author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CRAIG A. JOSE, Defendant-Appellee.
    Fifth District
    No. 5—91—0800
    Opinion filed February 11,1993.

      Paul H. Hillis, Jr., State’s Attorney, of Salem (Norbert J. Goetten, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    David M. Foreman, of Crain, Cooksey, Veltman & Miller, Ltd., of Centraba, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

This appeal is a consolidation of two criminal cases brought against the defendant, Craig S. Jose, one in Marion County and one in Clinton County. The State brings the appeal from orders granting defendant’s motions to suppress evidence.

The defendant was charged in Marion County on June 4, 1991, with the offense of unlawful production of Cannabis sativa plants. He was charged in Clinton County on May 22, 1991, with the offense of unlawful possession of Cannabis sativa plants. Both prosecutions arose out of a single arrest of defendant while in possession of marijuana in Clinton County; defendant thereupon consented to a search of his home, located in Marion County, where it was found that he was growing marijuana. Defendant filed motions to suppress evidence in both counties. The motion to suppress was heard first in Marion County and granted. Subsequently, the circuit court of Clinton County granted defendant’s motion to suppress, based on principles of collateral estoppel and res judicata, the matter having been already litigated in Marion County. For reasons which follow, we affirm the suppression orders of the circuit courts of Marion and Clinton Counties.

We will present the facts and issues with respect to the Marion County order first. Defendant was charged by information filed June 4, 1991, with the offense of unlawful production of Cannabis sativa plants in that, on May 22, 1991, defendant knowingly and unlawfully produced more than 50 Cannabis sativa plants at his residence in Marion County, Illinois. On June 26, 1991, defendant filed a motion to suppress evidence for the reason that a search of defendant’s vehicle was made without probable cause or consent of defendant, at a time when defendant was not under arrest. Incriminating evidence was obtained as a result of this illegal search, including a written statement of defendant and evidence found in a subsequent search of defendant’s home.

A hearing, which was combined with the preliminary hearing, was held on the motion on July 22, 1991. Michael S. Dali, a Clinton County deputy sheriff, testified that in the early morning of April 22, 1991, he had occasion to make a traffic stop of defendant’s vehicle in Clinton County. The vehicle had no rear license plate light, and Dali suspected that the driver was intoxicated.

Immediately upon being stopped, defendant exited his vehicle through the passenger side door and approached Dali. Dali requested defendant to remain by his squad car, and Dali approached defendant’s vehicle, looking inside with a flashlight. Dali observed in the back seat two brown paper bags or grocery sacks, one of which had an opening in it. Dali could see inside the bag with his flashlight. Dali observed inside the bag the top of what appeared to be Cannabis sativa plants. Through his training and experience, Dali is able to recognize and identify cannabis plants. Dali returned to defendant and placed him under arrest. Upon frisk searching defendant, Dali found on his person a wooden “one-hitter” box used for smoking cannabis. It had some green plant material in it. Also found on defendant’s person was a silver-colored box containing pills. Dali then returned to defendant’s car, removed the paper sacks and found several cannabis plants in both bags. Dali returned to defendant and advised him of his constitutional rights pursuant to Miranda. Dali asked defendant if he had any other cannabis plants in the area or at his residence. Defendant responded affirmatively to both questions. Dali then called for assistance.

Captain Hummert and Sergeant Kreke of the Clinton County sheriff’s department arrived on the scene. While waiting for them, Dali inventoried defendant’s vehicle and requested a tow truck. When Kreke arrived, he asked defendant to consent to a search of his residence. Defendant consented, and the officers proceeded to his home and conducted a search. Recovered from defendant’s vehicle were 29 cannabis plants. At all times, defendant was cooperative and did not appear to be under the influence of alcohol or drugs. Defendant appeared to understand everything that was said to him. No force, threat or coercion was applied against him.

Defendant’s residence is located in Marion County. Found in the home were 90 cannabis plants under a “Gro light.” All of the cannabis plants seized from the vehicle and residence were held in the evidence room at the Clinton County sheriff’s office. One of the plants found at the residence was 18 to 24 inches tall; the rest were 8 to 12 inches tall. They were all in pots.

On cross-examination, the first question asked of Dali was whether he had brought the grocery sacks taken from defendant’s vehicle with him to court. Dali responded that he had not. Dali testified that there was a slit open in the top of the sack through which he could see. The top of the plant was inside the sack but parallel with the top of the bag. The sacks were stapled shut. When Dali initially looked inside defendant’s vehicle, defendant was not under arrest. Dali did not reach or lean inside the vehicle until after defendant was placed under arrest. When Dali initially looked inside the vehicle, he was looking down, and the top of the sack was probably three to four feet from his head. His flashlight is very strong.

On redirect examination, Dali testified that the bag was nearly within arm’s reach when he initially looked inside defendant’s vehicle with his flashlight. The bags were haphazardly stapled across the tops. The tops of the bags were not folded over in any way. When Dali opened the bags following defendant’s arrest, he just popped them open.

The State’s next witness was James Hummert, a Clinton County deputy sheriff. He assisted Dali in the arrest of defendant and search of defendant’s residence. His testimony was substantially consistent with Dali’s.

Mike Kreke of the Clinton County sheriff’s department testified that he also assisted Dali in the arrest of defendant and search of defendant’s residence. His testimony was consistent with that of Dali and Hummert. Kreke is in charge of the evidence room at the Clinton County sheriff’s department and accordingly took custody of the evidence seized from defendant. He described the bags taken from defendant’s vehicle as ordinary grocery bags. Kreke took a written statement from defendant in which defendant stated that the cannabis plants belonged to him, that he used them only for his personal consumption and that his wife and daughter had nothing to do with them. Defendant had been advised of his Miranda rights and agreed to waive them. The State rested.

Defendant testified in his own behalf. He is 36 years of age and is employed as an assistant manager at Domino’s Pizza. Defendant worked the evening of May 21, 1991, from 4:30 to 12:30. Prior to going to work, he placed two brown paper sacks in his car on the back floorboard against the back of the front seat. One sack was on the passenger side and one was on the driver’s side. Inside the sacks were peat pots with cannabis plants in them. Because the sacks were going to be sitting in his car while he was at work, defendant stapled them shut so no one could see in them. He pinched the sacks shut and put staples across the top of them.

It was after defendant got off work at 12:30 that he was arrested. Defendant testified that, after exiting his vehicle and giving Dali his driver’s license, Dali approached defendant’s vehicle. The driver’s side window was down on the front door. Defendant testified that “[i]t looked like [Dali] pushed the seat towards the front and bent over into my car.” The top portion of Dali’s body was inside defendant’s car. Dali then turned around and stated that defendant had marijuana in his car. Dali had his head inside the car for 30 seconds or more. Defendant could not see where Dali’s hands were during this time. Defendant consented to the search of his home and made incriminating statements because he had never been arrested before and he was scared.

On cross-examination, defendant testified that Dali reached inside defendant’s vehicle with his flashlight. Defendant explained how he stapled the bags shut. He tried to fold in the creases on the ends of the bags and then he pinched them together and stapled them across the top. He did not fold the tops of the bags over. He put 10 to 12 staples in each bag. The tops of the bags were not full. There was a total of 13 two-inch peat pots containing 29 plants. The defendant rested.

At this point, the State asked for a continuance to obtain a rebuttal witness who was not available at that time. Defendant did not object to a continuance, and the motion was granted. Defense counsel then indicated that there was a question he had forgotten to ask the defendant in testimony, and counsel asked permission to recall defendant to the stand. The State did not object and defendant was recalled to the stand. He testified that when he got off work and went to his car, he looked at the sacks in the back and double-checked to make sure nobody could see in them. Defendant could not see inside the sacks. He opened the door prior to looking, and the car was illuminated by the interior light. The cause was recessed.

Hearing on defendant’s motion to suppress was resumed on July 30, 1991. Todd A. Hintz, a Clinton County deputy sheriff, testified in rebuttal for the State that on May 22, 1991, he was riding with Deputy Dali when defendant was stopped and arrested. Defendant was stopped because his vehicle had no rear license plate light and he appeared to be intoxicated. Defendant’s vehicle had driven off the shoulder numerous times and was weaving. Immediately after being stopped, defendant exited his vehicle on the passenger side. Defendant explained that the driver side door was broken. Hintz remained with defendant near the squad car while Dali approached defendant’s vehicle. Defendant was not yet under arrest. He was not under the influence of alcohol. After looking into defendant’s vehicle, Dali returned to the squad car and advised defendant that he was under arrest. Dali then returned to defendant’s vehicle and retrieved the two brown grocery bags. The bags were partially stapled shut. The middle part of the bag was stapled shut with a few staples and one could see inside the ends of the bag.

On cross-examination, Hintz testified that both bags were stapled in the middle and one could see in the opened ends of both bags. However, one bag could be seen into more easily than the other. Hintz did not think Dali went inside the vehicle at all on his initial approach to defendant’s vehicle. At most, Dali’s head may have slightly entered the car, but his flashlight was outside the car. Hintz did not observe Dali continuously as he was also watching the defendant. This concluded the evidence.

The State presented argument. Defendant then presented argument and therein conceded that defendant was lawfully stopped by Deputy Dali and that Dali had the right to shine his flashlight into defendant’s vehicle to observe what was in plain view. However, defendant argued that the evidence also indicated that Dali opened one of the closed bags slightly and that, because Hintz’s testimony regarding the closure of the bags differed so drastically from that of Dali, Dali’s credibility was in question. Defendant argued that the State had not met its burden of establishing that the search was lawful.

The court indicated that it was going to take the matter under advisement and granted leave to the parties to submit additional authority if desired. The court stated:

“[I am] somewhat concerned by the State’s or the defendant’s failure to require the production of these bags. It seems to me that there should be some physical manifestation of the manner in which these bags were stapled and that the best evidence as to how they were stapled is not before the Court and the failure to produce that, at this point I am not sure on whom if anybody on either side that failure to produce may impact. At any rate, I am quite concerned if there is a question about how these bags were stapled you should be able to look at the bags and determine that.”-

The State then made a motion to supplement the record with the paper bags and indicated that, if defendant required foundation, it could produce a witness. The court stated that the evidence was closed at this point, but that if counsel could agree on some way to present the bags to the court, the court would consider them. However, the court would not permit additional evidence over defendant’s objection. The court stated that the evidence was closed, and in the absence of a written motion to reopen the evidence, the court would make its ruling on the evidence before it.

No written motion to reopen the evidence was filed, and on September 6, 1991, the court entered a written order on defendant’s motion to suppress evidence. The order found that defendant had standing to bring the motion; that the search was without a warrant and therefore presumptively unreasonable; that the initial stop of defendant for a traffic violation was lawful; that if Dali visually inspected the inside of defendant’s vehicle and could see through an opening in one of the sacks, as Dali testified, the subsequent search was lawful, but if Dali reached into the vehicle and opened the bags to see in them, as defendant testified, it was an illegal search conducted without probable cause; that the grocery sacks were not offered into evidence; that the credibility issue as to whether the officer could have observed what was inside the bags without opening them was resolved in favor of defendant; and that the State had failed to sustain its burden of proof that the search and seizure was lawful. Accordingly, the defendant’s motion to suppress all evidence and statements obtained as a result of the illegal search was granted.

On October 2, 1991, the State filed a motion to reconsider or in the alternative to reopen the evidence on the court’s suppression order. The motion sought to reopen the evidence to introduce into evidence the grocery bags in question. At the hearing on the motion, held October 29, 1991, the State made an offer of proof of the evidence it would present should its motion to reopen the evidence be granted. Deputy Dali testified to the identification of the grocery bags in question and their chain of custody. Dali testified that when he initially observed the bags they were stapled shut. Dali pulled them open. At the time of hearing, the plants inside the bags had died and had wilted over so that they were not as tall as at the time the bags were initially seized. At the time the bags were initially opened, the plants were all in an upright position. Dali demonstrated for the court the manner in which the bags had been stapled shut when initially seen. Dali held each end of the bag at approximately two inches from the end and used his left index finger to hold the center closed. This left gaps in the open ends of the bag. The original staple holes were still visible in the bag.

On cross-examination, Dali testified that the bags had been in the custody of the Clinton County sheriff’s department since they were originally seized. Dali had no reason to believe that the bags were not available to be produced at the hearing on defendant’s motion to suppress.

Deputy Kreke testified that, as evidence custodian for the Clinton County sheriff’s department, he received the bags in question from Deputy Dali. He secured the bags in the department evidence room. The bags are in substantially the same condition as when Kreke received them.

On cross-examination, Kreke testified that the bags have been continuously in the possession of the Clinton County sheriff’s department since they were initially seized. They have at all times been available to be produced in court. This concluded the offer of proof.

Defendant objected to the motion to reopen evidence. The State argued that, although it would have been possible for it to introduce the bags into evidence at the initial hearing on the motion to suppress, its failure to do so was not an attempt to conceal evidence. It was in the best interest of justice for the court to decide the motion based on all the evidence, and if the court considered this physical evidence, its ruling might well be different. However, the State acknowledged that whether to reopen the evidence was a decision within the sound discretion of the court.

Defendant argued that the State should not be allowed to withhold important evidence until the defendant has concluded his case and then seek to present that evidence. The State had presented no reason why it had failed to produce the bags at the original hearing on the motion to suppress. In the instant case, the State waited for an adverse ruling before seeking to present the bags to the court.

The State responded that defendant could not claim surprise over the grocery bags as his counsel had examined them prior to the hearing on the motion to suppress. The State also acknowledged that its failure to produce the bags at hearing was mere oversight. The State asked that the court consider and examine the bags to determine if Deputy Dali’s testimony was consistent with the physical evidence for purposes of assessing his credibility.

The court found that it would have been preferable to have had the physical evidence before it prior to its ruling on the motion. The court acknowledged that had the physical evidence corroborated Dali’s testimony at the hearing, the court’s ruling might have been different. However, the court also pointed out that the hearing had been continued over two dates. The court stated:

“[TJhere are other proceedings involved in this matter that turned, at least in part, on my ruling, and I believe that if I were to grant this Motion To Re-open, and if I were then thereafter to permit the bags to be introduced into evidence, in the interest of fairness and justice, I would probably have to set aside everything aside [sic], go back to square one and start the whole hearing over. I’m not going to do that.”

The court found that the Sate had been given ample opportunity to introduce the evidence and denied the motion to reopen the evidence. The court further acknowledged that it had decided the credibility issue in part based upon the State’s failure to produce the bags. The failure to produce the bags was held against the State. The court made no finding as to whether the bags would have corroborated Deputy Dali’s testimony or the testimony of the defendant.

The State argues on appeal that the trial court abused its discretion in denying its motion to reopen the evidence to present physical evidence on the issue of whether Deputy Dali could have seen cannabis plants in the defendant’s vehicle by visual inspection alone. The decision whether to grant a motion to reopen a case for further evidence is within the sound discretion of the trial court, and its decision will not be disturbed absent a clear abuse of that discretion. The burden is on the party seeking to reopen the case to show sufficient reason therefor. (People v. Shore (1984), 129 Ill. App. 3d 443, 458, 472 N.E.2d 512, 521-22.) While the court has discretion to reopen the evidence in the interest of fairness and justice, the integrity of the judicial system demands that such discretion be exercised only where necessary. People v. Housby (1975), 26 Ill. App. 3d 92, 98, 324 N.E.2d 465, 468.

We find no abuse of discretion in the trial court’s denial of the State’s motion to reopen the evidence in the instant case where the State did not seek to reopen the evidence until after receiving an adverse ruling, the evidence sought to be admitted was not newly discovered and had been available at the original hearing, and the State presented no reason for its failure to present the evidence at the original hearing other than its own “oversight” or lack of diligence. It has been held that where a defendant fails to exercise due diligence to obtain the testimony of a witness, the court may properly refuse to permit reopening of the case for that testimony. (People v. Boyce (1977), 51 Ill. App. 3d 549, 561, 366 N.E.2d 914, 923.) We see no reason why the same rule should not apply to the State.

We think the instant case is similar to People v. Henry (1982), 103 Ill. App. 3d 1143, 1148-49, 432 N.E.2d 359, 362-63, in which the defendant filed a post-trial motion to reopen the evidence so that he could introduce a chart demonstrating the size and spatial relationship of the apartment where the offense allegedly was committed and present additional testimony from two of the State’s witnesses. The appellate court affirmed the trial court’s denial of the motion, pointing out that the defendant had had ample opportunity at trial to elicit the additional testimony from the two witnesses during his cross-examination of them and to introduce the chart. The additional evidence which defendant sought to introduce was clearly not newly discovered. Furthermore, the appellate court found, the evidence was merely cumulative in that it would have provided further explanation and detail to testimony already elicited.

Similarly, in the instant case, the State had ample opportunity to introduce the grocery sacks into evidence. At the initial hearing on defendant’s motion to suppress, the first question asked of the State’s main witness, Deputy Dali, was whether he had brought the grocery sacks to court. The State’s case in chief was not concluded that day but was continued for several days so that the State could present its final witness. Even on the second day of the hearing, the State failed to produce the grocery sacks. At the conclusion of the hearing on the motion to suppress, the court advised the State that it would consider a written motion to reopen the evidence to introduce the grocery sacks and expressed its desire to have those sacks in evidence. The State still did not file a motion to reopen the evidence until after the court entered its written order on the motion to suppress. The State does not direct us to any case in which a motion to reopen the evidence was allowed after verdict or entry of judgment.

Furthermore, the grocery sacks were not newly discovered evidence but had been in the custody of the State since the defendant’s arrest. Deputy Kreke, the evidence custodian for the Clinton County sheriff’s department, testified that the sacks were available to the State on the date of the hearing. The State offered no explanation for its failure to produce the sacks or its failure to file a motion to reopen the evidence prior to entry of the order, other than oversight and lack of diligence.

We think that, in entering its order granting defendant’s motion to suppress, the trial court drew a reasonable inference from the State’s failure to produce the sacks that the sacks would not have corroborated Dali’s testimony, thus damaging Dali’s credibility. This is not a case where the State was improperly denied the right to present evidence answering or contradicting new affirmative matter raised by defendant. We do not think the State can, through neglect or lack of diligence, fail to produce evidence which it contends supports its case and then, after receiving an adverse ruling, seek to introduce that evidence and have the court reconsider its ruling.

The State argues that the trial court’s comments indicate that it was under the mistaken impression that, should it grant the State’s motion to reopen the evidence, it would have to “go back to square one” and conduct a full retrial of the motion to suppress. We do not read the trial court’s comments in this way. We believe that the trial court simply meant that, in the interest of fairness and justice, the defendant would have to be accorded an opportunity to rebut the additional evidence, and any proceedings following, and dependent upon, the entry of the suppression order would have been nullified. The court was aware of the Clinton County proceeding, the result of which turned on the result reached by the Marion County court. The trial court’s exercise of its discretion was not clouded by a mistaken belief that an entirely new hearing on the motion to suppress would be required.

Because we find that the trial court did not abuse its discretion in denying the State’s motion to reopen the evidence, and because the State does not otherwise challenge the suppression order, we affirm the order of the circuit court of Marion County granting defendant’s motion to suppress evidence.

We turn now to the Clinton County proceeding. Defendant was charged by information filed May 22, 1991, with the offense of unlawful possession of Cannabis sativa plants. Defendant filed his motion to suppress evidence on August 28, 1991, alleging that the search was conducted without consent or probable cause and prior to defendant’s arrest. On September 18, 1991, the parties appeared before the court, and defendant made an oral motion that the court grant his motion to suppress for the reason that it was bound by the order of the Marion County circuit court. On September 25, 1991, the circuit court of Clinton County entered its order granting defendant’s motion to suppress evidence for the reason that the ultimate issue of fact had been thoroughly and completely litigated in the Marion County proceeding, that there existed neither additional evidence nor peculiar circumstances to warrant further hearing, and therefore principles of res judicata and collateral estoppel applied to bar further litigation of the issue. On October 23, 1991, the State filed a motion to reconsider the court’s ruling alleging that a motion to reconsider was pending in Marion County and that the State had new and additional evidence to present which had not yet been presented to the Marion County court. A hearing was held on this motion on December 6, 1991. At the time of this hearing, the motion to reconsider filed in Marion County had been denied, and the Clinton County court was so advised. The motion to reconsider filed in Clinton County was denied.

The State concedes in its oral argument before this court that if we affirm the order of the circuit court of Marion County suppressing the evidence, the Clinton County order is correct in that any further litigation of the issue is barred by collateral estoppel. We agree. Accordingly, we affirm the order of the circuit court of Clinton County granting defendant’s motion to suppress evidence.

For the foregoing reasons, the orders of the circuit court of Marion County and the circuit court of Clinton County granting defendant’s motions to suppress evidence are affirmed.

Affirmed.

CHAPMAN, P.J., and LEWIS, J., concur.


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN PORTER, Defendant-Appellant.
    Third District
    No. 3—91—0722
    Opinion filed January 28,1993.
    Rehearing denied March 23,1993.
    Kenneth A. Grnacek, of Joliet, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet, and Robert J. Morrow, of Early, Collison, Tousey, Regan, Wlodek & Morrow, of Elgin (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Marvin Porter, pleaded guilty on July 30, 1990, to unlawful possession of heroin with intent to deliver and was sentenced to 30 months’ probation. Subsequently, the defendant was charged with committing the offense of unlawful delivery of cocaine within 1,000 feet of school property. The charge alleged that the' defendant committed the offense on October 8, 1990. A petition to revoke probation was also filed. The State requested that the jury trial and the hearing on the petition to revoke probation be heard at the same time. Defense counsel did not object.

Following the trial, when the jury retired to deliberate, the trial judge indicated that he would rule on the petition to revoke after the jury delivered its verdict. The jury subsequently returned a verdict of not guilty for the offense of unlawful delivery of a controlled substance within 1,000 feet of school property. After the jury was excused, the trial judge found that the State had proven the allegations in the petition by a preponderance of the evidence and ordered the defendant’s probation revoked.

On appeal, the defendant argues that his trial counsel was ineffective for failing to object to the consolidation of the jury trial with the hearing on the petition to revoke probation. We agree.

Defense counsel is ineffective where his performance falls below an objective standard of reasonableness and there is a reasonable probability that, but for his performance, the result would have been different. (People v. Stewart (1991), 217 Ill. App. 3d 373, 577 N.E.2d 175.) Collateral estoppel stands for the principle that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. (People v. Grayson (1974), 58 Ill. 2d 260, 319 N.E.2d 43; People v. Kondo (1977), 51 Ill. App. 3d 874, 366 N.E.2d 990.) The doctrine applies in criminal proceedings to protect a defendant who has been acquitted from having to run the gauntlet a second time. Ashe v. Swenson (1970), 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189.

In People v. Grayson (1974), 58 Ill. 2d 260, 319 N.E.2d 43, the Illinois Supreme Court specifically held that principles of collateral estoppel bar the relitigation in a probation revocation hearing of an issue that has been litigated in a previous trial. In so deciding, the Grayson court noted the difference in the burdens of proof in the two proceedings: probation violations need be proved only by a preponderance of the evidence, while criminal offenses must be proved beyond a reasonable doubt. However, the Grayson court reasoned that this difference in the burden of proof could not permit relitigation of the identical issue on the same evidence since in each case the defendant is equally subject to the loss of his liberty.

In In re N.R.L. (1990), 200 Ill. App. 3d 820, 558 N.E.2d 538, a consolidated hearing was held on both a petition to adjudicate the minor delinquent and a petition to revoke his probation. Both petitions were based on the minor’s commission of a battery. The trial judge, who was the trier of fact for both petitions, found that for purposes of the delinquency adjudication, the State had failed to prove beyond a reasonable doubt that the minor had committed the battery. However, the court found that for purposes of the probation revocation, the State had proved by a preponderance of the evidence that the minor had committed the battery.

On appeal, the minor argued that the trial court’s determination had violated the principle of collateral estoppel. The Second District Appellate Court held that the single hearing on both petitions did not violate the principle of collateral estoppel since the defendant had not objected to the consolidated hearing and there was no relitigation of the issues in a second proceeding. In so holding, the court specifically noted that if the two petitions had been litigated in separate proceedings, the results might have been different. The court then noted that under the rule of Grayson, if the petition to adjudicate had been tried first, and the minor had been acquitted, the State would have been collaterally estopped from proceeding on the petition to revoke.

We find the reasoning of In re N.R.L. and Grayson applicable to the instant case. Here, the jury and the trial court heard undisputed testimony concerning the location of Eliza Kelly School in Joliet, Illinois, and the location of the alleged drug transaction. They also heard undercover police officer James Wetstein testify that the defendant had delivered cocaine to him and an unnamed undercover informant while they were parked in a pickup truck. The defendant testified that he did have a brief conversation with the confidential informant, whom he knew, but denied delivering any drugs to him or to Wet-stein.

The jury ultimately returned a verdict of not guilty. Therefore, the jury must have determined that the defendant did not deliver the cocaine, since that was the only material issue of fact in dispute. The trial judge, however, determined that the defendant did deliver the cocaine. The State’s arguments concerning witness credibility notwithstanding, we find that this was a differing determination on the same issue of ultimate fact. Therefore, pursuant to the rule announced in Grayson, had the instant defendant been acquitted of the underlying offense first, the proceeding concerning the probation revocation would have been barred by the principle of collateral estoppel. Accordingly, we find that defense counsel was ineffective, because had he objected to the consolidation of the two proceedings, there was a reasonable probability that the result would have been different. In so holding, we note that we are not persuaded by the State’s arguments that counsel's decision was a matter of trial strategy.

We note also that our determination of this issue makes it unnecessary for us to address the defendant’s second contention on appeal concerning the calculation of his sentence credit for time served.

For the foregoing reasons, we reverse the order of the trial court revoking the defendant’s probation and sentencing him to four years in the Department of Corrections.

Reversed.

McCUSKEY, P.J., and BARRY, J., concur.


author: JUSTICE McCULLOUGH

text:
    DELORES F. BIRCK et al., Plaintiffs-Appellants, v. THE CITY OF QUINCY, Defendant-Appellee.
    Fourth District
    No. 4—92—0515
    Opinion filed February 11,1993.

      David J. Kupets, of Becker, Baizer & Rapoport, of Highland Park, for appellants.
    James L. Palmer, of Scholz, Staff & Palmer, of Quincy, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiffs Delores E Birck and Richard Birck appeal from an order of the circuit court of Adams County granting summary judgment in favor of defendant City of Quincy. Plaintiffs sought to recover damages allegedly caused by defendant when Delores tripped on a sidewalk where there was a difference in the levels of two concrete slabs. It was alleged defendant was negligent (1) for failing to repair an unreasonably unsafe condition of which defendant knew or should have known, (2) by failing to provide a reasonably safe area of travel across property within its control, and (3) improperly maintaining an uneven condition in the sidewalk and permitting the condition to exist where defendant knew or should have known that it existed and was unreasonably dangerous. In count II of the amended complaint, Richard sued for loss of consortium.

On appeal, the only issue raised is whether there exists a genuine issue of material fact such that the entry of summary judgment was erroneous. There seems, however, to be very little dispute as to the facts, for the purpose of this appeal, and it is the trial court’s application of the law to those facts to which plaintiffs most strongly object. Plaintiffs argue that the trial court erred by finding that the unevenness in the level of the concrete slab was so slight that it would not support an action under the law of Illinois and that, as a matter of law, Delores’ own negligence was a contributory fault of her injuries exceeding 50% of the proximate cause and barring recovery by plaintiffs. Plaintiffs also maintain there is a question of fact as to whether defendant had constructive notice of the condition. We affirm.

A summary judgment may be granted pursuant to section 2— 1005(c) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c)) if the pleadings, affidavits, exhibits, depositions, and admissions are liberally construed in favor of the nonmovant and still demonstrate that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 357-59, 543 N.E.2d 1304, 1307-08.) The trial court may draw inferences from undisputed facts, but summary judgment should be denied where reasonable persons may draw divergent inferences from undisputed facts. (Pyne, 129 Ill. 2d at 358, 543 N.E.2d at 1308.) However, summary judgment may be granted if all the evidence is before the court and, upon such evidence, the trial court would be required to direct a verdict. (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500.) The entry of a summary judgment is not a matter resting in the trial court’s discretion. (Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824, 585 N.E.2d 1164, 1167.) Therefore, the propriety of granting a summary judgment is reviewed as a question of law with the reviewing court reconsidering the facts and the law related to the case in determining whether any genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law. (University of Illinois v. Continental Casualty Co. (1992), 234 Ill. App. 3d 340, 343, 599 N.E.2d 1338, 1341; Shull, 223 Ill. App. 3d at 824, 585 N.E.2d at 1167; O’Hara v. Holy Cross Hospital (1989), 185 Ill. App. 3d 694, 699, 542 N.E.2d 11, 14, aff’d (1990), 137 Ill. 2d 332, 561 N.E.2d 18.) Although plaintiffs are not required to prove their cases as if at trial in order to refute defendant’s motion for summary judgment, plaintiffs must provide some factual basis to support their claims and may not resist the motion for summary judgment by arguing that defendant must negate their cases. West v. Deere & Co. (1991), 145 Ill. 2d 177, 182, 582 N.E.2d 685, 687; Webber v. Armstrong World Industries, Inc. (1992), 235 Ill. App. 3d 790, 795, 601 N.E.2d 286, 290; Gresham v. Kirby (1992), 229 Ill. App. 3d 952, 954, 595 N.E.2d 201, 203.

The sidewalk in question is located on the south side of Maine Street between Emory Drive and Woodlawn Street, in a residential area. In ruling on the motion for summary judgment, the trial court considered the evidence in.the light most favorable to plaintiffs and found the discrepancy between the levels in the sections of the sidewalk to be l7/s inches.

The Illinois Supreme Court has stated:

“A municipal corporation is not bound to keep its streets and sidewalks absolutely safe for persons passing over any part of them, its duty being to exercise ordinary care to keep them reasonably safe for persons who exercise ordinary care. (Brennan v. City of Streator, 256 Ill. 468; Boender v. City of Harvey, 251 id. 228; Kohlhof v. City of Chicago, 192 id. 249.) Municipal corporations, not being insurers against accidents, are not liable for every accident occurring within their limits from defects in the streets, but the defects must be such as could have been foreseen and avoided by ordinary care and prudence on the part of the municipalities. (Boender v. City of Harvey, supra; 43 Corpus Juris, (Municipal Corporations,) sec. 1785(4).) Sidewalks are intended for the use of pedestrians and the duty of a city is to build and maintain them in a reasonably safe condition for the purpose for which they are intended.” (Storen v. City of Chicago (1940), 373 Ill. 530, 534-35, 27 N.E.2d 53, 55.)

Slight inequalities in the levels of sidewalks and other minor defects frequently found in traversed areas are not actionable unless the defect in the sidewalk is such that a reasonably prudent person should anticipate some danger to persons walking on the sidewalk. (Warner v. City of Chicago (1978), 72 Ill. 2d 100, 103-04, 378 N.E.2d 502, 503; Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601, 604-05, 145 N.E.2d 105, 106-07.) Both the Warner and Arvidson cases, and others which have discussed similar issues, make it clear there is no mathematical standard which can be used to determine when a defect is so minor as to not be actionable. (Warner, 72 Ill. 2d at 104, 378 N.E.2d at 503; Arvidson, 11 Ill. 2d at 604, 145 N.E.2d at 106.) The surrounding circumstances, particularly whether the sidewalk is located in a commercial or residential neighborhood and the anticipated volume of traffic on the sidewalk, are to be taken into consideration.

A one-fourth-inch crack, in the absence of other aggravating circumstances, is too slight to be actionable as a matter of law. (Gleason v. City of Chicago (1989), 190 Ill. App. 3d 1068, 1069-72, 547 N.E.2d 518, 519-20.) The stumbling point for most of these cases seems to occur as the defect approaches two inches.

In Arvidson, the cause was properly submitted to the jury when the sidewalk was located in a business district and the defective slab of concrete slanted downward toward the street so that it was about one inch below the adjoining slab at one end and two inches below the adjoining slab at the other end nearer the street. Arvidson, 11 Ill. 2d at 609, 145 N.E.2d at 109.

Warner involved a sidewalk in a residential area. In that case, the Illinois Supreme Court suggested that had the evidence established that the defect, a difference in the level of the adjoining slabs, was lVs-inch maximum height, then no action would lie. However, since the jury could reasonably find that the defect was two inches, as defendant testified, and the defect was obscured by one-half inch of recently fallen snow, the evidence presented a question for the jury. Warner, 72 Ill. 2d at 104-05, 378 N.E.2d at 503-04.

In his dissent to Warner, Justice Ryan observed that the size of the defect could change with the temperature, with the seasons, and from year to year, and it would be a virtually impossible burden to place on a municipality to inspect and repair hundreds of miles of sidewalks. (Warner, 72 Ill. 2d at 111-12, 378 N.E.2d at 507 (Ryan, J., dissenting).) Common sense would dictate that the economic burden placed on a municipality for such an undertaking would be significant. Recently, the Illinois Supreme Court has discussed the factor of foreseeability in the determination of the existence of a duty. In Hutchings v. Bauer (1992), 149 Ill. 2d 568, 570-71, 599 N.E.2d 934, 935, the supreme court stated:

“The trial court granted summary judgment to defendants. On appeal, the appellate court reversed the trial court, concluding that ‘it was reasonably foreseeable to defendants under the present facts that plaintiff would deviate from the road as he did in the normal incident of travel.’ (212 Ill. App. 3d 172, 179.) The issue in this case, however, is not foreseeability. The issue is duty. In other words, whether defendants, by erecting the barrier, breached a duty which they owed to plaintiff. We conclude that no duty was breached. Accordingly, we reverse the appellate court and reinstate the judgment of the trial court.
As this court noted in Lamkin v. Towner (1990), 138 Ill. 2d 510, 522-23, while the foreseeability of an injury is an important factor in determining whether a duty exists, the existence of a legal duty is not to be bottomed on the factor of foreseeability alone. Instead, we must balance the foreseeability of the harm against the burdens and consequences that would result from the recognition of a duty. (See also Cunis v. Brennan (1974), 56 Ill. 2d 372, 375.)”

Several cases are relied on by plaintiffs to establish that the defect in this case should not be determined to be so minor as to not be actionable. In all of these cited cases, the issue was not removed from the jury.

In Martinkovic v. City of Aurora (1986), 150 Ill. App. 3d 589, 593-94, 502 N.E.2d 61, 63-64, the discrepancy in the level of adjoining slabs of concrete was, at most, slightly greater than l3/s inches, but the city had an express policy of repairing all defects exceeding one inch in length or depth. The facts in this case do not disclose such a policy, although the trial court did find that the affidavits submitted showed the defendant made an effort to keep abreast of defects in the sidewalk. In Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15, 20-21, 405 N.E.2d 1383, 1387, there was a hole described as IVz inches deep and V-k feet in diameter located at a driveway to a gas station. The case at bar does not involve such a hole. In Baker v. City of Granite City (1979), 75 Ill. App. 3d 157, 159-60, 394 N.E.2d 33, 33-35, the hole or crack in which plaintiff caught her heel was described by her as four inches wide and Vk to 2 inches deep and by the superintendent of streets as one to three inches wide and V-k inches deep. The court found that there was a conspicuous crack in a sidewalk near a busy intersection in the commercial district, but noted that this defect might not be actionable if it were located in a residential area. In Hess v. City of Chicago (1981), 101 Ill. App. 3d 426, 427, 428 N.E.2d 581, 582-83, the crack in a sidewalk located in a predominantly commercial block was described by plaintiff as having an elevation of about Vk to 2 inches.

Finally, in West v. City of Hoopeston (1986), 146 Ill. App. 3d 538, 497 N.E.2d 170, this court considered a case involving a concrete and asphalt sidewalk which was approximately 20 to 30 years old, uneven in places, and which was located near a car wash. The elevation between the slabs varied from one-fourth to nine-sixteenths of an inch and there was a two-inch gap between the slabs instead of the usual one-fourth-of-an-inch gap. Inside the gap were loose, pebble-like particles, some of which could be loosened by hand. The defendant argued that, since the discrepancy in level was, at most, only nine-sixteenths of an inch and where plaintiff fell it was only one-fourth of an inch, the defect was not actionable as a matter of law. This court agreed with the plaintiff, however, that the width as well as the depth of the area must be considered. While the defect in level was deemed slight, this court determined that a reasonable person could anticipate a danger to persons walking on the sidewalk as a result of the broken area between the slabs. (West, 146 Ill. App. 3d at 541-43, 497 N.E.2d at 172-74.) In the case at bar, the facts do not include a gap with loose pebbles in addition to the discrepancy in level of the slabs of concrete. There was also evidence in West that, depending on which witness the jury believed, from 15 to 50 people used the sidewalk on a daily basis. (West, 146 Ill. App. 3d at 540-41, 497 N.E.2d at 172-73.) Neither party in this case has called this court’s attention to any fact in the record, other than the residential character of the neighborhood, which would suggest the volume of traffic over and upon the subject sidewalk, and a review of the record has not disclosed any such fact.

After balancing the burden on the defendant to inspect or repair many miles of residential sidewalk with the foreseeability of harm to result from the defect described in the case at bar, we agree with the trial court that the defect is too minor to be actionable, as a matter of law. In light of this determination, this court need not consider the remaining issues raised by plaintiffs.

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

Affirmed.

LUND and GREEN, JJ., concur.


text:
    VIRGINIA LIMER, as Independent Ex’r of the Estate of James Limer, Deceased, Plaintiff-Appellant, v. MARY JANE LYMAN, as Independent Ex’r of the Estate of Homer C. Lyman, Deceased, Defendant-Appellee.
    Fourth District
    No. 4—92—0517
    Opinion filed February 11,1993.

      James Walker, Ltd., of Bloomington (James Wylder, of counsel), for appellant.
    Livingston, Barger, Brandt & Schroeder, of Bloomington (Christopher L. Nyweide, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This is an appeal by plaintiff Virginia Limer, as independent executor of the estate of James Limer, deceased, from a summary judgment of the circuit court of McLean County dismissing plaintiff’s claim for medical malpractice. The trial court based its dismissal upon section 13 — 212(a) of the limitations article of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 212(a)). Plaintiff contends her action is not barred by the statute of limitations because the action was filed within the one-year period provided under section 13 — 209 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 209). We agree and, therefore, reverse and remand.

In August 1985, James Limer filed an action alleging Dr. Homer Lyman negligently failed to diagnose Limer’s lung cancer. Limer alleged that the correct cancer diagnosis was subsequently made on September 13, 1983. The action was brought within two years of discovery and presumably within four years of the failure to discover. Limer voluntarily dismissed under section 13 — 217 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217) on March 5, 1987, and died on May 18, 1987. Dr. Lyman died in December 1987. The present action was filed on May 17,1988.

Section 13 — 217 of the Code allows for voluntary dismissal of a pending civil action, with the right to refile within one year even though the statute of limitations had run after the original filing. Section 13 — 209 of the Code at the time relevant to this case provided:

“Death of party. If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his or her representatives before the expiration of that time, or within one year from his or her death whichever date is the later. If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, an action may be commenced against his or her executors or administrators after the expiration of the time limited for the commencement of the action, and within 6 months after the issuing of letters of office.” Ill. Rev. Stat. 1985, ch. 110, par. 13-209.

The circuit court dismissed the action based upon the theory that section 13 — 217 of the Code prohibits further extension of limitations by other statutory provisions, thus cancelling any effect of section 13 — 209. On appeal, this court reversed, stating, “We do not agree that section 13 — 217 prohibits further extension by other statutory provisions.” (Limer v. Lyman (1991), 220 Ill. App. 3d 1036, 1040, 581 N.E.2d 411, 414.) The opinion also stated, “The defense of the four-year repose provision of section 13 — 212(a) of the Code was not raised in the circuit court ***.” Limer, 220 Ill. App. 3d at 1040, 581 N.E.2d at 414.

After remand from the prior appeal, defendant sought summary judgment, arguing that section 13 — 212(a) of the Code barred the May 17, 1988, filing because it was beyond the four-year provision of section 13 — 212(a). The trial court agreed and held:

“The statute of repose contained in section 13 — 212(a) barred James Limer’s cause of action on September 13, 1985. He then had a lawsuit against Dr. Lyman on file. He dismissed it. Although not barred by the statute of limitations at the time of his death, his cause of action was barred by the statute of repose.”

Plaintiff now appeals the dismissal which followed the above holding.

Defendant cites Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 456, 557 N.E.2d 873, 876, for the following proposition: “[Section 13 — 212(a) of the Code] bars any action after the period of repose seeking damages against a physician or other enumerated health-care provider for injury or death arising out of patient care, whether at law or in equity.” In Hayes, the majority of the supreme court held that third-party complaints for contribution in medical malpractice actions must be filed within the four-year period provisions of section 13 — 212(a) of the Code.

Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 490 N.E.2d 665, is cited for the authority.that the legislature intended to terminate the possibility of liability after the four-year “absolute repose period.” In Mega, the court recognized:

“Under the general rule, in the wake of a statute shortening a limitations period or providing one where one did not exist previously, a plaintiff whose cause of action arose before that date will be allowed a reasonable period of time in which to bring his action.” Mega, 111 Ill. 2d at 420, 490 N.E.2d at 667.

However, the main thrust of the decision was holding the four-year period of section 13 — 212 of the Code (“repose provision”) constitutional, even where plaintiff had not discovered the negligence within the four-year period. Neither Hayes nor Mega dealt with the issue involving the effect of sections 13 — 217 and 13 — 209 of the Code on the “repose provision.”

The use of “repose” appears to separate the four-year provision of 13 — 212 of the Code from the two-year provision. The use of “repose” (when discussing the four-year period) and the use of “limitations” (when discussing the two-year period) would seem to indicate a difference between the two terms. However, Black’s Law Dictionary provides the following definition of “limitation”:

“Statutes of limitation are statutes of repose, and are such legislative enactments as prescribe the periods within which actions may be brought upon certain claims or within which certain rights may be enforced.” Black’s Law Dictionary 835 (5th ed. 1979).

We see no reason why the two-year limitations provision and the four-year repose provision should be given any different treatment than that of any other statute of limitations. The four-year provision is nothing more than a qualification that deals with the discovery provisions which arise from the nature of medical malpractice.

Sections 13 — 217 and 13 — 209 of the Code are enactments by the legislature which have been determined, right or wrong, to be necessary to avoid certain injustices. Unambiguous statutory terms which are not specifically defined must be given their plain and ordinary meaning. Hayes, 136 Ill. 2d at 455, 557 N.E.2d at 875.

We find nothing in the legislative history or enactment indicating the medical malpractice statute of limitations should not be subject to the provisions of sections 13 — 209 and 13 — 217 of the Code. The four-year provision in section 13 — 212(a) was adopted to avoid the problem of an indefinite limitations period based upon the discovery rule. Nothing indicates it was intended to avoid the remedial purposes of sections 13 — 217 and 13 — 209 of the Code.

In the previous appeal (Limer, 220 Ill. App. 3d at 1040-41, 581 N.E.2d at 414), our court determined section 13 — 209 could be used to extend the period of refiling allowed under section 13 — 217 of the Code. We now hold that section 13 — 217 refiling was not prohibited by the four-year provision of section 13 — 212(a) of the Code.

Reversed and remanded.

KNECHT and LUND, JJ, concur.


author: JUSTICE LUND

text:
    C. MICHAEL JONES et al., Plaintiffs-Appellants, v. CATERPILLAR TRACTOR COMPANY, Defendant-Appellee.
    Fourth District
    No. 4—92—0408
    Opinion filed February 4,1993.

      Stephen M. Tillery and Mark M. Silvermintz, both of Carr, Korein, Tillery, Kunin, Montroy, Glass & Bogard, of East St. Louis, and Ray Moss & Associates, P.C., of Clinton (Garry W. Bryan, of counsel), for appellants.
    J. Stephen Poor and John T. Murray, both of Seyfarth, Shaw, Fair-weather & Geraldson, of Chicago (Michael A. Warner, of counsel), and Theodore R. Johnson, of Caterpillar, Inc., of Peoria, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiffs filed a complaint against defendant Caterpillar Tractor Company (defendant), for allegedly violating certain terms of their apprenticeship agreements and for misrepresentation. The trial court granted summary judgment for defendant on the basis of Schacht v. Caterpillar, Inc. (1991), 213 Ill. App. 3d 169, 571 N.E.2d 1215, appeal denied (1991), 141 Ill. 2d 560, 580 N.E.2d 134, cert. denied (1992), 503 U.S. 926, 117 L. Ed. 2d 644, 112 S. Ct. 1506. Plaintiffs appeal this award of summary judgment. We affirm.

Plaintiffs are former and present employees of defendant. At various times between 1978 and 1982, each plaintiff entered into defendant’s apprentice training program. The terms of the apprenticeships were set forth in a standardized apprenticeship agreement entered into between each individual employee and defendant. Among its provisions, the agreement provided that the trainee would receive wages according to the current applicable schedule of rates contained in the collective-bargaining agreement, and defendant would teach and instruct plaintiffs for the entire training period specified in the agreement. Of particular importance to this case was an additional provision which provided:

“[Defendant] reserves the right to separate the TRAINEE from the Training Course for failure to maintain the standards of the course including but not limited to: unsatisfactory work, inability to acquire the necessary knowledge for graduation, improper conduct, indifferences to factory rules and regulations, insubordination, or any other justifiable reason.”

Upon completion of the training program, the agreement specified that defendant intended to offer the trainee job placement. The type of placement would depend upon the openings available, the ability and progress displayed during training, and the graduate’s desires.

In the early 1980’s, defendant experienced economic difficulties and in response laid off employees pursuant to the layoff and seniority provisions in the central collective-bargaining agreement and related provisions of the local agreements. Plaintiffs were terminated at various times from the training program during these layoffs.

During the layoffs, defendant and the union had two collective-bargaining agreements in effect. The first was effective December 15, 1979, and its successor was effective April 19, 1983. Each plaintiff during his employment was a member of a collective-bargaining unit represented by the International Union, United Automobile, Aerospace, and Agricultural Workers of America, Local 751 (Union). While serving as apprentices, plaintiffs continued to hold membership in the Union and to pay Union dues.

In response to the layoffs, 45 of the laid-off apprentices filed an action in State court against defendant for common law breach of contract. The complaint consisted of 45 counts, one for each plaintiff, alleging defendant breached their apprenticeship agreements by failing and refusing to employ them as apprentices and by failing and refusing to provide them training or allow them to complete the training program. Defendant subsequently petitioned to remove the action to the United States District Court. It contended that plaintiffs’ terms and conditions of employment, including removal and termination from the apprenticeship program, were governed by the collective-bargaining agreement and that the apprenticeship agreements were subsumed by it. Therefore, the action was preempted under section 301(a) of the Labor Management Relations Act, 1947 (LMRA) (29 U.S.C. § 185(a) (1988)) and was within the exclusive jurisdiction of the Federal courts.

Plaintiffs moved to remand the action. They argued that their apprenticeship agreements were separate and independent of any collective-bargaining agreement, and, therefore, their claims were not preempted. The Federal district court ordered the action remanded to the State court based on the authority of Caterpillar, Inc. v. Williams (1987), 482 U.S. 386, 96 L. Ed. 2d 318, 107 S. Ct. 2425. It found that plaintiffs’ State-law claims for breach of the individual apprenticeship contracts did not implicate the applicable collective-bargaining agreement nor were they completely preempted by section 301(a) of the LMRA. Plaintiffs’ motion for remand, therefore, was allowed. Jones v. Caterpillar, Inc. (C.D. Ill. Aug. 7, 1987), No. 86 — 3047 (order allowing motion for remand).

Defendant then filed an answer to the complaint and raised as an affirmative defense that plaintiffs’ claims were preempted by section 301(a) of the LMRA and that plaintiffs failed to allege the prerequisites to suit under that section. Plaintiffs later filed a motion for summary judgment, and defendant filed a cross-motion for summary judgment, again arguing that plaintiffs’ claims for breach of the apprenticeship agreements were preempted by section 301(a) of the LMRA. The trial court denied both motions for summary judgment. In so ruling, it found that the apprenticeship agreements were not “subsumed” into the collective-bargaining agreement, and the claims, therefore, were not preempted.

On July 25, 1989, plaintiffs filed an amended complaint. Each of the 45 plaintiffs alleged one count of misrepresentation and one count of breach of contract. Defendant subsequently filed a motion requesting the court to reconsider the order denying its motion for summary judgment and in the alternative asking it to certify the issue for appeal. The trial court certified the issue of “[wjhether the resolution of this case requires the interpretation of a collective[-]bargaining agreement and, accordingly, whether the suit is preempted by Section 301 of the [LMRA]” for interlocutory appeal. On October 23, 1989, this court denied defendant’s petition for leave to appeal. (Jones v. Caterpillar, Inc. (1989), No. 4 — 89—0792 (order of clerk denying petition for leave to appeal).) Defendant then answered the amended complaint and again asserted the affirmative defense of preemption.

On October 30, 1989, the trial court granted plaintiff’s motion to join 120 additional persons and to supplement its amended complaint. Each new plaintiff filed one count of misrepresentation and one count of breach of his or her apprenticeship agreement. Defendant answered the supplement to the amended complaint and reiterated its affirmative defense of preemption. On December 9, 1991, defendant filed a renewed motion for summary judgment, asserting that plaintiffs’ claims were preempted by section 301(a) of the LMRA. To support its contention, it cited the recent Schacht decision and filed volumes of materials from the Schacht record. The trial court granted defendant’s renewed motion for summary judgment on the basis of the Schacht decision, and this appeal followed.

Summary judgment is properly granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c); see also Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871; Wright v. St. John’s Hospital of the Hospital Sisters of the Third Order of St. Francis (1992), 229 Ill. App. 3d 680, 682, 593 N.E.2d 1070, 1072.) Because it is a drastic means of disposing of litigation, summary judgment should only be granted “when the right of the moving party is clear and free from doubt.” (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871; Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271, 586 N.E.2d 1211, 1215; Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233, 564 N.E.2d 778, 780.) The proper standard of review for evaluating the propriety of the trial court’s entry of summary judgment is de novo. (See Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 102; Illinois Municipal League Risk Management Association v. Seibert (1992), 223 Ill. App. 3d 864, 869, 585 N.E.2d 1130, 1134; Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824, 585 N.E.2d 1164, 1167.) A reviewing court will reverse an order granting summary judgment when it finds the existence of a genuine issue of material fact. Department of Revenue v. Heartland Investments, Inc. (1985), 106 Ill. 2d 19, 31, 476 N.E.2d 413, 419.

On appeal, plaintiffs contend the third district in Schacht and the trial court in the present case erred in determining that State-law claims based on the apprenticeship agreements are preempted by section 301(a) of the LMRA. Ostensibly, plaintiffs claim that their layoffs violated their individual apprenticeship agreements because the agreements did not state that they could be terminated from the program for economic reasons. Rather, they could only be terminated from the program for failure to meet the standards of the course. Their claims, therefore, are based solely on the alleged breach of the apprenticeship agreements which are completely separate and independent from the collective-bargaining agreement. Since the resolution of their claims is not substantially dependent upon the applicable collective-bargaining agreement, nor do they require an interpretation of the agreement, plaintiffs contend their claims are not preempted.

Conversely, defendant argues that plaintiffs’ claims cannot be resolved without the trial court interpreting the collective-bargaining agreement. It contends the collective-bargaining agreement continued to apply to the plaintiffs after they entered the apprenticeship program and that plaintiffs were laid off according to its layoff and seniority provisions. Since resolution of plaintiffs’ claims would involve an analysis and interpretation of the collective-bargaining agreement, defendant maintains the trial court correctly determined the claims were preempted by section 301(a) of the LMRA.

Schacht and the present case are factually identical. In Schacht, 17 laid-off employees filed an action against Caterpillar for failing to continue their employment and training pursuant to their apprenticeship agreements. The issue on appeal was whether the trial court properly determined that plaintiffs’ State-law contract claims were preempted under section 301(a) of the LMRA. Schacht, 213 Ill. App. 3d at 171-72, 571 N.E.2d at 1216-17.

The third district held that resolution of plaintiffs’ State-law based claims required interpretation of the collective-bargaining agreement and were therefore preempted by section 301(a) of the LMRA. In so holding, it stated:

“The plaintiffs argue that the apprenticeship agreements are separate employment contracts which do not require interpretation of the collective-bargaining agreement. We cannot agree. The plaintiffs availed themselves of many of the benefits available under the collective-bargaining agreement. Many of the terms of their employment were derived from the collective-bargaining agreement. The nature of the relationship between the apprenticeship agreements and the collective-bargaining agreements of necessity requires an interpretation of those collective-bargaining agreements. That interpretation is governed by Federal labor law and any State-law action in such circumstances is preempted by section 301(a). We cannot resolve this issue under State-law contract principles.” Schacht, 213 Ill. App. 3d at 175, 571 N.E.2d at 1218.

As an aside, the court asserted that it agreed with the trial court’s finding “that the apprenticeship agreements were made within the context of the collective-bargaining agreements, and that plaintiffs’ employment remained subject to the terms and conditions of the collective-bargaining agreements.” (Schacht, 213 Ill. App. 3d at 175, 571 N.E.2d at 1218.) It also agreed that the apprenticeship agreements were not completely separate and independent agreements. Accordingly, the appellate court found the trial court’s entry of summary judgment was appropriate. Schacht, 213 Ill. App. 3d at 175, 571 N.E.2d at 1218.

We agree with the decision in Schacht and hold that plaintiffs’ claims are preempted under section 301(a) of the LMRA. Plaintiffs, contend, however, that the Schacht court wrongly decided the case because it misapplied the “substantially dependent” test delineated in Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 85 L. Ed. 2d 206, 105 S. Ct. 1904, failed to identify specific contract provisions in the collective-bargaining agreement needed to resolve their claims, and failed to specify how the apprenticeship agreement was dependent upon the collective-bargaining agreement for interpretation. Further, they contend Schacht overlooks the fact that the apprenticeship agreements are separate and complete contracts from the collective-bargaining agreement. We do not believe the Schacht court misapplied the test delineated in Lueck, and in applying the test to the present case, we find, as did the Schacht court, plaintiffs’ claims are preempted.

Section 301(a) of the LMRA provides:

“Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” (29 U.S.C. § 185(a) (1988).)

The supreme court has held that this section not only confers jurisdiction on Federal courts to hear controversies involving collective-bargaining agreements but also authorizes Federal courts to fashion a body of Federal law for the enforcement of these collective-bargaining agreements. Textile Workers Union v. Lincoln Mills (1957), 353 U.S. 448, 450-51, 1 L. Ed. 2d 972, 977-78, 77 S. Ct. 912, 914-15.

The preemptive effect of section 301(a) of the LMRA was first analyzed in Local 174 v. Lucas Flour Co. (1962), 369 U.S. 95, 7 L. Ed. 2d 593, 82 S. Ct. 571. In that case, the Court held that suits involving a violation of a provision of a collective-bargaining agreement must be brought under section 301(a) and resolved by reference to Federal law to ensure uniform interpretation of collective-bargaining agreements and to promote the peaceable, consistent resolution of labor-management disputes. Lucas Flour, 369 U.S. at 103-04, 7 L. Ed. 2d at 598-99, 82 S. Ct. at 576-77.

Following Lucas Flour, the Supreme Court held that the preemptive effect of section 301(a) extended beyond suits alleging contract violations and reached certain claims sounding in tort. “Any other result would elevate form over substance and allow parties to evade the requirements of [section] 301 by relabeling their contract claims as claims for tortious breach of contract.” (Lueck, 471 U.S. at 211, 85 L. Ed. 2d at 215, 105 S. Ct. at 1911.) Thus, the Court adopted the following rule: “when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a [section] 301 claim, [citation], or dismissed as preempted by federal labor-contract law.” (Lueck, 471 U.S. at 220, 85 L. Ed. 2d at 221, 105 S. Ct. at 1916; see also Williams, 482 U.S. at 396, 96 L. Ed. 2d at 328, 107 S. Ct. at 2431; International Brotherhood of Electrical Workers v. Hechler (1987), 481 U.S. 851, 859 n.3, 95 L. Ed. 2d 791, 801 n.3, 107 S. Ct. 2161, 2167 n.3; Lingle v. Norge Division of Magic Chef, Inc. (1988), 486 U.S. 399, 405-06, 100 L. Ed. 2d 410, 418-19, 108 S. Ct. 1877, 1881.) The Court has made it clear, however, that not every dispute concerning employment, or tangentially involving a provision of the collective-bargaining, is preempted by section 301. (Lueck, 471 U.S. at 211-13, 85 L. Ed. 2d at 215-16, 105 S. Ct. at 1911-12.) “[A]s long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for [section] 301 pre-emption purposes.” Lingle, 486 U.S. at 410,100 L. Ed. 2d at 421,108 S. Ct. at 1883.

In determining whether plaintiffs’ claims are “substantially dependent” upon an analysis of the collective-bargaining agreement, an examination of the claims is necessary. The misrepresentation count in the present case alleged defendant represented that if plaintiffs entered into the apprenticeship training program defendant would instruct plaintiffs for the entire training period subject to defendant’s right to separate them from the course only for failure to maintain its standards. Plaintiffs assert defendant made these representations knowing them to be false and that it would separate plaintiff from the program for reasons other than plaintiffs’ failure to maintain the standards of the course. The breach of contract count alleged that plaintiffs and defendant entered into an agreement in which defendant promised to instruct plaintiffs for the entire training period set forth in the contract subject to defendant’s right to separate plaintiffs from the program only for failure to maintain the standards of the course. After entering into the agreement, defendant breached the contract by terminating plaintiffs from the program for reasons other than failure to maintain the standards of the course.

At first blush, it might appear from the language of the complaint that plaintiffs’ claims fall outside section 301 of the LMRA, and that resolution of those claims does not involve an interpretation or construction of the collective-bargaining agreement. It is true that plaintiffs base their claims solely on State law, and that neither claim relies upon the collective-bargaining agreement, nor do they address the relationship between the apprenticeship agreements and the collective-bargaining agreement. Further, the individual apprenticeship agreements make no reference to the collective-bargaining agreement except for the wage scale. Yet, in determining whether plaintiffs’ termination from the apprenticeship program was in violation of the terms of the apprenticeship agreement, the nature of the relationship between the apprenticeship agreement and the collective-bargaining agreement must necessarily be examined. This will require an interpretation of the collective-bargaining agreement, which is governed by Federal law and preempted by section 301(a). This is not the sort of tangential relationship to the collective-bargaining agreement referred to by the Court in Lingle.

Moreover, the allegations of the complaint alone will not always resolve the preemption issue. The defenses, as well as the claims, must be considered in determining whether resolution of the State-law claim requires construing the collective-bargaining agreement. See Hanks v. General Motors Corp. (8th Cir. 1988), 859 F.2d 67, 70; Smith v. Colgate-Palmolive Co. (7th Cir. 1991), 943 F.2d 764, 769-71; Lingle, 486 U.S. at 405-07, 100 L. Ed. 2d at 418-19, 108 S. Ct. at 1881-82 (finding that neither the elements of the tort nor the defense to the tort required an interpretation of the collective-bargaining agreement); Williams, 482 U.S. at 398, 96 L. Ed. 2d at 331, 107 S. Ct. at 2433 (when a defense to a State-law claim is based on the terms of a collective-bargaining agreement, the State court will have to interpret the agreement to determine if the State-law claim survives); but see Berda v. CBS Inc. (3d Cir. 1989), 881 F.2d 20, 25; McCormick v. AT & T Technologies, Inc. (4th Cir. 1991), 934 F.2d 531, 545 (en banc) (Phillips, J., dissenting).

Defendant contends that plaintiffs were laid off pursuant to the layoff and seniority provisions of the applicable collective-bargaining agreement. This defense clearly implicates the collective-bargaining agreement so that its interpretation is required to resolve the dispute at hand. Moreover, there is no provision in the apprenticeship agreements or the collective-bargaining agreements specifically exempting apprentices from the provisions of the collective-bargaining agreement. Therefore, resolution of plaintiffs’ claims would be substantially dependent upon the collective-bargaining agreement so that the claim would be preempted. Summary judgment, therefore, was appropriate.

As to the fraudulent misrepresentation count, one of the elements of fraudulent misrepresentation is that the injured party justifiably relied on the false statement. (Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 719, 506 N.E.2d 1052, 1055.) In determining whether reliance is reasonable, courts must look to all the relevant circumstances surrounding the alleged misrepresentation. (Seefeldt, 154 Ill. App. 3d at 719, 506 N.E.2d at 1055.) Since defendant alleges plaintiffs were still covered by the collective-bargaining agreement, which contained a provision for layoffs, it would seem necessary that to properly review plaintiffs’ claims the court would need to evaluate the collective-bargaining agreement to determine whether it was reasonable for plaintiffs to believe that they could not be terminated from the apprenticeship program for economic reasons. This claim therefore is also preempted.

Plaintiffs also argue that the Schacht court applied an erroneously restrictive view of Williams. They argue that the supreme court in Williams determined that contract claims based on agreements separate from the collective-bargaining agreement were not dependent upon an interpretation of the collective-bargaining agreement and therefore not preempted.

In Williams, former employees brought suit against Caterpillar in State court alleging it breached their individual employment contracts. Caterpillar sought to remove the action to Federal court arguing that removal was proper because the action was preempted by section 301 of the LMRA. Williams, 482 U.S. at 390-91, 96 L. Ed. 2d at 325-26,107 S. Ct. at 2428.

In determining that the case should be remanded, the Supreme Court focused on whether the complaint standing alone fell within the scope of section 301(a). The Court noted that, absent diversity, the presence or absence of Federal question jurisdiction was governed by the “well-pleaded complaint rule.” This rule provides that Federal jurisdiction exists only when a Federal question is presented on the face of the plaintiff’s properly pleaded complaint. The Court further stated “it is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff’s complaint, and even if both parties concede that the federal defense is the only question truly at issue.” (Emphasis in original.) Williams, 482 U.S. at 393, 96 L. Ed. 2d at 327,107 S. Ct. at 2430.

The Court distinguished a corollary to the well-pleaded complaint rule — the “complete preemption” doctrine. Under this doctrine, the Court has concluded that the preemptive force of a statute is so extraordinary that it converts a State-law complaint into one stating a Federal claim for purposes of the well-pleaded complaint rule. “Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Williams, 482 U.S. at 393, 96 L. Ed. 2d at 328, 107 S. Ct. at 2430.

The Court held respondents’ State-law contract claims were not “completely preempted” by section 301(a) of the LMRA. Section 301(a) governs claims founded directly on rights created by collective-bargaining agreements, and also claims “ ‘substantially dependent on analysis of a collective-bargaining agreement.’ ” (Williams, 482 U.S. at 394, 96 L. Ed. 2d at 328, 107 S. Ct. at 2431, quoting International Brotherhood of Electrical Workers v. Hechler (1987), 481 U.S. 851, 859 n.3, 95 L. Ed. 2d 791, 801 n.3, 107 S. Ct. 2161, 2167 n.3.) Since respondents’ claims were based solely on individual contracts, distinct from the collective-bargaining agreement, and their complaint was not “substantially dependent” upon an interpretation of the collective-bargaining agreement, the Court found the claims fell outside the complete preemption doctrine. Williams, 482 U.S. at 394, 96 L. Ed. 2d at 328,107 S. Ct. at 2431.

Having disposed of the complete preemption doctrine, the Supreme Court returned to the question of whether, under the well-pleaded complaint rule, respondents’ suit had a Federal jurisdictional basis. It concluded that because the respondents’ well-pleaded complaint sounded entirely on State law their suit did not arise under section 301(a) and could not be removed to Federal court. Williams, 482 U.S. at 399, 96 L. Ed. 2d at 331,107 S. Ct. at 2433.

The Schacht court distinguished Williams by noting that it dealt with removal jurisdiction and did not reach the substantive merits of a preemption defense. Moreover, it found that while a cause of action may not be removable based on a section 301(a) preemption defense, that did not mean that the cause of action was ultimately preempted under section 301(a). Because the issue before Williams was removal jurisdiction, any discussion of the merits of the preemption defense was dictum. (Schacht, 213 Ill. App. 3d at 173-75, 571 N.E.2d at 1217-18.) We agree that Williams does not address the merits of this case for the reasons cited by the Schacht court.

Moreover, we note that Williams specifically stated that it did not intimate a view on the merits of Caterpillar’s defense that section 301 preempts a State-law claim when the employer raises a defense that requires the interpretation or application of the collective-bargaining agreement or any of the other preemption arguments discussed. Rather, it asserted that these questions should be addressed by the State court in the first instance. (Williams, 482 U.S. at 398 n.13, 96 L. Ed. 2d at 331 n.13, 107 S. Ct. at 2433 n.13.) It accordingly recognized that when a defense to a State-law claim is based on the collective-bargaining agreement courts will have to interpret that agreement to decide whether the State claim survives. Williams, 482 U.S. at 398, 96 L. Ed. 2d at 331,107 S. Ct. at 2433.

Defendant also asserts various other reasons why the trial court’s decision should be affirmed. Because we agree plaintiffs’ claims were preempted under section 301(a) of the LMRA, we need not address these other issues.

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

Affirmed.

STEIGMANN, P.J., and KNECHT, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY A. WELLS, Defendant-Appellant.
    Third District
    No. 3—92—0172
    Opinion filed February 1,1993.

      William Keene, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Following a jury trial, defendant Terry Wells was convicted of unlawful possession of cannabis (Ill. Rev. Stat. 1991, ch. 56V2, par. 704(d)) and sentenced to a term of two years’ conditional discharge. Defendant raises the following issues on appeal: (1) whether the trial court erred in denying defendant’s motion to suppress evidence; (2) whether defendant was proved guilty beyond a reasonable doubt; (3) whether defendant was improperly charged with unlawful possession of cannabis; and (4) whether the trial court improperly instructed the jury. We affirm.

On the morning of September 28, 1991, the Illinois State Police, with the assistance of various local law enforcement agencies, conducted a safety check roadblock on River Drive in Moline. At approximately 4 a.m., defendant and a friend, Joseph Hardy, were driving on River Drive when they were detained at the roadblock. Defendant was driving the car and Hardy was in the front seat on the passenger side. A police officer informed defendant that the police were conducting a roadside safety check and instructed defendant to pull off the road into a parking lot.

After defendant pulled into the parking lot, Deputies Boyd and Keim of the Rock Island County sheriff’s department approached the vehicle to check for safety violations. Deputy Boyd approached on the passenger side and asked to see Hardy’s driver’s license. When he looked into the car, Boyd saw an open bottle of beer on the passenger side floorboard. Deputy Keim approached the car on the driver’s side. He requested to see defendant’s driver’s license, and defendant informed him that he did not have one. Defendant and Hardy were instructed to step out of the car. As Deputy Boyd reached in the car to retrieve the beer bottle, he noticed a clear plastic bag on the floor which contained a green leafy substance he believed to be cannabis. He also discovered a brown paper bag containing the same substance. Deputy Boyd also detected the odor of fresh cannabis throughout the interior of the car. Upon further inspection, Boyd discovered what he believed to be pieces of cannabis scattered throughout the vehicle. Defendant and Hardy were placed under arrest and the automobile was impounded.

An inventory search of the vehicle was conducted at the Rock Island County sheriff’s department. Two or three freshly harvested cannabis plants were found in the trunk of the vehicle. Defendant was convicted of unlawful possession of cannabis based on the plants found in the trunk.

We first address defendant’s contention that the trial court erred in denying his motion to suppress the evidence found in the vehicle. Defendant contends that the safety check roadblock stop was an unreasonable seizure violative of the fourth amendment.

It is well settled that a fourth amendment “seizure” occurs when a vehicle is stopped at a roadblock or checkpoint. (United States v. Martinez-Fuerte (1976), 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074.) The question is whether such seizures are reasonable under the fourth amendment.

Our supreme court addressed the constitutionality of roadblock stops in People v. Bartley (1985), 109 Ill. 2d 273, 486 N.E.2d 880. In Bartley, the court held that a temporary roadblock to check driver’s licenses and to identify DUI offenders did not violate the fourth amendment because the State had a compelling interest in reducing alcohol-related accidents which outweighed the minimal intrusion on motorists. The court set out certain factors to be considered in determining the constitutionality of the intrusion caused by such roadblocks, including: (1) the presence of procedural guidelines; (2) the absence of discretion in individual field officers; (3) some indication to the public of the official nature of the operation; and (4) selection of the site by supervisory personnel. Bartley, 109 Ill. 2d at 288-91, 486 N.E.2d at 887-88.

In the instant case, the operation of the roadblock met the requirements of Bartley. The record reflects that immediately prior to the establishment of the roadblock all of the officers involved attended a briefing where a State Police sergeant explained the procedures that were to be followed at the site. The purpose of the roadblock was to check for violations such as improper lighting, seat belt violations, and expired license plates and driver’s licenses. The officers were also to be on the lookout for intoxicated drivers. According to a predetermined plan developed by the State Police, every other vehicle and any vehicle with some type of obvious violation were to be stopped. The officer in charge of determining which vehicles were stopped testified at the suppression hearing that defendant’s vehicle was one of the “every other” vehicles which were to be stopped according to the predetermined policy. The official nature of the operation was indicated to the public by a large sign which read “State Police safety check” and a number of squad cars in the area with their mars lights illuminated. The average stop at the checkpoint for cars with no violations lasted from 30 seconds to one minute. Finally, the site for the roadblock had been selected by the State Police in advance.

The United States Supreme Court has also held a roadblock stop of vehicles to be a reasonable seizure under the fourth amendment. (Michigan Department of State Police v. Sitz (1990), 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481.) In Sitz, all vehicles passing through a roadblock checkpoint were stopped and the drivers briefly examined for signs of intoxication. The court held that “the balance of the State’s interest in preventing drunken driving *** and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the State program. We therefore hold that it is consistent with the Fourth Amendment.” (Sitz, 496 U.S. at 455, 110 L. Ed. 2d at 423, 110 S. Ct. at 2488.) Accordingly, in light of Bartley and Sitz, we find that the roadblock stop in this case was a reasonable seizure and did not violate the fourth amendment.

Defendant also appears to argue that the police lacked probable cause to search the vehicle at the roadblock stop. A warrantless search of an automobile is permissible where there is probable cause to believe that the vehicle contains contraband. (People v. Penny (1989), 188 Ill. App. 3d 499, 544 N.E.2d 1015.) Probable cause exists where the totality of the facts and circumstances known to the officer at the time of the search would justify a reasonable person in believing that contraband was present in the vehicle. People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869.

Once Deputy Boyd observed the beer bottle on the floor of the car, he had probable cause to enter the vehicle to retrieve the contraband. Upon doing so, he detected a strong odor of cannabis. He also observed two bags containing a substance he believed to be cannabis. These observations gave Deputy Boyd probable cause to search the entire vehicle. People v. Schrems (1992), 224 Ill. App. 3d 988, 586 N.E.2d 1337; People v. Strong (1991), 215 Ill. App. 3d 484, 574 N.E.2d 1271.

We note that even if we were to find that Deputy Boyd lacked probable cause to search the vehicle, our disposition of this issue would be the same since the evidence upon which defendant was convicted was not obtained during Deputy Boyd’s search, but rather, was discovered during a proper inventory search of the vehicle following defendant’s arrest for driving without a valid license. We therefore find that the trial court properly denied defendant’s motion to suppress evidence.

Defendant next argues that he was not proven guilty beyond a reasonable doubt. He contends that the State failed to present competent evidence to establish that he had knowledge of the contents of the trunk of the vehicle he was driving. When presented with a challenge to the sufficiency of the evidence, a reviewing court examines the evidence in the light most favorable to the prosecution, and the relevant question is whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

To support a conviction for unlawful possession of cannabis, the State must prove that the defendant had knowledge of the substance and that it was under his immediate and exclusive control. (People v. Rouser (1990), 199 Ill. App. 3d 1062, 557 N.E.2d 928.) Possession may either be actual or constructive. (People v. Briggs (1983), 112 Ill. App. 3d 979, 446 N.E.2d 305.) Constructive possession exists when there is no personal present dominion over the drugs, but there is an intent and a capacity to maintain control and dominion over them. (People v. Eiland (1991), 217 Ill. App. 3d 250, 576 N.E.2d 1185.) Possession may be joint or shared and yet still be exclusive. (People v. Stupka (1992), 226 Ill. App. 3d 567, 589 N.E.2d 1068.) The discovery of drugs in a vehicle under defendant’s control and in a place where he could have been, or should have been, aware of them gives rise to an inference of knowledge and possession which may be sufficient to sustain a conviction for unlawful possession. (Eiland, 217 Ill. App. 3d 250, 576 N.E.2d 1185.) Knowledge and control are questions of fact to be determined by the trier of fact, and its decision will not be disturbed unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt. People v. Songer (1992), 229 Ill. App. 3d 901, 594 N.E.2d 405.

At trial, the State presented the testimony of Joseph Hardy to establish that defendant had knowledge of the cannabis in the trunk of the vehicle. Hardy testified that on the night of September 27, he was with the defendant at defendant’s house. Defendant borrowed a car from a friend so that he and Hardy could go to a bar in East Moline. Hardy testified that when they left defendant’s house, defendant told Hardy that he was going to pick some cannabis and make some money. Defendant then drove to the John Deere Expressway. Upon reaching the expressway, defendant told Hardy that he was stopping to pick some cannabis. The defendant got out of the car and went to the side of the road and did not return for 10 to 15 minutes. When defendant returned to the car, he told Hardy that he had cannabis. Hardy testified that some of the cannabis was brought into the passenger area by the defendant. Hardy did not know if the defendant opened the trunk of the car; however, he stated that the defendant “didn’t get in the front with it.” Hardy and the defendant then went to a bar in East Moline. They later left the bar and were on their way to defendant’s girlfriend’s house when they were stopped at the roadblock. Hardy was with the defendant from the time they obtained the car from defendant’s friend until the time they were stopped at the roadblock.

Defendant testified on his own behalf. He stated that he did not pick any cannabis and never looked inside the trunk of the vehicle. Defendant stated that he was unaware of the beer bottle, did not know the alleged bag of cannabis was on the floorboard of the vehicle, and noticed no cannabis spread throughout the vehicle. He stated that the cannabis could have been inside the car before it was borrowed. Defendant suggested Hardy may have picked the cannabis from a ditch behind the bar in East Moline.

In deciding whether defendant had knowledge of the cannabis in the trunk, the jury was essentially faced with a credibility question. The jury chose to believe Hardy instead of the defendant. Weighing the testimony and determining the credibility of the witnesses are exclusively within the province of the jury (People v. Acklin (1990), 208 Ill. App. 3d 616, 567 N.E.2d 525), and we cannot say that the jury’s findings in this case were so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt (Rouser, 199 Ill. App. 3d 1062, 557 N.E.2d 928). When viewed in the light most favorable to the prosecution, we believe the evidence presented was sufficient to support defendant’s conviction.

Defendant next argues that he was improperly charged with unlawful possession of cannabis, a Class 4 felony (Ill. Rev. Stat. 1991, ch. 56x/2, par. 704(d)). He contends that he should have been charged with unlawful possession of the Cannabis sativa plant, a Class A misdemeanor (Ill. Rev. Stat. 1991, ch. 56x/2, par. 708(a)), because the evidence consisted of three freshly picked cannabis plants which had not yet been “processed.” Initially, we note that a defendant may be found guilty of possession of cannabis regardless of whether or not the cannabis is “processed,” i.e., dried out and removed from the stem. (See People v. Elam (1976), 39 Ill. App. 3d 705, 350 N.E.2d 832.) Therefore, defendant could have been charged with either possession of cannabis or possession of the Cannabis sativa plant or both. See People v. O’Mahoney (1988), 169 Ill. App. 3d 194, 523 N.E.2d 635.

The State’s Attorney is vested with exclusive discretion in the initiation and management of a criminal prosecution (People ex rel. Davis v. Vazquez (1982), 92 Ill. 2d 132, 441 N.E.2d 54), and that discretion includes the decision as to which of several charges shall be brought (People v. Pankey (1983), 94 Ill. 2d 12, 445 N.E.2d 284). Our supreme court has held that where criminal conduct is prohibited by two different statutes, which provide different penalties, there is no constitutional problem in the prosecution of a defendant under the statute which provides a greater penalty. (People v. McCollough (1974), 57 Ill. 2d 440, 313 N.E.2d 462; People v. Keegan (1971), 52 Ill. 2d 147, 286 N.E.2d 384.) Accordingly, we find that defendant was properly charged with unlawful possession of cannabis.

Finally, defendant argues that the trial court improperly instructed the jury. The trial judge gave the following instruction defining possession:

“Possession may be actual or constructive. A person has actual possession when he has immediate and exclusive control over a thing. A person has constructive possession when he lacks actual possession of a thing but he has both the power and the intention to exercise control over a thing either directly or through another person.
If two or more persons share the immediate and exclusive control or share the intention and the power to exercise control over a thing, then each person has possession.”

The State tendered the first paragraph of the instruction only. The trial judge added the second paragraph on his own motion. The judge stated that the jury “could conclude they’re [defendant and Hardy] both in it together even though they both deny it.” Defendant contends that the second paragraph should not have been given because the State’s theory of the case was that the defendant possessed the cannabis solely.

The instruction as given was taken verbatim from the Illinois Pattern Jury Instructions. (Illinois Pattern Jury Instructions, Criminal, No. 4.16 (3d ed. 1992)), and has been found to accurately state the law regarding the definition of possession (People v. Rentsch (1988), 167 Ill. App. 3d 368, 521 N.E.2d 213). It is within the discretion of the trial court to determine which instructions to render to the jury (People v. Dower (1991), 218 Ill. App. 3d 844, 578 N.E.2d 1153), and a trial judge may, sua sponte, instruct the jury irrespective of whether either party submits instructions or the defendant objects to their presentment to the jury (People v. Sinnott (1992), 226 Ill. App. 3d 923, 590 N.E.2d 502). The jury may be instructed as to any theory of the case that may be reasonably inferred from the facts. (People v. Carlson (1992), 224 Ill. App. 3d 1034, 586 N.E.2d 1368.) We agree with the trial court that the jury in this case could reasonably have found that both the defendant and Hardy possessed the cannabis. The trial court properly included the paragraph concerning joint or shared possession in the instruction.

For the reasons stated above, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

McCUSKEY, P.J., and STOUDER, J., concur.