon wall on the north and of Perkinson’s failure to report the major event as required. Perkinson does not contest those findings which also support the order appealed from.

Perkinson also insists that the $10,000 penalty was too severe, particularly since he has a good history of attempting to comply with all the requirements of the Environmental Protection Agency. It would unnecessarily prolong this opinion to recite Perkinson’s many dealings with the Agency. Suffice it to say that he had some unauthorized discharges from his operation in 1979 and that he did what the Agency recommended to prevent further discharges. Perkinson also testified that he took further steps after the 1983 incident to end the seepage problem by making the north lagoon more watertight.

Plainly the $10,000 fine was well within the statutory authority of the Pollution Control Board, and it was substantially less than the $10,000 on each of nine counts requested by the Environmental Protection Agency. Perkinson argues that the Board failed to give sufficient weight to the mitigating factors, particularly to the fact that he had no knowledge of or responsibility for the vandalism. On the other hand, the Board had to consider the continuing seepage problem that preceded this major pollution event and the fact that Perkinson failed to give immediate notice as required by his permit. As a court of review, we will not substitute our judgment for that of the Pollution Control Board absent a clear abuse of discretion. We view the fine as reasonable under the facts of this case.

The order of the Pollution Control Board is affirmed.

Affirmed.

HEIPLE and SCOTT, JJ., concur.


text:
      In re MARRIAGE OF TAMELA VAN OOTEGHEM, Petitioner-Appellant, and JOHN C. VAN OOTEGHEM, Respondent-Appellee.
    Third District
    No. 3-88-0519
    Opinion filed August 24, 1989.
    George Mueller, of Hoffman, Mueller, Creedon & Twohey, of Ottawa, for appellant.
    Bernard Engels, of Ottawa, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The trial court entered a judgment of dissolution of the parties’ marriage on June 6, 1986. A supplemental order was entered August 28, 1986, confirming and adopting the agreement of the parties with respect to child custody, support, and distribution of property. The petitioner, Tamela Van Ooteghem, was awarded custody of the parties’ two minor children. The respondent, John Van Ooteghem, was ordered to pay $160 per week in child support. The order was silent as to which parent would be allowed to claim the minor children as dependents for tax purposes. In an order entered on July 5, 1988, the court assigned one tax exemption to each of the parties for the tax year 1987 and both exemptions to the respondent for 1988 and subsequent years. The petitioner appeals.

The sole issue raised by the petitioner on appeal is whether a State court is preempted by the provisions of the Internal Revenue Code from awarding tax exemptions for minor children to the noncustodial parent in a post-dissolution proceeding. Section 152(e) of the Internal Revenue Code (Code) as amended by the Deficit Reduction Act of 1984 provides in relevant part:

“(1) Custodial parent gets exemption.
Except as otherwise provided in this subsection, if—
(A) a child *** receives over half of his support during the calendar year from his parents—
(i) who are divorced or legally separated under a decree of divorce or separate maintenance, [and]
* * *
(B) such child is in the custody of one or both of his parents for more than one-half of the calendar year,
such child shall be treated, for purposes of subsection (a), as receiving over half of his support during the calendar year from the parent having custody for a greater portion of the calendar year (hereinafter in this subsection referred to as the ‘custodial parent’).” I.R.C. § 152(e) (1988).

The Code provides three exceptions to the general rule that the custodial parent is to receive the exemption. The first is where the custodial parent releases his claim to the exemption for the year (I.R.C. § 152(e)(2) (1988)); second, where multiple-support agreements are involved (I.R.C. § 152(e)(3) (1988)); and third, where the case involves certain pre-1985 instruments (I.R.C. §152(e)(4) (1988)).

For the purposes of this case, we are concerned only with the exception relating to the release of the exemption by the custodial parent. This release is effective under the following circumstances:

“(A) the custodial parent signs a written declaration *** that such custodial parent will not claim such child as a dependent for any taxable year beginning in such calendar year, and
(B) the noncustodial parent attaches such written declaration to the noncustodial parent’s return for the taxable year beginning during the calendar year.” I.R.C. § 152(e)(2) (1988).

The petitioner argues that section 152(e) preempts a State trial judge from awarding tax exemptions for minor children to a noncustodial parent in the absence of an express waiver. This precise issue was addressed by the First District Appellate Court in In re Marriage of Einhorn (1988), 178 Ill. App. 3d 212, 533 N.E.2d 29. In Einhorn, the mother was granted the tax dependency exemptions for the three minor children as part of the judgment of dissolution. The father filed a post-trial motion asking the court to delete that portion of the judgment pertaining to the tax exemptions and to order the mother to sign a declaration of waiver of the exemptions so as to allow him to receive them. The court denied the father’s post-trial motion and entered an order finding that section 152(e) deprived the court both of its authority to grant the exemptions to the noncustodial parent and of its authority to order the custodial parent to sign a written declaration waiving the exemption. Einhorn, 178 Ill. App. 3d at 217, 533 N.E.2d at 35.

On review, the appellate court found that a State court’s allocation of an exemption did not interfere with the legislative intent behind section 152(e) as amended. The court noted that the former section 152(e) had in part left to the Internal Revenue Service the determination of whether the custodial or noncustodial parent would receive the tax exemptions. After examining the former section 152(e), the amended section 152(e), and the legislative intent, the court concluded that Congress’ only purpose had been to eliminate the Internal Revenue Service’s role in determining which parent was entitled to the dependency exemptions. Further, the court found that in order to effectuate the allocation, a trial court had to be able to order the custodial parent to sign a declaration that he or she would not claim the exemptions.

Having reviewed section 152(e) and Einhorn, we agree that a State court’s allocation of tax exemptions does not interfere with the legislative intent behind the amendment. Therefore, we find that a State court is not preempted by section 152(e) from allocating the tax exemptions to the noncustodial parent. We also concur with the Einhorn court’s finding that a trial court has the authority to order the custodial parent to sign a declaration in compliance with the IRS declaration form (IRS Form 8332) to effectuate waiver of the exemption.

The judgment of the circuit court of La Salle County is affirmed.

Affirmed.

HEIPLE and SCOTT, JJ., concur.