author: JUSTICE RIZZI JUSTICE GREIMAN,

text:
    JOSEPH E. SIEGEL, Plaintiff-Appellant, v. LEVY ORGANIZATION DEVELOPMENT COMPANY, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—89—1881
    Opinion filed September 18, 1991.

      GREIMAN, J., concurring in part and dissenting in part.
    Bernard L. Rivkin, of Chicago, for appellant.
    Schiff, Hardin & Waite, of Chicago, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Joseph E. Siegel (Siegel) appeals from an order of the circuit court of Cook County which granted defendants the Levy Organization Development Co., Inc. et al.’s (Levy Organization’s) motion for summary judgment on all counts of Siegel’s eight-count third amended complaint for rescission, restitution and other relief. On appeal, Siegel contends that (1) this cause of action was improperly transferred from the chancery to the law division of the circuit court; and (2) the trial court erred in granting the Levy Organization’s motion for summary judgment. We affirm in part and reverse and remand in part.

On January 26, 1981, Siegel entered into a purchase agreement with the Levy Organization as agent of the beneficiaries of a La Salle National Bank land trust for the purchase of a condominium unit in the One Magnificent Mile (OMM) luxury development located on Michigan Avenue in Chicago. The condominium purchase price was $1.6 million. The relationships of the other defendants to this matter are as follows. One Magnificent Mile Partnership and One Magnificent Mile Condominium Partnership were beneficiaries of the land trust. Sheffield Properties, Inc., and Lomm Commercial Partnership were general partners of One Magnificent Mile Partnership. The Levy Organization and Lawrence F. Levy (Levy) are general partners of Lomm Commercial Partnership. Lomm Condominium Partnership and Newcastle Properties, Inc., are general partners of One Magnificent Mile Condominium Partnership. Levy is president of the Levy Organization.

Siegel is a commodities trader. He and his fiancee, Kay Kimberly (now Siegel), were interested in purchasing a condominium residence expansive enough to entertain large groups of people. In late 1979 or early 1980, Kay Kimberly saw a newspaper advertisement regarding OMM. As a result of this advertisement, the Siegels met with Levy, and Levy Organization vice-president, Helen Jaeger (Jaeger), at the OMM sales office. During the course of this initial discussion and all subsequent negotiations relative to the purchase of an apartment in OMM, the Siegels stated their desire for an apartment large enough for entertaining on a lavish scale.

According to Siegel, at the initial meeting Levy turned the discussion toward OMM unit 48A, which he claimed was suitable for the Siegels’ needs. Levy informed the Siegels that apartment 48A would be the largest apartment in the development and that it would have a “very special terrace arrangement, whereby you could have a band there and have tables and chairs and people dancing on it.” Levy called it a “dancing terrace.” Jaeger and Levy showed the Siegels a scale model of OMM. The scale model showed terraces unobstructed by pillars or posts. The conversation at the initial meeting focused on the terrace for unit 48A. Levy’s representations with respect to the expansive, 500-square-foot open terrace became a key attraction for the Siegels. At deposition, Levy denied ever promising the Siegels a “dancing terrace.” However, Levy testified that the model of unit 48A which he showed to the Siegels did not contain posts called “mullions.”

During the course of negotiations with the Levy Organization, the Siegels were given a sales brochure and property report which contained floor plans for unit 48A. Henry Mikolajczyk is an architect and professional engineer who was retained by Siegel as an expert witness in the instant litigation. He reviewed the floor plan for the apartment contained in the Levy Organization’s 8x/2- by 11-inch sales brochure and the floor plans contained in the OMM property report. In an affidavit submitted in opposition to the defendants’ summary judgment motion, Mr. Mikolajczyk stated that those plans did not disclose the existence of free-standing mullions or other obstructions on the terrace of unit 48A. However, according to Jaeger, a full-size copy of the floor plan was attached to the purchase agreement. Paragraph 3 of the purchase agreement provides that unit 48A “shall be constructed substantially in accordance with the floor plan attached as exhibit B hereto and made a part hereof.” The floor plan included architectural drawings indicating the presence of mullions on the terrace. The parties disagree about whether a floor plan of the apartment was among the documents attached to the agreement.

Edward Faron, an architect hired by Siegel in 1981 to work on the interior plan of the apartment, reviewed floor plans for unit 48A prepared by Skidmore, Owens and Merrill, one of defendants’ architects. Mr. Faron made trace drawings of these plans. During a discovery deposition, Mr. Faron testified that the drawings and plans which he reviewed did not reveal the presence of mullions on the terrace and that, in fact, he did not become aware of their existence until September 6, 1983, when he was allowed to view the partially completed apartment.

Paragraph 5 of the purchase agreement provided, in pertinent part, that “it is estimated that the purchased unit will be substantially completed by August 3, 1983 (estimated completion date), subject to extensions for delays occasioned by strikes, material shortages, labor shortages, casualties, inclement weather conditions, acts of God and other causes beyond the reasonable control of seller.” Paragraph 12 of the contract provided that “time is of the essence of this Purchase Agreement.” This provision expressly granted Siegel the right to a refund of all earnest money deposits, plus interest, should the defendants be in default of their obligations.

Siegel subsequently requested remodeling work on the unit which cost $66,594. On November 22, 1982, Siegel entered into a first amendment to purchase agreement with the Levy Organization which incorporated the additional work and its cost. In lieu of a cash earnest money deposit in down payment, Siegel delivered to Levy two unconditional, irrevocable letters of credit in the sum total of $386,594.

On February 14, 1983, the Levy Organization sent Siegel a letter informing him that his irrevocable letter of credit expired on August 24, 1983. The correspondence stated, in part:

“As you know, if we do not receive the replacement letter of credit, or the extension of the letter of credit by thirty days prior to August 24, 1983, we are entitled to draw on the letter of credit.”

On March 3, 1983, Jaeger sent Siegel a letter which stated as follows:

“We would like to advise you concerning the new estimated completion date of the purchased unit. We now estimate, based on construction of the building to date and the construction schedule, the purchased unit will be substantially completed on December 5, 1983. The estimated completion date set forth in your contract was delayed due to the adverse winter weather conditions last year and other causes beyond our control. If you have ordered extras or credits, you should be aware that the date of substantial completion set forth above is the date upon which it is estimated that the purchased unit would be substantially completed but for the extras and credits.”

Nine days after the March 3 letter, Siegel extended the letters of credit until December 31, 1983. In August of 1983, the Siegels viewed the partially completed apartment for the first time. They discovered that the terrace was obstructed by the presence of mullions, spaced approximately 21/2 feet apart, which were centered across the length of the terrace. Siegel immediately demanded that the posts be removed. Levy responded in writing as follows:

“I have first asked our technical people to show you the drawings for the removal of the posts on the terrace. I want you to know exactly what we are doing and then we will both sign the drawings. This is a major cost item, but one which I will bear to make you happy.”

Notwithstanding these representations, Siegel was subsequently told that the mullions could not be removed because, according to the OMM construction superintendent, it was not practicable to construct an obstruction-free terrace for unit 48A.

On October 21, 1983, Siegel, through counsel, terminated the purchase agreement. His notice of termination was addressed to Levy and stated that among other reasons, the contract was being cancelled due to inconsistent statements concerning the feasibility of removing all the mullions from the terrace, an apparent reluctance on the part of the Levy Organization to abide by the original design specifications and failure to complete or project completion of the project in a timely manner. Siegel demanded the return of his down payment, but the Levy Organization drew on the letters of credit which he had posted.

Siegel filed a complaint in the chancery division of the circuit court for rescission, restitution and other relief. The Levy Organization moved to transfer the cause to the law division on the ground that Siegel had an adequate remedy at law. Over Siegel’s objection, the trial court granted the Levy Organization’s transfer motion.

Siegel’s third amended complaint contained eight counts. Count I alleged fraud on the part of Levy and the Levy Organization with respect to misrepresentations as to unit 48A having an open, expansive terrace. Count II requested or sought rescission of the purchase agreement predicated on a theory of unilateral mistake by Siegel with respect to the terrace issue. Count III sought rescission on the ground that the defendants breached the purchase agreement by failing to complete the apartment by August 3, 1983. Count IV alleged that Siegel is entitled to rescission by virtue of the defendants’ reduction in price of condominium units in OMM which diminished the value of Siegel’s apartment. Count V sought recovery under section 2 of the Consumer Fraud and Deceptive Practices Act based on the foregoing alleged misconduct. (Ill. Rev. Stat. 1987, ch. \2V-k, par. 262.) Count VI alleged a cause of action for breach of contract, and counts VII and VIII alleged that Siegel is entitled to punitive damages due to the Levy Organization’s alleged fraud and negligent misrepresentation. The trial court granted the Levy Organization’s motion for summary judgment on all counts of Siegel’s complaint. This appeal followed.

Siegel first contends that the trial court erred in granting the Levy Organization’s transfer motion. It is Siegel’s position that his cause of action was properly filed in the chancery rather than the law division of the circuit court. We disagree.

Equitable relief is not available if there is an adequate remedy at law. (LaSalle National Bank v. Refrigerated Transport Co. (1987), 165 Ill. App. 3d 899, 900, 520 N.E.2d 768, 769.) For the remedy at law to be adequate it must be clear, complete, and as practical and efficient to the ends of justice and its prompt administration as the equitable remedy. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 548, 370 N.E.2d 223, 227.) Equity does not entertain complaints the fundamental subject of which is to secure monetary damages. (LaSalle National Bank, 165 Ill. App. 3d at 901.) However, the judicial article embodied in the Illinois Constitution of 1970 has abolished the distinction between courts of law and equity so that our circuit courts have original jurisdiction of all justiciable matters. The divisions of the circuit court of Cook County, law division vis-a-vis chancery division, are for administrative purposes only and no longer constitute jurisdictional barriers. Meyer v. Murray (1979), 70 Ill. App. 3d 106, 115, 387 N.E.2d 878, 885.

Here, count VI of the third amended complaint sought, in the alternative to Siegel’s claim for rescission and restitution, actual and compensatory damages in the amount of $386,594. The damage figure represents the amount of all monies paid by Siegel under the letters of credit. Because Siegel’s complaint on its face spells out an adequate remedy at law, equitable relief is not available. Siegel’s action for damages was as practical and efficient to the ends of justice as an equitable remedy. Furthermore, since the law division has jurisdiction to hear all the issues involved in this matter, the case should be heard in its entirety in the law division. We therefore conclude that the trial court did not err in transferring Siegel’s complaint from the chancery to the law division of the circuit court.

Siegel next contends that the trial court erred in granting the Levy Organization’s motion for summary judgment on all counts of his complaint. We agree that the trial court erred in granting summary judgment in favor of the Levy Organization on count I of Siegel’s complaint, but find no error in its grant of judgment for the Levy Organization on counts II through VIII of the complaint.

Summary judgment is appropriate if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Lane v. City of Harvey (1988), 178 Ill. App. 3d 270, 273, 533 N.E.2d 75, 78; Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) The aim of summary judgment is not to try issues but to determine whether any triable issues exist. (Staton v. Amax Coal Co. (1984), 122 Ill. App. 3d 631, 633, 461 N.E.2d 612, 614.) Evidence in support of the motion must be strictly construed against the moving party, and summary judgment should be denied where reasonable persons could arrive at different conclusions. (Petkus v. Girzadas (1988), 177 Ill. App. 3d 323, 327, 532 N.E.2d 333, 336.) An order granting summary judgment must be reversed if a reviewing court determines that an issue of material fact exists. Arnold v. Village of Chicago Ridge (1989), 181 Ill. App. 3d 778, 785, 537 N.E.2d 823, 827.

Count I of the third amended complaint alleges that Siegel was induced into executing the purchase agreement for unit 48A by virtue of the defendants’ representations that the unit would be an open, expansive terrace. The complaint seeks rescission of the agreement on the basis of common law fraud. The record indicates that Siegel was shown a scale model of a unit in OMM which did not reveal the existence of any posts, mullions or other obstructions on any of the terraces. Brochures and a property report were distributed to Siegel which failed to demonstrate the existence of any posts, mullions or other obstructions on the terrace of the apartment. In addition, both Siegel and his wife testified that Levy told them that unit 48A would have a special terrace arrangement whereby a band and tables and chairs could be arranged to form a dancing terrace. Levy denied promising the Siegels a dancing terrace.

The affidavit of Siegel’s witness, architect and engineer Henry Mikolajczyk, indicated that the brochure and drawings of the apartment upon which Siegel relied did not reveal the existence of posts, mullions, or other obstructions on the terrace. The deposition testimony of Faron, another architect employed by Siegel, is consistent with Mikolajczyk’s affidavit.

In support of its motion for summary judgment, the Levy Organization contended that (1) Siegel admitted that the Levy Organization did not represent that the terrace to unit 48A would be free of posts or mullions and that therefore neither the Levy Organization nor its agents made any false statements upon which Siegel could have relied; (2) neither the purchase agreement nor the first amendment specifically provided that the terrace to unit 48A would be open and unobstructed; and (3) even if the Levy Organization through its agents made the alleged representations regarding the expansive, mullion-free terrace, those statements were merely opinions and prognostications which cannot support a fraud claim. In addition, Jaeger testified that a full-size copy of the floor plan which indicated the presence of mullions was attached to the purchase agreement.

Under Illinois law, six elements must be alleged and proven in order to establish a claim for common law fraud: (1) a false statement of material fact; (2) the party making the statement knew or believed it to be untrue; (3) the party to whom the statement was made had a right to rely on the statement; (4) the party to whom the statement was made did rely on the statement; (5) the statement was made for the purpose of inducing the other party to act; and (6) the reliance by the person to whom the statement was made led to that person’s injury. Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 185-86, 441 N.E.2d 324, 331.

Viewing the evidence in this case most strictly against the Levy Organization, we conclude that material issues of fact remain which preclude the entry of summary judgment on count I of Siegel’s complaint. It is uncontroverted that Siegel was shown a scale model of the condominium unit which failed to disclose the presence of posts or mullions. The 8V2- by 11-inch OMM brochure and property report which were distributed to Siegel prior to his purchase of the unit did not disclose the existence of posts or mullions on the terrace. In addition, according to Siegel, Levy expressly stated that unit 48A would have a special terrace arrangement that would be expansive enough for a band, tables and dancing. Siegel provided the expert testimony of two architects who corroborated his testimony regarding the absence of posts or mullions on the sales brochure and property reports for OMM. In sum, examining the facts of the case in light of the necessary elements of a cause of action for fraud and the requirements for granting of summary judgment, we conclude that the trial court erred in granting summary judgment in favor of the Levy Organization and against Siegel on count I of his complaint. Numerous issues of material fact remain which compel this court to reverse the trial court’s order granting summary judgment on count I of Siegel’s complaint.

Accordingly, for all of the foregoing reasons, the order of the circuit court of Cook County which granted the Levy Organization’s motion to transfer this matter from the chancery to the law division of the circuit court is affirmed; the portion of the order which granted the Levy Organization’s motion for summary judgment on counts II through VIII of Siegel’s complaint is affirmed; and the portion of the order which granted the Levy Organization’s motion for summary judgment on count I of Siegel’s complaint is reversed and remanded for further proceedings.

Affirmed in part; reversed and remanded in part.

CERDA, P.J., concurs.

JUSTICE GREIMAN,

concurring in part and dissenting in part:

I concur with the result reached by the majority on all issues except their decision to affirm the trial court’s dismissal of count V. I would find that it was error to enter summary judgment as to count V, which seeks statutory relief under the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1987, ch. 121V2, par. 262).

Section 2 of the Act provides in relevant part as follows:

“[Ujnfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act’ *** in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.” Ill. Rev. Stat. 1987, ch. 12V-k, par. 262.

“There is a clear mandate from the Illinois legislature that the courts of this State utilize the Act to the utmost degree in eradicating all forms of deceptive and unfair business practices and grant appropriate remedies to injured parties.” Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 495, 429 N.E.2d 1267; People ex rel. Hartigan v. All American Aluminum & Construction Co. (1988), 171 Ill. App. 3d 27, 33, 524 N.E.2d 1067; Aurora Firefighter’s Credit Union v. Harvey (1987), 163 Ill. App. 3d 915, 924, 516 N.E.2d 1028.

Consistent with the legislature’s mandate, this court has held that section 2 of the Act applies to misrepresentations by real estate brokers to prospective purchasers. Seligman v. First National Investments, Inc. (1989), 184 Ill. App. 3d 1053, 540 N.E.2d 1057; see also Harkala v. Wildwood Realty, Inc. (1990), 200 Ill. App. 3d 447, 558 N.E.2d 195 (the Act was not intended to impose liability upon a broker for latent or hidden defects such as concealed signs of termite damage); Beard v. Gress (1980), 90 Ill. App. 3d 622, 413 N.E.2d 448.

The Act is intended to provide even broader consumer protection than the common law action of fraud. (Harkala, 200 Ill. App. 3d at 453; First Security Bank v. Bachleda (1987), 165 Ill. App. 3d 725, 520 N.E.2d 660.) Since the Act prohibits any deception or false promise, a plaintiff suing under the Act need not establish all of the elements of common law fraud. (First Security Bank, 165 Ill. App. 3d at 731; Duhl, 102 Ill. App. 3d at 495.) To establish a violation of the Act, a plaintiff must show a deceptive act or practice, an intent by the defendant that the plaintiff rely on the deception, and that the deception occurred in the course of conduct involving a trade or commerce. Carl Sandburg Village Condominium Association No. 1 v. First Condominium Development Co. (1990), 197 Ill. App. 3d 948, 952, 557 N.E.2d 246.

Under the Act, liability is not limited to existing material facts because the language of the Act specifically includes false promises. (Duhl, 102 Ill. App. 3d at 495.) Furthermore, the good or bad faith of the seller is irrelevant, and a plaintiff can recover for even innocent or negligent misrepresentations. (Harkala, 200 Ill. App. 3d at 453; Duhl, 102 Ill. App. 3d at 495.) Moreover, a plaintiff need not show actual reliance or diligence in ascertaining the accuracy of the misstatements. (Harkala, 200 Ill. App. 3d at 453; Beard, 90 Ill. App. 3d at 627-28 (“neither the mental state of the person making a misrepresentation nor the diligence of the party injured to check as to the accuracy of the misrepresentation [is] material to the existence of a cause of action” under the Act).) Thus, a plaintiff’s burden of proof under the Act differs from the elements which must be established in common law fraud.

In 1982 the Act was amended to alter the “state of mind” required as to the sale of real estate located in Illinois by real estate brokers or salesmen. (Ill. Rev. Stat. 1983, ch. 121V2, par. 270b(4).) Since the purchase agreement at issue was executed in 1981, the amendment is inapplicable to this case. See Warren v. LeMay (1986), 142 Ill. App. 3d 550, 574, 491 N.E.2d 464.

Additionally, in derogation of common law, the Act provides that the court may grant reasonable attorney fees and costs to the prevailing party. Ill. Rev. Stat. 1987, ch. I2IV2, par. 270a(c); Chesrow v. Du Page Auto Brokers, Inc. (1990), 200 Ill. App. 3d 72, 557 N.E.2d 1301; Kleidon v. Rizza Chevrolet, Inc. (1988), 173 Ill. App. 3d 116, 527 N.E.2d 374; Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464.

This court has held that acts which constitute common law fraud also violate the Act. (Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 510 N.E.2d 409.) In Zimmerman, this court stated:

“We have already held that the complaint sufficiently alleged the elements of fraud. Our finding that plaintiffs have stated a cause of action for fraud is sufficient to warrant the conclusion that the same acts violate the Consumer Fraud Act because the Act prohibits any misrepresentation at all.” (Zimmerman, 156 Ill. App. 3d at 168.)

Similarly, a trial court’s directed verdict in defendant’s favor as to the Act was reversed because the plaintiff stated a prima facie case of common law fraud. (Salkeld v. V.R. Business Brokers (1989), 192 Ill. App. 3d 663, 548 N.E.2d 1151.) Following this court’s holding in Zimmerman, the court in Salkeld held that the determination of the existence of common law fraud was “sufficient to warrant the conclusion that the same acts violated the Consumer Fraud Act because the Act prohibits any misrepresentation at all.” (Salkeld, 192 Ill. App. 3d at 677.) Where, as in the present case, material issues of fact are found to remain as to preclude the entry of summary judgment on a common law fraud count, so also should this finding preclude the entry of summary judgment as to the count based on the Act.

In light of these established principles and for all the reasons included in the majority’s decision to allow the common law fraud claim to stand, I believe that the trial court’s order granting summary judgment on the statutory fraud claim (count V) should be reversed.

       Justice White heard oral arguments in this appeal prior to his retirement. Justice Cerda was designated the third member of the panel and has read the briefs and listened to the tapes.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KARLA BREEDING, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—2120
    Opinion filed September 20, 1991.
    Genson, Steinback & Gillespie, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and Stephen Ferrucci, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Karla Breeding, and Fred Lenover were tried in a bench trial for possession of a controlled substance with intent to deliver and armed violence. The defendant was found guilty of both charges and sentenced to six years’ imprisonment. Lenover was found not guilty.

The defendant contends that the judge erred in denying her motion to quash arrest and suppress evidence and that the evidence failed to prove her guilt beyond a reasonable doubt. In passing on the denial of the motion to suppress, we will consider the evidence heard on the motion itself and the evidence at the trial. People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223.

On October 6, 1987, the defendant boarded an Amtrak train en route from Los Angeles to Chicago. The train arrived at Union Station in Chicago at approximately 5:40 p.m. on October 8, 1987. When the train arrived, Drug Enforcement Agent Norbert Kuksta, Chicago police department detective Michael Bobko, and Chicago police officer Mel Schabilion were at the station. Bobko and Kuksta were dressed in casual civilian clothes.

Bobko testified that he positioned himself where he could observe the passengers leaving the train coming from Los Angeles. He paid close attention to this particular train because Los Angeles is a documented “source city” for the origination of narcotics smuggling; however, the officers did not have any information about any narcotics being on the train. Bobko said he observed hundreds of people exiting the train, several with tote bags. Some of the passengers walked fast, while others walked slowly. Some of the passengers looked around as if watching for people to pick them up, or looking for family members.

After most of the passengers had deboarded, Bobko observed the defendant walking slowly down the train way toward the main waiting room. She was carrying a nylon tote bag over her shoulder and a purse in her hand. He did not see whether she had deboarded from the very last car of the train. When the defendant entered the station from the track area, she looked around, and then she looked in the direction of Fred Lenover, who was standing with his back against the outside wall of a restaurant located in the lower lobby of the station.

When the defendant saw Lenover, she walked slowly toward him. When she was four or five feet from Lenover, he nodded his head sharply to the right. She continued walking past Lenover. Lenover hesitated briefly, looked around, and then joined her walking through the lower lobby of the station. As they were walking, Lenover took the tote bag from her shoulder and placed it on his own shoulder. Bobko and Kuksta followed a few steps behind them. Bobko testified that he heard her deeply sigh and tell Lenover, “These have been the longest two days of my life.”

Bobko testified that Lenover then looked back at him, nudged the defendant with his arm, and put his index finger to his lips. On cross-examination, Bobko admitted that he had not included those actions in any of his reports or in the verified application for a search warrant he later made. Kuksta never mentioned this “hushing” gesture in his testimony. Bobko testified that the defendant looked back and made eye contact with him, became rigid and pale, and then looked at both Lenover and Bobko several times.

Lenover and the defendant walked toward the baggage area and main waiting area. Bobko testified that as they were walking, Lenover and the defendant both looked back every several steps. They stopped and stood against a wall on the ramp leading to the waiting room; Lenover gave the tote bag back to the defendant and walked in the direction of the men’s restroom. Lenover and the defendant appeared “nervous” and the defendant had “paled.” Bobko admitted that the defendant’s complexion normally is “very pale.” After Lenover walked away, she took a cigarette out of a pack; she had difficulty getting the cigarette out of the pack, and she made four attempts before successfully lighting the cigarette.

Bobko and Kuksta approached the defendant. Bobko displayed his police badge and credentials and asked her if she would mind speaking to him. She replied, “Of course I’ll speak with you.” She had her back to the wall, and Kuksta stood beside her about two feet away while Bobko stood directly in front of her, also about two feet away. There was an exit approximately 40 feet away.

The officers asked her if they could see her train ticket, and she replied that she had lost it. When Kuksta and Bobko asked whether she had come from California by train, she replied that she had. They asked specifically where she had boarded the train, and she told them “Comstock or something like that.” When they asked her name, she replied “Karla.” Bobko testified that when they asked her last name the defendant hesitated and replied “Brown.” Bobko read the luggage tag on the tote bag which said “Karla Breeding” and contained an Indiana address. On cross-examination, Bobko said she explained that Brown was her married name and Breeding was her maiden name. In his verified application for a search warrant he stated that she said “Brown” was her maiden name. Kuksta testified at trial that she said Brown was her married name but she was no longer married. The officers asked her for identification, and she produced an Indiana driver’s license in the name of Karla Breeding. The officers examined the license and then returned it. Bobko told her that they were conducting a narcotics investigation and asked if she had drugs in her luggage. She replied “No.” Bobko asked her if she would let them search her purse and tote bag for drugs, noting that she was able to refuse and that he could not search them without her consent. He said he told her that it was a “consensual encounter.” She told the officers that they could search her purse, but not the tote bag.

Bobko searched her purse and found no contraband. She then asked if she was free to leave and Bobko responded that she was free to leave, she was not under arrest. She asked if she could take her tote bag with her, and Bobko told her that her tote bag would have to be detained for a dog to do an external examination of the bag to determine if there was a narcotic odor. He explained that if the dog reacted positively, the bag would be further detained and they would attempt to get a search warrant to search the bag for narcotics. Otherwise, the bag would be returned to her. She was offered a receipt for the bag; she declined to take it and left.

Bobko took possession of the tote bag and summoned Officer Schabilion and his narcotic certified dog for the “dog check.” Schabilion instructed the dog to “fetch dope.” The dog reacted “positively” to the defendant’s tote bag, indicating the presence of narcotics. Bobko testified that less than 10 minutes elapsed between the time that he took possession of the defendant’s bag and the time that the dog check took place. The officers then took the bag to Narcotic Headquarters at 1121 South State Street and obtained a search warrant for the bag.

When the officers opened the bag, they found a package containing an off-white crystalline powder, which was later determined to be 536.25 grams of methamphetamine. The officers also found a small quantity of marijuana and a derringer revolver containing five live rounds of ammunition.

Judge Robert Collins denied the defendant’s motion to suppress the evidence; he found that there was sufficient probable cause to justify the seizure of evidence under People v. Forrest (1988), 172 Ill. App. 3d 385, 526 N.E.2d 616, which he had just read after its citation by the State. Following a bench trial, Judge Loretta Morgan found the defendant guilty of armed violence and possession of a controlled substance with intent to deliver. On August 3, 1989, Judge Morgan sentenced the defendant to the minimum of six years’ imprisonment in the Illinois Department of Corrections.

The denial of the suppression order involves two separate issues: Did the actions of the officers in approaching and questioning the defendant constitute a “seizure” or was it a “consensual encounter”? Was the retention of the defendant’s tote bag an unreasonable seizure under the circumstances? People v. Forrest (1988), 172 Ill. App. 3d 385, 526 N.E.2d 616.

The defendant argues that the original stop by the police constituted an unreasonable seizure of her person; the State disagrees. The State alternatively argues that if her person was seized, the seizure was justified. Because we have determined that the order denying suppression must be reversed on the second ground, that is, that the retention of the defendant’s tote bag was an unreasonable seizure under the circumstances, it is unnecessary to discuss and analyze at length the evidence concerning the original stop. We do, however, agree with the State that the original stop and questioning by the police was a consensual encounter and not a seizure of the defendant’s person. (See People v. Statham (1991), 209 Ill. App. 3d 352, 568 N.E.2d 183; People v. Jones (1989), 190 Ill. App. 3d 416, 545 N.E.2d 1332.) We do not agree with the State’s alternative argument that the officers were justified in seizing the defendant when they first approached her.

The cases cited by the defendant are distinguishable. In Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319, the police prevented the defendant from leaving by not returning his ticket or identification, and the police took the defendant to a small room to question him. In United States v. Sokolow (1989), 490 U.S. 1, 104 L. Ed. 2d 1, 109 S. Ct. 1581, the officer grabbed the defendant’s arm and pulled him back onto the sidewalk and then questioned him. In People v. Kiser (1983), 113 Ill. App. 3d 501, 447 N.E.2d 858, one officer grabbed the defendant and asked to speak to him, while the two other officers blocked the exit doors. The officers then took the defendant to another area where they repeatedly examined the defendant’s rental car agreement and identification while they awaited computer information from which to determine whether he was engaged in criminal activity. In each of those cases, the reviewing court held that the conduct of the police would lead a reasonable person to believe that he was not free to leave. In this case, a fact finder could conclude that the defendant acting as a reasonable person would believe that she was free to go.

We turn now to the question of the detention of the defendant’s tote bag. In United States v. Place (1983), 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637, the Court held that the detention of luggage for purposes of investigation must be justified by a reasonable suspicion based on specific articulable facts that the luggage contains narcotics. The facts used to support such an investigatory detention are insufficient when they describe “a very large category of presumably innocent travelers, who would be subject to virtually random seizures.” (Reid v. Georgia (1980), 448 U.S. 438, 441, 65 L. Ed. 2d 890, 894, 100 S. Ct. 2752, 2754.) In determining whether a reasonable suspicion exists, the court must consider the totality of the circumstances. (United States v. Sokolow (1989), 490 U.S. 1, 104 L. Ed. 2d 1, 109 S. Ct. 1581.) A trial court’s ruling on a motion to suppress evidence will not be reversed unless manifestly erroneous. People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.

Judge Collins, it should be noted, found that the evidence established “probable cause” for the detention of the defendant’s tote bag. The State concedes that whether “probable cause” exists is not the issue. Since probable cause requires a higher degree of proof than a reasonable suspicion, Judge Collins’ conclusion is not fatal to the State’s position. If a fact finder concludes that the evidence establishes probable cause for seizure of property, a fortiori, he has concluded that the specific articulable facts justified a reasonable suspicion that the property contains contraband.

We have disagreed with the State’s alternative argument that the officers would have justifiably seized the defendant when they first approached her. Our position leads to the next conclusion that the officers would not have been justified in detaining her luggage at that point. The question becomes, therefore, whether facts arose after the initial stop which, taken with the facts which preceded the stop, justified the seizure of the luggage. We agree with Judge Collins’ conclusion that what occurred after the luggage was seized is not relevant.

The facts upon which the State relies are as follows. The defendant was on a train that had originated in a city which is a known “source” for narcotics. The defendant was among the last persons to exit the train, and she walked slowly and looked around at the crowd. She made eye contact with Lenover and walked slowly toward him. Lenover nodded his head sharply to the right, and he joined the defendant, walking after she had passed him. Lenover took the tote bag from her shoulder and placed it on his own shoulder. The defendant sighed deeply and remarked, “These have been the longest two days of my life.” Lenover turned and looked at the officers, nudged the defendant and placed his index finger against his lips. The defendant turned pale; she looked back and made eye contact with one of the officers. As the defendant and Lenover continued walking, they looked back at the officers every few steps. The defendant and Lenover stopped by a wall; Lenover transferred the tote bag back to the defendant and left the area to go to a washroom. The defendant had difficulty removing a cigarette from the pack and attempted to light it four times before succeeding. She told the officers that she had lost her train ticket. When asked her name, she said, “Brown,” and her luggage and driver’s license identified her as “Breeding.”

A number of cases have arisen in this State involving the use of the “drug courier profile” by police officers in detaining persons and luggage at airports and railway terminals. We shall confine our discussion to those cases which involve the behavior of the defendant before and after being approached by the officers.

In its brief, the State does not refer to any specific case as factually similar to this case. In the trial court the State cited, and Judge Collins followed, People v. Forrest (1988), 172 Ill. App. 3d 385, 526 N.E.2d 616. In Forrest, the trial judge had suppressed the evidence, holding that the State was required to establish probable cause; the appellate court reversed. In addition to the defendant’s suspicious behavior before the police confronted him, he was argumentative and said that he was “irritated at frequently being asked to allow a search of his bags for drugs.” (172 Ill. App. 3d at 388.) The fact that the officers were made aware that the defendant had frequently been asked to allow a search of his bags for drugs is highly probative. The appellate court expressed its reason for reversal as follows:

“Because the trial court relied upon law which has been superseded, it failed to properly apply the law as currently set forth by the United States Supreme Court and Illinois courts. Furthermore, because the trial court failed to distinguish the seizure of defendant’s person from the seizure of defendant’s bag, in addition to its improper application of law, we find that the decision of the trial court was manifestly erroneous.” (172 Ill. App. 3d at 393.)

It appears to us that the impact of the appellate court’s determination that the detention of the luggage was proper is softened by the fact that the court’s focus was on the trial judge’s erroneous interpretation of the law.

In People v. Steckhan (1983), 116 Ill. App. 3d 173, 452 N.E.2d 122, the defendant was the last person to deboard a flight from a source city, he walked slowly and he looked over his shoulder several times. The officers testified that the defendant’s ticket had been purchased that same day with cash. The defendant was visibly shaking while the officers questioned him. The appellate court held that detention of the defendant’s luggage was not justified because he was the last passenger to deboard the plane, was young, walked slowly through the concourse, looked over his shoulder and his flight originated in a source city. The court pointed out also that nervousness is a characteristic of many innocent travelers.

In People v. Sherman (1989), 190 Ill. App. 3d 814, 547 N.E.2d 476, the defendant was traveling under an assumed name, and he paid cash for two one-way tickets from Ft. Lauderdale, Florida to Michigan. The officers learned that the defendant gave the reservation agent a call-back number to a hotel, but there was no guest there whose name matched the name on the defendant’s reservation. When the train arrived at the station, two men, including the defendant, exited the train together; however, one man stopped for a moment and then followed about 10 feet behind the other man. When questioned by the officers the defendant seemed “a little bit afraid.” (190 Ill. App. 3d at 816.) The appellate court affirmed the suppression of the evidence recovered from the defendant’s luggage.

In People v. Nelson (1989), 188 Ill. App. 3d 619, 544 N.E.2d 1111, the defendant had paid cash for a one-way ticket from Delray Beach, Florida, to Portland, Oregon, and he had cancelled his reservation a couple of times. The defendant was required to change trains in Washington, D.C., and again in Chicago. When he left the train in Chicago, he looked around, as though “scanning the crowd for surveillance.” (188 Ill. App. 3d at 620.) When the officers approached the defendant, he gave them his license and ticket, both of which were in his own name. The officers asked him where he boarded the train, and he replied that he had boarded in Washington, D.C. However, when the officers asked him why his ticket said that he had boarded in Florida, the defendant became nervous, began stuttering, and changed his weight from one foot to the other. In response to further questions, the defendant stated that he had once been arrested for possession of marijuana but that he was not carrying narcotics. The trial court granted the defendant’s motion to suppress, and the appellate court affirmed, holding that all of the factors, even when considered together, were insufficient to establish a reasonable suspicion that the defendant’s luggage contained narcotics.

In People v. Boyd (1991), 215 Ill. App. 3d 894, the defendant paid cash for a one-way ticket to Chicago from Flagstaff, Arizona, which the police testified was a “source city.” The defendant left the train several minutes after all the other passengers. After he had walked about 75 feet, he looked over his shoulder and made eye contact with the officers who were following him. He quickened his pace and once again looked over his shoulder and made eye contact with the officers. He appeared nervous. He went into a washroom, and the officers waited outside the washroom. When the defendant came back out, he looked directly at the officers, and then quickly turned and walked away. The officers approached the defendant and questioned him; he answered their questions truthfully. When the officers asked to see the defendant’s train ticket, he became nervous, hesitated, stammered, felt around his body and stated that he did not have it, that he thought he had lost it. The appellate court, relying on Nelson, reversed the denial of the motion to suppress and concluded that the officers lacked the the required reasonable suspicion that the defendant’s luggage contained contraband. The appellate court specifically found that the absence of the train ticket was of no particular significance nor was the fact that the defendant stayed on the car several minutes longer than the other passengers nor was his nervousness, his quickened pace, his glances toward the detectives and his use of the washroom.

For comparison purposes we refer to two cases which upheld the seizure of luggage. In People v. Statham (1991), 209 Ill. App. 3d 352, 568 N.E.2d 183, the defendant had alighted from an airplane and caught the attention of Drug Enforcement Agents who were sitting in the airport concourse. The agents followed the defendant to the baggage claim area, and the defendant twice turned around and looked in their direction. The defendant met a man at the end of the concourse, shook his hand, and conversed with him for 5 or 10 seconds. Both men rode the escalator down, and as they stepped off the escalator, the other man motioned toward the baggage claim area. He left, and the defendant walked to the baggage claim area where he picked up a new Samsonite brand suitcase. The suspicion of one of the agents was aroused by the suitcase. He had arrested many people who carried new Samsonite suitcases that contained drugs.

The agents approached the defendant and asked for identification. He produced a plastic card in the name of John C. Statham. When asked if he had a driver’s license, he said he left it at home. When asked if he had an airline ticket, the defendant said he had left it on the “airport.” He said that he had flown in from Phoenix, Arizona. The agent looked at the identification on the defendant’s suitcase and noted that it stated Jeff Driscoll with an address in Phoenix. The agent asked the defendant why the name on the sticker was different, and after a moment of hesitation, the defendant said he had the wrong suitcase. The agent suggested that they go back to the baggage area and try to find the defendant’s baggage. The agent observed an airline ticket in the inside pocket of defendant’s carry-on bag. The name on the ticket was Jesse Driscoll. The agent saw that the ticket was for one-way travel from Phoenix to Denver to Chicago and was purchased with $155 cash. The agents told the defendant he was free to leave but that if he wanted to leave they would have to decide whether to detain his suitcase. One agent left to see if he could speak with the man who had met the defendant. He had a suspicion that the bag contained narcotics because of the untruthfulness of the defendant’s answers and because the defendant had arrived from the southwest.

At the request of an agent, the defendant removed from his wallet an Illinois driver’s license with an Illinois address, a social security card and a Western Telephone Company credit card. (He had previously said he had left his driver’s license at home.) The defendant then said that someone in Phoenix had given him the suitcase to bring to Chicago. He told one agent that he often used other names when traveling. He also denied talking to anyone on the escalator. In affirming the denial of the motion to suppress the appellate court said this:

“Although there could have been innocent reasons for the type of conduct exhibited by defendant, including the possession of a certain type of suitcase, the circumstances as a whole provided the officers with a reasonable suspicion that defendant was transporting contraband so that the detention of the suitcase for a canine sniffing test was justified. Among the factors that were the most significant in providing a reasonable suspicion were defendant’s denial that he spoke to another man, defendant’s conflicting stories about his ownership of the suitcase, his statement that someone gave him the suitcase to bring to Chicago, and the initial lie that defendant had picked up the wrong suitcase.” (Emphasis added.) (209 Ill. App. 3d at 365-66.)

In People v. Furlong (1991), 217 Ill. App. 3d 1047, the defendant arrived on a flight from West Palm Beach, Florida, identified as a “source city.” The defendant’s bag appeared lightly packed. The officers overheard the defendant ask the ticket agent where the baggage area was. The defendant then walked past the baggage area, up an escalator back to the ticket area; he stopped in a gift shop; then made a phone call at a pay phone; and again walked past the ticket counter. The defendant was continuously glancing over his shoulder. The appellate court held that the officers did not have a reasonable suspicion that the defendant was carrying narcotics when they first approached him. However, reasonable suspicion developed when the officers questioned the defendant and discovered that his ticket had been purchased that same day for cash, his return flight was scheduled only 28 hours after his arrival, and when the defendant gave a suspicious explanation for his short stay. He said that he was in town for a baseball game; however, when the officers asked him what team was playing, he was unable to answer.

In the case before us, the two “facts” which occurred after the initial stop are the failure of the defendant to produce her ticket and her answer that her name was “Brown.” As noted in People v. Boyd, the absence of the train ticket is of no particular significance, particularly since the defendant was at the end of her trip. Moreover, there is no claim that the defendant ever made any untruthful answers to the officers. We must assume that she answered truthfully when she said that “Brown” was her married name. We conclude that factually this case most nearly approaches People v. Boyd and that the officers did not have a reasonable suspicion that the defendant’s tote bag contained narcotics.

The officers in this case testified that they were suspicious of the defendant because she looked around at the crowd when she got off the train. The trial court correctly acknowledged that this behavior is “not unusual”; Bobko testified that many of the other passengers looked around as if looking for friends or relatives they planned to meet there.

The State also argues that it was suspicious that Lenover took the tote bag from the defendant and carried it on his own shoulder. As the defendant correctly notes, this gesture of common courtesy is hardly suspicious behavior. Moreover, the defendant’s statement to Lenover, “These have been the longest two days of my life,” is not suspicious, in light of the fact that the defendant had been traveling across the country on an Amtrak train for two days. The officers also testified that the defendant and Lenover appeared nervous and looked behind them often. Nervousness, however, is not uncommon when one is being followed by two men. See People v. Boyd (1991), 215 Ill. App. 3d 894, 899.

The State places particular emphasis on the testimony that Lenover nudged the defendant with his arm and placed his index finger against his lips. Apart from the fact that these acts were not done by the defendant and are susceptible of an innocent interpretation, we note that Bobko did not mention these acts in his reports or in his lengthy and detailed application for a search warrant. Moreover, Agent Kuksta did not testify to these acts. Cf. People v. Creagh (1991), 214 Ill. App. 3d 744, 574 N.E.2d 96.

Last, we note that the probability that any given passenger from a “source” city is a drug courier is infinitesimally small. People v. DeLisle (1982), 104 Ill. App. 3d 297, 432 N.E.2d 954.

We share the concern over the dangers and evil of drug traffic expressed by the Supreme Court of the United States and our own supreme court. But we cannot give approval to a seizure which depends entirely on testimony reflecting the subjective interpretation of a person’s mannerisms by police officers and other innocent actions on the part of the person detained. Moreover, that testimony based on such subjective interpretation is beyond contradiction by the defendant. Eye contact, paling, appearing nervous, trembling hands, if they do occur, may be proper considerations but more is required. We have found no case which upholds a seizure of luggage solely on the basis of the mannerisms of the defendant which are accompanied by truthful answers or other innocent behavior. We note that in the seminal case of United States v. Place the Supreme Court held that the agents had properly seized the luggage but detained it for an unreasonable period of time. Among the facts considered in support of the seizure were tags on the luggage which contained nonexistent addresses and false information the defendant gave the agents.

For these reasons, we hold, as did the appellate court in People v. Boyd, that the trial judge erred in denying the motion to suppress.

In view of the position we take on the motion to suppress, it is unnecessary to discuss at length defendant’s argument that she was not proved guilty beyond a reasonable doubt. It is enough to say her argument must be rejected; if the evidence had been properly seized, the defendant’s guilt would have been established beyond a reasonable doubt.

Judgment reversed.

McNAMARA and LaPORTA, JJ., concur.