author: JUSTICE GEIGER

text:
    THOMAS J. PETTEY et al., Plaintiffs-Appellees, v. FIRST NATIONAL BANK OF GENEVA, as Trustee, et al., Defendants-Appellants (Charles J. Groenings et al., Intervenors and Plaintiffs-Appellants; William L. Achenbach et al., Intervenors and Defendants-Appellees).
    Second District
    Nos. 2 — 91—0156, 2 — 91—0159 cons.
    Opinion filed February 24, 1992.

      Wendell W. Clancy, of Clancy & Krippner, of St. Charles (Maureen A. Hill, of counsel), for appellants Joseph C. Boyd and First National Bank of Geneva.
    Robert S. Minetz and Sarah S. Hirsen, both of Cowan & Minetz, of Chicago, and Roy A. Safanda, of Law Office of Roy A. Safanda, and Robert F. Casey, both of St. Charles, for other appellants.
    Law Offices of Cooper & Storm, of Geneva, and Altheimer & Gray, of Chicago (Stephen M. Cooper, Peter M. Storm, and Kenneth C. Shepro, of counsel), for appellees.
    Daniel E. Compton and Leo M. Flanagan, Jr., both of Brittain, Ketcham, Strass, Terlizzi, Flanagan, Weir & Johnson, P.C., of Elgin, for St. Charles Country Club and Gary-Wheaton Bank of Batavia.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiffs, a group of 130 homeowners whose land is included in a restrictive covenant running with the land, sought injunction and declaratory relief against defendants, including Joseph C. Boyd, Charles J. Groenings, and John A. Groenings, to prevent their proposed development of land in violation of the covenant. The defendants and their cotrustee La Salle National Bank appeal from the bench trial judgment for the plaintiffs. The court declared the covenant to be valid and enforceable and enjoined the defendants’ development of Boyd’s and Groenings’ properties to prevent violation of the provisions of the covenant.

Boyd argues (1) that his property is explicitly excluded from the legal description contained in the restrictive covenant; (2) that the plaintiffs are barred from relief under the affirmative defense of laches; and (3) that the court erred in dismissing Boyd’s malicious prosecution counterclaim. Together, the defendants argue (4) that the trial court improperly allowed testimony; (5) that the trial court improperly struck their jury demand; (6) that the plaintiffs’ complaint should have been dismissed for failure to add all necessary parties; (7) that substantial changes in the area made the restrictive covenant unenforceable; and (8) that the landowners in the area waived enforcement of the covenant.

Shortly after the plaintiffs filed their lawsuit, they voluntarily dismissed the counts against the Groenings. The Groenings then filed first a counterclaim and third-party complaint, then an amended counterclaim naming every remaining landowner within the area covered by the covenant as additional defendants. The Groenings were also granted leave to file an intervenors’ complaint naming the plaintiffs, the other defendants, and the third-party defendants all as intervenor defendants.

The following facts were stipulated to at the trial. There is a restrictive covenant dated November 27, 1937, running with the land recorded against approximately 1,000 acres in the City of St. Charles, the Village of Wayne, and St. Charles Township. The covenant begins with a preamble stating that the purpose of the restrictions is to “preserve the present high character of use and occupancy” of the land. The pertinent restrictions provide in part:

“1. No principal residence shall be erected on any one tract of land of less than four (4) acres in extent, any one dimension of which shall be not less than two hundred (200) feet, except that the occupant of such principal residence may erect on such a tract one (1), but not more than one (1), separate additional residence as living quarters for guests or servants.
3. No principal residence, separate residence for children, guests or servants, incinerator, garage, or other building shall be erected within fifty (50) feet from any property line and within seventy-five (75) feet from the center line of any highway or road.
4. Said real estate shall be used for residential and farming purposes only; said real estate shall not be used for any commercial purpose whatsoever, nor shall advertising signs or billboards be erected thereon.
5. No person other than of the Caucasian Race shall be permitted to occupy [sic] any portion of said real estate, except as a servant of a Caucasian owner or Caucasian tenant residing thereon.”

Boyd owns 8.6 acres, and the Groenings own approximately 70 acres of real estate within the covenant area. Boyd had plans to rezone his property from single-family residential to a planned unit development (PUD) to consist of 12 units. Boyd’s proposal would exceed the restriction in the covenant as it allowed two residences per four-acre lot.

Boyd filed his PUD plan with the City of St. Charles on January 14, 1987, and he requested rezoning in accordance with his plan. The St. Charles Plan Commission held a public hearing on the subject, and several plaintiffs appeared and objected to the plan on the basis that it violated the covenant. The City of St. Charles approved the plan and granted the rezoning on November 21,1988.

On January 26, 1989, the plaintiffs commenced their lawsuit. Before commencement of the suit, Boyd expended over $50,000 installing sewer and water facilities and $70,000 on site plans, landscaping plans and engineering plans. After the St. Charles commission rezoned Boyd’s property, the Groenings filed a petition to annex their 70-acre site to St. Charles so that it could be developed with approximately 160 lots ranging from one-fourth to one-half acre.

It was also stipulated that within the area covered by the restrictive covenant, there had been several possible covenant “violations.” There are eight homes in Persimmon Woods which sit on tracts of land ranging in size from .71 to 3.75 acres, violating the four-acre lot minimum. Persimmon Woods is located on the one noncontiguous portion of the land affected by the covenant. None of the plaintiffs knew at the time of construction that the Persimmon residences were within the land described in the covenant, and they raised no objections to the residences’ construction.

The covenant area also includes two residences which have a structure erected within 50 feet of the property line, in violation of the covenant. One of them is 49.10 feet from the property line. The other lot’s structures within 50 feet of the property line were in existence prior to the recording of the covenant.

There are a number of parcels within the covenant which contain principal residences erected on a tract of land which has at least one boundary line less than 200 feet long. The plaintiffs never objected to these violations of the covenant.

There are three possible “use” violations within the covenant area. The first is the 114-acre St. Charles Country Club (Country Club), which together with the Persimmon residences comprise the noncontiguous section of land covered by the covenant. None of the plaintiffs knew at the time of its construction that the club was within the land described in the covenant, and none of them objected to its construction or its operation.

The second possible “use” violation of the covenant is a building known as Dunham Castle, which has been operated as a rental property since 1963. None of the plaintiffs had objected to the operation of Dunham Castle as rental apartments. The third possible “use” violation is by several streets and parcels owned by the City of St. Charles and by the St. Charles Park Foundation used for municipal purposes.

Another possible violation of the covenant is by signs advertising the sale of properties and signs advertising builders, remodelers or decorators. Such signs were placed on properties within the covenant area without objection by any of the plaintiffs.

There was substantial evidence presented by stipulation and expert testimony that development had taken place surrounding the restricted land and that development had occurred in Kane County, the City of St. Charles, and, more specifically, along the southern and eastern boundaries of the covenant property. All of the development which occurred along these boundaries was by residential, single-family dwellings. Most of those dwellings were on lots less than four acres. The residential developments west and north of the covenant boundaries are on lots at least four acres in size.

The evidence also established that (1) when the covenant was signed, there were 22 covered landowners; now there are 260; (2) that the traffic on the roads servicing the covenant area has increased as much as 225%; (3) that various sections of the area have been changed from unincorporated property to incorporated residential subdivisions; (4) that the restrictions make the economic market for the properties smaller and make the properties more difficult to sell; and (5) that if the lots could be sold in smaller parcels, a greater price per acre could be achieved.

We first address the three issues argued in Boyd’s appellate brief. Initially, Boyd argues that the court erred in finding that his land falls within the legal description of the covenant. Boyd argues the legal description of the land covered by the covenant can be interpreted as excluding his land. The plaintiffs argue that Boyd’s deed to his land specifically states that his property is subject to the restrictive covenant in question and that Boyd’s interpretation of the covenant’s legal description is not a logical construction of the language.

The court heard extensive testimony from two experts, who testified on behalf of both the plaintiffs and the defendants. The court made an express finding that Boyd’s property was subject to the covenant.

The Illinois Supreme Court stated that in the judicial enforcement of restrictive covenants all doubts must be resolved in favor of natural rights and against restrictions thereon. (Watts v. Fritz (1963), 29 Ill. 2d 517, 521.) The court’s decision in that regard will only be overturned if the court’s findings are against the manifest weight of the evidence. (Rogers v. Jerseyville (1990), 196 Ill. App. 3d 136, 142.) In this case, the court was aware of the standard to use in interpreting restrictive covenants and found that Boyd’s property was not excluded by the language of the covenant. Considering the strained interpretation of the language requested by Boyd and the language in Boyd’s deed stating that the land is restricted by the covenant, we find that the court’s decision on this issue is not against the manifest weight of the evidence. 196 Ill. App. 3d at 142.

Second, Boyd argues that the plaintiffs are barred from injunctive relief, asserting the affirmative defense of laches. Boyd argues that he had already spent $120,000 in development costs before the plaintiffs commenced their suit and that, due to the plaintiffs’ delay in commencing their suit to enforce the covenant, he was misled and relied on their acquiescence. The plaintiffs argue that Boyd was aware of the covenant’s restrictions when he purchased the land and that the plaintiffs timely objected to the development when they attended the zoning hearings and objected to the plan on the basis of the covenant.

Laches is a doctrine which bars a plaintiff relief where, because of the plaintiff’s delay in asserting a right, the defendant has been misled or prejudiced. (City of Rochelle v. Sushi (1990), 206 Ill. App. 3d 497, 501.) However, where the circumstances indicate that the party knowingly violated a restriction or a right and pressed ahead, suggesting a purpose to proceed irrespective of the consequences, laches may not be used as an affirmative defense. (Fick v. Burnham (1929), 251 Ill. App. 333, 341.) The application of the equitable doctrine of laches is a matter of the trial court’s discretion. Ole, Ole, Inc. v. Kozubowski (1989), 187 Ill. App. 3d 277, 286.

The record reveals that the plaintiffs objected to the proposed development in a timely fashion and that Boyd knew of the restrictive covenant when he began to develop his land. We do not find that the court erred in finding that the plaintiff was not guilty of laches. Ole, 187 Ill. App. 3d at 286-87.

Third, Boyd argues that the court erred in dismissing his counterclaim which alleged malicious prosecution, even though he concedes that the underlying cause of action was not resolved in his favor. When charging malicious prosecution, a plaintiff must allege (1) that judicial proceedings were brought against the plaintiff; (2) that there was a lack of probable cause for those proceedings; (3) that the defendant demonstrated malice in instituting the proceedings; (4) that the cause of action was terminated in the plaintiff’s favor; and (5) that the plaintiff was injured. (Bismarck Hotel Co. v. Sutherland (1988), 175 Ill. App. 3d 739, 748.) We are aware of no authority allowing a suit of malicious prosecution prior to the termination of the underlying action. Boyd has presented no such authority to his court, and we therefore consider this issue waived. Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 608.

Fourth, we address the defendants’ claim that the trial court improperly allowed the testimony of Michael Feyette, in violation of Supreme Court Rule 4.2 of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 4.2). Feyette testified that plaintiffs’ counsel, Cooper, contacted him and requested that he join the case as a plaintiff. Cooper knew that Feyette was represented by other counsel and that Feyette had not decided whether to join as a party to the suit. The defendants argue that this was a breach of professional conduct and should bar the testimony of this witness.

Rule 4.2 prohibits an attorney representing a client in a matter from ex parte communication with a person who the attorney knows is represented by another lawyer, unless the first lawyer obtained the consent of the other lawyer representing the party. (134 Ill. 2d R. 4.2.) However, where the contact between an attorney and a client represented by another lawyer is de minimis, there may be no violation. (See Mahan v. Louisville & Nashville R.R. Co. (1990), 203 Ill. App. 3d 749, 754.) In this case, the communication appears to be de minimis, and the defendants did not establish that this communication resulted in any prejudice to them. We find that the court did not err in allowing Feyette to testify. See Mahan, 203 Ill. App. 3d at 754.

Fifth, the defendants argue that the trial court improperly denied their demand for a jury trial. They argue that the issues of whether the neighborhood had changed significantly and whether the plaintiffs had waived their rights to enforce the covenant were issues of fact that entitled them to a jury.

There is no constitutional right to a jury in equity actions. (Zurich Insurance Co. v. Raymark Industries, Inc. (1986), 145 Ill. App. 3d 175, 196, aff’d (1987), 118 Ill. 2d 23.) In a suit seeking equity relief, the denial of a jury demand is within the discretion of the trial court. De Kalb Bank v. Purdy (1990), 205 Ill. App. 3d 62, 75; Ill. Rev. Stat. 1989, ch. 110, par. 2-1111.

Because declaratory judgment actions are neither legal nor equitable, but sui generis, the right to a trial by jury depends upon whether the underlying claims are legal or equitable in nature. (Zurich, 145 Ill. App. 3d at 196.) In actions for declaratory judgment, the right to trial by jury depends upon the relief sought. (Zurich, 118 Ill. 2d at 58.) If the underlying actions for relief are historically available only in a court of equity, the issues raised by the pleadings are equitable, and any issues of fact are tried to the court without a jury. (Zurich, 145 Ill. App. 3d at 196.) When injunctive relief is sought, the authority to grant relief generally rests on the courts of equity. Junkunc v. S.J. Advanced Technology & Manufacturing Corp. (1986), 149 Ill. App. 3d 114,118.

The plaintiffs in this case seek declaratory relief and injunctive action to prevent development of the defendants’ land in violation of the restrictive covenant. The defendants ask for declaratory relief to prevent the enforcement of the restrictive covenant and also assert the equitable defense of laches. We find that these pleadings are substantively in the nature of equitable actions and find that the court did not abuse its discretion in striking the defendants’ jury demand. See De Kalb, 205 Ill. App. 3d at 75.

Sixth, the defendants argue that the plaintiffs’ complaint should have been dismissed because the plaintiffs failed to join all of the landowners as necessary and indispensable parties to the lawsuit. The plaintiffs argue that they voluntarily dismissed their action against the Groenings so that there was no complaint against the Groenings that could have been dismissed for the failure to add parties. They also argue that when the Groenings intervened and named all of the landowners as additional parties, this cured any defect.

It is well settled that under fundamental principles of due process, a court is without jurisdiction to enter an order or judgment which affects a right or interest of someone not before the court. (Feen v. Ray (1985), 109 Ill. 2d 339, 344.) Pursuant to this requirement, all persons must be made parties to the suit who are legally or beneficially interested in the subject matter of the litigation so that the court may dispose of the entire controversy. Feen, 109 Ill. 2d at 344.

In this case, because of the plaintiffs’ failure to bring all necessary parties before the court there was a defect in the pleadings. Nevertheless, the defect was cured when the Groenings intervened and made all of the owners parties to this action. (See Pelley v. Illinois Municipal Water Co. (1986), 142 Ill. App. 3d 765, 769-70.) While the defendants contend that his joining of the necessary and indispensable parties did not cure the defect of the plaintiffs’ complaint, they failed to cite and we find no authority for this position. This court of review is entitled to have the issues clearly defined and to be cited pertinent authority; bare contentions without authority do not merit consideration on appeal. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 608.) We treat the defendants’ argument as waived pursuant to Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)).

• 7 Seventh, the defendants argue that the court erred in enforcing the restrictive covenant because the neighborhood has changed significantly since the restrictions were created. It is well settled that even where a general plan is evident in a covenant, its restrictions under the covenant will not be enforced where the character of the neighborhood had changed so much since the restrictions were imposed as to defeat the original purpose of the plan. (Wallace v. Hoffman (1949), 336 Ill. App. 545, 554.) For such a change to relieve or cancel the enforcement of a restriction, it must be so radical and complete as to render the restriction unreasonable, confiscatory, discriminatory, or as practically to destroy the purpose for which the restriction was originally imposed. (Cordogan v. Union National Bank (1978), 64 Ill. App. 3d 248, 254; see also Rogers v. City of Jerseyville (1990), 196 Ill. App. 3d 136, 139-40.) The mere fact that the property in question is worth more without the restrictions is not decisive. Tones Inc. v. La Salle National Bank (1975), 34 Ill. App. 3d 236, 243.

The trial court found that the change in the character and environment of the neighborhood affected by the restrictive covenant was not sufficient to render the restrictive covenant unenforceable. The court further found that the changes in the neighborhood were virtually “nil and de minimus.”

As stated in the preamble of the covenant, the restrictions were put in place to preserve the high character of use and occupancy of the subject property. This court ignores the language of the preamble which restricts land ownership to Caucasians as this passage is meaningless and is judicially unenforceable. (See Shelley v. Kraemer (1948), 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836.) The record included significant evidence that the changes alleged by the defendant in the character of the neighborhood have not transformed it in any manner which would warrant the removal of the lot size restrictions and that the restrictions still support the purpose of the covenant. (See Cordogan, 64 Ill. App. 3d at 254.) As the trial court’s finding that the covenant was still enforceable was guided by these principles and supported by the record, we will not overturn its findings. See Rogers, 196 Ill. App. 3d at 142.

Lastly, the defendants argue that the plaintiffs have waived enforcement of the covenant by acquiescing to prior violations. The defendants specifically refer to the construction of the Country Club, which violates the residential and farming restriction, the Persimmon residences which violate the four-acre minimum restriction, several violations of the 200-foot lot-line restriction, and two homes violating the restriction against structures within 50 feet of a property line. The plaintiffs argue that the past violations are minor, that most occurred without their knowledge, and that acquiesced-to violations of one type of restriction do not waive enforcement of all restrictions.

Where there has been acquiescence to prior restrictive covenant violations that go to the very substance of a general plan or of a particular restriction, the plaintiff will be held to have waived any right to enforce it. (Amoco Realty Co. v. Montalbano (1985), 133 Ill. App. 3d 327, 333, citing Watts v. Fritz (1963), 29 Ill. 2d 517, 523.) However, acquiescence to minor violations of a restriction will not prohibit the subsequent enforcement of that restriction. (Citizens Utilities Co. v. Centex-Winston Corp. (1989), 185 Ill. App. 3d 610, 614.) In determining the extent of prior violations, separate and distinct restrictions which have been violated will not amount to acquiescence of the violation currently at issue. (See Cordogan v. Union National Bank (1978), 64 Ill. App. 3d 248, 255.) The trial court’s findings as to the materiality of the past violations of the restrictive covenant will only be overturned on appeal if the findings are against the manifest weight of the evidence. (Rogers, 196 Ill. App. 3d at 142.) The trial court’s decision will be considered to be against the manifest weight of the evidence if, after a review of the evidence, it is clearly evident that the conclusion opposite to the one reached by the trial court was the proper disposition. 196 Ill. App. 3d at 142.

The court found that the past violations of the lot size restrictions were not substantial or material based on the entire evidence in the case, nor did they defeat the legitimate, enforceable purpose of the covenant provisions. Considering the evidence, including eight demonstrated violations of lot size restrictions, located in a separate, non-contiguous section of the covenanted land, we do not find that the trial court’s decision was against the manifest weight of the evidence. See Amoco, 133 Ill. App. 3d at 333.

In a separate brief, the St. Charles Country Club correctly argues that the defendants failed to argue the issue of affirmative relief which they sought in their original complaint against those currently in violation of the covenant. Accordingly, we find that this relief sought is waived. See Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 400-01.

For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

Affirmed.

WOODWARD and INGLIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL ENGELBRECHT, Defendant-Appellant.
    Second District
    No. 2 — 90—1257
    Opinion filed February 28, 1992.

      Michael C. Downey, of Dixon, for appellant.
    Daniel A. Fish, State’s Attorney, of Dixon (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Paul Engelbrecht, appeals the denial of his petition to rescind the statutory summary suspension of his driver’s license (Ill. Rev. Stat. 1989, ch. 95½, par. 2—118.1). Defendant argues that the trial court erred in granting a directed finding for the State where his evidence showed that the arresting officer did not accurately inform defendant of the consequences of a refusal to submit to a chemical test for blood or breath alcohol (see Ill. Rev. Stat. 1989, ch. 95½, pars. 6—208.1(a), 11—501.1(c)). We affirm in part, reverse in part and remand.

On May 25, 1990, defendant was arrested for driving under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501). The arresting officer read or issued defendant the following warning:

“Subsequent to an arrest for violating section 11—501 of the Illinois Vehicle Code, or a similar provision of a local ordinance, you are hereby warned and notified that:
1. Refusal or failure to complete all chemical tests requested will result in suspension of your driving privileges for a minimum of 6 months.
2. If you submit to the chemical test(s) disclosing an alcohol concentration of 0.10 or more, your driving privileges will be suspended for a minimum of 3 months.
3. If you refuse or fail to complete all chemical tests or if you submit to a test or tests disclosing an alcohol concentration of 0.10 or more and have had a previous conviction or court assigned supervision for driving while under the influence of alcohol, other drug, or combination thereof within the last 5 years, in this or any other State, or received a driver’s license suspension for refusing to submit to chemical testing following an arrest for driving under the influence of alcohol, other drug or combination thereof in Illinois since January 1, 1982, or a previous statutory summary suspension except in cases where you submitted to chemical testing resulting in an alcohol concentration of 0.10 or more and [sic] subsequently found not guilty; your driving privileges will be suspended for a minimum of 12 months.” (Emphasis added.)

Defendant refused to take the requested test. On June 8, 1990, the Secretary of State filed with the circuit court a confirmation that, pursuant to section 11—501.1 of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.1), defendant’s driving privileges would be suspended for a minimum of two years, effective July 10, 1990. This suspension was based on section 6—208.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, par. 6—208.1), which provides, as relevant here:

“(a) Unless the statutory summary suspension has been rescinded, any person whose privilege to drive a motor vehicle on the public highways has been summarily suspended, pursuant to Section 11—501.1, shall not be eligible for restoration of the privilege until the expiration of:
* * *
3. Two years from the effective date of the statutory summary suspension for any person other than a first offender who refuses or fails to complete a test or tests to determine the alcohol or drug concentration pursuant to Section 11—501.1; or
4. One year from the effective date of the summary suspension imposed for any person other than a first offender following submission to a chemical test which disclosed an alcohol concentration of 0.10 or more pursuant to Section 11—501.1.”

On August 28, 1990, defendant filed his petition to rescind the statutory suspension. Defendant, who was not a “first offender” within the meaning of the statute, challenged the suspension on the four grounds listed in section 2—118.1(b) of the Code (see Ill. Rev. Stat. 1989, ch. 95½, par. 2—118.1(b)). The only relevant ground on appeal is his argument that the suspension was invalid because the arresting officer did not properly advise him that his privilege to operate a motor vehicle would be suspended if he refused to submit and complete the tests (see Ill. Rev. Stat. 1989, ch. 95½, par. 2—118.1(b)(3)). Defendant argued specifically that the warning he received inaccurately stated that his refusal to take the test would result in the suspension of his license for a minimum of 12 months, whereas section 6—208.1 of the Illinois Vehicle Code, as applicable at all relevant times, actually provided for suspension for a minimum of two years. According to defendant, this inaccurate warning violated section 11—501.1(c) of the Code, which provides:

“A person requested to submit to a test as provided above shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in the statutory summary suspension of such person’s privilege to operate a motor vehicle as provided in Section 6—208.1 of this Code.” Ill. Rev. Stat. 1989, ch. 95½, par. 11— 501.1(c).

The trial court granted the State a directed finding on the petition and denied defendant’s motion to reconsider. The trial judge acknowledged that the warning issued to defendant was inaccurate, as it was based on the version of section 6—208.1 applicable prior to September 21, 1989, the effective date of section 2 of Public Act 86—929 (the amendment). Prior to the amendment, section 6—208.1 required (absent rescission of the summary suspension) a suspension of one year for “any person other than a first offender.” (See Ill. Rev. Stat. 1987, ch. 95½, par. 6—208.1(a)(3).) Under section 6—208.1 before the amendment, both motorists who refused or failed to take the requested test and those who took and failed the test were subject to a minimum one-year suspension of driving privileges. Under section 2—608.1 as amended, those who refuse or fail to take the requested test face a minimum two-year suspension, twice that applicable to those who submit to the test and fail.

Although the trial judge recognized that the warning to defendant was inaccurate in that it tracked the outdated version of section 6—208.1, she concluded that defendant nonetheless had failed to prove that his license was improperly suspended. The judge reasoned that the warning informed defendant that his refusal to be tested would result in the suspension of his driving privileges for a minimum of 12 months and that this warning, even if not completely accurate, sufficiently informed defendant of the consequences of a refusal to take this test. The judge noted that the warning stated that a refusal would result in the suspension of defendant’s driving privileges for a minimum of 12 months; the warning “did not just as a blanket say it will be only twelve months.” (Emphasis added.) She concluded, therefore, that it would be “hypertechnical” here to require the arresting officer to have used the updated warning.

On appeal, defendant argues that this interpretation of the Code is erroneous. Defendant points out that section 11—501.1(c) of the Code requires that the arresting officer warn the motorist that refusal to submit to testing “wiU result in the statutory summary suspension of [the driver’s license] as provided in Section 6 — 208.1 of this Code.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 95x/2, par. 11 — 501.1(c).) Defendant reasons that because the arresting officer did not correctly inform him of the consequences of refusal as spelled out in section 6— 208.1 of the Code, the warning did not comply with the above-quoted statutory command.

We agree with defendant to the extent that we hold that, under the facts of the case, defendant made a prima facie case for rescission of the summary suspension. We believe that the warning in issue, by materially misstating the consequences of a refusal to submit to the requested test, did not comply with the requirements of section 11—501.1(c) of the Code. We thus conclude that the trial court erred in entering a directed finding for the State.

We note that defendant has not included a transcript of the hearing itself in the record on appeal. However, there are transcripts of the arguments on both the motion for a directed finding on the issue now raised on appeal and the motion for reconsideration. It is evident, and the State does not contest, that the trial judge granted the directed finding on this issue because she concluded that, as a matter of law, the warning issued in this case sufficiently complied with the Code.

In considering the State’s motion for a directed finding, the trial judge was required to consider first whether defendant had made a prima facie case; only after finding that he had done so would she have been required to weigh his evidence in order to decide whether the prima facie case had been negated. (See Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154-55.) Even on this limited record it is clear that the trial judge concluded that because the warning was adequate defendant had not made a prima facie case that he was not properly advised of the consequences of refusal to submit to a test (see Ill. Rev. Stat. 1989, ch. 95½, par. 2— 118.1(b)(3)).

Section 11—501.1(c) formerly provided that a defendant whose driver’s license was suspended because he refused to submit to a chemical test could not obtain rescission of the suspension on the ground that he had not been warned that his driving privileges would be suspended if he refused to be tested. (See Ill. Rev. Stat. 1983, ch. 95½, par. 11— 501.1(c); People v. Mucha (1986), 140 Ill. App. 3d 788, 794-95.) As it now reads, however, section 11—501.1 of the Code requires the arresting officer to warn the motorist that refusal will result in the suspension of his driving privileges, and section 2—118.1(b)(4) of the Code makes the failure to give this warning a ground for the rescission of the suspension.

Whether the inaccurate warning given defendant complied with the relevant sections of the Code depends on the proper interpretation of the warning requirement. In construing the relevant statutory provisions, we must ascertain and give effect to the intent of the legislature. (Canteen Corp. v. Department of Revenue (1988), 123 Ill. 2d 95, 104.) This requires us to consider not only the language of the statute but also the purposes to be attained by the provisions involved. Canteen Corp., 123 Ill. 2d at 104.

Due process does not require that a motorist be allowed to refuse to take a chemical test that has otherwise validly been requested pursuant to the implied consent statute. (People v. Yant (1991), 210 Ill. App. 3d 961, 964; People v. Frazier (1984), 123 Ill. App. 3d 563, 566.) The statute is intended to allow a motorist to refuse such a test if he is willing to bear the consequences. (Frazier, 123 Ill. App. 3d at 566-67.) The purpose of requiring that the motorist be warned of the consequences of his refusal is to enable him to make an informed choice between refusing and submitting to the test. People v. Znaniecki (1989), 181 Ill. App. 3d 389, 392.

We do not believe that we would effectuate this legislative intent by holding that the warning in this case was sufficient. Here defendant was warned that refusal to take the test or submission to the test followed by a result of .10% or more blood-alcohol content would result in the suspension of his driving privileges for “at least 12 months.” The warning, based on the statute as formerly written, thus did not convey that under the statute as actually in effect the minimum suspension for a refusal to be tested is really 24 months, or twice that for taking and failing the requested test. The Code provides that after the statutorily imposed suspension has expired, “full driving privileges shall be restored unless the person is otherwise disqualified by this Code.” (Ill. Rev. Stat. 1989, ch. 95½, par. 6— 208.1(b).) Thus, the “minimum period” is not discretionary and may well be the actual period of suspension in a given case. By equating the consequences of refusal and submission followed by unfavorable results, the warning in this case was inaccurate and misleading and therefore not conducive to an informed choice.

Our reading of the statute is bolstered by the specific language of section 11—501.1(c), which states that the motorist “shall be warned *** that a refusal to submit to the test will result in the statutory summary suspension of such person’s privilege to operate a motor vehicle as provided in section 6—208.1 of this Code.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.1(c).) The word “shall” ordinarily indicates a mandatory obligation. (People v. Gerke (1988), 123 Ill. 2d 85, 94.) The phrase “as provided in Section 6—208.1” would be superfluous had section 11—501.1(c) been intended to require merely some sort of general warning. Courts should avoid constructions that make certain words or phrases meaningless or superfluous. (People v. Fierer (1988), 124 Ill. 2d 176, 192.) At the very least, the inclusion of such language would appear to obligate arresting officers to avoid giving materially inaccurate or misleading warnings.

The failure to give the required warnings is a ground for the rescission of the statutory summary suspension. (People v. Gafford (1991), 218 Ill. App. 3d 492, 497; Znaniecki, 181 Ill. App. 3d at 392.) In Znaniecki, the appellate court reversed the circuit court’s denial of defendant’s petition to rescind his summary suspension. The court held that where the arresting officer warned the defendant only of the consequences of submitting to a test that revealed a blood-alcohol content of more than .10% and not of the consequences of refusing the test, the incomplete warning did not comply with section 11—501(c). The court explained that the purpose of the warning requirement is to allow a motorist to make an intelligent decision between being tested and refusing testing; therefore, the motorist must be “completely informed” of the consequences of either choice. 181 Ill. App. 3d at 392.

Although Znaniecki involved a complete failure to warn of the consequences of refusal to submit to a test, we believe that its reasoning is equally applicable to the failure to provide a substantially correct warning. To hold that an inaccurate or deceptive warning may satisfy the requirement of section 11—501(c) would disserve the purpose of the warning requirement and perhaps even make the requirement itself superfluous. We note that section 11—501.1(c) and section 2—118.1(b)(3), as construed in Znaniecki, do not make the defendant’s actual state of mind at the time of the arrest a relevant consideration; the test is whether the defendant was issued a warning that was objectively accurate and informative. Znaniecki, 181 Ill. App. 3d at 392.

In People v. McCollum (1991), 210 Ill. App. 3d 11, the Appellate Court, Fourth District, relying in part on Znaniecki, held that section 11—501.1(c) requires the arresting officer to admonish the motorist of the specific length of a possible suspension. Without necessarily endorsing all of the reasoning of that opinion, we agree with McCollum to the extent that the failure to admonish the motorist properly of the length of a possible suspension may result in an incomplete warning and thus necessitate the rescission of the statutory suspension.

We hold that the evidence that defendant was given a materially inaccurate and misleading warning was sufficient to establish a prima facie case for the rescission of the statutory summary suspension. The trial court therefore erred in granting the State a directed finding at the close of defendant’s evidence. Although defendant requests that we order the trial court to grant his petition to rescind the suspension, we cannot do so at this stage of the proceeding, as the State is entitled to put on evidence against the petition. We therefore reverse the trial court’s grant of a directed finding on the petition insofar as it concerned the issue of compliance with the warning requirement. As defendant does not contest the grant of a directed finding on the other issues raised by his petition, the circuit court’s ruling on those issues is affirmed. The cause is remanded for a new hearing on defendant’s petition, limited to the issue of whether defendant was properly warned as required by sections 11—501(c) and 2 —118.1(b)(3) of the Code.

The judgment of the circuit court is affirmed in part and reversed in part, and this cause is remanded.

Affirmed in part; reversed in part and remanded.

GEIGER and BOWMAN, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARL T. STORMS, Defendant-Appellant.
    Second District
    No. 2 — 90—0100
    Opinion filed March 10, 1992.
    Rehearing denied March 31, 1992.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, and Joseph Michael Williams, of St. Charles, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Earl T. Storms, defendant, was convicted of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19—3) following a jury trial in the circuit court of Lake County. Judgment was entered on the verdict, and defendant was sentenced to a term of 19 years’ imprisonment and 3 years of mandatory supervised release. On appeal, Storms contends that he is entitled to a judgment n.o.v. or, alternatively, a new trial on the basis that: (1) he was not proved guilty beyond a reasonable doubt; (2) the State made improper and prejudicial comments in closing argument; and (3) the trial judge should have been disqualified because he prosecuted defendant in a prior burglary case. Storms further contends that he is entitled to a remand for resentencing on the basis that: (1) the sentence of 19 years’ imprisonment is excessive; (2) the court abused its discretion in sentencing defendant as a Class X offender; and (3) the court failed to consider mitigating factors in sentencing. We affirm in part, vacate in part, and remand.

The record reveals that on September 19, 1989, around noon, defendant entered the residence of Edward and Mary Kasper in Waukegan, Illinois, by removing a screen and climbing through a window. Employees of Ted’s Log Cabin restaurant across the street observed defendant both prior to and following his entry into the home and notified the police because Mary Kasper, the owner of the residence and an employee at the restaurant, was on vacation. When Waukegan police officers arrived on the scene, defendant walked from the residence and voluntarily surrendered. He reported that he did not intend to burglarize the residence but, due to his intoxicated state, mistakenly entered the residence thinking it was his Aunt Margaret’s house. Carl Nelson, one of the investigating officers, observed no items moved in the house, no stolen items, and no burglary tools in defendant’s possession.

The Criminal Code of 1961 defines residential burglary as “knowingly and without authority entering] the dwelling place of another with the intent to commit therein a felony or theft.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 19—3.) Defendant first contends that he was not proved guilty beyond a reasonable doubt because the evidence failed to establish that he possessed such intent. When faced with a challenge to the sufficiency of the evidence, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Campbell (1992), 146 Ill. 2d 363, 374; People v. Pintos (1989), 133 Ill. 2d 286, 291; People v. Young (1989), 128 Ill. 2d 1, 49.) Therefore, a reviewing court will not substitute its judgment for that of the trier of fact on questions involving the sufficiency of the evidence and will not reverse a criminal conviction unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of guilt. People v. Collins (1985), 106 Ill. 2d 237, 261; People v. Sehr (1986), 150 Ill. App. 3d 118, 122.

Defendant’s intent to commit a theft or felony is an essential element of residential burglary, the offense for which he was charged. (Ill. Rev. Stat. 1989, ch. 38, par. 19—3.) In the absence of inconsistent circumstances, the fact finder may infer the requisite intent to commit theft from proof of an unlawful breaking and entry into a building containing personal property that could be the subject of larceny. (People v. Johnson (1963), 28 Ill. 2d 441, 443; see also People v. Boguszewski (1991), 220 Ill. App. 3d 85, 88.) However, the specific intent to commit a theft or felony cannot be proved merely by the entry itself. (People v. Toolate (1984), 101 Ill. 2d 301, 308.) Such an inference of intent is permissible only when the circumstantial evidence of the facts surrounding the occurrence, including the time, place, and manner of entry into the premises, the defendant’s activity within the premises, and any lack of alternative explanations for his presence, justifies this conclusion. People v. Richardson (1984), 104 Ill. 2d 8, 13; People v. Ybarra (1987), 156 Ill. App. 3d 996,1002-03.

Juan Sostre, one of the employees of the restaurant, testified that he observed defendant walking around the front and back of the residence and in the alley prior to his entry through the window. Within 10 seconds, Storms was observed by several of the State’s witnesses walking from room to room inside the home and subsequently sitting on the front porch. Although he was not observed rustling through drawers or closets, did not possess burglary tools, and no items of personal property had been taken, we reject the argument that an intent to commit theft cannot be inferred because nothing was taken. (See Sehr, 150 Ill. App. 3d at 123-24.) We also reject defendant’s argument that his lack of an attempt to flee when he became aware the police had been contacted and voluntary surrender are “inconsistent” with an intent to commit a theft. The jury could very well have concluded that Storms did not take any property either because there was nothing to take that was sufficiently portable or because he was apprehended before he had such an opportunity. It was also reasonable to find that Storms did not attempt to flee because he had a limited chance for a successful escape given that several restaurant employees were waiting outside the home for the police to arrive. See Ybarra, 156 111. App. 3d at 1004-05.

Furthermore, when Sostre confronted Storms, he explained that he was intoxicated and under the mistaken belief that he was in the home of Aunt Margaret. However, the only evidence that Storms knew anyone he referred to as Aunt Margaret was the testimony of his childhood friend, Charles Cruz, who stated that Margaret Martinez, his own aunt, lives in Waukegan and Storms refers to her as Aunt Margaret. Even assuming the truth of defendant’s explanation, popping a screen and climbing through the window “is not the typical behavior of one who wishes to see an acquaintance but does not receive an answer when knocking at the door to his residence.” (In re P.A.G. (1990), 193 Ill. App. 3d 601, 603.) Therefore, we find his explanation insufficient to rebut the inference of theft created by his unlawful entry.

Because burglary is a specific intent crime, defendant’s intoxication could be a valid defense if he was so drunk that he did not know what he was doing and consequently could not have formed an intent to commit theft. However, the jury was free to reject this defense, particularly in view of conflicting testimony as to how many drinks defendant had consumed and how drunk he appeared to be. (Richardson, 104 Ill. 2d at 14.) Even though proof of defendant’s guilt depended on circumstantial evidence, it was the prerogative of the jury to assess the credibility of the witnesses and reject defendant's explanation of the crime, (Collins, 106 Ill. 2d at 261-62.) Accordingly, we find the evidence sufficient for a reasonable jury to find, beyond a reasonable doubt, that every element of the burglary was proved.

Defendant next objects to the State’s comments regarding the failure to produce Aunt Margaret as a witness. The first comment was made during the State’s closing argument, to which there was no objection:

“The second thing he [defendant] tells two of them [restaurant employees]—he goes, 'I was looking for my Aunt Margaret’s.’ ‘I’m looking for my aunt’s house.’ Well, I don’t know who his aunt is, but I know he had a witness that came in here this morning, Chuck Cruz, and he didn’t tell you where the aunt was.”

The following reference to the aunt occurred during the State’s rebuttal:

“How do we know Earl Storms thought it was okay to go in? Because Chuck Cruz gets up and says he has an Aunt Margaret and an Aunt Tina? Maybe I missed it and I’m wrong. I didn't hear if they were from Waukegan. Even if they were from Waukegan, his Aunt Margaret and Aunt Tina— .”

Defense counsel objected to the statement, arguing that it shifted the burden of proving the existence of Aunt Margaret to defendant. The court overruled the objection, but admonished counsel not to go into the matter further. Defendant contends that, by virtue of the remarks, the State impermissibly shifted the burden of proof to the defense resulting in the denial of a fair trial. We do not agree.

Generally, it is improper for the prosecutor to comment on the defendant’s failure to call a nonalibi witness. (People v. Adams (1985), 109 Ill. 2d 102, 120.) However, “where a defendant injects into the case the name of an alibi witness and then fails to call the witness, the prosecutor may legitimately comment on the lack of such evidence although it may not be relied upon as proof of the charge.” (People v. Kubat (1983), 94 Ill. 2d 437, 498; see also People v. Blakes (1976), 63 Ill. 2d 354, 359-60; People v. Wills (1986), 151 Ill. App. 3d 418, 422-23.) As stated in People v. Williams (1968), 40 Ill. 2d 522, 528:

“[The jury] may properly consider any facts developed in the trial from which a reasonable inference may be drawn for or against either party. For instance, if it is developed in a trial that a witness exists, presumably under the control of a defendant, who can throw light upon a vital matter, and he is not produced, certainly a jury may fairly consider that fact, and, likewise, counsel would have a legitimate right to comment thereon.”

Nevertheless, the remarks do not constitute reversible error unless they constitute a material factor in the conviction or result in substantial prejudice to the accused. Wills, 151 Ill. App. 3d at 423; People v. Nilsson (1970), 44 Ill. 2d 244, 248; People v. Beller (1979), 74 Ill. 2d 514, 526.

In this case, the existence of Aunt Margaret was first introduced at trial during the opening statement by the defense. Counsel informed the jurors that they would hear testimony that Storms told the witnesses, who observed his entry, that he was looking for his aunt’s house. Later, Juan Sostre, one of the restaurant employees, stated both on direct and cross-examination that Storms told him he was in the residence because it was Aunt Margaret’s house. The last reference to the aunt occurred when Charles Cruz testified that he has an aunt named Margaret Martinez living in Waukegan whom Storms refers to as Aunt Margaret.

We believe the remarks by counsel were within the bounds of proper argument. A prosecutor may base his argument on the evidence presented or on reasonable inferences therefrom. (People v. Alexander (1989), 184 Ill. App. 3d 855, 863.) Because the existence of the aunt was injected by the defense to support its theory that Storms did not intend to commit a theft or felony, but merely intended to visit and was testified to during trial, the State’s remarks were proper under Kubat and its progeny. See also Alexander, 184 Ill. App. 3d at 864.

In the State’s rebuttal, the prosecutor stated that “[t]here was no testimony elicited in these two days of trial that anyone knew that he (Storms) was in this building.” The context of this statement related to the period prior to the restraint of Storms by the employees of the restaurant. Nevertheless, defendant alleges that this is a misstatement of the evidence because Juan Sostre testified he saw Storms prior to his entry into the residence. The record reveals that this statement was made on the State’s rebuttal in response to defense counsel’s closing argument which attempted to prove that Storms did not commit burglary because he knew he was observed prior to his entry and aborted the intent to commit a theft at that point. A defendant cannot complain of a prosecutor’s statements made on rebuttal when his own argument invited those statements. (Alexander, 184 Ill. App. 3d at 864; People v. Rader (1988), 178 Ill. App. 3d 453, 466.) We find this statement to be accurate and responsive. Consequently, there was no prejudicial error in allowing the statement.

Next, defendant contends that he is entitled to a new trial because of an alleged appearance of impropriety by the trial judge. Initially, this case was assigned to Judge William Block. However, defendant moved for substitution of judges pursuant to section 114—5(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 114—5(d)) on the basis that he could not receive a fair trial before Judge Block because he sentenced defendant to the Department of Corrections on two prior occasions. Consequently, Judge Block reassigned the case to Judge Peter Trobe. It was determined after trial but before any hearing on post-trial motions or sentencing that Judge Trobe served as assistant State’s Attorney in a prior burglary case where Storms was one of the defendants. At this point, defendant filed a post-trial motion for a judgment n.o.v. or, alternatively, for a new trial on the basis that he was denied a fair trial before Judge Trobe because of his involvement in the prior case.

A hearing was held before Judge Block, the supervising judge of the criminal division, without objection by the defense. Judge Block summarized the extent of Judge Trobe’s involvement as follows: Storms was arrested for burglary in March of 1980; on July 22, 1980, he failed to appear in court; there was a bond forfeiture where Trobe acted as assistant State’s Attorney, and a warrant was issued for Storms’ arrest; on July 24, 1980, Storms was sentenced to three years’ probation and ordered to pay $200 plus court costs; on March 15, 1981, Storms was arrested for unlawful possession of cannabis; on March 16, 1981, Trobe appeared for the State on a petition for revocation of probation, to which Storms failed to appear, and a warrant was again issued; on March 20, Storms surrendered, and his motion to reinstate bond was denied; on March 21, a hearing was held on Trobe’s petition to revoke probation, and defendant was found guilty of contempt. Considering the cases of People v. Del Vecchio (1989), 129 Ill. 2d 265, People v. Lopez (1989), 187 Ill. App. 3d 999, People v. Lipa (1982), 109 Ill. App. 3d 610, and People v. Burnett (1979), 73 Ill. App. 3d 750, Judge Block determined that the extent of Judge Trobe’s involvement did not give the appearance of impropriety and sent the matter back to Judge Trobe for hearing on the other matters asserted in defendant’s post-trial motion and for sentencing.

We find Judge Block’s reliance on the aforementioned cases somewhat misplaced, in that they determined whether the judge at issue should have recused himself under the following standard for disqualification in effect at the time of the hearings:

“A judge shall not participate in any case in which he has previously acted as counsel. He cannot rid himself of this responsibility by consent of counsel or the parties to the case.” (87 Ill. 2dR. 67(c).)

Based on this rule, the courts in Del Vecchio, Lipa, and Burnett concluded that the judge's prior actions for the State’s Attorney’s office were merely supervisory and recusal was not required. As stated in Del Vecchio, “[m]erely having a previous involvement with a defendant does not, per se, require disqualification.” (Del Vecchio, 129 Ill. 2d at 277.) For a judge to have “acted as counsel” within the meaning of the statute, he must have been actually involved in the prosecution or defense of a defendant’s case. Lopez, 187 Ill. App. 3d at 1008; Burnett, 73 Ill. App. 3d at 754.

The cases Judge Block relied on are instructive as to the degree of involvement necessary for disqualification but not dispositive because they interpreted a rule no longer in effect. In 1987, our supreme court adopted the Code of Judicial Conduct (134 Ill. 2d Rules 61 through 67). Rule 63(C)(1) replaced the aforementioned rule and specifies the following situations in which a judge should recuse himself:

“C. Disqualification.
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where
(a) he has a personal bias or prejudice concerning a party or his lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; [or]
(b) he served as lawyer in the matter in controversy ***; [or]
(c) he was, within the preceding three years, associated in the private practice of law with any law firm or lawyer currently representing any party in the controversy *** or, for a period of seven years following the last date on which he represented such a party, he represented any party to the controversy while he was an attorney engaged in the private practice of law.” (134 Ill. 2d Rules 63(C)(1)(a), (C)(1)(b), (C)(l)(c).)

Although the new rule supposedly does not “depart radically from the rules it replaces” and “simply sets out in greater detail the duties and responsibilities of a judge and what situations mandate disqualification,” the changes are distinct. (See Ill. Ann. Stat., ch. 110A, par. 63, Supplement to Historical & Practice Notes, at 27 (Smith-Hurd Supp. 1991).) The former rule prohibited a judge from ever being involved in a matter in which a former client is a party. The new rule, however, provides for mandatory recusal both when the judge “served as lawyer in the matter in controversy” (134 Ill. 2d R. 63(C)(1)(b)) and if he represented one of the parties within the past seven years (134 Ill. 2d R. 63(C)(1)(c)). (See also Ill. Ann. Stat., ch. 110A, par. 63, Supplement to Historical & Practice Notes, at 28-29 (Smith-Hurd Supp. 1991).) Unfortunately, we find no case law interpreting these provisions in conjunction with each other.

Although the rule has been changed, we deem the rationale of Del Vecchio applicable as requiring recusal when the judge played a meaningful role in prosecuting or defending a party to the current matter. (See People v. Thomas (1990), 199 Ill. App. 3d 79, 90.) We determine that Judge Trobe’s actions in prosecuting the 1980 burglary against Storms were not merely supervisory, but amounted to “serving as a lawyer,” as his participation in probation revocation proceedings amount to substantive representation. His involvement in the 1980 case became directly relevant to the “matter in controversy,” the present case, at the time of sentencing, because the portion of defendant’s prior criminal record involving Judge Trobe as prosecutor could be presented in aggravation. Additionally, Judge Trobe’s impartiality may be reasonably questioned, because of his personal knowledge of the 1980 burglary prosecution. Therefore, Judge Block ought to have assigned the sentencing hearing to a different judge.

However, we find no evidence that any bias by Judge Trobe with respect to Storms existed either during the trial or the hearing on the post-trial motion. Since, as Judge Block found, neither party remembered the prior involvement until after the completion of the trial, any rulings by Trobe during trial cannot be attributed to prejudice against Storms because the prior prosecution was not a “matter in controversy” either during the trial or during the hearing on the post-trial motion. Therefore, we find that Judge Trobe should not have been disqualified from hearing the trial and post-trial motions.

However, we remand this cause to the trial court for a new sentencing hearing. In light of this ruling, we deem it unnecessary to address any of the issues defendant raises regarding his sentence. Judge Trobe and Judge Block shall not be further involved for any purpose other than a transfer to the chief judge for reassignment. Accordingly, the judgment of the circuit court of Lake County is affirmed in part and vacated in part, and the cause is remanded for further proceedings in conformance with this opinion.

Affirmed in part; vacated in part and remanded.

GEIGER and NICKELS, JJ., concur.


author: JUSTICE DUNN JUSTICE McLaren,

text:
    THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Plaintiff-Appellee, v. HERITAGE STANDARD BANK AND TRUST COMPANY, Trustee, Defendant-Appellant (Gallagher and Henry, Inc., Defendant).
    Second District
    No. 2 — 91—0165
    Opinion filed February 20, 1992.
    Rehearing denied April 3, 1992.

      McLAREN, J., dissenting.
    Leo N. Cinquino, of Righeimer, Martin & Cinquino, P.C., of Chicago, and S. Louis Rathje, of Rathje, Woodward, Dyer & Burt, of Wheaton (Sandra L. Hebenstreit, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield, and David W. Krula, of Helm & Day, of Naperville (Malcolm E. Erickson, Special Assistant Attorney General, of Oak Brook, and Stephen D. Helm, of counsel), for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

This action arises from an eminent domain proceeding. Plaintiff, the Illinois State Toll Highway Authority, acquired property owned by the defendant through a quick-take proceeding. The amount of preliminary compensation exceeded the amount of final compensation awarded to the defendant. Defendant, Heritage Standard Bank, now appeals from the trial court order requiring defendant to pay interest on the amount of preliminary compensation in excess of the amount of final compensation.

On August 18, 1987, the plaintiff filed an eminent domain action by which it sought to acquire a parcel of land owned by the defendant in Woodridge, Illinois. The plaintiff sought acquisition by quick-take. On August 19, 1987, the plaintiff filed a motion for immediate vesting of title. By agreement of the parties, an order was entered by the trial court awarding preliminary compensation in the amount of $1,164,000 on August 26, 1987. On that same date, an order vesting title after quick-take was entered in addition to an order allowing the defendant to withdraw the preliminary compensation.

On February 3, 1989, judgment was entered on the jury verdict for final just compensation in the amount of $805,000, which was $359,000 less than the award of preliminary compensation. On February 10, 1989, a final judgment order was entered by the trial court awarding final just compensation and ordering the defendant to refund the excess preliminary compensation by April 14, 1989. The defendant appealed. On June 29, 1989, during the course of the appeal, the plaintiff filed its motion for refund, requesting entry of an order requiring the immediate refund of the $359,000 excess plus interest at 9% from February 3, 1989. The court entered an order on September 7, 1989, nunc pro tunc to August 24, 1989, denying plaintiff’s motion as premature pending defendant’s appeal. This court affirmed the judgment of the trial court on appeal in Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co. (1990), 196 Ill. App. 3d 5, the first and prior appeal of this case. Our mandate was received by the trial court on November 26,1990.

On December 21, 1990, the plaintiff filed an amended motion for refund of the excess preliminary compensation claiming it was entitled-to interest on the excess from February 3, 1989. A hearing on the motion was held on January 9, 1990, during which plaintiff requested that the court order interest on the excess, not from February 3, 1989, as originally requested in plaintiff’s motion, but from April 14, 1989, the date for refund fixed by the court’s order entered February 10, 1989. On that same date, the court granted the plaintiff’s amended motion for refund and ordered the defendant to pay the excess preliminary compensation to the plaintiff in the principal amount of $359,000, plus interest at 9% from April 14, 1989, on or before January 28,1991.

The defendant deposited the principal sum of $359,000 with the clerk of the circuit court on February 12, 1991. The defendant timely appeals, contesting the plaintiff’s right to receive interest.

At issue in this case is whether section 7—109 of the Eminent Domain Act (Act) (Ill. Rev. Stat. 1989, ch. 110, par. 7—109) requires a judgment to be entered by the trial court for any excess preliminary compensation, in addition to the order entered for refund, before interest may be awarded on that amount. We conclude that it does.

Interest is not recoverable in the State of Illinois unless contracted for or authorized by statute. (See Department of Transportation v. New Century Engineering & Development Corp. (1983), 97 Ill. 2d 343; Lakefront Realty Corp. v. Lorenz (1960), 19 Ill. 2d 415.) The only portion of the Eminent Domain Act providing for the payment of interest is found in section 7 — 108 requiring the plaintiff to pay interest on any excess compensation finally adjudged over the amount of preliminary compensation found by the court to be just. (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 108.) The portion of the Act concerning the refund of excess compensation does not provide for interest on any amount by which the preliminary compensation exceeds the final compensation. It states:

“If the amount withdrawn from deposit by any interested party *** exceeds the amount finally adjudged to be just compensation (or damages, costs, expenses, and attorney fees) due to such party, the court shall order such party to refund such excess to the clerk of the court, and if refund is not made within a reasonable time fixed by the court, shall enter judgment for such excess in favor of the plaintiff and against such party.” Ill. Rev. Stat. 1989, ch. 110, par. 7 — 109.

However, in Department of Transportation v. New Century Engineering Corp. (97 Ill. 2d 343), our supreme court held that interest could be awarded on the amount by which the preliminary compensation exceeds final compensation under section 3 of the Interest Act (now codified under Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1303), which provides that “[¡judgments recovered in any court shall draw interest *** from the date of the judgment until satisfied.”

In New Century, the Department of Transportation acquired by quick-take a tract of land owned by New Century Engineering and Development Corporation. James Talcott, Inc., was joined as a defendant as mortgagee of the property. (97 Ill. 2d at 344.) The court awarded $325,000 as preliminary just compensation. The court entered an order on May 8, 1981, adjudging final compensation for the taking of that property to be $171,535, which was $153,000 less than the amount fixed as preliminary just compensation. New Century had withdrawn $137,500 and Talcott had withdrawn $187,500. 97 Ill. 2d at 345.

The orders entered by the trial court in New Century have been made a part of the supplemental record on appeal. They disclose that on June 17, 1981, the court found the defendants jointly and severally liable for the payment of the $153,465 excess and ordered the refund of that amount within seven days. In addition, the court stated that if that amount was not refunded within seven days, judgment would be entered in favor of the plaintiff and against the defendants. On June 25, 1981, after the defendants failed to refund the excess compensation within seven days, the court entered a judgment against the defendants jointly and severally in the amount of $137,500 and against James Talcott, Inc., in the amount of $15,965. The trial court denied the plaintiff’s request for interest on the excess, and the appellate court affirmed that denial. (97 Ill. 2d at 346.) The supreme court reversed the denial of interest, finding:

“Although the eminent domain law does not specifically provide for interest in this situation, section 3 of the Interest Act [citation] provided that ‘[¡judgments recovered before any court shall draw interest *** from the date of the judgment until satisfied ***.’ We therefore hold the Department is entitled to interest at the legal rate provided by statute *** from June 25, 1981, the date of judgment, until the date of payment.” 97 Ill. 2d at 353.

Plaintiff in this case argues that interest should be awarded from April 14, 1989, until the judgment was paid. However, to award interest in this manner would require this court to ignore the express terms of section 7 — 109 of the eminent domain law. (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 109.) That section provides that the court shall order the defendant to refund the excess compensation to the clerk, and if the refund is not made within a reasonable time fixed by the court, the court shall enter judgment for the excess in favor of the plaintiff. (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 109.) No judgment was entered in this cause until January 9,1990.

A primary rule of statutory construction requires that the intention of the legislature should be ascertained and given effect. (County of DuPage v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151; City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 340-41.) Courts should look first to the statutory language as the best indication of the intent of the drafters. (County of DuPage, 109 Ill. 2d at 151; People v. Boykin (1983), 94 Ill. 2d 138, 141.) Where that language is unambiguous, a court must enforce the law as enacted without considering other aids. County of Du Page, 109 Ill. 2d at 151; People v. Singleton (1984), 103 Ill. 2d 339, 341.

The language of section 7 — 109 is clear. The court must first order the defendant to refund the excess compensation. If that refund is not made within the reasonable time fixed by the court, the court may then enter judgment against the defendant. No rule of construction authorizes a court to declare that the legislature did not intend what the plain language of the statute imports. (People ex rel. Scott v. Schwulst Building Center, Inc. (1982), 89 Ill. 2d 365, 371.) According to the plain meaning of the statute, no judgment exists until the court enters a judgment after the failure of the defendant to refund the excess within a reasonable time fixed by the court. Therefore, interest cannot be awarded until that judgment is entered.

The order directing the defendant to return the excess compensation is purely ministerial because the order awarding preliminary compensation required the defendant to return the difference in the event the amount of final compensation was less than the amount of preliminary compensation. (See Department of Transportation v. Roodhouse (1982), 104 Ill. App. 3d 880, 884.) The trial court’s order dated August 26, 1987, stated, “In the event final compensation should be less than preliminary compensation, the owner shall be responsible to return the difference.” Our mandate regarding the appeal of the amount of final compensation reached the trial court on November 26, 1990. The plaintiff filed an amended motion for refund on December 21, 1990. On January 9, 1991, the trial court ordered the defendant to pay the excess preliminary compensation plus interest at 9% from April 14, 1989, on or before January 28, 1991. The portion of the trial court’s order requiring the defendant to pay interest from April 14,1989, was in error.

Under section 7 — 109, a trial court shall enter a judgment against the defendant only after the expiration of a reasonable time period fixed by the court. No award of interest can be made until a judgment is entered after the expiration of that time. In the present case, the trial court originally ordered the defendant to pay the refund by April 14, 1989. However, the trial court did not enter judgment until January 9, 1991. No interest could be awarded until that judgment was entered. (The propriety of the trial court’s denial of plaintiff’s motion for refund as premature during the pendency of the defendant’s first appeal has not been raised or argued in this appeal; therefore, this issue is waived for the purposes of this appeal (see 134 Ill. 2d R. 341(e)(7)).

In the case before us, the plaintiff argues that New Century does not require a separate judgment to be entered against the defendant before interest may be awarded. Instead, it argues that once the court orders the defendant to refund the excess compensation within a certain time period, after the expiration of that time period, interest begins to accrue against the defendant from that date until the refund is paid. However, the plaintiff has misinterpreted the New Century decision.

The language contained in the series of orders issued by the trial court in New Century clearly tracks the procedure set forth in section 7 — 109. The first order issued May 8, 1981, awarded final compensation. The second order, entered June 17, 1981, ordered the defendants to refund the excess preliminary compensation within seven days and stated that if the refund was not made as directed, the court would enter a judgment in favor of the plaintiff. On June 25, 1981, after the expiration of the time period fixed by the court, the court entered judgment in favor of the plaintiff and against the defendants. Our supreme court held that interest could be awarded under the Interest Act from “June 25, 1981, the date of judgment, until the date of payment.” (Emphasis added.) New Century, 97 Ill. 2d at 353.

The supreme court did not directly address the issue of whether an additional judgment was necessary because the trial court had clearly followed the procedure set forth in section 7 — 109. However, it is implicit in the court’s decision that a judgment must be entered under section 7 — 109 before interest may be awarded. No judgment was entered in this case until January 9, 1991. In accordance with New Century, interest may be awarded from the date of judgment on January 9,1991, until the judgment was paid on February 12,1991.

Accordingly, the judgment of the trial court entered on January 9, 1991, is affirmed, but the portion of the judgment requiring the defendant to pay interest on the $359,000 excess at 9% from April 14, 1989, on is vacated, and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; vacated in part and remanded.

NICKELS, J., concurs.

JUSTICE McLaren,

dissenting:

I respectfully dissent as I believe the trial court’s order should be affirmed in its entirety.

First, I disagree with the majority’s determination of waiver due to plaintiff’s failure to raise directly the propriety of the trial court’s denial of plaintiff’s initial motion for refund. The plaintiff need not have directly raised this issue as the plaintiff subsequently prevailed when the trial court granted interest nunc pro tunc. Furthermore, I believe the plaintiff raised the issue of the correctness of the court’s granting interest nunc pro tunc in the second and third points of plaintiff’s brief regarding “absurd and unjust consequences” and “equity is not on the side of Defendants.”

Second, the order granting interest nunc pro tunc was correct. The order of refund granting interest is a ministerial order. (Depart ment of Transportation v. Roodhouse (1982), 104 Ill. App. 3d 880, 884.) As such, the trial court ought to have entered the judgment initially under the facts in this case. In granting interest nunc pro tunc the trial court was guided by the equitable maxim “that equity considers that as done which ought to be done.” (Ward v. Sampson (1946), 395 Ill. 353, 366-67; see also Cesena v. Du Page County (1991), 145 Ill. 2d 32, 38.) Additionally, “equity has jurisdiction to correct the mistake of a county ministerial officer.” (Cesena, 145 Ill. 2d at 38.) Cesena when read in the context of this case would determine that the trial judge was a ministerial officer as to the entry of the order of refund.

As the majority states, the original order in issue was ministerial. It should have been entered but was not. Upon revestment or reconsideration, the trial court did that “which ought to have been done” initially. The trial court corrected its initial error, and the subsequent judgment should be affirmed in its entirety.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JUDITH R. GUENTHER et al., Defendants-Appellees.
    Second District
    Nos. 2 — 91—0425, 2 — 91—0426 cons.
    Opinion filed February 14, 1992.

      Roger T. Russell, State’s Attorney, of Belvidere (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Dennis P. O’Sullivan, of O’Sullivan, Freek & O’Sullivan, of Belvidere, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The State appeals, pursuant to Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)), from two orders of the circuit court of Boone County, which granted the motions of defendants, Judith Guenther and Karl Guenther, to suppress evidence found in their apartment. The appeals were consolidated on the State’s motion. The sole issue in these appeals is whether the trial court erred in finding that defendant Karl Guenther did not consent voluntarily to the search of defendants’ apartment.

Karl and Judith were charged with the offenses of the unlawful production of Cannabis sativa plants (Ill. Rev. Stat. 1989, ch. 56½, par. 708) and the unlawful possession of between 30 and 500 grams of cannabis (marijuana) (Ill. Rev. Stat. 1989, ch. 56½, par. 704(d)). Defendants each filed a motion to suppress the evidence seized by police officers on December 7,1990, from defendants’ apartment.

At the hearing, defendants presented the following evidence. At about 6 a.m. on December 7, defendants were awakened by a loud pounding on the door to their apartment. Karl put on a pair of jeans and went to the top of the stairs leading to the exterior door. Karl yelled down to ask who was at the door. A person responded, “It’s Arnie.” Karl assumed it was his landlord, Arnie Pearse. Karl came down the stairs and opened the door. Several uniformed police officers were outside, and one of them informed Karl that they had a warrant for his arrest. Pearse was also there, and he was wearing his auxiliary police uniform. Karl informed the officers that he had to get dressed. Karl started up the stairs, and the officers followed him.

Judith was standing at the top of the stairs, and when the officers entered the apartment, she went into the bathroom to get dressed. Karl walked through the kitchen to the living room. He and Judith had slept in that room because they had not yet set up their bed in the bedroom, since they had just moved into the apartment a week earlier. While Karl was putting on a shirt, one of the police officers noticed a pipe on the coffee table. The officer picked it up, smelled it, and then he asked Karl “where’s the pot?” When Karl did not respond, the officer then said, “we have the dog in the area and we’re going to search the place anyway, so *** you should tell us where the pot is at.” Karl then pointed to the closet. Karl admitted on cross-examination that he had smoked marijuana in the pipe the night before. Karl also admitted that he opened the closet door and pointed to the 27 plants.

When Judith emerged from the bathroom, the officers already had taken Karl to the police station. The officers then brought in a drug-sniffing dog to search the apartment. Judith asked if she was going to be arrested. The officers indicated that they were not going to arrest Judith at that time, so she went to work. Judith was arrested when she returned to the apartment.

The State’s witnesses related a slightly different version of the events of December 7, 1990. Four officers were assigned to serve an arrest warrant on Karl for the unlawful delivery of marijuana. The officers were Sergeant Glenn Koski of the State Police, special agent Ron Bartlett of the State Police Di-vision of Criminal Investigations, and two Belvidere police officers, John Coduto and Bill Settle. The officers pulled up to the building where defendants occupied the second floor, and the landlord, Pearse, occupied the first-floor apartment.

The officers went to the side door of the building next to the driveway. Officer Settle knocked on Pearse’s door and asked him if defendants lived upstairs. Settle also asked Pearse if there was another door to the apartment. Pearse, who was dressed only in jeans, informed Settle that there was a front door to the second-floor apartment. Settle went to secure that door. Pearse let Settle into the vestibule area, then returned to his apartment to put on shoes and a shirt.

Coduto had the arrest warrant, and he knocked on the side door. When Karl asked who was there, Coduto responded it was “the landlord.” When Karl answered the door, Coduto informed him he was under arrest for the unlawful delivery of marijuana. Karl stated that he had to get dressed, and, in the interest of the officers’ safety, they followed Karl into the apartment. Coduto informed Settle that they had secured Karl, so Settle came upstairs through the side door. Settle stayed in the kitchen and did not see anything.

Officer Coduto noticed the pipe on the coffee table, and he explained to Karl “that if he had any other drugs in the house that he should give them to [the officers] because [Coduto] had probable cause to bring in a canine unit which was available.” Karl told the officers to follow him and opened the closet. Coduto then radioed for the canine unit. When Pearse came upstairs, Karl had already shown the plants to the officers.

There was a conflict in the testimony about whether, prior to the time Karl opened the closet, Officer Coduto mentioned to Karl that the police could get a search warrant for the apartment. Karl admitted on cross-examination that there was mention of a search warrant, and Officer Koski testified that Coduto mentioned a search warrant. Neither Coduto nor Bartlett testified that Coduto said anything about a search warrant.

In ruling on the motion, the court stated that the subterfuge employed by the police to get Karl to open the door was acceptable since the officers immediately identified themselves and showed Karl the warrant. The court also determined that it was reasonable for the officers to follow Karl into the apartment when he went to put on more clothing. The court denied the motion in regard to the pipe because it was in plain view. The court determined that Officer Coduto did not tell Karl that the police could get a search warrant. The court deemed this difference significant:

“I was rather distressed with Officer Coduto’s attitude, which seemed to be very confident that all he needed was probable cause to search and go get a drug dog, and I don’t think Officer Coduto based on the way he testified to this day really thinks he would have needed a warrant to go *** get the dog and go through.
He probably felt he had probable cause just to get the dog. ***
It is a close case as to what was or wasn’t said, and it makes all the difference in the world whether they gave the defendant an option waiting for a warrant or whether they just told him we’re going ahead and search and in effect might as well make it easy on everybody by bringing out the drugs.”

The court found that Karl did not consent voluntarily to the search. Consequently, the court suppressed the evidence of the plants as against both defendants. The State timely filed this appeal.

We note, at the outset, that defendants have not filed an appellee’s brief. We will therefore consider the issue raised by the State pursuant to the standards of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

The State contends that the trial court erred in finding that Karl did not consent voluntarily to the search of the apartment. We may not reverse the trial court’s determination in this regard unless it was clearly unreasonable. (People v. Casazza (1991), 144 Ill. 2d 414, 417-18.) Whether a consent to search was voluntary depends on the totality of the circumstances. (Casazza, 144 Ill. 2d at 417.) Consent is voluntary if the person was not under any actual or implied duress or coercion. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 227, 36 L. Ed. 2d 854, 863, 93 S. Ct. 2041, 2048.

The trial court emphasized that Officer Coduto was mistaken in his belief that he could have brought in the narcotics detector dog. This finding was the basis of the trial court’s ruling. If the officers could have brought in the dog, the determination of whether Karl’s consent was voluntary would be different. “If the police have actual grounds to carry out a threatened course of conduct, communicating their intent amounts to no more than informing defendant of his legal status and does not vitiate consent.” (People v. Price (1990), 195 Ill. App. 3d 701, 708; see also People v. Coles (1991), 217 Ill. App. 3d 1079, 1085.) Thus, we must determine whether the police had actual grounds to bring in a drug-sniffing dog.

We begin our analysis with the United States Supreme Court’s opinion in United States v. Place (1983), 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637. In Place, the Supreme Court held that exposure of luggage in an airport to a canine sniff “did not constitute a ‘search’ within the meaning of the Fourth Amendment” because the sniff “does not expose noncontraband items that otherwise would remain hidden from public view,” and it “discloses only the presence or absence of narcotics, a contraband item.” (Place, 462 U.S. at 707, 77 L. Ed. 2d at 121, 103 S. Ct. at 2644-45.) The Court elaborated on the nature of the fourth amendment right to be free of unreasonable searches in United States v. Jacobsen (1984), 466 U.S. 109, 80 L. Ed. 2d 85, 104 S. Ct. 1652. In that case, the Court held that there is no legitimate interest in privately possessing contraband, and, therefore, any police investigatory tool, such as a canine sniff, which reveals only whether contraband is present, is not a “search” within the meaning of the fourth amendment. Jacobsen, 466 U.S. at 123-24, 80 L. Ed. 2d at 100-01, 104 S. Ct. at 1661-62.

The Placel Jacobsen rationale applies to canine sniffs in other contexts. In State v. Slowikowski, the Oregon Court of Appeals ruled that a canine sniff of the exterior of a self-storage unit was not a search. (State v. Slowikowski (1987), 87 Or. App. 677, 685, 743 P.2d 1126, 1131.) Although one Federal case, United States v. Thomas (2d Cir. 1985), 757 F.2d 1359, 1367, held to the contrary, that a canine sniff of the exterior of an apartment was a search because of the “heightened privacy interest” in a dwelling, the Thomas holding has been questioned (see People v. Dunn (1990), 77 N.Y.2d 19, 23, 564 N.E.2d 1054, 1057, 563 N.Y.S.2d 388, 390 (“The distinction [Thomas] relies upon, namely, the heightened expectation of privacy that a person has in his residence, is irrelevant under Place’s rationale”); see also United States v. Colyer (D.C. Cir. 1989), 878 F.2d 469). According to Dunn, the PlacelJacobsen rationale applies to a canine sniff of a residence. Dunn, 77 N.Y.2d at 24, 564 N.E.2d at 1057, 563 N.Y.S.2d at 391.

We note that some courts have expressed concern about extending this rule to private residences and have sought to temper it by imposing a requirement that the use of the “ ‘canine cannabis connoisseurs’ ” (Dunn, 77 N.Y.2d at 21, 564 N.E.2d at 1055, 563 N.Y.S.2d at 389, quoting 1 LaFave, Search & Seizure §2.2(f), at 367 (2d ed. 1987)) be “reasonable” (United States v. Taylor (9th Cir. 1991), 934 F.2d 218, 221) or supported by a reasonable suspicion that contraband is present (McGahan v. State (Alaska 1991), 807 P.2d 506, 509-10; United States v. Whitehead (4th Cir. 1988), 849 F.2d 849, 857). We need not digress here into the parameters of a permissible canine sniff in a private home, as the officer here had probable cause to believe that there was marijuana in the living room. See People v. Montgomery (1986), 112 Ill. 2d 517, 525 (probable cause exists when the totality of the circumstances is such that a reasonably prudent person would believe that the suspect is committing or has committed a crime).

Applying the Placel Jacobsen rationale to the present facts, the police had a right to be in defendants’ living room because they were executing an arrest warrant and defendant needed to put on more clothing. (See People v. Hawkins (1980), 88 Ill. App. 3d 178, 184-85; People v. Mancl (1977), 55 Ill. App. 3d 41, 44.) Since a canine sniff does not constitute a search, and the police had probable cause to believe there was marijuana in the living room, the police could have brought in the dog. Therefore, merely advising Karl of that fact does not serve to vitiate his consent. Price, 195 Ill. App. 3d at 708.

Moreover, the evidence does not support the trial court’s conclusion that the police hounded Karl into showing them the plants in the closet. Officer Coduto asked Karl where was “the pot” or “any other drugs”; he did not ask where were the Cannabis sativa plants. The presence of the recently smoked marijuana indicated to the police officers that there probably was more marijuana nearby. Marijuana is the “dried leaves and flowering tops” of the Cannabis sativa plant. (Webster’s Ninth New Collegiate Dictionary 727 (1987).) Thus, the officer did not request or command Karl to show him any plants. (We cannot, however, determine whether drug detector dogs are trained to identify Cannabis sativa plants, as opposed to the processed product, marijuana (see 1 LaFave, Search & Seizure §2.2(f), at 366 n.198 (2d ed. 1987)) and, consequently, whether the police officer intended to bring the dog in solely to sniff for marijuana.) We conclude that the trial court’s finding that Karl’s consent to the search was not voluntary was manifestly erroneous.

Accordingly, the judgment of the circuit court of Boone County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS, P.J., and GEIGER, J., concur.