text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SHELLEY A. TAYLOR et al., Defendants-Appellees.
    Third District
    Nos. 3—89—0186 through 3—89—0192 cons.
    Opinion filed June 13, 1990.
    Greg McClintock, State’s Attorney, of Monmouth (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellees Shelley A. Taylor, Randy Buster, and Roger G. Burk.
    Warren T. McNeill, of Monmouth, for appellees Richard Osborne, John Osborne, Mark J. Buster, and Roger D. Trego.
   JUSTICE BARRY

delivered the opinion of the court:

The People of the State of Illinois appeal from orders suppressing evidence seized pursuant to a search warrant in seven criminal causes arising out of a drinking party attended by several persons under the age of 21 years. The causes have been consolidated upon appeal.

The facts are not disputed. According to the report of proceedings, at 2:30 a.m. on Saturday, December 24, 1988, the State’s Attorney of Warren County and a Monmouth police officer prepared a complaint for search warrant for a Monmouth address. The State’s Attorney was unable to locate either one of the two judges who resided in Monmouth. At 4:10 a.m. he contacted Judge Stephen G. Evans by telephone at his home in Henderson County some 15 to 20 miles away.

During the telephone conversation, the State’s Attorney read the complaint for search warrant to Judge Evans, and the judge authorized the State’s Attorney to have the complaint sworn to before him as an elected public official and to issue the search warrant. The judge stated that he would sign the warrant later that day when he was in court.

The warrant was served, and defendants were arrested after a quantity of beer and empty beer containers were seized pursuant to the warrant. At 11 a.m. the morning of December 24, 1988, Judge Evans signed the warrant and indicated on it that he had orally authorized it at 4:13 a.m. that day.

At the hearing on the motion to suppress, the parties stipulated to these facts and also that Judge Evans was a detached and neutral magistrate and that Officer Dave Fullerton was acting in a good-faith belief that the warrant was valid when he conducted the search.

Following the hearing, Judge Harry C. Bulkeley ruled that the search warrant was invalid for failure to state the time and date of issuance and failure to be warrants of the judge and not the court, all as required by section 108—4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 108—4). The order included express findings that the law enforcement officers acted in good faith in executing the search warrant and that no defects were found in the complaint or in the probable cause for its issuance. An additional finding stated that the good-faith exception to the exclusionary rule, based on United States v. Leon (1984), 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, was not applicable.

On appeal the State contends (1) that the omission of the time, the date, and the judge’s signature from the written search warrant were the omission of ministerial tasks not essential to the validity of the warrant and (2) that the good-faith exception recognized in United States v. Leon should apply in this case.

The State initially argues that this was not “an oral search warrant” but a written search warrant issued orally after a finding of probable cause and subsequently executed in writing. In support of its argument, the State cites and analyzes cases from other jurisdictions that have approved the telephonic authorization for the issuance of search warrants. E.g., Minnesota v. Andries (Minn. 1980), 297 N.W.2d 124; New Jersey v. Valencia (1983), 93 N.J. 126, 459 A.2d 1149.

No Illinois cases have decided the precise issue presented by this appeal. However, this court has considered a related issue in People v. Trantham (1977), 55 Ill. App. 3d 720, 371 N.E.2d 207, where a search warrant authorizing Peoria police officers to search apartment No. 9 at 721 N.E. Madison was subsequently altered by telephone by the issuing judge when it was discovered that the apartment intended was No. 2, not No. 9. Observing that the better practice would have been to return to the judge for a properly worded warrant, we nonetheless held that the procedure followed did not invalidate the search. In reaching that result, Justice Stoudér, writing for the majority, stated:

“[I]n other jurisdictions it is permissible for a police officer to give an affidavit by telephone to a judge and for the judge to authorize by phone the officer to affix the judge’s name to a written warrant. [Citation.] This would not be acceptable practice in Illinois since our statutes require otherwise ***.” 55 Ill. App. 3d at 723, 371 N.E.2d at 209.

Section 108—3 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 108—3) authorizes a judge to issue a search warrant “upon the written complaint of any person under oath or affirmation which states facts sufficient to show probable cause and which particularly describe the place or person, or both, to be searched and the things to be seized.” Section 108—4 of the Code requires all warrants to “state the time and date of issuance and be the warrants of the judge issuing the same and not the warrants of the court in which he is then sitting and such warrants need not bear the seal of the court or clerk thereof.” Ill. Rev. Stat. 1987, ch. 38, par. 108-4.

Although the Illinois statute does not expressly require the signature of the judge on the warrant, it does require the time and date of issuance, and it further requires that any warrant be the warrant of the issuing judge. We do not agree that the time, date, and judicial signature are “ministerial acts” or mere technicalities that can be omitted without invalidating the search warrant. The search warrant served upon defendant Taylor at her residence had no date or time of issuance and no judge’s signature. Citizens should not be expected to accept such an incomplete document as authority for the police to search their homes and seize their possessions.

Unlike the procedures used in Minnesota and New Jersey, the procedure used in the case at bar contained no safeguards for the rights of the persons named in the search warrant. No record was made of the telephone conversation, and no grave exigency was established. Furthermore, the judge issuing the warrant had no means of ascertaining whether the complaint was in fact in writing and under oath, as was represented to him over the telephone.

The Illinois statute plainly imposes upon the issuing judge an obligation to make a determination of probable cause based upon the sufficiency of the facts stated by the complainant. In some cases, the credibility of the complainant is in question, while in others the sufficiency of probable cause is in doubt. In the case before us, the telephonic conversation as reported in the record was not a proper means of exercising judicial authority to issue a search warrant pursuant to the statute.

The statutory language is sufficiently clear and unambiguous to invoke the rule that, in such cases, courts will not read into the statutes exceptions, limitations, and conditions. (People v. Goins (1988), 119 Ill. 2d 259, 518 N.E.2d 1014; Helland v. Larson (1985), 138 Ill. App. 3d 1, 485 N.E.2d 457.) We decline to read into the search warrant statute authorization for long distance factual findings by telephone and for oral issuance of a warrant without the date, time, or judge’s signature.

The State also contends that, even if the search warrant was invalid, the evidence should not have been suppressed. It is urged that Illinois follow United States v. Leon (1984), 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, in recognizing a good-faith exception to the exclusionary rule. In that case, the Supreme Court held that evidence seized in violation of the fourth amendment should not be suppressed where the evidence was obtained by officers acting in reasonable reliance upon a search warrant issued by a detached and neutral magistrate. The Supreme Court discussed the fact that exclusion of evidence where the warrant was facially valid but technically defective would not serve as a deterrence to improper law enforcement activity.

In the case at bar, the search warrant was invalid because of the failure of the magistrate and the law enforcement officials to comply with the requirements of the Code of Criminal Procedure of 1963, not for violation of fourth amendment rights. As we stated above, we decline to create an exception to Illinois statutes which are not ambiguous.

The Illinois legislature has specifically provided a “good-faith” exception to the exclusionary rule in section 114—12 of the Code of Criminal Procedure of 1963, and in doing so, has defined “good faith” as follows:

“(2) ‘Good faith’ means whenever a peace officer obtains evidence:
(i) pursuant to a search or an arrest warrant obtained from a neutral and detached judge, which warrant is free from obvious defects other than non-deliberate errors in preparation and contains no material misrepresentation by any agent of the State, and the officer reasonably believed the warrant to be valid.” (Ill. Rev. Stat. 1987, ch. 38, par. 114—12(b)(2).)

Here, we hold that the absence of a date, time, and judicial signature was an “obvious defect” within the meaning of the statute above quoted. The parties’ stipulation that the police officer acted in a good-faith belief that the warrant was valid did not cure the “obvious defects” so as to bring this case within the exclusionary exception of section 114—12 of the Code. Similarly, the obvious omissions from the warrant prevent it from being “facially valid” so as to come within the good-faith exception created by United States v. Leon.

For the reasons stated, we affirm the order of the circuit court of Warren County granting defendants’ motions to suppress the illegally seized evidence.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


source: Caselaw Access Project

author: JUSTICE GORMAN

license: Public Domain

text:
    TERRY SCHULTZ, Plaintiff-Appellee, v. HENRY STEINHAGEN et al., Defendants-Appellants.
    Third District
    No. 3—89—0551
    Opinion filed June 15, 1990.
    Ward, Murray, Pace & Johnson, P.C., of Sterling (John A. Guzzardo, of counsel), for appellants.
    Besse, Frye, Arnold, Miller & Lancaster, of Sterling (Michael A. Lancaster, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

Plaintiff-lessee Terry Schultz brought suit against defendants-lessors Henry and Robert Steinhagen to recover damages for the loss or destruction of the plaintiff’s personal property as a result of the alleged negligence of the defendants. Following a jury trial, a verdict in favor of the plaintiff was returned and damages in the amount of $29,026.77 were awarded. The defendants appeal. We reverse and remand.

In December 1985, the plaintiff entered into a written lease with the defendants for the front portion of a building in Sterling, Illinois. Schultz’s intention was to use the building to operate a motorcycle repair and service business. Although Schultz took possession of the premises, he never paid any rent to the Steinhagens as required by the lease. After operating his business for a few months, Schultz left the Sterling area for an extended period of time.

While Schultz was gone, the defendants entered the leased premises and changed the locks. In the ensuing months the defendants were approached by persons who claimed that Schultz had property belonging to them in the building. The defendants allowed this property to be removed from the leased premises.

In July 1987, Schultz’s attorney demanded access to the leased premises. The defendants provided him with a key, and in August 1987, Schultz entered the leased premises and noticed that some of his personal property was missing. He later filed suit, alleging negligence, against the defendants for the loss or destruction of certain personal property which he claimed had been left in the leased premises.

A jury trial was held on April 18-19, 1989. In addition to the testimony of the plaintiff, three other individuals testified for the plaintiff. Ed Berge testified about a conversation he had with Harry Steinhagen in 1987. Berge testified that Harry Steinhagen approached him and inquired about the value of a drag racing bike that Berge had sold to the plaintiff. The clear implication was that Harry Steinhagen intended to sell the motorcycle even though it was owned by the plaintiff.

Richard Zink testified that Bob Steinhagen sold him a set of Harley-Davidson cylinders and cylinder heads. Though the plaintiff never established that these items were the property of the plaintiff, the inference created was that Bob Steinhagen had sold some of the property the plaintiff had left on the leased premises.

Gerald Siddens was also called as a witness by the plaintiff. Sid-dens testified that he had conversations with Henry Steinhagen concerning the whereabouts of several items belonging to the plaintiff. These items were allegedly taken from the leased premises by Henry Steinhagen.

At the close of the plaintiff’s case in chief, the defendants moved for a directed verdict. This motion was denied. Following the presentation of the defense, the case was given to the jury. A verdict in favor of the plaintiff was returned and damages were awarded. Defendants appeal.

The first issue we address is whether the trial court erred when it denied the defendants’ motion for a directed verdict. We conclude that it did not.

The plaintiff’s second amended complaint alleges negligence on the part of the defendants. Specifically, the plaintiff alleges the defendants allowed unauthorized persons access to the leased premises, failed to properly secure the plaintiffs property from damage and/or theft and denied the plaintiff access to the leased premises.

The defendants claim that the plaintiffs proof at trial failed to prove any of the above allegations but rather the proof tended to show that the defendants had intentionally deprived the plaintiff of his property. It is true that some of the acts of the defendants were intentional acts and might have been the basis for an action in conversion. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 419 N.E.2d 578.) However, the plaintiff may also choose to allege ordinary negligence and test the conduct of the defendants by a standard of a reasonable man when, in the exercise of self-help, they undertook to change the locks on the building and deal with the plaintiff’s property. It should be noted that the lease between the parties did not give the defendants the right to take such actions nor did they seek to avail themselves of the remedies provided to landlords by statute. Ill. Rev. Stat. 1989, ch. 110, par. 9—101 et seq.

We are of the opinion that sufficient evidence existed that would allow a jury to find that the defendants acted negligently in allowing persons to enter the leased premises and remove various items. There appear to have been no records kept by the defendants detailing the items removed or signed receipts by persons who removed the goods from the premises. Accordingly, we affirm the jury’s finding of liability on the part of the defendants.

Although we have concluded that the defendants may properly be liable for their actions, we have determined that the jury was allowed to consider improper evidence of the value of the plaintiff’s property.

In conjunction with his testimony, Schultz offered plaintiff’s exhibit No. 3. This exhibit contains a list of tools, equipment and parts inventory which the plaintiff alleges were lost, stolen or damaged as a result of the defendants’ negligence. Corresponding to each item is a valuation that the plaintiff claims is the replacement cost for the item. The plaintiff testified that he obtained the replacement prices used by consulting various parts catalogs and by calling parts suppliers. Since the trial court held that the plaintiff was not competent to testify as an expert as to the value of these items, the sole basis for these valuations was the unidentified parts catalogs and the parts suppliers.

The defendants objected to the introduction of the exhibit, claiming that the information in the exhibit constituted hearsay since the valuations were not within the personal knowledge of the plaintiff. The trial judge overruled the objection and allowed the exhibit to be admitted into evidence. We believe the trial court erred.

A witness must have sufficient personal knowledge of the property and of the values thereof before he can be allowed to give a reasonable statement as to the value of the property. (People v. Butman (1934), 357 Ill. 506, 508, 192 N.E. 564.) The plaintiff did not have personal knowledge of the values. He obtained this information from outside sources. Accordingly, the outside sources should have been identified and made available at trial to afford the defendants the opportunity to dispute the valuations. It is also required that the evidence show the value of the items of personal property immediately before their disposition. (Lucas v. Bowman Dairy Co. (1964), 50 Ill. App. 2d 413, 200 N.E.2d 374.) We hold, then, that the trial court erred when it failed to sustain the defendant’s objection to the introduction of plaintiff’s exhibit No. 3 and therefore remand for further hearing on the issue of damages.

The decision of the circuit court of Whiteside County is reversed and remanded.

Reversed and remanded.

HEIPLE, P.J., and STOUDER, J., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARK DAVID OLSON et al., Defendants-Appellees.
    Second District
    Nos. 2—89—0231 through 2—89—0233 cons.
    Opinion filed June 12, 1990.

      Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendants, Mark David Olson, David Brian Fontani and Karla Rose Woodward, were each charged in the circuit court of Kane County with unlawful possession of less than 15 grams of a substance containing cocaine (Ill. Rev. Stat. 1987, ch. 56½, par. 1402), unlawful use of weapons (Ill. Rev. Stat. 1987, ch. 38, par. 24—1), and possession of a firearm without a firearm owner’s identification card (Ill. Rev. Stat. 1987, ch. 38, par. 83—2), arising out of the same incident on October 14, 1988. Defendants Fontani and Woodward filed a joint motion to suppress evidence, and, following an evidentiary hearing on the motion, the circuit court granted the motion to suppress. Subsequently, the State and defendant Olson stipulated to the findings and rulings on the codefendants’ motion to suppress, and the evidence was suppressed as to Olson as well. The State filed certificates of impairment as to each defendant and appeals pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)). The appeals have been consolidated in this court.

Two issues are raised on appeal: (1) whether defendants Fontani and Olson lacked standing to challenge the search; and (2) whether the search was constitutional.

The following pertinent evidence was adduced at the suppression hearing for Fontani and Woodward. On October 14, 1988, at between 1:30 and 2 a.m., Officer Randy Johnson of the North Aurora police department, while on patrol, observed a black vehicle that had been driving around in the parking lot of the Saratoga Hotel. About two hours later he observed the same vehicle parked at the Days Inn Hotel. No one was in the car. He ran a license check which disclosed that Fontani was the registered owner. He further found out that Fontani was wanted on an outstanding residential burglary warrant in Kendall County. Fontani was not registered at the hotel, but eventually Johnson determined Fontani was in a room registered to Betty Woodward. He had seen a number of people entering and leaving Woodward’s room, called that room asking for “David Fontani,” and was told Fontani was there. Johnson hung up upon hearing the response that Fontani was there.

Johnson, who was in uniform, joined by two other uniformed police officers and a third officer in plain clothes, went to Woodward’s room, knocked on the door and announced it was hotel security. Defendant Karla Woodward answered and, upon the officers’ asking if “David” was there, said “Yes, he’s in bed.” The officers could not see the bed because Woodward was standing with the door up against her. She then turned around and started walking back into the room, and the officers then entered the room through the door, which was open two or three feet, without asking permission. Woodward walked toward the bed where defendant Fontani was. Fontani, who was in his underwear, was in the bed closest to the front door and appeared to be sleeping. Officer Johnson went directly to Fontani and handcuffed him. A 15-year-old female juvenile, L.M., was in the other bed with defendant Olson. They were under the covers sleeping or apparently sleeping. The officers had the others sit on the edge of the beds. Officer Johnson believed the lights were on in the room when they entered.

The testifying officers described the hotel room as approximately 12 feet by 12 feet. A bathroom is to the immediate right upon entry into the room, and the bedroom begins at the end of a short hallway from the front door. There were two beds with a desk and nightstand between the beds.

After Fontani was handcuffed, Officer Johnson observed two plastic baggies and a small amount of a white powdery substance on them in the sink in an adjoining bathroom. Johnson, who had some training in narcotics detection, believed the baggies might have contained cocaine. These articles were only observed and never seized. Johnson then went back near the front door and found a 9mm Smith & Wesson pistol under some clothes which completely covered the pistol. The pistol was not more than five feet from where Fontani was lying on the bed. Other clothing was all over the room.

Officer Raymond Treve, who was one of the other uniformed officers entering the room with Johnson and was working off duty as a security officer at the hotel that evening, testified that, after Fontani’s arrest, he began a search of the room for weapons or drug paraphernalia. Treve also testified that the search of the area within the immediate reach of an arrestee is for security purposes. Treve opened the desk drawer and found a plastic bag with some powdery substance in it which was determined to be cocaine following a field test. This substance was seized prior to the discovery of the pistol by Officer Johnson. A mirror containing white residue was also found on a table by Officer Johnson and was seized.

The four individuals in the room were removed to a police van. Officer Johnson later reentered the hotel room to look for more narcotics but found none.

L.M. testified that Mrs. Woodward rented the room because she and her daughter, Karla, were evicted from their home and Karla needed a place to stay. Mrs. Woodward was not staying there. L.M. was asleep in bed with her boyfriend, Mark Olson, when the police came in and shined a flashlight in her face.

Mrs. Betty Woodward testified that, following their eviction, her 17-year-old daughter, Karla, was living “on the street” and did not live with her anymore. During that time she had rented a room at different motels for Karla on three occasions. She rented a room for Karla at the Days Inn the day before and the day Karla and the others were arrested. She signed the register for the room.

Following arguments in which the issue of standing for Fontani and Karla Woodward was raised by the State, the trial court found on February 10, 1989, that both defendants had standing to contest the search and seizure. The court further found that the police officers had no right to go into the room, that they were not invited in, and that the occupants had a reasonable expectation of privacy in the room. Finally, as to the seizure of the pistol and the cocaine in the desk drawer, the court stated the officers were looking for those articles and there was no reason for them to do so. Defendants’ motion to suppress was granted.

On March 7, 1989, counsel for defendant Olson and the State stipulated as to the findings of the trial court in the codefendants’ suppression hearing and to the granting of a motion to suppress. No motion to suppress by Olson appears in the record. During the brief discussion between counsel prior to the stipulation, defendant Olson’s attorney stated he might want to supplement the record as to his client because he was not present at the suppression hearing and might wish to present evidence as to where Olson was in the room, what was happening, and whether he was involved in renting the room. However, no further proceedings were undertaken by Olson.

We address first the State’s contention that Fontani and Olson did not meet their burden of establishing standing to challenge the search. In this regard, the State maintains that Fontani and Olson did not show any legitimate expectation of privacy in the hotel room rented by defendant Woodward’s mother. The State argues that the evidence does not demonstrate that they “stayed” overnight in the room.

The defendants Fontani and Olson jointly contend that the evidence shows that all the occupants of the hotel room were staying there, had dispersed their personal property throughout the room, and had a reasonable expectation of privacy therein. Olson additionally maintains that the hearing on the suppression motion was held exclusively as to defendants Woodward and Fontani and that his standing was not litigated, particularly where he was given the opportunity to supplement the proceedings, if he chose to do so, and the State’s filing of a notice of appeal prevented him from following through with the supplementation of the record.

On a motion to suppress evidence, the burden of proof is on the defendant to establish that the search and seizure were unreasonable. (Ill. Rev. Stat. 1987, ch. 38, par. 114—12(b); People v. Neal (1985) , 109 Ill. 2d 216, 218, 486 N.E.2d 898.) Defendant bears the burden of establishing that he has a reasonable expectation of privacy in the premises at the time it was searched. (See People v. Johnson (1986), 114 Ill. 2d 170, 192, 499 N.E.2d 1355.) A reviewing court will not disturb a trial court’s determination on a motion to suppress evidence unless it is manifestly erroneous. Neal, 109 Ill. 2d at 218, 486 N.E.2d at 899.

As to the standing issue, we are guided by the recent decision of the Supreme Court in Minnesota v. Olson (1990), 495 U.S. _, 109 L. Ed. 2d 85, 110 S. Ct. 1684, wherein the standing of the accused to challenge the legality of his arrest while an overnight guest in another’s home was at issue. The Court initially set forth the established rule that “it has been the law that ‘capacity to claim the protection of the Fourth Amendment depends *** upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place,’ ” quoting Rakas v. Illinois (1978), 439 U.S. 128, 143, 58 L. Ed. 2d 387, 401, 99 S. Ct. 421, 430. (Olson, 495 U.S. at __, 109 L. Ed. 2d at 92, 110 S. Ct. at 1687.) The Supreme Court further rejected a series of factors suggested by the State which, in the State’s view, would determine whether a dwelling is a “home” in establishing the relationship of the accused to the premises. (Olson, 495 U.S. at _, 109 L. Ed. 2d at 93, 110 S. Ct. at 1688.) Instead, the Court stated that it need go no further than to conclude that “Olson’s status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable.” (Olson, 495 U.S. at _, 109 L. Ed. 2d at 93, 110 S. Ct. at 1688.) The Court emphasized that its holding merely recognizes the everyday expectations of privacy a person shares in an overnight stay, whether it be a hotel room or friend’s home, where a house guest and his possessions will not be disturbed by anyone but his host and those his host allows inside. Olson, 495 U.S. at _, 109 L. Ed. 2d at 93, 110 S. Ct. at 1688; see also People v. Eichelberger (1982), 91 Ill. 2d 359, 364-65, 438 N.E.2d 140 (residents of a hotel are accorded the same constitutional protections against unreasonable searches as are enjoyed by residents of private homes in Illinois).

While Minnesota v. Olson did not reach the precise issue presented here, whether an overnight guest in a hotel room registered to another has a legitimate expectation of privacy therein, we believe that case is applicable here as the fourth amendment applies equally to hotel rooms and private residences. (See Eichelberger, 91 Ill. 2d at 364-65, 438 N.E.2d at 142.) Applying the rationale in Minnesota v. Olson to the instant case, we conclude that both Fontani and Olson, as overnight guests in Karla Woodward’s hotel room, have a legitimate expectation of privacy in the premises entered. The limited evidence on these defendants’ stay at the hotel room is that at about 3:30 to 4 a.m., when the police entered the hotel room, Olson was in one bed sleeping with a 15-year-old girl and Fontani, in his underwear, was sleeping in a second bed. The hotel room was rented by Mrs. Betty Woodward for her 17-year-old daughter, defendant Karla Woodward, for the day in question and the previous day because Karla was without a permanent place to stay. While the State disputes that this evidence shows Fontani and Olson were staying at the hotel room, we find that argument not well taken in light of the time of night and the defendants’ location in bed, sleeping or apparently sleeping, when the police entered. Under these facts, we find both Fontani and Olson to be overnight guests in the hotel room, and therefore they had a reasonable expectation of privacy in the room for which they had standing to claim the protection of the fourth amendment.

The next contention by the State is that the police officers lawfully entered the hotel room because they were executing an arrest warrant for Fontani and, once inside the room, observed evidence of criminal activity in plain view when bags with a white powdery substance were seen in the bathroom sink which gave them probable cause to search the premises under “exigent circumstances.” All three defendants, Fontani, Olson and Woodward, argue that the police were not legitimately on the premises because they failed to inform the occupants who they were and why they were there in violation of the “knock and announce” rule. They further maintain that the plain-view doctrine asserted by the State is inapplicable under the facts of this case.

We agree with the State and the defendants that the initial issue is whether the police lawfully entered the hotel room.

The State has not contended that the entry into the hotel room was justified on Karla Woodward’s consent or upon exigent circumstances. Rather, the State maintains that the entry was reasonable because the officers were executing a felony arrest warrant for Fontani and they announced who they were and for whom they were inquiring.

Initially, we observe that the hotel room here was rented for Karla Woodward and the police entry into this room was clearly to arrest Fontani. Thus, our first concern is whether the police conducted a search of Woodward’s room for Fontani without a search warrant thereby invading the privacy interests of Woodward and Olson. (See Steagald v. United States (1981), 451 U.S. 204, 68 L. Ed. 2d 38, 101 S. Ct. 1642.) We do not perceive, however, that the police undertook a search of the room for Fontani as Woodward answered the door by opening it, told the police that Fontani was in bed and turned and walked toward the bed, and the police merely walked a short distance directly to the bed in which Fontani was. Under these circumstances, there was no search for Fontani, and we need not be concerned with the privacy interests of Woodward or Olson which a search of the room would necessarily have implicated. (See Steagald v. United States (1981), 451 U.S. 204, 68 L. Ed. 2d 38, 101 S. Ct. 1642.) Thus, we need only address the propriety of the manner of the police entry into the room.

In this regard, the defendants argue the entry was unreasonable because the police, although they knocked on the door, failed to announce their authority and purpose in compliance with the knock- and-announce rule. It is now well established that, although the failure of law enforcement officers to announce their authority and purpose prior to entering a dwelling is not necessarily a constitutional violation, the presence or absence of such an announcement is an important consideration in determining whether subsequent entry to arrest or search is constitutionally reasonable. (People v. Saechao (1989), 129 Ill. 2d 522, 531, 544 N.E.2d 745; People v. Wolgemuth (1977), 69 Ill. 2d 154, 166, 370 N.E.2d 1067.) The function of the requirement to announce authority and purpose is to notify the person inside of the presence of police and to afford the person an opportunity to respond, so that violence can be averted and privacy protected. Wolgemuth, 69 Ill. 2d at 166, 370 N.E.2d at 1073.

Here, the police, one of whom was a security officer at the hotel, knocked on the hotel room door and indicated they were hotel security. Several of the officers were in police uniform, making it obvious to Woodward who they were. When Woodward opened the door, the officers asked for Fontani, and Woodward indicated he was in bed. She then walked away, leaving the door open. Although there was a short hallway leading into the room, the beds were only a short distance from the door. The officers walked in and went directly to the bed where Fontani was lying. No force was used to gain entry into the room.

Under such circumstances, we believe the entry without force by the police, who had knocked on the door, whose authority was readily apparent by the announcement that they were security and by their uniforms, and who had given a general statement of their purpose in asking for Fontani, was reasonable under the fourth amendment, notwithstanding their failure to state they were there to arrest Fontani in strict compliance with the announcement of purpose portion of the knock-and-announce rule.

Upon entering the room, the officers went directly to Fontani and placed him under arrest. The police then conducted a search in which they found a 9mm pistol under a pile of clothes no more than five feet from defendant, a plastic baggie with white powdery substance in a drawer of the desk located between the two beds, and a mirror with a white powdery substance on a table next to the south wall of the room. We must next decide whether the seizure of each of these items was the result of a proper search under the fourth amendment.

In Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034, the Supreme Court defined the proper scope of a search incident to a lawful arrest as the area “within [an arrestee’s] immediate control.” (395 U.S. at 763, 23 L. Ed. 2d at 694, 89 S. Ct. at 2040.) The area within the immediate control of the arrestee means that area from within which an arrestee might gain possession of a weapon or destructible evidence. 395 U.S. at 763, 23 L. Ed. 2d at 694, 89 S. Ct. at 2040.

Under the Chimel doctrine, it is clear that the search under the pile of clothes was reasonable. The clothes were located no more than five feet from the defendant Fontani, a distance from which he could readily obtain a weapon or reach evidence. Furthermore, Fontani was clothed only in his underwear and presumably may have been required to reach into the pile to obtain clothing and have his handcuffs removed to allow him to dress before being removed by the police. See People v. Blount (1981), 101 Ill. App. 3d 443, 447, 428 N.E.2d 621.

As to the search into the desk drawer, the desk was located between the two beds where Fontani could have easily reached to grab a weapon or destroy evidence. Searching a drawer is proper if it is located in an area within the immediate control of an arrestee. (See Chimel, 395 U.S. at 763, 23 L. Ed. 2d at 694, 89 S. Ct. at 2040; see also People v. Doss (1970), 44 Ill. 2d 541, 547-48, 256 N.E.2d 753 (search under motel room bed occupied by arrestee at time of arrest proper under Chimel).) Here, the desk was within the immediate control of Fontani as it was located between the two beds, and the search of the desk drawer was therefore valid as a search incident to a lawful arrest.

Defendants argue, relying on People v. Robbins (1977), 54 Ill. App. 3d 298, 369 N.E.2d 577, that the search of the desk drawer was not a proper search incident to a lawful arrest because Fontani was handcuffed at the time of the search. While Robbins does hold that the search of a closed dresser drawer exceeded the permissible scope of a search incident to a lawful arrest where the arrestee was handcuffed, we decline to follow that decision. The Illinois Supreme Court in Peo ple v. Hoskins (1984), 101 Ill. 2d 209, 461 N.E.2d 941, and in People v. Perry (1971), 47 Ill. 2d 402, 266 N.E.2d 330, held a search incident to a lawful arrest to be valid under Chimel notwithstanding that the arrestee was handcuffed. We also do not interpret Chimel as supporting such an exception to its doctrine as the opinion nowhere refers to the fact of an arrestee’s being handcuffed as being relevant to whether a search is of an area within the immediate control of an arrestee.

Furthermore, in United States v. Robinson (1973), 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467, and in New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, the Court applied the Chimel doctrine to situations where the arrestee was in full custodial arrest and under close control of the police in holding that the search of the person (Robinson) and the search of the passenger compartment (Belton) were proper.

Because we do not interpret Chimel or its Supreme Court progeny to prohibit a search incident to a lawful arrest where the arrestee is handcuffed, we will follow our supreme court in Hoskins and Perry and hold that the search of the desk drawer was within an area of Fontani’s immediate control and was valid as incident to the lawful arrest of Fontani.

Finally, as to the mirror on the table, we believe its seizure was reasonable under the plain-view doctrine. Officer Johnson, with his narcotics training, had probable cause to believe the mirror and the white powdery substance thereon were evidence of drug use or possession. Accordingly, it was reasonable, under the plain-view doctrine, for the officers to have seized the mirror and the white powder. See Arizona v. Hicks (1987), 480 U.S. 321, 326, 94 L. Ed. 2d 347, 355, 107 S. Ct. 1149, 1153-54.

For the foregoing reasons, we hold that the search and seizure of the 9mm handgun, the plastic bags and cocaine, and the mirror and cocaine to be proper under the fourth amendment. Although the State argued on appeal a different basis to justify the search, the defendant briefed the search incident to an arrest point as it had been advanced by the State in the circuit court. Accordingly, we choose to decide the issue for the reasons stated above. Cf. Hux v. Raben (1967), 38 Ill. 2d 223, 224-25, 230 N.E.2d 831.

The order of the circuit court of Kane County suppressing the evidence is reversed.

Reversed.

GEIGER and DUNN, JJ., concur.


author: JUSTICE WOODWARD

text:
    SAM TUMMINARO, Plaintiff-Appellant, v. ROBERT TUMMINARO, as President of J. Peter Company, Inc., et al., Defendants-Appellees.
    Second District
    No. 2—89—0633
    Opinion filed June 14, 1990.

      H. Kent Heller and Christopher J. Stull, both of H. Heller & Associates, of Naperville, for appellant.
    Elizabeth Hubbard and Mark D. Rivera, both of Elizabeth Hubbard, Ltd., of Chicago, for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

The plaintiff, Sam Tumminaro, appeals from the trial court’s dismissal of his third amended complaint against the defendants, Robert Tumminaro and J. Peter Company, Inc. The complaint, which alleged that the defendants had breached an oral partnership agreement with the plaintiff, sought a winding up of partnership affairs and recovery of unpaid remunerations and partnership profits. Prior to initiating this action, the plaintiff also filed a complaint for unpaid overtime wages with the Department of Labor (DOL). The trial court dismissed the complaint pursuant to section 2—619(a)(3) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)(3)) because of the plaintiffs DOL complaint. At issue on appeal is whether the dismissal of the plaintiff’s third amended complaint was required under section 2—619(a)(3) because of his pending DOL action for overtime wages. Before addressing this issue, we must also address the plaintiffs motion to inform the court, which was ordered taken with the case, concerning the question of whether this appeal is moot.

Defendant Robert Tumminaro is the president of defendant J. Peter Company and is also the plaintiffs nephew. Beginning in February 1980, the plaintiff and defendants entered into an ongoing commercial relationship that lasted until August 1985. The plaintiff characterizes this relationship as a partnership, with the plaintiff contributing his labor and technical skills to the venture.

Although the record does not reflect precisely when it was filed, the plaintiff’s DOL complaint alleged that defendant J. Peter Company did not pay him overtime wages as required by the Minimum Wage Law (Ill. Rev. Stat. 1987, ch. 48, par. 1001 et seq.). (DOL case No. 10714.) The DOL’s preliminary investigation indicated that the plaintiff was entitled to $4,204.80 in unpaid overtime wages. Pursuant to defendant J. Peter Company’s request, a hearing on the matter was held before a DOL hearing officer on February 20, 1987. At the hearing, J. Peter Company argued that the plaintiff was not entitled to overtime wages because he was employed in a “bona fide executive, administrative or professional capacity” (Ill. Rev. Stat. 1987, ch. 48, par. 1004a(2)(E)). Following the hearing, the hearing officer asked both parties in the DOL action to submit written memoranda summarizing their positions.

Of interest here are statements in the plaintiff’s memorandum dated March 13, 1987, which attempted to rebut the claim that he was an executive, administrative, or professional employee. The memorandum stated that “Sam Tumminaro was, is and always will be a tool and die maker, and nothing more.” Contrary to the assertions made by J. Peter Company, the plaintiff stated that he had never been informed that the corporate records listed him as a vice-president and that, even if he was so listed, this “cannot change his status as an everyday worker, a skilled craftsman, [and] a tool and die maker.” The plaintiff denied ever taking part in the management of J. Peter Company. Finally, the plaintiff noted that the hearing officer “had ample opportunity to observe the claimant — his hands, his clothing, his complexion and demeanor” and asked, “were those the hands of an ‘executive’; was that the way an ‘executive’ dresses; did Sam Tumminaro look like he was anything but a factory worker his entire life?”

The plaintiff’s first complaint, which alleged that the defendants committed a breach of contract and fraud arising out of an employment relationship, was filed in the circuit court of Du Page County on December 16, 1987. This complaint and two subsequent amended complaints were dismissed by the trial court, and on each occasion the plaintiff was given leave to amend his pleadings. The plaintiff’s third amended complaint, which was based on a partnership theory, was filed on March 15, 1989. Count I alleged that the plaintiff and J. Peter Company had entered into a partnership venture which had since ceased to operate. This count sought a winding up of partnership affairs. Count II alleged that defendants had breached the oral partnership agreement, which provided that the plaintiff would be paid a salary, including overtime wages, and one-half of the partnership’s profits. Count II sought recovery of these unpaid funds.

On April 17, 1989, the defendants filed a section 2—619(a)(3) motion to dismiss the third amended complaint based on the pendency of the DOL action. A hearing on the motion was held June 14, 1989. The trial court was disturbed by the apparent inconsistencies between the partnership theory of the third amended complaint and the employment theory of the plaintiff’s case before the DOL. The court stated, “somebody is walking on the precipice here, because in one action you are saying, T am a tool and die maker, give me my [overtime wages]’ and here you are saying T am a partner and let’s split up the assets.’ ” The court granted the defendants’ motion and dismissed the third amended complaint with prejudice. The plaintiff filed his notice of appeal from this ruling on June 23, 1989.

Before we reach the merits of this appeal, we must first examine two threshold questions. The first question is whether this court has jurisdiction over the appeal. Although no party has raised this question, the appellate court has an independent duty to determine whether the appeal has been taken properly so as to invoke its jurisdiction. (Deerfield Management Co. v. Ohio Farmers Insurance Co. (1988), 174 Ill. App. 3d 837, 838-39.) This inquiry is made necessary because the record reveals that, on July 17, 1989, 33 days after the entry of judgment, the defendants filed a petition to assess sanctions against the plaintiff and his attorney pursuant to section 2—611 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). A section 2—611 petition filed after judgment has been held to be a post-trial motion. (Herman v. Fitzgerald (1989), 178 Ill. App. 3d 865, 869.) If a timely post-trial motion is filed, a previously filed notice of appeal is rendered ineffective, and the appealing party is obliged to withdraw it. (107 Ill. 2d R. 303(a)(2).) Here, however, the section 2 — 611 petition was not timely because it was not filed within 30 days of the entry of judgment. (Herman, 178 Ill. App. 3d at 869.) Thus, the notice of appeal is still effective, and we have jurisdiction over the cause.

The second threshold question we must address is whether this appeal has been rendered moot by the plaintiff’s withdrawal of his complaint before the DOL. The plaintiff has filed a motion with this court pursuant to Supreme Court Rule 361 (107 Ill. 2d R. 361) entitled “MOTION TO INFORM THE COURT.” This motion is supported by exhibits showing that the DOL accepted the plaintiff’s withdrawal of his overtime wages complaint on December 6, 1989. We ordered this motion and the defendants’ response thereto taken with the case.

The plaintiff argues that the effect of the withdrawal of his DOL action “is to render moot the Plaintiff’s appeal because the action forming the basis of the Trail [sic] Court’s dismissal is no longer pending.” The motion concludes by asking this court to vacate the dismissal of the third amended complaint and remand the cause for further proceedings. Ordinarily, a reviewing court is restricted to the record of the trial court. We may, however, consider matters outside the record insofar as they concern the question of mootness. (Unity Ventures v. Pollution Control Board (1985), 132 Ill. App. 3d 421, 430.) We therefore take cognizance of the plaintiff’s withdrawal of his complaint before the DOL only to examine its possible effect on the justiciability of this appeal.

An appeal is moot if it is impossible for a reviewing court to grant effective relief to either party. (George W. Kennedy Construction Co. v. City of Chicago (1986), 112 Ill. 2d 70, 76.) Here, if we affirm the trial court’s dismissal of the third amended complaint, the plaintiff’s action will be forever barred. If, on the other hand, we reverse the trial court, the plaintiff may litigate the merits of his claim. It is eminently clear that our decision here can effectively grant relief to the prevailing party, and so this appeal is not moot. Indeed, we believe that the plaintiff himself does not truly intend to argue that the appeal is moot. The proper disposition of a moot appeal would be dismissal (Kennedy, 112 Ill. 2d at 76), but the plaintiff does not seek dismissal of the cause. The plaintiff merely invokes the mootness doctrine in an attempt to have this court consider a matter outside of the record, the dismissal of his DOL complaint. Having decided that the appeal is not moot, we now proceed to address the merits of the appeal, and, in doing so, we are limited to considering matters that are of record.

The plaintiff argues that the trial court erred by dismissing his complaint with prejudice because his DOL complaint does not constitute a pending action within the meaning of section 2—619(a)(3) of the Code. The plaintiff contends that the relief requested in his third amended complaint, the winding up of partnership affairs, could not have been obtained in the DOL proceedings. Thus, the plaintiff argues, he was required to pursue his two theories of recovery in separate forums. The defendants, on the other hand, argue that the trial court correctly determined that the DOL action was a pending action for the same cause and that, therefore, dismissal with prejudice was warranted.

Section 2—619(a)(3) allows a defendant to move for the dismissal of a plaintiff’s complaint if “there is another action pending between the same parties for the same cause.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)(3).) The purpose of section 2—619(a)(3) is to relieve both courts and litigants of the unnecessary burden of duplicative litigation. (Ransom v. Marrese (1988), 122 Ill. 2d 518, 530.) Such duplication can arise in the context of a parallel suit brought in either a foreign jurisdiction or a circuit court in another Illinois county. Where actions arise in multiple jurisdictions, the circuit court possesses some degree of discretion in ruling on a section 2—619(a)(3) motion and may stay the Illinois action or allow the actions to proceed concurrently. (A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 252-53.) Where the conflict is between two suits filed in different counties in the State, however, the orderly administration of justice within the jurisdiction is a primary concern. (Staley, 84 Ill. 2d at 254-55.) Where the result sought could be achieved in one court as easily as in another, the orderly administration of justice does not permit one Illinois court to ignore an action pending in another of the State’s courts. People ex rel. Lehman v. Lehman (1966), 34 Ill. 2d 286, 292.

While State administrative agencies are not “foreign” jurisdictions, neither are they the same as Illinois circuit courts; instead, such bodies appear to represent a middle ground not often discussed in the instant context. The Illinois Supreme Court has specifically declined to decide whether a proceeding before an administrative tribunal with the power to issue a final, binding, and enforceable decision constitutes an “action” within the meaning of section 2—619(a)(3). (Ransom, 122 Ill. 2d at 530-31.) In Cummings v. Iron Hustler Corp. (1983), 118 Ill. App. 3d 327, the appellate court assumed, without expressly deciding, that a proceeding before the Illinois Human Rights Commission was an “action” under section 2—619(a)(3). See Ransom, 122 Ill. 2d at 529.

Here, we also assume, arguendo, that the complaint filed with the DOL constitutes an action under section 2—619(a)(3) and that the two actions at issue here are for the “same cause.” Even if this is true, however, we believe that the trial court’s dismissal of the plaintiff’s complaint with prejudice, which effectively barred the plaintiff’s partnership claim, was unnecessarily severe.

The facts underlying both of the plaintiff’s claims are essentially the same: the plaintiff and defendants entered into a commercial relationship with the plaintiff contributing his labor to the venture. These facts could plausibly support two, albeit mutually exclusive, conclusions about the nature of the legal relationship between the parties: the plaintiff could have been an employee of the defendants, or he could have been a partner. The plaintiff could advance one theory, based on employment status, before the DOL. The partnership theory, however, could not be advanced before the DOL because the Minimum Wage Law applies only to “employees.” (Ill. Rev. Stat. 1987, ch. 48, par. 1004a(1).) A person cannot be an employee and a partner at the same time in the same business. (Cook v. Lauten (1948), 335 Ill. App. 92, 97.) Therefore, the plaintiff properly chose to advance the two different theories in the forum appropriate for each.

Under such circumstances, it was an abuse of discretion for the trial court to have dismissed the plaintiff’s complaint with prejudice. The purpose underlying section 2—619(a)(3) is “to avoid multiplicity of suits, not to prevent access to the courts.” (Bernhardt v. Fritzshall (1973), 9 Ill. App. 3d 1041, 1045.) Dismissal with prejudice effectively tells this plaintiff that he was obliged to choose one forum, and also one theory of recovery, to the permanent exclusion of the other. We believe this is improper for two reasons.

First, it is clear that, if the plaintiff had filed his actions serially, instead of concurrently, he might have had an opportunity to litigate both theories. For example, if a DOL action had failed because he was found to be a partner and not an employee, the plaintiff could then have filed an action with the circuit court to advance the partnership theory. Principles of res judicata and collateral estoppel would not detract from a subsequent action and, in fact, might support it, because the plaintiff would have been adjudged a partner in the prior proceeding. We perceive no reason why this plaintiff’s claim should be forever barred because he proceeded in the two forums concurrently when such a result would not necessarily be required if he had filed each action in turn.

Second, comparison of the result reached by trial court with the established doctrine of election of remedies indicates that the trial court effectively put the plaintiff to a premature election. The doctrine of election of remedies provides that the adoption of one or more coexisting remedies precludes a resort to the other remedies. (Builders Plumbing Supply Co. v. Zambetta (1986), 143 Ill. App. 3d 188, 190.) It has been uniformly held that the prosecution of a remedy to a judgment on the merits and full satisfaction thereof conclusively constitutes an election. (Paoli v. Zipout, Inc. (1959), 21 Ill. App. 2d 53, 59.) If a party has but one remedy, however, a mistaken resort to an unavailable inconsistent remedy will not bar him from later choosing his correct remedy unless the other party has relied on the election of the first remedy. The law will not deprive a party of a meritorious claim merely because he attempts to collect it by an inappropriate action. (Geist v. Lehmann (1974), 19 Ill. App. 3d 557, 563.) Here, the DOL action for overtime wages might have been proved inappropriate if the DOL determined that the plaintiff was the defendants’ partner and not an employee. Thus, the plaintiff was in essence forced to elect between two theories of recovery before reaching judgment and before it was determined whether the DOL actually had jurisdiction over his claim. We see no reason to subject the plaintiff to a stricter standard under section 2—619(a)(3) for a concurrent action than that which would be required by the doctrine of election of remedies if each action had been filed in turn.

We understand the trial court’s skepticism about the seeming contradiction between the plaintiff’s third amended complaint, based on a partnership theory, and his DOL action, which claimed he was an “everyday worker.” It is important to note, however, that the status of being an everyday laborer is not inherently contradictory with the status of being a partner. A partner’s contribution to the partnership may consist of “services, skill, know-how, or ‘sweat equity.’ ” (Becker v. Killarney (1988), 177 Ill. App. 3d 793, 797.) In Illinois, a plaintiff may alternatively advance inconsistent bases of recovery where there is uncertainty as to which allegation is actually true. (Concord Industries, Inc. v. Harvel Industries Corp. (1984), 122 Ill. App. 3d 845, 849.) It is apparent that the trial court was troubled not merely by the seeming incongruity of the plaintiff’s claim that he was an “everyday worker,” but also by the manner in which he unabashedly celebrated his proletarian credentials. If it is subsequently determined that the apparent tension between the plaintiff’s two theories stems from an attempt to bring an action upon facts which clearly do not support it, the proper avenue to address such an abuse is the provision for sanctions contained in Supreme Court Rule 137 (134 Ill. 2d R. 137). Dismissal with prejudice under section 2—619(a)(3), however, is not warranted.

We conclude, therefore, that dismissal with prejudice of the plaintiff’s third amended complaint was inappropriate under these circumstances. This does not, however, mean that the plaintiff should have been allowed to litigate this action and the DOL action at the same time. It was within the trial court’s discretion to stay the proceedings in the circuit court pursuant to section 2—619(a)(3) pending the resolution of the plaintiff’s DOL action. (See People ex rel. Department of Public Aid v. Santos (1982), 92 Ill. 2d 120, 127.) The supreme court has articulated several factors to consider in determining whether a stay is appropriate where another action is pending in a foreign jurisdiction: comity; the prevention of multiplicity, vexation, and harassment; the likelihood of obtaining complete relief in a foreign jurisdiction; and the res judicata effect of a foreign judgment in the local forum. Santos, 92 Ill. 2d at 130.

As we have said, an Illinois administrative agency is not precisely a foreign jurisdiction to our circuit courts. Nevertheless, we feel that several of the factors set out above may be relevant here. It is possible, for example, that the outcome of the DOL action might bar further proceedings in the circuit court. This result would be occasioned if the DOL found the plaintiff to be an employee instead of a partner and granted him the overtime wages he sought in the administrative proceeding. Such an administrative finding would bar subsequent re-litigation of the issue on a partnership theory because of the doctrine of collateral estoppel. (Eckman v. Board of Trustees (1986), 143 Ill. App. 3d 757, 764.) On remand, the trial court should determine whether a stay of the proceedings is appropriate at this juncture.

The order of the circuit court is reversed, and the cause is remanded for further proceedings in conformity with this opinion.

Reversed and remanded.

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


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARLOW SMITH, Defendant-Appellant.
    Third District
    No. 3—89—0677
    Opinion filed June 19, 1990.

      Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Greg McClintock, State’s Attorney, of Monmouth (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Marlow Smith appeals from the sentence imposed upon his guilty plea to a felony drug offense.

Defendant entered a negotiated plea of guilty to the offense of unlawful delivery of a controlled substance in the circuit court of Warren County, Illinois. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2).) Upon judgment of conviction, the circuit court imposed an $895 drug fine and sentenced defendant to a five-year term of imprisonment in the Illinois Department of Corrections. Defendant now appeals.

We vacate the imposed sentence and remand the cause for a new sentencing hearing.

Defendant was originally charged with the following felony offenses: (1) unlawful delivery of a controlled substance (cocaine) (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2)); (2) unlawful delivery of a controlled substance (cocaine) (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2)); (3) unlawful distribution of a look-alike substance (Ill. Rev. Stat. 1987, ch. 56½, par. 1404(b)); and (4) unlawful delivery of a controlled substance (methamphetamine) (Ill. Rev. Stat. 1987, ch. 56½, par. 1404(d)). These charges stemmed from an ongoing undercover narcotics investigation in Warren County, Illinois. Taken together, the underlying factual bases indicated defendant had delivered 4.6 grams of cocaine or methamphetamine-laced substances and 5.5 grams of a look-alike substance to undercover narcotics agents for a total payment of $895 on four separate occasions between April and June 1988.

We must initially address a challenge to our jurisdiction to dispose of this cause on its merits. The prosecution has moved to dismiss the appeal because defendant did not file a motion to reconsider his sentence or to withdraw his plea of guilty.

Defendant seeks to attack only the sentence imposed upon his plea in this case. Defendant apparently believed he faced no jurisdictional prerequisite other than the filing of his direct appeal. (People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218; People v. Kennedy (1989), 188 Ill. App. 3d 1, 543 N.E.2d 617.) In reliance on Kennedy, defendant believed he was not required to file either a motion to reconsider the sentence (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(c)), or a motion to withdraw his plea (107 Ill. 2d R. 604(d)), prior to bringing his appeal. In People v. Carroll (1990), 195 Ill. App. 3d 445, 552 N.E.2d 361, the second district of this court rejected the earlier decision by a divided panel of the court in Kennedy and concluded a literal reading of Rule 604(d) requires a motion to be filed when objecting to a sentence imposed on a plea of guilty. The prosecution contends this court does not have jurisdiction and asserts defendant has waived any issue regarding the propriety of his sentence. Given the inability of courts of review to apply Wilk on a consistent basis, we deny the prosecution’s request to dismiss and decline to find waiver. Our construction of Wilk, Kennedy, and Carroll will wait for another day.

Defendant contends the circuit court improperly considered compensation as an aggravating factor in imposing sentence. We agree.

At the sentencing hearing, the circuit court placed great emphasis on the fact that defendant received compensation for his participation in illegal drug transactions. The circuit court stated the specific bases for its sentencing determination as follows:

“There is no doubt that this drug business is serious. You sold drugs for profit. You made profit by this. You got money in return. I think it is common knowledge that drugs are harmful, and I don’t think it can be said that you didn’t intend to harm anybody. When you sell drugs to somebody the harm is potentially there. These are dangerous substances. I don’t think the court can place you on probation, and I think because of the seriousness of the crime, the court is going to send you to the Department of Corrections ***.” (Emphasis added.)

In People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, the Illinois Supreme Court addressed the issue of whether proceeds from the charged offense could be considered as an aggravating factor in imposing sentence on a criminal defendant. After analyzing the public policy underlying the aggravation statute (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—5—3.2(a)(2)), the supreme court concluded the legislature had not intended that a defendant be subject to a more severe penalty when he shared in the proceeds of the crime. Proceeding further with its analysis, the court ultimately determined compensation should only be considered as a factor in aggravation when a defendant received remuneration to commit the charged offense. Conover, 84 Ill. 2d at 405, 419 N.E.2d at 909.

The reasoning of the court in Conover applies with equal force in this cause. Compensation is a factor implicit in most deliveries of a controlled substance. (See People v. Berry (1984), 122 Ill. App. 3d 1035, 462 N.E.2d 530; People v. Garrett (1987), 152 Ill. App. 3d 212, 504 N.E.2d 237; People v. Harrison (1987), 156 Ill. App. 3d 39, 508 N.E.2d 1226.) As such, we conclude the circuit court erred in considering that factor in sentencing defendant.

Remandment is not necessarily required when the circuit court erroneously considers an improper aggravating factor in imposing sentence. That requirement depends entirely on the relative weight accorded to the factor. (Conover, 84 Ill. 2d at 405, 419 N.E.2d at 909.) Given the record in this cause, remandment for resentencing is necessary because we cannot say the weight accorded to the improper aggravating factor was so insignificant that it did not lead to a more severe penalty.

Defendant also contends the circuit court erred in calculating the imposed drug fine. We again agree.

Section 5—9—1.1 of the Unified Code of Corrections authorizes the imposition of a mandatory fine upon conviction of certain drug-related offenses. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—9—1.1.) That section provides in pertinent part:

“When a person has been adjudged guilty of a drug related offense involving *** possession or delivery of a controlled substance *** in addition to any other penalty imposed, a fine shall be levied by the court at not less than the full street value of the *** controlled substances seized.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 1005—9—1.1.

We find, given the emphasized statutory language, the circuit court erred in calculating the drug fine entered in this cause. The circuit court improperly based the fine on the total value of all narcotic contraband seized in the course of the undercover investigation. Defendant should have been fined for only that contraband supporting the charges underlying the instant conviction. (See People v. Beavers (1986), 141 Ill. App. 3d 790, 796, 491 N.E.2d 438, 443; People v. Lusietto (1988), 167 Ill. App. 3d 251, 253, 521 N.E.2d 174, 175-76.) Thus, pursuant to our appellate powers, we hereby reduce the fine imposed in this cause to the sum of $290. 107 Ill. 2d R. 615(b)(4).

For the foregoing reasons, we vacate the sentence imposed by the circuit court of Warren County. The cause is remanded for resentencing.

Sentence modified in part, vacated in part and remanded.

SPITZ and GREEN, JJ., concur.


author: JUSTICE BARRY JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOROTHY LYBARGER, Defendant-Appellant.
    Third District
    No. 3—89—0309
    Opinion filed June 15, 1990.
    STOUDER, J., dissenting.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Joseph Navarro, State’s Attorney, of Ottawa (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

A jury convicted the defendant, Dorothy Lybarger, of two counts of criminal sexual assault and one count of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, pars. 12—13(a)(2), (a)(3), 12—14(b)(1)). Judgment was entered only on the aggravated criminal sexual assault count, and the defendant was sentenced to a seven-year term of imprisonment. The defendant appeals. We affirm.

In the instant case, the record shows that the complainant, James Lybarger, testified that when he was nine years old and the defendant, his mother, was pregnant with his brother Chris, she called him into her bedroom and told him to take off his clothes and lie on the bed. His mother then removed her clothing and lay on top of him. James stated that his mother touched his penis with her hand and mouth and it got big. She then put his penis in her vagina and moved up and down. After what seemed like the time length of “two cartoons,” his mother got up and put on her clothes.

James also testified that his mother told him not to tell anyone about the incident. He stated, however, that he did tell child protection investigator Randy Constantine about it. James testified that the incident happened in the summer, but also stated that it must have happened on a Saturday because he did not have school the next day. James then repeated his explanation of the incident using anatomically correct dolls.

Investigator Randy Constantine of the Illinois Department of Children and Family Services (DCFS) testified that he interviewed James about seven months after the incident. He stated that James’ statement to him at that time was substantially the same as James’ trial testimony. He also stated that James was not specific regarding the date and the time of the incident.

The defendant testified in her own defense and denied that the incident had occurred. Other evidence presented showed that Chris was born on December 6, 1987.

On appeal, the defendant’s first argument is that her conviction for aggravated criminal sexual assault should be reversed. Specifically, she argues that the State failed to prove her guilty beyond a reasonable doubt, since the testimony of the complaining witness was not clear and convincing or otherwise sufficiently corroborated. She contends that the complainant’s testimony was unclear as to the date and time of the incident.

When a reviewing court is presented with a challenge to the sufficiency of the evidence, the relevant question 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. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) In a prosecution for aggravated criminal sexual assault, where the defendant denies the charge, the conviction will be upheld when the testimony of the complaining witness is clear and convincing or is otherwise sufficiently corroborated. (People v. Daniels (1987), 164 Ill. App. 3d 1055, 518 N.E.2d 669.) The fact that a complainant cannot remember the exact date of the offense does not render his testimony unclear, but rather any inconsistency in that regard goes to the weight of his testimony. (People v. Sexton (1987), 162 Ill. App. 3d 607, 515 N.E.2d 1359.) Finally, the failure of a young sexual assault victim to make a prompt complaint is understandable, since children have a natural sense of shame, fear, guilt, and embarrassment. People v. Fritz (1979), 77 Ill. App. 3d 1, 395 N.E.2d 736.

In the instant case, we find that the evidence was not so improbable as to raise a reasonable doubt about the defendant’s guilt. The complainant’s testimony at trial was detailed and unwavering regarding the defendant’s conduct during the commission of the offense. In addition, the complainant’s testimony was corroborated by the testimony of the DCFS investigator.

We do not find the fact that the complainant may have been confused as to the exact time of the incident to have detracted from the reasonableness of his story as a whole. As previously stated, such inconsistencies go to the weight of the testimony and as such are an issue for the jury. Accordingly, we hold that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of aggravated criminal sexual assault.

The defendant next argues that she was denied a fair trial due to prosecutorial misconduct during closing arguments. Specifically, she contends that reversible error occurred when the prosecutor referred to the reasonable doubt standard of proof in his closing argument.

It is well established that the concept of reasonable doubt should not be defined by the trial court or counsel. (People v. Malmenato (1958), 14 Ill. 2d 52, 150 N.E.2d 806.) However, a prosecutor must not be severely limited in his closing, and it is therefore proper for a prosecutor to comment on the burden of proof if his comments do not distort that burden. People v. Wade (1988), 167 Ill. App. 3d 921, 522 N.E.2d 285.

In the instant case, during the prosecutor’s final argument, he made the following remarks:

“I anticipate that Mr. Balestri is going to tell us about reasonable doubt, first of all. I can tell you this. Beyond reasonable doubt does not mean beyond all doubt, shadow of a doubt, or a doubt created by imagination of counsel.”

We find that these comments did not violate the above-stated principles of law. We therefore hold that no reversible error was committed in the prosecutor’s closing argument.

The defendant’s final argument on appeal is that the trial court considered an improper factor in aggravation when sentencing her. She argues that the trial court improperly considered a victim impact statement prepared by a therapist, John Herrington, who was not a victim in the case.

The State responds that the defendant has waived this argument. We note that the record reveals that the defendant did not object to the trial court’s consideration of this statement at the sentencing hearing. We further note that in the absence of plain error, a nonjurisdictional question, such as the consideration of an improper factor in aggravation, which is not raised in the trial court may not be presented for the first time on review. (People v. Montague (1986), 149 Ill. App. 3d 332, 500 N.E.2d 592.) Accordingly, we agree with the State that the defendant has waived this issue.

However, even assuming that the alleged error was not waived, we would nonetheless find any such error harmless. The record reveals that the information contained in the statement was also contained elsewhere in the presentence report.

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

Affirmed.

HEIPLE, P.J., concurs.

JUSTICE STOUDER,

dissenting:

I dissent from the majority’s determination that the testimony of James Lybarger was corroborated, and I would reverse the defendant’s conviction. Although testimony regarding an out-of-court statement made by a child is admissible in prosecutions for sexual acts perpetrated upon that child (see Ill. Rev. Stat. 1987, ch. 38, par. 115—10), I find nothing in the decision or the record which has the legal effect of corroborating the child’s testimony in this case. The testimony of Investigator Constantine concerned a statement made by James many months after the alleged incident. James was removed from the defendant’s home on December 11, 1987. He related the details of the alleged assault to Constantine on July 27, 1988. The record indicates that he first related the incident to members of his foster family and a counselor around July 1, 1988. His statements to Constantine were made after James was seen by a social worker for DCFS, who had James “perform a play” of what occurred.

In addition, the date of the alleged incident was extremely unclear. James testified that the incident took place in the summer, when his mother was “big” with his little brother, Chris. The record shows Chris was born on December 7, 1987. When James was interviewed by Constantine he stated that the incident occurred before the defendant met Ken Thompson. The record shows that Ken Thompson was the father of Chris.

The absence of corroboration leads to the conclusion that the jury’s finding was based on speculation and should be reversed.