text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WEBSTER MILES, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 88—0112
    Opinion filed September 1, 1989.

      Lance Haddix, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Marilyn Schlesinger, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE QUINLAN

delivered the opinion of the court:

The defendant, Webster Miles, was charged with two counts of aggravated battery and one count of attempted murder. After a bench trial in the circuit court of Cook County, the court found defendant guilty on all three charges, and then ruled that the two aggravated battery counts merged into the attempted murder count. Accordingly, the court entered judgment on the attempted murder count only and sentenced defendant to 10 years of incarceration. Defendant now appeals. We affirm.

The evidence presented at defendant’s trial established the following. The defendant, Webster Miles, at the time of trial, was married to Patricia Miles. Prior to her marriage to the defendant, Patricia Miles had a child, Angelo, with the victim, Dwight Grant. Webster Miles, his wife, Patricia, Angelo, and their other children lived in an apartment in Chicago, Illinois. Patricia Miles’ sister, Earlene Williams, and her husband, Charles, lived in the apartment next door. The victim, Grant, knew the Williamses also.

The testimony at trial established that there had been previous problems between the defendant and Grant. Grant had been to the Mileses’ prior homes in the past, and in one incident, defendant and his wife said that the police were called when Grant allegedly threatened defendant with a gun. In Grant’s testimony, he admitted that the police were called on one occasion when he went to the Mileses’ apartment, but he denied that he had ever threatened defendant with a gun. The Mileses did not file a formal complaint against Grant, and the testimony indicated that, other than that one incident, the fights between the defendant and Grant were strictly verbal.

At about 1:30 p.m. on June 15, 1986, which was Father’s Day, Grant went unannounced to the Mileses’ apartment. Grant apparently went there to pick up his son Angelo for the day, but Angelo was not ready when he arrived. Grant and Patricia Miles then got into a heated argument, and, according to Patricia Miles, during the argument Grant knocked over a table and knocked some cards out of her hand. However, Grant testified that he and Patricia only had a minor verbal disagreement. The defendant was not present during the argument.

Following this argument between Grant and Patricia Miles, Grant went next door to the Williamses’ apartment for a short time, and then left. Later, the defendant and his wife, Patricia, also went next door to the Williamses’ apartment. At this time, defendant was unaware that Grant had been in his apartment earlier, or that Grant, while in the apartment, had argued with his wife. Thereafter, at about 4:30 p.m., Grant returned to the Williamses’ apartment and, when he entered through the back door into the kitchen, the defendant was already in the kitchen of the Williamses’ apartment. As soon as Grant came in through the back door, defendant then left through the back door, and although both had seen the other, there were no words exchanged between the two. When defendant left, he testified that he went next door to his own apartment.

After the defendant left the Williamses’ apartment, Earlene Williams prepared a plate of food for defendant and took it next door to the defendant’s apartment. Subsequent to Earlene Williams leaving defendant’s apartment, defendant said, his daughter, Crystal, told him that Grant had been to their apartment earlier and had argued with Patricia Miles.

Defendant testified that he then returned to the Williamses’ apartment, entering through the back door to the kitchen. He said that he had gone back to the Williamses’ apartment to speak with Grant. When defendant entered the Williamses’ apartment, Earlene Williams, Charles Williams, and a friend of theirs were all in the kitchen. Defendant stated that as he entered the kitchen, Grant was also entering the kitchen from the hallway. Grant began to yell at him, defendant said, but he could not understand what Grant was yelling. Defendant claimed that while Grant was yelling at him, Grant was pointing at him with one hand and had his other hand in his pocket. Defendant testified that even though he saw no weapon in Grant’s free hand, he believed that Grant had some kind of weapon in his pocket. Defendant then confronted Grant in the hallway leading to the kitchen, and, while in the hallway, defendant picked up a 21/2-foot pipe from a pile of junk. It is the defendant’s position that he picked up the pipe because Grant had threatened him on a previous occasion with a gun, and, thus, he wanted to ensure that Grant did not hit him with whatever was in his pocket. However, on cross-examination, defendant admitted that he was not afraid that Grant would hurt him, but rather, was angry since he had just discovered that Grant had argued with his wife about Angelo. Once defendant grabbed the pipe, he said, he hit Grant in the head once, but, because he was in the close confines of the hallway, he did not hit Grant with a full swing. Grant fell, and a bicycle fell on top of Grant as he fell down. Defendant stated that while Grant was on the floor, he hit him on his legs, as this was the only part of Grant’s body that was not covered by the bicycle. Immediately thereafter, defendant said his wife ran into the hallway yelling at him to stop. He then stopped hitting Grant and ran out. Defendant said he did not intend to kill Grant.

During defendant’s cross-examination testimony, the State introduced a statement signed by the defendant on August 8, 1986. In this statement, defendant said that when he first left the Williamses’ apartment, he went out to the back porch, picked up a pipe, and then reentered the Williamses’ apartment with the pipe in his hand. Furthermore, in his statement, defendant stated that Grant did not have any weapon in his hand and that he hit Grant in the head twice with the pipe, not once. When questioned by the State about these inconsistencies between his testimony and the statement, defendant explained that these portions of the statement were incorrect. He asserted that even though he knew and understood when he signed the statement that these particular portions of the statement were incorrect, he signed the statement anyway because the assistant State’s Attorney who took the statement, Ms. Martin, had threatened to throw him in jail if he did not sign it.

In contrast to the defendant’s version of the story, Grant testified that he did not threaten defendant at any time that day. He said that he did not have a weapon in his hands and that he did not have either of his hands in his pockets when defendant came into the kitchen. Additionally, Grant stated that when he saw the defendant come in the Williamses’ back door, defendant already had a pipe, approximately 2Vz feet in length, and approximately VJz inches in diameter, in his hands. Grant testified that defendant then came directly towards him with the pipe and hit him in the head with a full swing. That was, Grant said, the last thing he remembered before he lost consciousness.

Earlene and Charles Williams, who were in the kitchen when the defendant returned to their apartment, also testified at trial. Their testimony essentially substantiated Grant’s testimony as well as the facts set forth in the defendant’s statement. They said that the defendant ran in through the back door to their apartment with a pipe in his hand and immediately went towards Grant, who was also in the kitchen. Furthermore, they stated that Grant did not threaten the defendant in any way and that Grant did not have a weapon. They also said that when the defendant entered their apartment, he was swearing at Grant. The defendant went up to Grant, the Williamses related, hit him twice in the head with full swings, and Grant fell to the floor. A bicycle fell on top of Grant, and Grant started to convulse. Defendant then hit Grant approximately three more times on his legs, apparently, they said, because the rest of Grant’s body was covered by the bicycle. At that point, Charles Williams grabbed the defendant to stop him and defendant ran out the door.

Grant testified that as a result of the attack, he had stitches in his head and on his leg, a plate inserted in his head, and that he now suffers from a partial hearing loss as well as headaches.

After the incident, on August 8, 1986, defendant was later found and taken into custody by the police. Detective Thomas Skol testified that on that date he read defendant his rights and told defendant of the allegations against him. After that, Detective Skol said, defendant told him what had happened on June 15, 1986. Detective Skol then called the State’s Attorney’s office and Assistant State’s Attorney Nancy Martin came to the station. Detective Skol said that Ms. Martin again explained defendant’s rights to him, explained that she was not his attorney, and that the defendant responded that he understood the explanation. Then, Detective Skol stated that defendant told his story to Ms. Martin again while he was present. Ms. Martin wrote down what the defendant had said, and when she finished writing, she asked defendant if he could read and write, and he said yes. She then read the statement aloud, including a portion which again explained defendant’s rights. After she finished, she gave defendant the opportunity to make any corrections he desired. Defendant did not make any corrections, Detective Skol said, nor did Ms. Martin ever threaten or coerce the defendant into signing the statement. After defendant examined the statement, the defendant, Ms. Martin, and Detective Skol all signed the statement.

At the close of all this evidence, the court, as stated earlier, found defendant guilty on all three counts, merged the aggravated battery counts into the attempted murder count, and entered judgment on the attempted murder count only. Defendant, who was represented by the public defender throughout the trial, then filed a motion for a new trial on December 4, 1987. A hearing was held on that motion on December 9, 1987, and, following the hearing, the court denied the motion. The court then conducted a sentencing hearing and thereafter sentenced defendant to 10 years of incarceration. Apparently, in the interim between the filing of the defendant’s motion and the hearing, new counsel for the defendant, Lance Haddix, was hired by defendant’s family, although Mr. Haddix did not file his appearance in the case until some time after December 9, 1987. Mr. Haddix was, however, present in court both on December 4 and on December 9, 1987. At the end of the sentencing hearing, on December 9, 1987, Mr. Haddix stepped before the court, explained that he had been recently retained, and requested leave to file a post-trial motion instanter which was, Mr. Haddix said, “practically duplicative” of the defendant’s previously filed motion for a new trial. The court denied the request, finding that the 30-day period for filing post-trial motions had expired, but informed Mr. Haddix that he was free to file a notice of appeal. As stated earlier, defendant has now appealed.

Defendant raises three issues: (1) whether the trial court properly found defendant guilty of attempted murder beyond a reasonable doubt; (2) whether the trial court properly admitted defendant’s statement; and (3) whether the trial court committed reversible error when it denied defendant a hearing on the post-trial motion prepared by Mr. Haddix.

Defendant argues here that the evidence was insufficient to establish that he was guilty of attempted murder beyond a reasonable doubt because the evidence of the required intent was insufficient, and the evidence of self-defense and defense of a dwelling was sufficient to justify his actions. First, defendant claims that the State did not prove that he had the requisite intent to kill Grant since the evidence showed that he was only attempting to disarm Grant when he hit him with the pipe. Moreover, he argues that if he had truly wanted to kill Grant, he would have pulled the bicycle off Grant after Grant fell to the floor and would have continued to hit him in the head, instead of merely hitting Grant on his exposed legs.

Second, defendant claims that the evidence was sufficient to establish that he acted in self-defense since the evidence at trial affirmatively established that he reasonably believed that Grant was a threat to him. He had a reasonable belief, he argues, because he says he saw that Grant had his hand in his pocket, and, thus, he thought Grant had some type of weapon in his pocket. He also claims that he had reason to believe Grant would harm him because he knew that Grant had previously been at his apartment “assaulting his wife.” In addition, defendant contends, both his testimony and his wife’s established that Grant had previously threatened defendant with a gun. Consequently, he contends that the evidence clearly showed that he reasonably believed he was in imminent danger when he hit Grant. Finally, defendant asserts that there was also sufficient evidence presented to establish that he acted in defense of a dwelling. He submits that the evidence here showed that he was defending the Williamses’ dwelling, which he claims was merely an extension of his own dwelling next door, against Grant, who had invaded his home earlier that day.

The State, on the other hand, contends that the trial court properly found the defendant guilty of attempted murder beyond a reasonable doubt. The State asserts that the evidence presented was sufficient to show that defendant had the requisite intent to kill Grant and that there was insufficient evidence to establish that Grant acted in self-defense or in defense of a dwelling. The evidence of defendant’s intent to kill Grant, the State says, was sufficient and established that defendant hit Grant in the head twice, and when Grant then fell to the floor, unconscious, defendant continued to wildly swing at the only exposed part of Grant’s body, which was his legs. Further, defendant only stopped swinging at Grant when he was restrained by Charles and Patricia, at which time he immediately fled from the apartment.

The State also argues that there was no evidence of self-defense inasmuch as the only basis for defendant’s claim that Grant threatened him was defendant’s testimony that he was fearful because Grant had his hand in his pocket and that he believed Grant had a weapon in the pocket. The State claims that these statements had no evidentiary significance.

Finally, the State asserts that there was no evidence whatsoever to establish the theory of defense of a dwelling. There was no evidence that Grant’s entry into the Williamses’ apartment was not authorized or that Grant made an attack on the Williamses’ dwelling. In fact, the State notes, the testimony established that Grant was a welcome visitor in the Williamses’ home and that Grant never made any threats while he was there. Thus, the State concludes, the evidence presented was more than sufficient to support the trial court’s finding that the defendant was guilty of attempted murder beyond a reasonable doubt.

A court of review will not disturb a trier of fact’s determination of guilt unless the evidence is so unreasonable, improbable or unsatisfactory that it raises reasonable doubt as to defendant’s guilt (See People v. Young (1989), 128 Ill. 2d 1, 51, 538 N.E.2d 461, 473.) However, in order to sustain a conviction on a charge of attempted murder, the State must prove that the defendant had the intent to kill the victim. (People v. Graham (1985), 132 Ill. App. 3d 673, 682, 477 N.E.2d 1342, 1348; see Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1.) Intent can seldom be proven by direct evidence and is generally inferred from circumstances that warrant the inference. (See People v. Schmidt (1988), 168 Ill. App. 3d 873, 881, 522 N.E.2d 1317, 1322.) In this case, the State had to demonstrate that the defendant intended to kill Grant when he struck him. Here, the evidence showed that defendant came into the Williamses’ apartment swearing at Grant, that he rushed over to Grant, struck Grant in the head at least once, and probably twice, with a 21/2-foot by l1/2-inch pipe, and that when Grant lost consciousness and fell to the floor and a bicycle fell on top of him, defendant continued to swing at Grant’s legs. Certainly, from this direct evidence, it was reasonable to infer that the defendant intended to kill Grant. Thus, we believe there was sufficient evidence for the trial court to conclude that the defendant was guilty of attempted murder.

The defendant’s second claim, that the evidence established that he acted in self-defense, is governed by statute:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 1.)

A trier of fact’s finding that a defendant’s belief of danger was unreasonable and that a defendant’s use of force was excessive will not be overturned unless it is so improbable, erroneous or unsatisfactory as to raise a reasonable doubt of defendant’s guilt. People v. Conwell (1978), 64 Ill. App. 3d 995, 382 N.E.2d 64.

Here, the evidence of self-defense was insufficient to raise a reasonable doubt as to defendant’s guilt. Defendant’s testimony did not establish that he reasonably believed he was in immediate danger of death or great bodily harm from Grant. All of the testimony at trial showed that Grant, on the day of the incident, had not physically or verbally threatened defendant (even the evidence concerning whether Grant had, on one prior occasion, threatened defendant with a gun was conflicting). Furthermore, defendant said, both in his testimony at trial, and in his statement, that he really did not believe that he was in danger from Grant, but, rather, that he was angry at Grant for fighting with his wife earlier in the day. Hence, we find that the trial court properly rejected the defendant’s claim of self-defense.

The defendant’s contention that the evidence established that he acted in defense of a dwelling is also an issue which is governed by statute. The pertinent portion of the statute reads:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon a dwelling.” (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 2.)

The use of force likely to cause death or great bodily harm may be justified in such a situation only if “entry is made or attempted in a violent, riotous, or tumultuous manner, and [the defendant] reasonably believes that such force is necessary to prevent an assault upon *** him or another then in the dwelling” or “reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling.” Ill. Rev. Stat. 1987, ch. 38, par. 7 — 2.

The defendant’s contention is totally meritless. There is no evidence in the record to support defendant’s claim that he acted in defense of a dwelling. Earlene and Charles Williams testified that Grant was welcomed into their apartment and that Grant did not physically or verbally threaten anyone while he was there. The record is devoid of any evidence to support defendant’s claim that he reasonably believed Grant unlawfully entered the Williamses’ apartment or that Grant was going to attack those in the Williamses’ apartment.

Defendant next argues that the statement he signed on August 8, 1986, was improperly admitted by the trial court. He claims that the statement was not voluntary. Defendant relies upon his own testimony at trial in which he stated that the assistant State’s Attorney, Ms. Martin, threatened to throw him in jail if he refused to sign the statement as she had written it. Defendant asserts that on the basis of this claim, he was entitled to a hearing on the issue of voluntariness. The State, however, asserts that defendant waived review of this issue because he did not move to suppress the confession prior to trial. In any event, the State argues, the evidence showed that the statement or confession was voluntary and that defendant fully understood his rights when he signed it.

The failure to challenge the admission of a confession at trial either by a motion to suppress or by appropriate objection at trial and then by a post-trial motion generally waives appellate review of the matter. (People v. Terrell (1975), 62 Ill. 2d 60, 63, 338 N.E.2d 383, 384; People v. Brownell (1984), 123 Ill. App. 3d 307, 310, 462 N.E.2d 936, 939; People v. Sanford (1983), 116 Ill. App. 3d 834, 844, 452 N.E.2d 710, 715; see also People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Additionally, a defendant must normally challenge the voluntariness of a confession by a motion to suppress which, under Illinois law, must “be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion.” Ill. Rev. Stat. 1987, ch. 38, par. 114 — 12(c); see also Terrell, 62 Ill. 2d at 63, 338 N.E.2d at 384.

Here, the defendant made no motion to suppress the confession prior to trial, even though the statement was available to defense counsel well before trial began and the grounds for such a motion were also known. The only objection by the defense to the confession, both at trial and in his post-trial motion, was based solely on the contention that the confession was inadmissible hearsay. There is no indication in the record of any defense objection to the confession on the basis of voluntariness. Thus, we find that the defendant waived his right to review on this issue.

Even if this matter had not been waived, an examination of the evidence within the record shows that the statement was in fact voluntary. Detective Skol testified that he read defendant his rights and that Assistant State’s Attorney Martin also read defendant his rights, the defendant himself testified that he was read his rights, and, additionally, a portion of the statement itself, signed by the defendant, clearly explained those rights. Although defendant testified at trial that Ms. Martin threatened to throw him in jail if he did not sign the statement, Detective Skol, who was also present, testified that no such threats were made. We also note that even if the confession had not been admitted, the other evidence presented at trial was more than sufficient to support defendant’s conviction.

Defendant’s final claim is that the trial court erred when it prevented his newly retained attorney from filing and arguing a second motion for a new trial at the post-trial hearing. The State, however, argues that the trial court properly denied defense counsel leave to file a second post-trial motion because, as defense counsel told the court below, it was “practically duplicative” of the'original motion for a new trial on which a hearing had been held, and because, in any event, the motion was proffered after the 30-day period for filing such motions.

A written motion for a new trial in a criminal proceeding must be filed within 30 days following the entry of a finding. (Ill. Rev. Stat. 1987, ch. 38, par. 116 — 1.) Here, judgment was entered against the defendant on November 4, 1987, and Mr. Haddix asked for leave to file a second “practically duplicative” post-trial motion on December 9, 1987, immediately after the court had held a hearing on the first motion for a new trial. This second motion for a new trial was filed more than 30 days after judgment was entered against the defendant on the attempted murder count, and, thus, the request to file a second motion for a new trial and the request for a hearing on that motion was properly denied by the trial court. Furthermore, as defendant’s counsel told the trial court, the second motion was “practically duplicative” of the first motion, which had just been argued before the court.

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

Judgment affirmed.

EGAN, P.J., and LaPORTA, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE EGAN

license: Public Domain

text:
    THE CITY OF CHICAGO, Plaintiff-Appellee v. IRENE RAGO et al., Defendants-Appellants.
    First District (6th Division)
    No. 1 — 88—1414
    Opinion filed September 1, 1989.
    Serpico, Novelle, Dvorak & Navigato, Ltd., of Chicago (Vincent F. DiPiero, of counsel), for appellants.

      Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

This is an appeal from an order holding the defendants in contempt and fining them for failure to comply with a previous court order.

The plaintiff, City of Chicago, filed a complaint against the defendants on October 22, 1984, seeking to enjoin them from operating a crematory inside a garage without a permit and to require them to restore the garage at 2419 West Erie Street in Chicago to its original condition. The defendants were holders of the beneficial interest in the land trust that held title to the property. The defendant, Louis Rago, operated a funeral parlor at 624 North Western Avenue across the street from the garage and used the garage “as part of [its] business.”

On October 31, 1984, the judge enjoined the defendants from performing cremations. The order provided that the “status quo of the subject premises shall remain in full force and effect and that there shall be no use of or work on the crematorium until such further order of the court.”

The matter was continued pending the outcome of a related zoning case in which either the defendants or others were seeking to obtain a legal right to maintain a crematory in the garage.

On September 21, 1984, the Zoning Board of Appeals gave authorization for the installation and usage of a crematory in the garage. The circuit court of Cook County upheld the Zoning Board’s decision on November 8, 1985. The appellate court later reversed the trial court in a Rule 23 order and remanded the matter to the Zoning Board of Appeals. On October 17, 1986, the Zoning Board ruled that the crematory could not be operated on the defendants’ property because it violated the city zoning ordinance.

The parties returned to court on January 7, 1987, and the judge continued his previous order enjoining the defendants from operating the crematory and further ordered an interior inspection of the garage before the next hearing date.

At the next hearing on January 21, 1987, the city inspector testified that he conducted his inspection on January 13, 1987, and found that the crematory equipment remained a part of the garage. A stack was still attached to the roof of the garage, and the gas lines were still connected to the furnace. The judge held that everything in the garage that was part of the crematory had to be removed and the building had to be restored to its previous condition. He found the defendants guilty on count I of the city’s complaint, fined them $1,000 and entered a permanent mandatory injunction which in part required them:

“To disconnect all furnace equipment, to remove all crematory furnaces and equipment including the stack and necessary appurtenances from the subject premises and to restore the building to its original condition, IMMEDIATELY as soon as possible.” (Emphasis in order.)

The order also provided that the court would reserve jurisdiction for the purposes of enforcement, modification or termination of the injunction. The defendants’ motion to vacate the fine was continued.

During the hearing the defendant’s attorney told the court that his client did not want to keep the furnace in the garage and that it was his client’s wish to move it. He also informed the court that he had told the corporation counsel before the hearing that his client had no problem with moving or disconnecting the furnace. He said that his client’s problem was that it would take some time to relocate the piece of equipment, which weighed in excess of three tons. (The evidence later established that the furnace weighed 11 tons.) He mentioned a time span of a “few months” and a “couple of months.” The assistant corporation counsel told the court that he would agree to a 60-day extension to permit the defendants to remove, the furnace. The court continued the case until March 25 and ordered another interior inspection before that date.

At the hearing on March 25, 1987, the inspector testified that the furnace remained in the garage. However, the gas lines and stack on the roof had been disconnected.

Louis Rago, one of the defendants, testified that he was not the owner of the crematory and that the owners were looking for sites on which to relocate the furnace. The owners were attempting to sell the furnace in the event they could not relocate it. They were encountering difficulties because of the bad publicity the crematory had received; however, they did want to relocate it and did not want to store it in the garage. He explained that the stack had been disconnected, but due to its size and the weather conditions it remained on the roof. The judge fined the defendants an additional $1,000 for noncompliance with the terms of his injunction and continued the case for three weeks. The defendants’ motion to vacate the new fine and their previous motion to vacate the fine entered at the January 21, 1987, hearing were continued.

At the next hearing on April 23, 1987, the inspector testified that the stack had been removed from the roof, but the furnace remained in the garage.

Rago testified that there was no reason why the furnace could not be moved. The problem was that he had no place to put it. He had been refused storage of the furnace in Melrose Park two weeks before the hearing. He had been talking to the owner of a crematory operation in either Libertyville or Mount Prospect who evidenced an interest in buying the furnace.

The judge expressed an opinion that the city Department of Streets and Sanitation could probably get the furnace out within 48 hours, then put it on a truck and take it to a city lot if the defendant was having trouble removing it. The attorney for the defendant told the judge that they were waiting for a purchaser. The judge responded as follows:

“I think we can arrange for the defendants, for the Streets and Sanitation, on the order of court, to remove that and put that in one of its facilities and store it. Of course, the cost of that will have to be borne by the defendants. Now if it comes to that, then it will be done. I want to give the defendants here an opportunity to remove it pursuant to these orders of court without the necessity of bringing in the Department of Streets and Sanitation into the picture at all. I think there must be some place it can be stored, as large of an area as we have in Chicago and its environs. I’m sure there’s some storage facility that will accept it.”

The judge fined the defendants an additional $1,000 for noncompliance with the prior injunction order.

At the next hearing on May 21, 1987, the inspector testified that an appointment had been arranged with the defendants for the previous day at 3 p.m., but no one answered the bell, and he was unable to gain access for his inspection. The defendants’ attorney told the judge that the owners were still attempting to sell the furnace. The judge told the defendants’ attorney that he should get a truck, take the furnace out and store it. He said that he was sure that there were some warehouse facilities available for storage. For the first time the defendants’ attorney expressed disagreement with the court’s injunction order of January 27, 1987; but he did not express the reasons for his disagreement.

The next hearing was held on July 9, 1987. The defendants’ attorney told the judge that it was his understanding that the owners of the crematory had entered into a contract to relocate the furnace. The case was continued to September 10,1987.

On September 10, 1987, the inspector testified that his inspection the previous day revealed that the furnace had not been removed from the garage. Rago once again stated that bad publicity was to blame for the owners not being able to sell or relocate the furnace. When the court asked why the furnace had not been removed pursuant to his order, Rago said that there was an ordinance pending before the city council which, if passed, would allow the owners of the crematory to move it from its present location to the funeral home.

The judge found that the defendants were acting in direct violation of his order to remove the furnace entered on January 21, 1987, and held that their noncompliance constituted indirect contempt. He levied a $400-a-day fine against all the defendants until there was full compliance with his order. He ordered another inspection of the premises to take place on September 23, 1987, and continued the matter until September 24. On September 22, the Chicago city council defeated the proposed crematory ordinance.

The next hearing was held on October 1. The inspector testified that the furnace was gone. Rago, who had become an owner of the crematory since the last hearing, testified that the moving company which took the furnace out on September 21, 1987, brought four trucks to do the job and that they placed the 22,000-pound single-piece unit on a flatbed truck belonging to another company. He did not have the names of the companies that had been hired to move the furnace. The furnace was removed the same day that he testified concerning a zoning ordinance change. A representation was made to the court that the city council vote was at 11 a.m. and the furnace was removed at 12:15 p.m.

The judge held that the defendants had purged themselves of the contempt; however, the daily fines totalling $4,400 for the period from September 10 until September 22, 1987, would stand as well as the accrued fines totalling $3,000. On April 7, 1988, the judge vacated the $1,000 fines entered on March 25 and April 23, 1987. He denied the motion to vacate the $1,000 fine he entered on January 21, 1987, and the $4,400 contempt fine based on the noncompliance of the defendants from September 10, 1987, to September 21, 1987.

The defendants appeal from the order of January 21, 1987, the contempt order entered by the court on September 10, 1987, and the October 1, 1987, order imposing $4,400 in fines. The notice of appeal was filed on May 6, 1988.

The defendants’ appeal from the order of January 21, 1987, will be dismissed because the notice of appeal, filed May 6, 1988, was not timely filed. The order of a permanent mandatory injunction was final and appealable on January 21, 1987. See People v. Mulgrew (1974), 19 Ill. App. 3d 327, 311 N.E.2d 378.

During oral argument, this court raised the question of the appealability of the January 21 order, sua sponte, which we have the right, if not the obligation, to do. (Ben Kozloff, Inc. v. Leahy (1986), 149 Ill. App. 3d 504, 501 N.E.2d 238.) The attorney for the defendants expressed awareness of the cases which have held that orders reserving jurisdiction for purposes of enforcing the order are not . thereby rendered unappealable. (See, e.g., Village of Palatine v. La Salle National Bank (1983), 112 Ill. App. 3d 885, 445 N.E.2d 1277.) He argued that such cases are not applicable because the order here retained the power to modify or to terminate the injunction as well as to enforce it.

The jurisdiction to enforce an injunction is inherent and is not dependent on an express reservation of jurisdiction in the order. (McCall-Bey v. Franzen (7th Cir. 1985), 777 F.2d 1178.) There is no reason for a different rule with regard to the power to modify or vacate an injunction. An injunction may be modified or dissolved when the court finds that the law has changed or that equity no longer justifies a continuance of the injunction. (Flynn v. Kucharski (1972), 53 Ill. 2d 88, 290 N.E.2d 1; People ex rel. Illinois State Dental Society v. Norris (1979), 79 Ill. App. 3d 890, 398 N.E.2d 1163.) We hold that the express language of the order here gave the court no power that it did not inherently possess and was surplusage; and that the language of the order expressing a retention of jurisdiction did not render it unappealable. Therefore, the appeal from the order of January 21, 1987, is dismissed.

The defendants’ appeal from the order finding them in indirect contempt of court is based solely on their contention that the judge abused his discretion.

The defendants concede that they could have done within days after the order was entered what they ultimately did. The physical removal of the furnace was accomplished within hours; it was placed on a truck and taken to a storage area. We note that the physical removal took place less than two hours after the city council dashed the defendants’ last hope by voting against the zoning change. Before that the judge had expressed a willingness to have the City of Chicago Department of Streets and Sanitation assist in the removal and storage of the furnace. His offer met with no response by the defendants, no doubt because of the judge’s caveat that the removal and storage would be done at the defendants’ expense.

It is a fair inference from this evidence that the defendants’ decision to refrain from obedience to the judge’s order was made advisedly and that the defendants knowingly refrained from obedience until every last avenue of possible relief had been travelled.

In our judgment the record displays exemplary patience on the part of the trial judge and supports the exercise of his discretion. (See City of Chicago v. Chicago Fire Fighters Union, Local No. 2 (1981), 99 Ill. App. 3d 583, 425 N.E.2d 1071.) The orders finding the defendants guilty of contempt and the fine entered on those findings of contempt are affirmed.

Orders affirmed.

McNAMARA and LaPORTA, JJ., concur.


author: PRESIDING JUSTICE MANNING JUSTICE QUINLAN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WILLIAM MURRAY, Defendant-Appellee.
    First District (1st Division)
    No. 1 — 87—2572
    Opinion filed September 5, 1989.

      QUINLAN, J., dissenting.
    Milton Blum, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Kenneth T. McCurry and Kim A. Novi, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendant, William Murray, was charged by information with unlawful use of a weapon by a felon. (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1.) He filed a motion to quash his arrest and to suppress evidence which was denied after an evidentiary hearing. Following a bench trial, he was convicted as charged and sentenced to a term of two years’ probation with 15 weekends of incarceration at the Cook County Department of Corrections. On appeal, he contends that the trial court erroneously denied his motion to quash arrest and to suppress evidence and that the evidence was insufficient to establish his guilt beyond a reasonable doubt.

During the evidentiary hearing on the motion, defendant testified that at 10 a.m. on October 4, 1986, he was sitting in the driver’s seat of his automobile, which was parked northbound on the frontage road adjacent to the Calumet Expressway near 104th and Doty Road in Chicago. Defendant, who was en route to his son’s funeral, had stopped to regain his composure. He then observed a police car proceed southbound on the expressway, exit, emerge onto the road and park behind the vehicle defendant occupied. Officers James Flaherty and Charles Brown then walked from their squad car to defendant’s legally parked vehicle and told him to step from his car. Defendant exited his vehicle, closed the door and upon request surrendered his license. Neither officer showed defendant a warrant. While one officer examined defendant’s license, the other one opened the car door and stated “Can you stand a search[?]” to which defendant replied “[y]es.” Defendant told him that he could not search his car. The officer stated, “Oh yes — want to bet?” The officer then searched the vehicle and claimed that he had found a gun on the floor in front of the • driver’s seat. Defendant further testified that he had not seen a weapon in the car, nor was he aware that one was there.

Officer Charles Brown testified that at 11:30 a.m. on October 4, 1986, he and his partner, Officer James Flaherty, became concerned when they observed defendant asleep behind the steering wheel of a Ford automobile parked near the roadside. They approached defendant’s vehicle and knocked on the window to awaken him. When he awakened they asked him for his license. He then exited his car and tendered his license to Officer Flaherty. Officer Brown, who was standing to the side of the door and at the front of the windshield, looked into the car after defendant alighted, observed a handgun on the floor, and alerted his partner. Officer Brown then arrested defendant while Officer Flaherty seized the loaded weapon.

During the trial Officer Brown added that defendant appeared to be asleep but in “some distress” when the police first observed him. He also stated that only Officer Flaherty knocked on the window to awaken defendant, and that the policemen also asked defendant to exit the vehicle and to produce his identification. Officer Brown further testified that from his position “at the front of the [defendant’s] car,” he observed the weapon “on the floor in the front seat, the driver’s seat, approximately six inches from the driver’s seat.” Officer Brown immediately informed his partner of the weapon. The policemen seized the gun, arrested defendant and transported him to the station.

Jerome McDonald and Lucille Green testified for defendant. At the commencement of McDonald’s testimony a stipulation was entered that he was the owner of the handgun recovered from the vehicle in which defendant was arrested. McDonald added that shortly before the trial he learned that the weapon had been taken from his former residence.

Green testified that she was defendant’s mother and the owner of the vehicle from which the weapon was recovered. Green added that she, defendant and his son were the only persons who drove her car. She added that on September 29, 1986, defendant’s son died from gunshot wounds and that his funeral had been scheduled for October 4,1986. Prior to his death he had been “in trouble” with the law.

Defendant testified that on October 4, 1986, he was driving to his son’s funeral when he parked northbound on the road adjacent to the Calumet Expressway near 104th and Doty Road to regain his composure. He then sat in a semi-reclining position and observed a squad car proceed southbound on the expressway, exit, enter onto the road and park behind his vehicle. When the policemen emerged from their vehicle, Officer Brown walked to the passenger side, and Officer Flaherty approached the driver’s side of defendant’s car. They ordered him to step from his car. He complied and closed the door.

While Officer Flaherty examined defendant’s driver’s license, Officer Brown pushed defendant aside, opened the door, “got down on one knee, pulled a floor mat out of the car,” and stated, “See what I found.” He then “showed something” to Officer Flaherty. The policemen transported defendant to the station, where they showed him a handgun and informed him that it had been found in his car. Defendant further testified that he did not use nor had he discussed the use of controlled substances with the police officers. Defendant also stated that he had not used the automobile for “sometime” before his arrest.

Officer James Flaherty testified that he was proceeding northbound when he observed defendant “slumped over” the steering wheel of a parked car near 104th and Doty Road. Officers Flaherty and Brown then stopped to determine defendant’s condition. They awakened him by knocking on the window, and then Officer Flaherty asked for his driver’s license. Flaherty could not remember if defendant had been asked to exit his car. Nevertheless, after defendant stepped from his car, Officer Brown observed the handgun on the floor. Officer Flaherty did not see the weapon until his partner removed it from defendant’s vehicle. The officers arrested defendant and drove his car to the station where they searched it. According to Officer Flaherty, although defendant had no controlled substances in his possession, defendant volunteered that his use of heroin caused him to park on the roadside. The policeman also stated that he could not recall if he had inventoried a prescription but believed that defendant had used “something” supplied by a physician.

Defendant argues that his guilt was not established beyond a reasonable doubt because the trial court placed too much reliance on the police officers’ testimony. Where the defendant’s testimony conflicts with that of the officers’, the question of credibility is best resolved by the trial court. People v. Underwood (1982), 108 Ill. App. 3d 846, 850, 439 N.E.2d 1080.

While we agree with the State that the testimony elicited at the trial, with the introduction of physical evidence seized from the floor of the vehicle in which defendant was the only occupant, sufficiently proved defendant’s guilt beyond a reasonable doubt, we reverse on the basis of defendant’s second assertion regarding that physical evidence.

Defendant’s second assertion is that the trial court erroneously denied his motion to quash the arrest and suppress evidence. The decision of the trial court on a motion to suppress will be reversed only when it is against the manifest weight of the evidence. (People v. Watson (1986), 145 Ill. App. 3d 492, 495 N.E.2d 1153.) It is well settled that police officers may approach an individual for purposes of investigating possible criminal behavior where there is no probable cause to arrest, provided, however, that the officers’ decision to stop is based on specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant the investigative intrusion. (People v. Lilly (1976), 38 Ill. App. 3d 379, 382, 347 N.E.2d 842; People v. Fox (1981), 97 Ill. App. 3d 58, 62, 421 N.E.2d 1082.) Additionally, section 6 — 112 of the Illinois Vehicle Code requires a motorist to produce his license or permit to officers pursuant to investigations related to compliance with the licensing statute. (Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 112.) Notwithstanding, law enforcement officials may not use their authority under the statute as a pretext to investigate matters unrelated to licensing requirements. People v. Harr (1968), 93 Ill. App. 2d 146, 150, 235 N.E.2d 1.

When the police officers herein approached defendant, they did not have a reasonable suspicion that he was committing a crime and were not investigating his compliance with licensing requirements. According to the State, the encounter was initiated to render assistance to defendant, whom the officers believed to be asleep and in distress. The officer testified that they first knocked on the window to awaken defendant. When he awakened, apparently immediately, the officers did not inquire as to defendant’s well-being but ordered him to produce his license and to exit his car. We believe that demand was inconsistent with the purported intent to render assistance to one whom they had perceived to be in distress.

To support its contention that it was reasonable and proper under the fourth amendment for the officers to order defendant to exit his car and produce his driver’s license, the State relies upon Pennsylvania v. Mimms (1977), 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330, Cady v. Dombrowski (1973), 413 U.S. 433, 37 L. Ed. 2d 706, 93 S. Ct. 2523, People v. Ledwa (1980), 81 Ill. App. 3d 276, 401 N.E.2d 298, and People v. Smith (1970), 47 Ill. 2d 161, 265 N.E.2d 139. We believe that the State’s reliance is misplaced. Pennsylvania v. Mimms involved a routine patrol stop of a motorist who had committed a traffic violation. The officers demanded his license for the purpose of issuing a traffic citation. And as a matter of standard precautionary procedure, the motorist was asked to step from the car. Cady v. Dombrowski involved a drunken motorist who had summoned police for help after he had been involved in an automobile collision. The officers performed the “community caretaking” act of removing the motorist’s disabled and illegally parked vehicle from the road. In People v. Ledwa the policeman concomitantly observed defendants sleeping in a car and drug paraphernalia on a stack of clothing in the rear seat. The officers removed defendants from the car upon a reasonable suspicion that there was criminal activity. In People v. Smith police found the unconscious defendant lying on a hallway floor. Upon awakening he was incoherent. A search was conducted to determine his identity.

In the case before us, the officers approached defendant without any suspicion that criminal activity was afoot. According to the State’s evidence, the policemen intended to render assistance to defendant. Their initial contact was the knock on the car window to which defendant aptly responded, placing them on notice that there was no need for emergency assistance as in People v. Smith. Through escalating that intrusion by demanding defendant’s driver’s license and ordering him to exit his car, the officers violated defendant’s fourth amendment rights.

Our learned colleague in dissent relies upon United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, and People v. Hicks (1989), 183 Ill. App. 3d 636, 539 N.E.2d 756, for the proposition that where there is a consensual encounter, no seizure of the person occurs, and hence, no violation of constitutional dimensions takes place. We do not quarrel with that proposition. We do, however, find the instant case to be distinguishable from the factual matrix presented in those two cases. A police officer speaking to a person walking in an area or down the street is far different from a show of authority by police demonstrated by a demand that one produce a driver’s license and a command that one exit a vehicle. It is our view that defendant was indeed “seized” at the time he was ordered to produce a driver’s license and exit the vehicle by virtue of the show of authority exhibited by the police officers. At that moment defendant’s freedom of movement was restrained. Unlike the United States v. Mendenhall and People v. Hicks defendants, the inference here is clear that defendant was not free to disregard the questions and commands and walk away. United States v. Mendenhall and People v. Hicks are completely inapposite.

We hold that the denial of defendant’s motion to quash the arrest and suppress the evidence was manifestly erroneous.

For the reasons stated, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

O’CONNOR, J., concurs.

JUSTICE QUINLAN,

dissenting:

I respectfully dissent from the majority’s finding today that the defendant’s fourth amendment rights were violated by the action of the police officers in the present case in requesting to see a motorist’s driver’s license and in asking him to step from his vehicle where he had been slumped over in a parked car, next to a busy expressway, in the early morning hours. I disagree with this finding for two essential reasons: (1) there was no “stop” of the motorist here which would require a justification for the officers’ action and (2) there never was a seizure of the motorist until one of the officers observed a gun on the floor of the auto, which was in plain view when the defendant exited the auto. For the majority to hold, contrary to the trial court’s finding on the motion to suppress, that the officers’ conduct violated the defendant’s fourth amendment rights to be free from illegal searches and seizure, sends a most confusing message to police officers in general and improperly taints the conduct of the two police officers in the present case, who acted in a very sound and responsible manner.

I believe that this case is very similar to the recent case decided by this court in People v. Hicks (1989), 183 Ill. App. 3d 636, 539 N.E.2d 756, which was concurred in by the two judges in the majority today. In Hicks, we found the activities of the officers there to be merely a consensual interaction with the defendant and not a stop requiring specific articulable facts of reasonable suspicion of criminal activity as set forth in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. In Hicks, the officers observed the defendant exit from an airplane at O'Hare Airport and followed him for a short distance before one officer spoke to the defendant, while the other officer stood nearby and observed the conversation. (Hicks, 183 Ill. App. 3d 636, 539 N.E.2d 756.) The officer who spoke to the defendant identified himself as a police officer, then asked the defendant for some identification and a copy of his airline ticket. (Hicks, 183 Ill. App. 3d at 639, 539 N.E.2d at 758.) This same panel of judges sitting today found that that activity of the officers there did not require a finding of reasonable suspicion since they agreed that there was no stop, and, thus, no seizure of the defendant. Accordingly, we held in Hicks that the encounter was consensual and did not require any additional constitutional justification. (Hicks, 183 Ill. App. 3d at 644, 539 N.E.2d at 761.) In that case, we relied upon the reasoning of the United States Supreme Court in United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, which has also been adopted in Illinois as the test for when a seizure of a person takes place. (See People v. Forrest (1988), 172 Ill. App. 3d 385, 526 N.E.2d 616.) In Mendenhall, the Supreme Court noted:

“ ‘There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets,’ [citation]. Police officers enjoy ‘the liberty (again, possessed by every citizen) to address questions to other persons [citation] * * * f
** *
We adhere to the view that a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but ‘to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.’ [Citation.] As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.
Moreover, characterizing every street encounter between a citizen and the police as a ‘seizure,’ while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices.
* * *
[The] *** conclusion that no seizure occurred is not affected by the fact that the respondent was not expressly told by the agents that [he or] she was free to decline to cooperate with their inquiry, for the voluntariness of [the] responses does not depend upon [his or] her having been so informed. [Citation.] We also reject the argument that the only inference to be drawn from the fact that the respondent acted in a manner so contrary to [his or] her self-interest is that [he or] she was compelled to answer the agents’ questions. It may happen that a person makes statements to law enforcement officials that [they] later regret[ ], but the issue in such cases is not whether the statement was self-protective, but rather whether it was made voluntarily.” Mendenhall, 446 U.S. at 553-56, 64 L. Ed. 2d at 508-10, 100 S. Ct. at 1876-78.

Further, as the Mendenhall court also noted, whether a defendant’s consent to the encounter and interaction is voluntary or was the product of duress or coercion, expressed or implied, is to be determined by the totality of all the circumstances. (Mendenhall, 446 U.S. at 557, 64 L. Ed. 2d at 511, 100 S. Ct. at 1879.) Here, the trial court found that the police officers had acted reasonably and did not violate the defendant’s right to be free from unlawful searches and seizures. As the majority notes, the decision of the trial court on a motion to suppress will be reversed only when it is against the manifest weight of the evidence. (See People v. Watson (1986), 145 Ill. App. 3d 492, 495 N.E.2d 1153.) The finding of the trial court here clearly was not against the manifest weight of the evidence.

In the present case, Officers Flaherty and Brown observed the defendant, who appeared to be asleep, slumped over behind the steering wheel of an automobile parked on the frontage road adjacent to the Calumet Expressway near 104th and Doty Road at 10 a.m. The officers proceeded to investigate the situation. Officer Flaherty approached defendant’s vehicle and knocked on the window, awaking the defendant. Officer Flaherty asked the defendant for his driver’s license and either asked him to exit the car or the defendant, himself, voluntarily stepped out of the auto. Officer Brown was standing to the side of the door and at the front of the windshield at this time. As the defendant exited the auto, Officer Brown looked into the car and observed a handgun on the floor of the car and alerted his partner. Officer Brown then arrested the defendant and Officer Flaherty seized the weapon.

As this same panel said in Hicks, in what I believe to be a very similar type of situation, “under the Mendenhall test, there was no seizure.” (Hicks, 183 Ill. App. 3d at 643, 539 N.E.2d at 761.) Consequently, since there was no seizure of the defendant there, but only a consensual encounter, there was, of course, no need to justify the officers’ activity on the grounds of reasonable suspicion, as any inquiry of reasonable suspicion was rendered irrelevant by the consensual nature of the encounter. Similarly here, the initial encounter between Officers Flaherty and Brown and the defendant was merely a consensual type of encounter until Officer Brown saw the handgun in the defendant’s automobile. Thus, the actions of the police officers here also did not violate the defendant’s constitutional rights. Contrary to the majority’s view, I also find the present case to be factually similar to People v. Ledwa (1980), 81 Ill. App. 3d 276, 401 N.E.2d 298. There the police officers found two young men asleep in an automobile parked along a roadside in a park, and, while investigating, the officers found LSD and marijuana paraphernalia in the car. (Ledwa, 81 Ill. App. 3d at 277, 401 N.E.2d at 300.) The court ruled that the officers there had acted properly in conducting an investigation and that the evidence obtained was properly admissible at the subsequent trial. The court stated:

“Defendants argue that the cannabis found in the trunk [discovered as a consequence of the drug paraphernalia in plain view] is inadmissible ***. We cannot agree. The police officers did not first approach the automobile as law enforcement officers; they approached as public safety officers. They investigated two young men slumped down in an automobile parked along the roadside. The officers had a duty to investigate to determine whether the young men were injured or ill. They then discovered contraband in plain view. We fail to see any difference between this and a traffic stop.” Ledwa, 81 Ill. App. 3d at 278-79, 401 N.E.2d at 301.

Additionally, because I do not believe that the officers unlawfully stopped or seized the defendant here, the arrest of the defendant for possession of the weapon and the subsequent charging of the defendant with unlawful use of a weapon by a felon was also proper. Moreover, the evidence introduced at the trial of the defendant, which included the officers’ testimony and the evidence of the constructive possession of the gun on the floor of the automobile, six inches from the driver’s seat, established, I believe, the defendant’s guilt beyond a reasonable doubt.

Accordingly, I would affirm the judgment of the circuit court of Cook County.

       sOf course, if the activity did not need to be justified by specific articulable facts of criminal activity under Terry, it also did not need to be justified by facts warranting a finding of probable cause to arrest. Therefore, I do not consider this issue in my dissent other than collaterally and where appropriate.

       The majority distinguishes the United States v. Mendenhall and People v. Hicks cases by finding the situation here different from those cases because, as the majority states, the police engaged in a show of authority when they “demanded” that the motorist produce his driver’s license and “commanded” him to exit his vehicle. The majority asserts that the defendant was seized at that point, and that his freedom of movement was restrained. However, the only factual difference between the actions of the officers here and the officers in Mendenhall and Hicks is that at the time of the encounter the officers here were in uniform and they asked to see the defendant’s license (there is no evidence that the officers “demanded” the motorist’s license) and they requested that he exit his vehicle (again, there is no evidence that the police officers “commanded” him to exit his vehicle and, in fact, there is some evidence that the defendant voluntarily exited his vehicle). However, I have difficulty in seeing any

        legal significance in these differences, since the officers in Mendenhall and Hicks identified themselves as police officers, asked the defendant for identification, and ultimately requested him to follow them to a more remote area to search his luggage. How the actions in those cases merely constituted a consensual encounter, while in the present case the actions resulted in a constitutionally prohibited seizure and restraint of the defendant’s freedom of movement eludes me. The actions of the officers here and in those cases seems to me to be very similar and without any legal difference.
      Also, the specific legal holding of the majority that a request for a motorist to produce a driver’s license and that the driver exit his vehicle constitutes, ipso facto, a seizure within the meaning of the law, resulting in a restraint of freedom, is a new and novel rule of law. To my knowledge, no court has so held and those courts which have considered similar issues have in fact found to the contrary.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JONATHAN PENNY, Defendant-Appellee.
    First District (1st Division)
    No. 1 — 88—1643
    Opinion filed September 5, 1989.

      Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, David R. Butzen, and Timothy J. Deeming, Assistant State’s Attorneys, of counsel), for the People.
    Chester Slaughter, and Freddrenna M. Lyle, of Smith & Lyle, both of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, Jonathan Penny, was charged by information with possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2).) Defendant filed a motion to quash his arrest and to suppress evidence seized at the time of his arrest, alleging that the arresting officers did not have probable cause to believe the package they had seized from defendant’s car contained a controlled substance. The trial court granted defendant’s motion and the State appeals (107 Ill. 2d R. 604(a)(1)). For the following reasons, we affirm the trial court’s judgment.

The record indicates that on November 23, 1987, approximately 11:30 p.m., Chicago police officers James Jones and Ellis Peal observed that defendant’s car had an expired license plate sticker and signalled to defendant to pull over to the side of the road. Defendant pulled off to the side, exited the car and walked toward the rear where he met the officers, who were walking toward him. Officer Peal informed defendant that they had stopped him because his license plate sticker was expired and asked to see his driver’s license. Jones testified that defendant’s hands were shaking as he took out his license.

While Officer Peal was talking to defendant, Officer Jones walked up to the driver’s side of defendant’s car and looked inside. He saw a package, approximately seven inches in diameter and four inches thick, wrapped in a brown opaque plastic material on the floor. Jones signalled to Peal that he saw something inside the car. When Peal asked defendant what was in the package, defendant claimed that he did not know because the car was not his. At that point, Officer Jones opened the door and took out the package. At the hearing, Jones described the package as looking “like a kilo of cocaine” and feeling “like a brick.” When Jones poked a hole in the top of the package with a knife, he saw that it contained white powder which later proved to be cocaine. As a result, defendant was arrested.

Subsequently, defendant filed a motion to quash his arrest and to suppress evidence, alleging that he was arrested and his automobile was searched without probable cause. Following Officer Jones’ testimony at the suppression hearing, the trial court granted defendant’s motion, stating that the suspicions of an officer that a package contained cocaine were not enough to constitute probable cause, and further adding:

“Certainly, [the officers] had a right to detain this young man for the purposes of issuing a uniform citation for the failure to have the license plate up to date. He did produce a valid driver’s license. Based on the testimony the officer then stood in a place where he had a right to be, observed something that was suspicious.
Now the cross examination or the direct examination of that officer indicated *** that there was no powdery substance, no crushed green plant, there was no pill form, it was simply a package he could not see in. He believed based on his experience that probably it contained a controlled substance.
I am sure that it could possibly have contained a thousand other items that are legitimately used and packed in similar wrappings.
* * *
*** [T]hey were really checking out their suspicions, they had nothing more than mere suspicion, they had a traffic violator and nothing more.”

Predicated on Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535, the State filed a motion to reconsider. The trial court found Texas v. Brown unpersuasive and held that under the totality of circumstances, including the pivotal finding that it was not immediately apparent that the package found in defendant’s automobile contained narcotics, the original ruling granting defendant’s motion to suppress was correct. The State’s appeal followed.

The sole issue on appeal is whether the trial court erred in granting defendant’s motion to quash his arrest and to suppress evidence where the arresting officers, after stopping defendant for a routine traffic violation, observed a package on the floor of defendant’s car which they thought contained cocaine, and then opened it to verify their suspicions. The State contends that Officer Jones had probable cause to remove the package from defendant’s car and to open it because Jones’ vast experience in narcotics investigation made it immediately apparent to him that the package contained cocaine and also because defendant’s hands were shaking when he gave his driver’s license to the other officer. In response, defendant argues that the incriminating nature of the package was not immediately apparent and Officer Jones’ suspicions were insufficient to constitute probable cause.

Upon review, a triál court’s decision on a motion to suppress will not be disturbed unless it is found to be manifestly erroneous. (People v. Gulley (1982), 111 Ill. App. 3d 1091, 445 N.E.2d 26.) It is well established that a warrantless search of an automobile is permissible if the officer has probable cause to believe that the automobile contains contraband. (United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157.) Probable cause to search exists when, considering the totality of circumstances known to the officer at the time of the search, a reasonable person would believe contraband was present in the automobile. (People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869.) Stopping a vehicle for a minor traffic violation does not, by itself, justify a search of the detainee’s person or vehicle. The officer must reasonably believe that he is confronting a situation more serious than a routine traffic violation. (People v. Lawrence (1988), 174 Ill. App. 3d 818, 529 N.E.2d 63.) Mere suspicion (Arizona v. Hicks (1987), 480 U.S. 321, 94 L. Ed. 2d 347, 107 S. Ct. 1149) or curiosity is not enough to justify a search. (People v. Gulley (1982), 111 Ill. App. 3d 1091, 445 N.E.2d 26.) Further, an officer’s authority to investigate a traffic violation may not serve as a subterfuge to obtain other evidence based on suspicion. People v. Thomas (1979), 75 Ill. App. 3d 491, 394 N.E.2d 624.

In our view, the situation at bar is similar to that in People v. Gulley (1982), 111 Ill. App. 3d 1091, 445 N.E.2d 26. In Gulley, defendant was arrested for driving under the influence of intoxicating liquor. Because of defendant’s inebriated condition, the officers advised him that he was going to be driven to the county jail and that he could either leave his vehicle and it would be towed in or he could allow one of the officers to drive it. Defendant agreed to let one of the officers drive the vehicle to the jail.

When the officer who had driven defendant’s vehicle was getting out of it, he inadvertently kicked something under the floorboard. The officer picked it up and discovered that it was an opaque black plastic container which rattled when shaken. The officer opened the container out of “curiosity” and also because he had been given a tip that defendant had been selling drugs. When the officer saw that it contained barbiturates, he put the container back where he had found it and advised the other officer as to what he had found. The two officers then went to defendant’s automobile together and retrieved the container. As a result, defendant was charged with unlawful possession of a controlled substance. The trial court granted defendant’s motion to suppress the evidence.

The appellate court affirmed the trial court’s order on the ground that at the time the officer searched the plastic container found in defendant’s vehicle, “there was nothing that would justify a reasonable person in believing that the automobile contained contraband.” (111 Ill. App. 3d at 1095.) The Gulley court further stated that the officer’s curiosity, the alleged tip and the fact that defendant appeared to be drunk when arrested were insufficient reasons to justify a search of the container.

In the present case, we find that reasons for the police officer’s search of the package found in defendant’s car are even less persuasive than those reasons given in Gulley. Here, the only reasons given for the search are that based on the officer’s experience, the officer thought that the package “looked like a kilo of cocaine” and the officer had seen defendant’s hands shaking when he had handed his driver’s license to the other officer. As previously stated, “reasonable suspicion” does not constitute probable cause. (Arizona v. Hicks (1987), 480 U.S. 321, 94 L. Ed. 2d 347, 107 S. Ct. 1149.) As stated by the trial court, the package could have contained numerous legitimate items. There was nothing about the package itself or about the surrounding circumstances that suggested it contained contraband. The trial court further noted that cocaine comes wrapped in a variety of shapes, sizes and wrappings. With respect to the allegation that defendant’s hands were shaking, nervousness is not a characteristic that generally invokes reasonable suspicion, especially when one is stopped by the police for a traffic violation. See People v. Mills (1983), 115 Ill. App. 3d 809, 450 N.E.2d 935.

Further, we find those cases relied upon by the State, Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535, State v. Redding (Fla. 1978), 362 So. 2d 170, and State v. Courcy (1987), 48 Wash. App. 326, 739 P.2d 98, distinguishable from the present case on the grounds that, in each of those cases, there were either additional incriminating circumstances surrounding the officer’s search which, under the totality of circumstances test, established probable cause, or the packaging was frequently used for contraband.

In Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535, the police officer stopped respondent’s automobile at night at a routine driver’s license checkpoint, asked him for his license, shined a flashlight into his car and observed a deflated opaque party balloon, knotted near the top, fall from respondent’s hand to the seat beside him. Based on his experience in narcotics investigations, the officer knew that narcotics were often packaged in such balloons. Further, when respondent was looking in his glove compartment for his driver’s license, the officer observed small plastic vials, loose white powder and an open bag of party balloons in the glove compartment.

The Supreme Court reversed the court of appeals decision that no probable cause existed, concluding that the police officer had properly seized the balloon from respondent’s automobile. The Court based its decision on the facts that: (1) the officer testified that he was aware from his own professional experience that balloons tied in the manner of the one respondent had possessed were frequently used to carry narcotics; (2) a police department chemist testified that it was “common” for narcotics to be packaged in balloons; and (3) the officer had observed the plastic vials, loose powder and other balloons in the glove compartment.

In contrast to Texas v. Brown, the package observed by the officer in the present case was an innocuous rectangular package, wrapped in brown plastic. As stated by the trial court, there was nothing about the package which made it immediately apparent that it contained narcotics. The package could have contained numerous legitimate items. Further, there were no additional circumstances to validate the officer’s suspicions. In our view, the mere fact that defendant’s hands were shaking is indicative of nothing more than a nervous condition.

In State v. Courcy (1987), 48 Wash. App. 326, 739 P.2d 98, the appearance of the package and defendant’s attempt to conceal it established probable cause for the police officers to search the package. Defendant Courcy was detained during a legitimate investigatory stop and asked to show some identification. Defendant removed a clear plastic identification holder from his jacket and began to take his driver’s license out of the holder. At that point, the officer “saw a blue and black precisely folded paper ‘bindle’ in the folder and immediately recognized it as a receptacle for drugs, usually cocaine.” (48 Wash. App. at 327, 739 P.2d at 99.) When defendant noticed the officer looking at the bindle, he pulled the identification holder back to his chest. After a brief struggle, defendant surrendered possession of the identification holder and its contents to the officers. The bindle contained cocaine, and defendant was arrested for possession of a controlled substance.

Based on the “single purpose container” doctrine, the reviewing court affirmed the trial court’s determination that the officer had probable cause to seize the holder. At trial, both arresting officers testified that based on their experience, they immediately recognized the paper bindle as the type in which narcotics were packaged. The reviewing court held that the distinctive nature of the package coupled with defendant’s “furtive gesture” left defendant with no legitimate expectation of privacy in the contents of the bindle.

By contrast, the package in the present case had no distinctive characteristics which would reasonably lead someone to believe that it contained contraband. Further, the fact that defendant’s hands were shaking could not reasonably be characterized as a “furtive gesture.”

Finally, in State v. Redding (Fla. 1978), 362 So. 2d 170, police officers responded to a complaint that a nude man was running around a parked car. When the police arrived on the scene, defendant was lying on the front seat of his car, fully exposed by virtue of an unfastened bathrobe. His clothes, shoes and jewelry were neatly folded and placed in the back seat. The officers believed they had probable cause to arrest defendant for indecent exposure and ordered him to get out of the car. When the interior car light was illuminated as defendant exited the car, one of the officers saw several small, flat, inch by one-quarter-inch tinfoil packets inside defendant’s shoes. Based upon his experience with narcotics arrests, the officer believed the packets contained heroin or cocaine. As a result, the officer removed the packets from defendant’s shoes and discovered that they contained phencyclidine.

The circuit court suppressed the packets. On appeal, the reviewing court held that the packets were properly seized under the plain view doctrine. In reaching its decision, the court specifically noted that: (1) the officer saw the packets when he was in a place where he had a right to be; (2) the officer’s experience in narcotics investigations had taught him that narcotics were customarily wrapped in small tinfoil packets; (3) defendant was exhibiting bizarre behavior at the time of his arrest; and (4) the packets were in a peculiar location. By contrast, in the present case, there were no distinctive characteristics about the package, defendant exhibited normal behavior, the package was on the floor on the front passenger’s side. Accordingly, we conclude that the trial court properly granted defendant’s motion to quash his arrest and to suppress the evidence.

For the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.