text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DIANE BARRY, Defendant-Appellee.
    Fifth District
    No. 5—89—0347
    Opinion filed June 28, 1990.

      John Bar ice vie, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Clyde L. Kuehn, of Kuehn & Trentman, of Belleville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

On December 22, 1987, defendant, Diane R. Barry, was charged by criminal information with the offense of unlawful possession of more than 30 grams of cannabis. The cannabis had been found inside a cosmetic bag, inside a totebag behind the passenger seat of the car defendant was driving. On January 6, 1987, defendant filed a motion to suppress the marijuana on the ground that the car she was driving was illegally detained and her bag illegally searched. For reasons which do not appear in the record, a second motion to suppress was filed January 26, 1988. This motion sets forth specific facts and argues that defendant did not consent to the search of her purse, that she was illegally detained, and that the consent to search the automobile given by its owner and passenger was exceeded by the police. Hearing was held on the motion to suppress on February 9,1988.

Defendant testified that she resides in Pompano Beach, Florida. On December 22, 1987, defendant was driving through St. Clair County on her way from Florida to Kansas City, Missouri, where she was going to catch a flight to visit her family in San Diego, California. She was accompanied by Michael Raszka, the owner of the new BMW automobile she was driving. She was stopped by a plainclothes State policeman, who approached her car. He asked for defendant’s identification, the car registration and Raszka’s identification, all of which were given to him. Defendant admitted that she had been exceeding the speed limit when stopped. The officer returned to his car, where he remained for approximately 10 minutes. The officer then returned to defendant and explained that he was waiting for a uniformed trooper to arrive to write out a traffic citation; the nonuniformed officer did not have a citation book. Five or ten minutes later, Trooper Moseley arrived. The two officers conferred, and Moseley approached defendant. Moseley issued defendant a citation and explained the procedure to her. At that point, another trooper arrived on the scene. Moseley returned defendant’s identification but told Raszka that the third trooper wanted to speak to him. Raszka was asked to step out of the car. Raszka did so. After three to four minutes, Raszka began taking suitcases out of the trunk of the car. Defendant could see that the luggage was being opened and clothing was being taken out. The luggage was on the side of the road. This process took approximately 10 minutes.

Raszka returned to the passenger compartment of the car and told defendant that he had signed a consent to search form because the officers wanted to search the luggage. Raszka stated that the officers were not satisfied and wanted to search again, this time with a dog. The luggage had been returned to the trunk. Defendant testified that the luggage had been removed from the trunk twice. The first time the luggage had not been opened; the second time it had been. After waiting in the car for some time for the canine unit to arrive, defendant told Raszka to take the airline tickets to the officers and explain that he and defendant had to leave to catch their flight. Raszka then left the car with the tickets.

Defendant testified that by this time she was feeling intimidated and did not feel free to leave. She had been stopped on the roadside for 30 to 45 minutes. Raszka did not return to the BMW, but sat in a trooper’s car. After 10 minutes, a third car arrived containing another trooper and a dog. Moseley then approached defendant and asked her to come back to his car so that the dog would not bite or scratch her. Defendant did so. While in Moseley’s car, Moseley began to question her about Raszka, her profession, and other personal matters. Defendant felt obligated to answer his questions.

The dog was allowed to circle the car, but defendant did not notice it react to anything. The dog was returned to his vehicle and the officers conferred. The dog was then brought out again. All the luggage was removed from the trunk, and the dog was allowed to jump into the trunk. The dog was also allowed inside the passenger compartment. Defendant had been there an hour by this time. Defendant got out of the squad car and approached the BMW. Defendant was told not to touch anything in the car while the officers conferred.

The officers returned to the BMW and told defendant that the only way she would be free to go would be if the officers searched the bag in the car and found nothing. The bag in question was defendant’s tote bag in which she carried her portfolio, makeup, personal hygiene items and money. The bag also contained cannabis. Defendant stated that she did not want the officers to look through her bag because she had personal items in it. Defendant denied that she gave the officers permission to look in the bag, but stated she felt helpless in the situation. The bag was taken out of the car, and Trooper Martin asked defendant to go to the squad car with him. Defendant’s bag was thoroughly searched and the cannabis was discovered. Defendant was then arrested.

On cross-examination, defendant testified that the officers never threatened her and that she told the officers not to look in her bag. While the officers were going through her bag, defendant took the makeup bag which contained the cannabis and exclaimed that there was nothing in it. One of the troopers took the makeup bag from her and looked through it. Defendant never felt like she had any choice in the matter. At one point, defendant heard one of the troopers tell Raszka to shut up or he would make his life miserable.

Captain William R. Barrett testified that he is the State trooper who initially stopped defendant for exceeding the speed limit. Defendant was travelling at speeds well over 85 miles per hour. Barrett estimated her speed at 100 miles per hour at times. Barrett radioed for a uniformed officer to respond to stop the vehicle because Barrett did not have a citation book. When no uniformed officer responded, Barrett stopped defendant himself. Defendant presented a Florida driver’s license and her passenger presented a New Jersey driver’s license. Barrett returned to his squad car to process the information on the drivers’ licenses, and Trooper Moseley arrived. Moseley issued a citation to defendant. Trooper Martin arrived and conferred with Barrett and Moseley about the possibility of obtaining consent to search the vehicle defendant was driving.

A written consent to search was obtained from Raszka, the owner of the car. Raszka began to remove items from the trunk. Martin inquired of Raszka whether he would allow a canine search of the vehicle. Raszka expressed concern about arriving on time for his flight, but ultimately agreed to wait for the canine unit to arrive. Upon arrival of the canine unit, the dog was allowed to sniff the outside of the car. The dog responded or reacted at several locations, indicating he detected some narcotic substance. The dog again so indicated when it was allowed to enter the car. The dog’s handler told Martin that the dog indicated that there was a narcotic substance in defendant’s bag. Barrett did not see defendant object forcibly to the search of her bag.

State Trooper William Moseley testified that he was involved in the stop and arrest of defendant on December 22, 1987. Moseley issued a traffic citation to defendant. While he was issuing the citation, Trooper Martin arrived. Defendant was released from the traffic stop and her identification and the citation were returned to her. Trooper Martin indicated that he suspected there might be contraband in the car and asked Moseley if he could speak with the car’s occupants when Moseley was finished. Trooper Martin asked Raszka if he was carrying any contraband, to which Raszka responded no. Raszka consented to a search of the vehicle and signed a written consent form. Raszka then began to remove items from the trunk of the car and to open luggage. Martin asked Raszka if he would object to having the canine unit search the vehicle. Raszka was concerned about the time, but consented. The canine unit arrived, the dog searched the vehicle and indicated the presence of narcotics. The dog’s handler indicated that the dog had reacted to defendant’s bag in the passenger compartment of the car, and Trooper Martin asked defendant if they could search the bag. Moseley recalled that defendant consented to the search of her bag, although he did not recall her exact words. He did recall that defendant gave no negative response at all. Trooper Martin took the bag back to the squad car and he, defendant and Moseley sat inside the car. While the bag was being searched, defendant picked up a makeup case, opened it, showed some of the contents and stated that there was nothing in it but makeup. Defendant then attempted to replace the makeup bag in the purse. Martin took the makeup bag and handed it to Moseley, who found cannabis inside.

Richard Martin testified that he had overheard the radio transmissions of the stop of the car defendant was driving. He proceeded to the scene to “see what was going on.” Martin asked Raszka if he had any weapons or contraband in the vehicle. Raszka responded no and got out of the car, opened the trunk and began taking luggage out of it. He told Martin that he could look around if he wanted to. Martin asked Raszka to sign a consent to search form, which he did. The form consents to a search of the vehicle and luggage, including contents thereof. Martin took a quick look through the trunk and asked Raszka if a canine unit could search the car. After expressing some concern about the time and catching his flight, Raszka consented to the canine search.

The dog searched the vehicle and indicated the presence of a narcotic substance in defendant’s bag. Martin asked defendant if it was okay to look in her bag. “She kind of shrugged her shoulders, nodded kind of yes. Either said okay or yes or something along those lines. I am not exactly sure what she said. Either okay, yes or yeah, something like that.” The bag was retrieved from the car, and Martin, defendant and Moseley went back to a squad car. Defendant removed a cosmetic case from the bag, opened it, began taking items out of it and stated that there was nothing in it. Martin took the ease from her and gave it to Moseley, who discovered the cannabis. Defendant never expressed any opposition to the search of the bag.

Trooper Michael T. Donovan testified that he is with the canine unit of the State Police. In that regard, he underwent initial training for 14 weeks, and has continuing training for one day each week. He has worked with Judd, the dog in question, for 4V2 years. Judd went through the initial 14-week training and an additional 18-week training, and also has training one day each week. Both Donovan and Judd are recertified every six months.

Donovan was requested to respond to defendant’s location by Trooper Martin on December 22, 1987. The dog was allowed to circle the vehicle and alerted to the two doors and left tail light. When the dog alerts, it indicates that he detects the odor of narcotics. The dog alerts by pawing at the location on the vehicle. The dog was then placed inside the vehicle. The dog alerted on a bag behind the driver’s seat of the car. Donovan advised the other troopers of the results of the dog’s search, and put the dog away. The bag was taken out of the car and handed to defendant. Defendant was asked if they could look in the bag and responded yes. The bag was removed from the car by Trooper Martin.

The owner of the car, Michael Raszka, was called in rebuttal. He testified that he resides in New Jersey and that he has known the defendant for approximately one year. He and defendant were traveling to Kansas City, Missouri, on December 22, 1987, in his new BMW in order to catch a flight to San Diego, California, to visit defendant’s family. They were stopped on the highway by a nonuniformed police officer, who asked for their drivers’ licenses and the vehicle registration. The officer returned to his vehicle, and Raszka and defendant waited approximately 10 to 15 minutes until Trooper Moseley arrived. Moseley issued a traffic citation to defendant for exceeding the speed limit. This took another 10 to 15 minutes. Moseley returned the drivers’ licenses and car registration.. Defendant began to converse with Moseley about the procedure for handling the citation. Moseley then instructed Raszka to exit his car and go to the rear of the vehicle because another trooper wanted to talk to him. Raszka complied. Trooper Martin asked Raszka to sign a consent to search form. Raszka responded that it wasn’t necessary and proceeded to open the trunk of the car and show the trooper its contents. Martin insisted that Raszka sign the form, which Raszka did. The officers then unloaded all the bags out of the trunk. They opened the bags and briefly looked through them. The bags were returned to the trunk and the officers conferred. The officers returned, removed the bags from the trunk and carefully inspected the inside of the trunk. The bags were again replaced in the trunk, the trunk was closed and Raszka was informed that a canine unit had been summoned. Raszka was ordered to remain in his vehicle until the canine unit arrived. After waiting approximately 10 minutes, Raszka took the airline tickets back to Martin’s squad car. Raszka told Martin that he wanted to leave to go to Kansas City. Raszka was ordered to remain in Martin’s car. Martin radioed headquarters to get an estimated time of arrival on the canine unit. Raszka was told to remain in Martin’s car another 10 to 15 minutes until the canine unit arrived. Martin then began to question Raszka about personal matters. Martin told Raszka that if he would admit to just having a joint, Martin would let him go.

The canine unit finally arrived, and defendant exited the car and sat in Moseley’s car. The luggage was removed from the trunk and the dog sniffed the luggage. The dog then circled the car. The bags were returned to the trunk, the dog was put away and the officers conferred. The bags were again removed from the trunk and the dog was allowed to jump into the trunk. Raszka told Martin that he didn’t want the dog inside the car. Raszka got out of Martin’s car and approached Trooper Donovan. Raszka told Donovan that he didn’t want the dog in his car. Donovan placed his hand on Raszka’s chest and told him not to cause a scene or Donovan would make his life miserable. The dog was then allowed to enter the passenger compartment of the car. The officers then conferred again. Raszka was told that he would be allowed to leave only after defendant’s bag, which was in the back seat, was searched. Martin took the bag from the vehicle. Defendant objected, but Raszka told her to let them search as they would not let them go until they had done so. Defendant did not respond. She was escorted back to the squad car. On surrebuttal, Trooper Donovan denied placing his hand on Raszka’s chest or threatening him in any way.

The consent to search form was admitted into evidence. It reads,

“I. Michael D. Raszka, hereby grant my consent to Tpr. R.A. Martin No. 3865 and Tpr. Wm. Moseley No. 3238, officers of the Department of State Police, State of Illinois, to search the following: Vehicle, ***; including luggage and contents thereof * * * ft

After hearing argument, the court held that there was no probable cause to search Raszka’s vehicle and no exigent circumstances to justify a warrantless search. However, the court found that Raszka initially voluntarily consented to the search, but that that consent was restricted to Troopers Martin and Moseley and to the area of the trunk, the luggage contained therein and the contents of the luggage, and that in any event, it did not extend to the search of defendant’s cosmetic bag. The court found that there were a series of searches, rather than one single search. The court further found that defendant did not consent to the search of her bag, but merely submitted to perceived police authority. Furthermore, any consent which may have been given by defendant was withdrawn or revoked with respect to the cosmetic bag which contained the cannabis.

The People of the State of Illinois appealed this order to this court, which found that the trial court had applied the wrong burden of proof (proof by clear and convincing evidence rather than by a preponderance of the evidence). The order was reversed and the cause was remanded to the trial court with directions to review the evidence in light of the proper burden of proof.

After reviewing the evidence presented in the hearing and hearing additional argument of counsel, the court again granted defendant’s motion to suppress, incorporating by reference the original order, and also finding that the canine search did not establish probable cause to search defendant’s bag, and that Raszka did not voluntarily consent to the canine search.

The State appeals, arguing that Raszka consented to the search of his car, did not withdraw or revoke that consent, and that the scope of the consent included the canine search. The State argues the trial court’s finding to the contrary is against the manifest weight of the evidence. The State further argues that once the dog alerted on defendant’s bag, probable cause to search that bag was established regardless of defendant’s consent or lack of consent, and that no warrant was required due to exigent circumstances. The State also argues that defendant does not have standing to object to the search of the car.

Defendant argues, on the other hand, that, although Raszka’s consent to the initial search was voluntary, the canine search was a separate and independent search to which Raszka did not consent. The defendant argues the trial court’s finding that there were multiple searches and that Raszka did not consent to the canine search is not against the manifest weight of the evidence. Finally, defendant argues that she did not consent to the search of her bag. Defendant also argues that, by failing to raise the issue before the trial court, the State has waived the argument that she lacks standing to challenge the search of Raszka’s car.

We will address the matter of standing first. Issues, including that of standing, not raised in the trial court are generally considered waived on appeal, and this principle applies to the State as well as to the defendant in a criminal case. (People v. Holloway (1981), 86 Ill. 2d 78, 91, 426 N.E.2d 871, 877.) In the instant case, the State did not object in the trial court to defendant’s challenge to the search of Raszka’s vehicle, nor did the State argue at either of the hearings before the trial court that defendant lacked standing to challenge the search of Raszka’s vehicle. Had the State done so, defendant may have been able to establish that she did have standing to so object to the search of Raszka’s vehicle. Consequently, we find that the State has waived its right to challenge the standing of defendant to object to the search of Raszka’s vehicle.

We now turn to the search of Raszka’s vehicle. Defendant concedes that the initial stop of the vehicle was reasonable and that the initial search of the vehicle was consensual. However, the trial court found, and defendant now argues, that the canine search was a separate and independent search to which Raszka did not consent and for which probable cause did not exist.

A trial court’s determination on a motion to suppress will not be overturned unless it is manifestly erroneous, and it is the function of the trial court to determine the credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn from the evidence. (People v. Galvin (1989), 127 Ill. 2d 153, 162-63, 535 N.E.2d 837, 841.) Further, the issue of whether a valid consent has been given is a factual matter to be determined by the trial court. People v. Cole (1977), 53 Ill. App. 3d 711, 713, 368 N.E.2d 1308, 1310.

The trial court found that Raszka did not voluntarily consent to the canine search. This finding is supported by the evidence. Raszka testified that he was ordered to remain in his vehicle until the canine unit arrived, that when he told Martin that he wanted to leave to go to Kansas City, Martin ordered him to remain in Martin’s vehicle and that he was told to remain in Martin’s vehicle until the canine unit arrived. Furthermore, when the canine unit arrived, Raszka told Martin that he did not want the dog in his car. Raszka also told Donovan that he did not want the dog in his car; Donovan threatened Raszka. While some of Raszka’s testimony was contradicted by the officers, the determination as to credibility of witness is primarily a function of the trial court. (Galvin, 127 Ill. 2d at 163, 535 N.E.2d at 841.) We cannot say that the trial court’s finding that Raszka did not voluntarily consent to the canine search of his vehicle is against the manifest weight of the evidence, and we therefore affirm the judgment of the circuit court granting defendant’s motion to suppress evidence.

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

Affirmed.

HARRISON and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH PRESIDING JUSTICE LEWIS,

license: Public Domain

text:
    JACOB L. WASHINGTON, SR., Adm’r of the Estate of Jacob L. Washington, Jr., Deceased, et al., Plaintiffs-Appellees, v. ILLINOIS POWER COMPANY, Defendant-Appellant.
    Fifth District
    No. 5—88—0084
    Opinion filed July 9, 1990.

      LEWIS, P.J., dissenting.
    Gordon R. Broom, of Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville, for appellant.
    Howard B. Becker, of St. Louis, Missouri, for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Illinois Power Company, appeals from an order of the circuit court of Madison County denying its motion to transfer for intrastate forum, non conveniens. In this cause, defendant argues that the circuit court abused its discretion. We affirm.

On July 31, 1987, 11-year-old Jacob Washington, Jr., climbed the tree in his front yard in Mulberry Grove, Bond County. He came into contact with an uninsulated electrical line containing 7,200 volts of electricity and was electrocuted. Plaintiff, Lillie Washington, witnessed the electrocution, but could not save her son. In November 1987, plaintiff, Jacob L. Washington, Sr., as administrator of the estate, and his wife, Lillie, brought suit in Madison County alleging wrongful death and for the alleged damages due to the psychological and emotional harm sustained by Jacob’s mother.

In December 1987, defendant filed a motion for change of venue to a more convenient forum. Defendants requested that the case be transferred from Madison to Bond County. The motion recited a number of facts which defendant believed made Bond County more convenient, pointing out (1) that the incident occurred in Bond County and it would be difficult for the jury to view the scene if tried in Madison County, (2) the congestion of the Madison County docket, and (3) plaintiffs and all witnesses live in Bond County. Plaintiff responded with a brief in opposition to the motion and the affidavits of nine witnesses who testified that they would travel to Edwardsville, county seat of Madison County, to testify on behalf of plaintiffs and would do so without subpoena. In its order of January 22,1988, the circuit court denied defendant’s motion.

The law is well settled that the circuit court is afforded very broad discretion in determining whether particular circumstances warrant a transfer of a cause under the doctrine of forum non conveniens. That court’s decision will be reversed on review only upon showing that, in deciding as it did, the court clearly abused that discretion. (Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 257, 70 L. Ed. 2d 419, 436, 102 S. Ct. 252, 266; Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 511-12, 91 L. Ed. 1055, 1064, 67 S. Ct. 839, 844-45; Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 223, 506 N.E.2d 1291, 1294; Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 117-18, 497 N.E.2d 745, 747; Satkowiak v. Chesapeake & Ohio Ry. Co. (1985), 106 Ill. 2d 224, 228, 478 N.E.2d 370, 372; Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 373, 444 N.E.2d 157, 163; People ex rel. Compagnie Nationale Air France v. Gilberto (1978), 74 Ill. 2d 90, 110, 383 N.E.2d 977, 985; Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1, 4, 273 N.E.2d 353, 355; Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 606, 229 N.E.2d 536, 539; Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 159, 152 N.E.2d 385, 392; Whitney v. Madden (1948), 400 Ill. 185, 190, 79 N.E.2d 593, 595-96; Bishop v. Rockwell International Corp. (1990), 194 Ill. App. 3d 473, 475, 551 N.E.2d 690, 692; Daiber v. Montgomery County Mutual Fire Insurance Co. (1989), 191 Ill. App. 3d 566, 568, 548 N.E.2d 17, 19, citing Darnell v. Ralph Korte Equipment Co. (1986), 144 Ill. App. 3d 564, 566, 494 N.E.2d 1206, 1207.) The question before us, therefore, is not whether we would have weighed the factors differently or would have resolved the issue as the trial court did, but whether the trial court’s decision constitutes an abuse of discretion. Bishop v. Rockwell International Corp., 194 Ill. App. 3d at 476, 551 N.E.2d at 692, citing Meyers, 113 Ill. 2d 112, 497 N.E.2d 745, and Darnell, 144 Ill. App. 3d 564, 494 N.E.2d 1206.

Abuse of discretion means clearly against logic. (Daiber, 191 Ill. App. 3d at 568, 548 N.E.2d at 19.) The question is not whether the appellate court agrees with the circuit court, but whether the circuit court acted arbitrarily, without employing conscientious judgment, or whether in view of all of the circumstances, the court exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted. In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 326, 491 N.E.2d 894, 898.

In Torres v. Walsh (1983), 98 Ill. 2d 338, 346, 456 N.E.2d 601, 605, citing Gulf Oil, our supreme court, in establishing intrastate forum non conveniens, stressed that the doctrine of forum non conveniens is a discretionary power which should be exercised only in exceptional circumstances when it has been shown that the interests of justice require a trial in a more convenient forum. The court stated:

“In recognizing the discretion of the trial court *** we hope to promote fair play between plaintiffs and defendants and discourage the incessant jockeying for a more sympathetic jury likely to come forward with a more substantial award.” (98 Ill. 2d at 351, 456 N.E.2d at 607.)

Defendant has not shown exceptional circumstances here. Nor has it shown the circuit court’s order to be clearly against logic. The circuit court did not abuse its discretion.

Our supreme court has adopted the balancing of factors test first outlined by the United States Supreme Court in the Gulf Oil case. Its significance as a guide has been reiterated numerous times. (Bland, 116 Ill. 2d at 229, 506 N.E.2d at 1297; Meyers, 113 Ill. 2d at 118, 497 N.E.2d at 747; Torres, 98 Ill. 2d at 345-46, 456 N.E.2d at 604-05; Satkowiak, 106 Ill. 2d at 228, 478 N.E.2d at 372; Jones, 93 Ill. 2d at 372-73, 444 N.E.2d at 160; Air France, 74 Ill. 2d at 110-11, 383 N.E.2d at 985; Cotton, 14 Ill. 2d at 159-60, 152 N.E.2d at 392-93.) In Gulf Oil, the court said:

“Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts, and experience has not shown a judicial tendency to renounce one’s own jurisdiction so strong as to result in many abuses.
If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and cost of obtaining attendance of willing, witnesses; possibility of view of the premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.
Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home.” Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843.

In Torres, our supreme court specifically cautioned the circuit courts that unless these factors strongly favor the defendant, the plaintiff should be allowed to exercise his choice in deciding in what forum to bring the case when venue is proper. Torres v. Walsh (1983), 98 Ill. 2d 338, 351, 456 N.E.2d 601, 607.

Forum non conveniens is equitable in nature (Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 121-22, 497 N.E.2d 745, 749); thus, the circuit court must consider all relevant factors equally in exercising its discretion. The courts have not established a rigid rule to govern this discretion because each case must turn on its own facts. “If central emphasis were placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable.” Piper Aircraft Co. v. Reyno (1981), 454 U.S. 253, 249-50, 70 L. Ed. 2d 419, 432, 102 S. Ct. 252, 263; Williams v. Green Bay & Western R.R. Co. (1946), 326 U.S. 549, 557, 90 L. Ed. 311, 316, 66 S. Ct. 284, 288; Brummett v. Wepfer Marine, Inc. (1986), 111 Ill. 2d 495, 499, 490 N.E.2d 694, 696.

The supreme court has held that the plaintiff’s selection should receive less weight if it is not his home county or the situs of the accident. (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d at 228, 506 N.E.2d 1296 (Macon County or Madison County as appropriate venue if situs and home of plaintiff are in Macon County); Brummett v. Wepfer Marine, Inc. (1986), 111 Ill. 2d 495, 490 N.E.2d 694 (Tennessee or Madison County as an appropriate forum for a Merchant Seaman Act case).) As we stated in Daiber, it is 28 miles from Edwardsville to Greenville, and the focus of & forum non conveniens motion is inconvenience. “We believe that it is most difficult to demonstrate inconvenience when the alternative forum adjoins the county in which venue otherwise properly was laid.” (Daiber, 191 Ill. App. 3d at 568, 548 N.E.2d at 19 (discussing Madison or Bond County as the appropriate forum).) It is approximately 35 minutes difference between the courthouses in question here. In this age of interstate highways, we fail to see any inconvenience. Furthermore, we fail to see the inconvenience to defendant, which maintains an office in Madison County, and Edwardsville in particular.

Concerning the private interest in this cause: (1) the relative ease of proof is no different in Bond or Madison County, (2) the cost of obtaining attendance of witnesses is no different, as the witnesses have sworn by affidavit that they would travel to Edwardsville without subpoena, and (3) the possibility of viewing the premises is relevant only if viewing it would be appropriate to the action. Here, however, the scene has been radically changed in that the tree was removed, but photographs were taken prior to the alteration, (4) there are no apparent practical problems that would make trial of a case easy, expeditious and inexpensive so as to require transfer, and (5) there is no question as to the enforceability of a judgment if one is obtained. The court here weighed the relative advantages and obstacles to a fair trial. We cannot see how, by filing in Madison County instead of Bond County, plaintiff “vexed,” “harassed,” or “oppressed” defendant by inflicting upon him expense or trouble not necessary to his own right to pursue remedy. Therefore, as Gulf Oil said, unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should not be disturbed.

Concerning public interests, it is appropriate for the circuit court to consider the congestion of court dockets as a factor of public concern (Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 375, 444 N.E.2d 157, 161), and in doing so, it is proper to notice the annual report of the Administrative Office of the Illinois Courts to the Supreme Court of Illinois. (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 230, 506 N.E.2d 1291, 1297; Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 113, 122, 497 N.E.2d 745, 749.) This report, however, does not take into account cases that are settled before trial, and the availability of judicial personnel and facilities. Only a circuit judge who is dealing with his or her docket on a daily basis can truly decide whether the docket would best be served by a transfer. Although this case would have been numbered 87 — L—16 in Bond County instead of 87 — L—1365 in Madison County, there are more judges and courtrooms in Madison County to handle those cases. Defendant’s argument is not persuasive. Furthermore, as we stated in Bishop:

“In connection with the public factors, particularly those which relate to the administration of the courts, the courts have long held that the trial court is in a better position to assess the burden posed by its own docket, and we will not second-guess its judgment.” Bishop, 194 Ill. App. 3d at 476-77, 551 N.E.2d at 693, citing Baker v. Burlington Northern R.R. Co. (1986), 149 Ill. App. 3d 674, 679, 500 N.E.2d 1113, 1118, and Darnell, 144 Ill. App. 3d 564, 494 N.E.2d 1206.

There is a local interest in having localized controversies decided at home. In this case, however, it is not unreasonable to say that because defendant provides electrical power to both counties, both have an interest in the controversy. Further, in cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by reports only. As the two counties are adjacent, this factor weighs for both.

The only factor which really weighs in favor of transfer is jury duty. As the court stated in Gulf Oil, “[jjury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation.” (Gulf Oil, 330 U.S. at 508-09, 91 L. Ed. at 1062, 67 S. Ct. at 843.) This factor involves 12 persons called for jury duty as a part of a larger group, with perhaps alternate jurors, and payments that are relatively insignificant in a county the size of Madison County.

Reviewing all of the factors of Gulf Oil, it is apparent that the circuit court’s order is clearly not against logic. The circuit court did not act arbitrarily, but, rather, employed conscientious judgment in its exercise of discretion. In view of all of the facts and arguments presented both orally and in briefs, the circuit court did not exceed the bounds of reason nor ignore recognized principles of law. Defendant did not show exceptional circumstances or that interests of justice require a transfer. It is time to stop the incessant jockeying for a more sympathetic jury likely to come forward with a more sympathetic award as discussed in Torres v. Walsh (1983), 98 Ill. 2d 338, 456 N.E.2d 601.

For the foregoing reasons, the order of the circuit court of Madison County is affirmed.

Affirmed.

HOWERTON, J., concurs.

PRESIDING JUSTICE LEWIS,

dissenting:

I respectfully dissent.

The events giving rise to this case, the plaintiffs, the witnesses, and the situs have no connection whatsoever with Madison County. There are no private or public interest factors favoring Madison County as a forum. The majority cites all the applicable cases treating forum non conveniens but brushes aside the factors developed by these cases and adopted recently in Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 506 N.E.2d 1291.

In the instant case an 11-year-old boy was killed when, while climbing a tree in his own yard, he came in contact with an uninsulated power line placed there by the defendant. A wrongful death action was brought as well as his mother’s separate cause of action. The situs of the accident was in Bond County; the plaintiffs live in Bond County; the witnesses are from Bond County; the view, if determined necessary, is in Bond County. One doctor lives in St. Louis. The plaintiffs argue that the tree has been cut down and the witnesses have agreed to testify in Madison County. These facts may or may not weaken the connection of Bond County with this case but certainly do not strengthen that of Madison County.

There are really no private interest factors favoring Madison County. With respect to public interest factors, the supreme court in Bland has taken notice of the congested dockets of the circuit court of Madison County. Further, in this case Bond County has a clear connection with the case in that the injuries were sustained in Bond County, thereby giving the plaintiffs’ claims the aspect “of a localized controversy with a local interest in having the controversy ‘decided at home’ ” (Brummett v. Wepfer Marine, Inc. (1986), 111 Ill. 2d 495, 500, 490 N.E.2d 694, 697).

The majority here emphasizes convenience based on distance between forums. It bolsters this position by reliance upon a recent decision of this court, Daiber v. Montgomery County Mutual Fire Insurance Co. (1989), 191 Ill. App. 3d 566, 568, 548 N.E.2d 17, 19, in which was said, “The initial focus of forum non conveniens is inconvenience. We believe that it is most difficult to demonstrate inconvenience when the alternative forum adjoins the county in which venue otherwise properly was laid.”

This emphasis upon distance violates the dictates of Bland, in which the supreme court expressly determined distance to be but one factor of many in the assessment of convenience. No one factor is central. Undue emphasis upon the single factor of distance is improper. With this case and Daiber we are coming perilously close to establishing a rule that permits as a forum any adjoining county.

All the factors and connections, both private interest and public, must be balanced. In the instant case the trial court abused its discretion in denying the motion for forum non conveniens, and I would reverse.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BILLY J. LAGLE, Defendant-Appellee.
    Fifth District
    No. 5—89—0171
    Opinion filed July 10, 1990.

      Barry Vaughan, State’s Attorney, of Fairfield (Kenneth R. Boyle, Stephen E. Norris, and Garry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

The People of the State of Illinois appeal from an order entered March 1, 1989, by the circuit court of Wayne County granting the motions of defendant, Billy J. Lagle, to quash his arrest and suppress evidence obtained as a result of that arrest, and to suppress certain statements taken from him in violation of his Miranda rights. Defendant had been charged with the offenses of speeding and driving under the influence of alcohol.

At the hearing on defendant’s motions, the following evidence was adduced. Billy J. Lagle testified that in the early morning of October 23, 1988, he was traveling to his house from the nearby community of Flora. He had left Flora at approximately midnight and it takes him 15 to 20 minutes to get home. As he approached his house, he saw a car parked on the side of the road approximately three utility poles from his house. He noticed only that it was white. Defendant estimated that his speed was between 55 and 60 miles per hour.

About the time defendant saw the car, he began to slow down to pull into his driveway. Defendant turned on his turn signal, turned into his drive, took his seat belt off, stopped and exited the truck and proceeded into his house. He went through his back door onto his porch, went up three steps, turned left and opened the door to his kitchen. Defendant walked into the kitchen, shut the kitchen door and began to walk into his front room. Defendant’s wife asked him who had followed him into the driveway. Defendant approached the kitchen window to look out when he heard a loud “boom.” The kitchen door flew open and State Police officer Goodman was standing in the doorway with one hand on his gun, pointing his finger and yelling at defendant. Trooper Goodman did not knock before entering the house and opened the door to the porch so hard that the door knob made a hole in the dry wall. Defendant’s children were awakened and began crying. Defendant thought that, at the most, four to five minutes had elapsed from the time he first saw the white car on the road and the time Trooper Goodman entered his house.

Defendant testified that he had not seen anyone following him, did not see any flashing lights behind him, and did not hurry or rush to get into his house. Trooper Goodman did not have any kind of a warrant. Defendant agreed to go outside with Goodman to talk. Defendant was told to sit in the front seat of Goodman’s car. Defendant was told he was being arrested for speeding and driving under the influence of alcohol. Defendant was not advised of his Miranda rights at this time; however, on the way to the police station, Trooper Goodman did question defendant about his drinking. Defendant was not advised of his Miranda rights until after he had been administered a breathalyzer test and had been thoroughly questioned by Trooper Goodman. This was approximately V-k hours after defendant had been arrested at his home. The breathalyzer indicated that defendant’s alcohol concentration in his breath was .12, over the legal limit for driving. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(1).) Defendant had told Trooper Goodman that he had had three to five alcoholic beverages that evening.

Sheila Lagle, defendant’s wife, testified that at approximately 12:45 a.m. on October 23, 1988, her husband returned home. Defendant had entered the kitchen in a normal manner. He walked in and did not appear to be in a hurry. After he had entered the kitchen, Sheila asked her husband who was in the driveway. Suddenly, the porch door was opened, the kitchen door was opened and a police officer was standing in the doorway. The police officer was screaming at defendant that he was under arrest. One hand was on the officer’s gun and the officer was shaking the other hand at defendant. The opening of the porch door knocked a hole in the wall. The officer did not knock before entering. Defendant agreed to go outside with the officer.

State Trooper Phillip Goodman testified that at approximately midnight on October 23, 1988, he was on routine traffic patrol. He observed a Ford pickup truck, which appeared to be speeding, southbound on the roadway. Goodman’s radar clocked the vehicle at 68 miles per hour, well over the legal speed limit. Goodman activated his red and blue flashing lights on the front of the vehicle. He was sure they were working because he could see them flashing. Goodman was facing north, toward the vehicle which was proceeding south. Goodman turned on his parking lights and headlights and then activated his wig-wag headlights, which alternate the bright lights on either side of the vehicle. Defendant did not stop, although Goodman’s lights were activated before defendant got to his location. Goodman started his car, and as defendant passed him, Goodman turned around and began to follow. Approximately one-half mile down the road, defendant turned into a driveway. Goodman followed into the drive approximately 12 car lengths behind. Goodman began his radio procedures for a vehicle stop. He observed defendant exit the truck and begin trying to run toward the back of the house. Goodman exited his vehicle and yelled as loudly as he could for defendant to stop, that he was a State Police officer. Defendant did not stop, but continued trying to run toward the back of the house. Defendant was staggering and having quite a bit of trouble getting across the ground. Goodman chased defendant through the back door, up the kitchen steps and caught him at about the time he was entering the kitchen. Goodman was 30 to 40 feet behind defendant when he started for the house. Defendant had trouble traversing the steps and appeared to be intoxicated. When Goodman first caught up with defendant, defendant yelled that Goodman could not chase him into his house. Goodman could smell the very strong odor of alcohol on defendant’s breath. Defendant eventually agreed to go outside and sit in the squad car.

Goodman administered defendant a field sobriety test, which he failed. Defendant was placed under arrest for driving under the influence of alcohol. Goodman did not obtain a warrant before entering defendant’s house because he was in pursuit, he suspected defendant was intoxicated and he was afraid that in the time it took to obtain a warrant, defendant’s blood-alcohol level would drop below the legal limit.

On cross-examination, Goodman testified that his vehicle was parked slightly less than one-half mile from defendant’s residence. It takes approximately 30 seconds to travel one-half mile at 60 miles per hour. Goodman thought no more than two minutes elapsed from the time defendant passed his vehicle until the time Goodman caught up with him on the porch. Defendant appeared to be in a hurry to get into his house. It was approximately 40 to 50 feet from where defendant’s truck was parked in the driveway to the back door of the house.

Defendant testified in rebuttal that he did not see any police lights that evening, he did not see a police car following him, nor did he see any other kind of car following him. He walked into his house in a normal, unhurried gait. He was not staggering. He did not see any car in his driveway. He did not hear anyone yell at him to stop in his driveway.

Before the trial court, defendant argued that even if this were a case of “hot pursuit,” a warrantless entry into a home is not justified for a minor offense such as speeding, and the officer did not have probable cause to believe that defendant had been driving under the influence of alcohol. Defendant further argued that he was interrogated while in custody without having been advised of his Miranda rights.

The State argued that Trooper Goodman had had probable cause to believe defendant had been driving under the influence of alcohol and that there were exigent circumstances justifying the warrantless entry into defendant’s home, i.e., the officer was in “hot pursuit,” the evidence of driving under the influence of alcohol would dissipate in the time it took to obtain a warrant and driving under the influence of alcohol is deemed a serious offense in Illinois.

The court granted defendant’s motions without making any findings of fact or conclusions of law. The order merely states, “Motion To Quash Arrest and Suppress Evidence granted. Motion to Suppress Statements granted.” The State filed its certificate of impairment and notice of appeal on March 15,1989.

It is now well settled that police officers cannot make a warrantless, nonconsensual entry into a private residence to effect a routine felony arrest in the absence of exigent circumstances. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) Payton did not answer the question of what constitutes sufficient exigent circumstances to justify such an arrest.

A police officer may, however, upon probable cause, effect a warrantless arrest in a public place for any felony, or for a misdemeanor committed in the officer’s presence. (United States v. Watson (1976), 423 U.S. 411, 46 L. Ed. 2d 598, 96 S. Ct. 820.) Furthermore, a proper warrantless arrest which begins in a public place cannot be thwarted by the act of the arrestee retreating into his home to evade arrest. United States v. Santana (1976), 427 U.S. 38, 49 L. Ed. 2d 300, 96 S. Ct. 2406.

In Santana, police officers, acting upon probable cause, proceeded to Santana’s home to arrest her for distribution of heroin. They had no warrant. Upon arrival at Santana’s home, police observed her standing in the doorway to her house, a public place under fourth amendment law. Police officers exited their vehicle and shouted their identification, whereupon Santana retreated into the vestibule of her house. The police followed and effected her arrest therein.

The Supreme Court held that the arrest of Santana had properly begun in a public place (her doorway), and that this lawful arrest could not be defeated by her act of retreating into her house.

The State argues that the instant case is identical to Santana, that Trooper Goodman had begun attempting to arrest defendant in a public place (on a public roadway for speeding and, later, in defendant’s driveway for driving while intoxicated), that Trooper Goodman was in “hot pursuit” of defendant, and that defendant could not thwart his lawful arrest by retreating into his home. The State also argues that the need to prevent the destruction of evidence (dissipation of alcohol from defendant’s blood) was an exigent circumstance justifying the warrantless home entry.

Defendant argues, on the other hand, that Santana involved a serious felony justifying a warrantless entry into the suspect’s home, while in the instant case, Trooper Goodman had probable cause to arrest defendant only for the minor offense of speeding. Relying on Welsh v. Wisconsin (1984), 466 U.S. 740, 80 L. Ed. 2d 732, 104 S. Ct. 2091, defendant argues that even “hot pursuit” will not justify a warrantless entry into a home to arrest a suspect for a minor, nonjailable offense.

In Welsh, the defendant was arrested in his home, without a warrant or consensual entry, for a minor, nonjailable traffic offense. While recognizing that exigent circumstances such as hot pursuit, the threat to public safety or the need to preserve evidence would, in some cases, justify a warrantless home entry to effect an arrest, the Supreme Court held that such an arrest would rarely be reasonable for only a minor offense. Thus, the gravity of the offense for which arrest is sought is a principal factor to be considered in determining whether exigent circumstances will justify a warrantless home entry. In Welsh, the Supreme Court found that the need to prevent the destruction of evidence could not justify a warrantless home entry to arrest for a nonjailable traffic offense.

The Illinois Supreme Court has also recognized that the gravity of the offense is one of the factors to be considered and balanced in determining whether sufficient exigent circumstances exist to justify a warrantless home entry to effect an arrest. (People v. Yates (1983), 98 Ill. 2d 502, 515, 456 N.E.2d 1369, 1376, cert. denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364.) Thus, in Illinois, a warrantless home entry was not justified to arrest defendants for a nonviolent Class C misdemeanor, possession of cannabis (People v. Olson (1983), 112 Ill. App. 3d 20, 444 N.E.2d 1147), but was permitted for a Class A misdemeanor, reckless conduct involving the firing of a gun from a motor vehicle (People v. Hart (1980), 88 Ill. App. 3d 484, 410 N.E.2d 633).

In the instant case, defendant was charged with speeding (a petty offense punishable by fine only) and driving under the influence of alcohol (a Class A misdemeanor). The State argues that the offense of driving under the influence is a serious enough offense in Illinois to justify, under the facts of this case, the warrantless entry of defendant’s home to arrest him upon probable cause.

We point out that we are inclined to agree with the State that, if Trooper Goodman’s version of the facts is taken as true (that he was directly behind defendant and had shouted to defendant to halt, that he had seen defendant stagger from his truck and that he had probable cause to believe defendant had been driving under the influence of alcohol), the warrantless entry of defendant’s home to effect his arrest did not violate the fourth amendment’s proscription against unreasonable searches and seizures. Under Trooper Goodman’s version of the facts, he had begun his arrest of defendant for a Class A misdemeanor in a public place (in defendant’s driveway) when he followed defendant and shouted to him to halt. This arrest was lawful under Payton, for the misdemeanor of driving under the influence was committed in Trooper Goodman’s presence. Under Santana, defendant could not thwart this lawful arrest by retreating into his home.

Furthermore, under Trooper. Goodman’s version of the facts, we think sufficient exigent circumstances existed to justify the warrant-less home entry. Trooper Goodman was in immediate hot pursuit of a person suspected of operating a motor vehicle while under the influence of alcohol, considered a serious offense in Illinois. There was no deliberate or unjustified delay in obtaining a warrant, and there was a very real possibility of the destruction of evidence in the time it would have taken to obtain a warrant, i.e., the alcohol in defendant’s blood would have dissipated.

However, in the instant case, we are not at liberty to believe Trooper Goodman’s version of the facts. Although the trial court failed to make findings of fact, we, as a reviewing court, must presume that the trial court found all issues and controverted facts in favor of the prevailing party, here, the defendant. (Michael v. First Chicago Corp. (1985), 139 Ill. App. 3d 374, 380, 487 N.E.2d 403, 408.) Thus, we must take questions of testimonial credibility as resolved in favor of the defendant, and must draw from the evidence all reasonable inferences in support of the judgment. (Kinsey v. Scott (1984), 124 Ill. App. 3d 329, 336, 463 N.E.2d 1359, 1364.) Furthermore, a reviewing court will neither presume that error occurred in the trial court nor assume that the trial court misunderstood the applicable law. American Wheel & Engineering Co. v. Dana Molded Products, Inc. (1985), 132 Ill. App. 3d 205, 212, 476 N.E.2d 1291, 1296.

Under defendant’s version of the facts, defendant did not see Trooper Goodman behind him or following him, did not hear Trooper Goodman yell at him to stop, and was well inside his house before Trooper Goodman came crashing through the door. Furthermore, Trooper Goodman was not behind defendant in the driveway, defendant did not stagger while entering his house and Trooper Goodman did not have probable cause to believe defendant had been driving while intoxicated. Thus, Trooper Goodman entered defendant’s house without a warrant to issue defendant a speeding ticket. Finally, according to defendant’s testimony and that of his wife, Trooper Goodman’s entry into the house was not peaceable but, in fact, did minor damage to defendant’s home. Under these facts we cannot say that Trooper Goodman’s actions in entering defendant’s home at 12:45 a.m. without a warrant to issue defendant a speeding ticket were reasonable under the fourth amendment. The trial court did not err in quashing defendant’s arrest for speeding and driving under the influence of alcohol and suppressing evidence obtained as a result thereof.

There is one final matter which we must clear up with respect to this issue. The State has argued that “hot pursuit” is an exception to the warrant requirement separate and distinct from the exigent circumstances exception. We do not find this to be true. The cases do not discuss a separate hot pursuit exception to the warrant requirement, but discuss it within the context of discussing exigent circumstances. Hot pursuit is merely one factor to be considered in determining whether exigent circumstances justified a warrantless home entry. See Dorman v. United States (1969), 435 F.2d 385, 391 (“Another doctrine excusing failure to obtain a warrant in case of entry for arrest has been cast in terms of ‘exigent circumstances,’ or ‘necessitous circumstances.’ While some decisions also refer to condition of ‘hot pursuit,’ this term is not a limitation but rather an illustration of the kind of exigent circumstance justifying entry without a warrant to arrest a suspect”).

In its brief, the State argues that, if the trial court erred in quashing defendant’s arrest, it also erred in suppressing any statements defendant may have made as a result of his arrest. The State appears to concede in its reply brief that, if the trial court properly quashed defendant’s arrest, it also properly suppressed any state-merits made as a result of his arrest. We find that any statements defendant made were a result of his illegal arrest and that the mitigating factors set forth in Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, were not present to remove the taint of the illegal arrest from the statements. The trial court did not err in suppressing defendant’s statements made as a result of his illegal arrest.

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

Affirmed.

CHAPMAN and HOWERTON, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. HAYS MORGAN et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0596
    Opinion filed July 16, 1990.

      Charles Grace, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellees.
   JUSTICE RARICK

delivered the opinion of the court:

Defendants Hays Morgan and Joseph Bourgeois were charged by information with possession of cocaine. Both filed motions to quash their arrests and suppress evidence. At the hearing on Bourgeois’ motion, the court indicated that its ruling would be equally applicable to Morgan’s motion. John Sandage testified that on September 17, 1987, he was a Saluki Patrol officer on foot patrol in the student center. Upon entering a first-floor rest room to use the facilities, Sandage heard two voices coming from one of the stalls. Looking down he saw only one pair of feet, but upon coming closer and looking under the door he observed a second pair of feet on the toilet seat. Looking through the space between the door and the wall, Sandage saw two people. He then left and radioed Saluki patrolman Jeff Block. Block had been a member of the Saluki Patrol for about two years and testified that, in his experience, muggings and other crimes were frequently perpetrated in bathroom stalls. Upon arriving at the scene, Block entered the rest room, identified himself and Sandage as members of the Saluki Patrol, and requested the defendants to open the stall door. The defendants did not respond, but Block testified that he heard paper rustling. Block then looked through the space between the wall and the door and saw two people. He proceeded to an adjacent stall, climbed onto the toilet seat and looked into the stall occupied by the defendants. Block saw Bourgeois sitting on the toilet tank with his feet on the seat, and Morgan standing facing him. Block also saw the defendants pass a piece of paper between them, which, according to Block’s testimony, contained a white powdery substance. Bourgeois moved toward the toilet, but Block grabbed him and ordered both defendants out of the stall. As Bourgeois was exiting the stall, he wadded up the piece of paper and put it in his back pocket. Once the defendants had exited the stall, Block asked them if there was anything he should see. Bourgeois said yes, reached into his back pocket, pulled out a square piece of paper and laid it on the counter. As he did so, a white powder fell out of it. Block and Sandage then called the SIU police, who arrested the defendants.

After hearing arguments on defendants’ motions, the trial court granted the motions to suppress, ruling that Block had no probable cause to believe a crime was being committed and that looking over the partition between the stalls constituted an unreasonable intrusion.

The State initially argues that Block’s actions did not constitute a search. Instead, the State maintains, Block made his observation from a public vantage point where he had a legal right to be and which rendered the defendants’ activities clearly visible.

In support of its position, the State cites California v. Ciraolo (1986), 476 U.S. 207, 90 L. Ed. 2d 210, 106 S. Ct. 1809. In Ciraolo, police officers received information that the defendant was growing marijuana in his yard, but were unable to observe the marijuana from the street because the defendant’s property was surrounded by both a six-foot fence and a 10-foot fence. Later that day, two officers flew over the defendant’s house in a private plane and spotted the marijuana plants. The Supreme Court ruled because the officers were in navigable airspace and the plants could be observed from the air, no search warrant was necessary. The court stated that it was not clear that the defendant manifested a subjective expectation of privacy from all possible observations and that the police officer’s observations were made “from a public vantage point where he has a right to be and which renders the activities clearly visible.” 476 U.S. at 213, 90 L. Ed. 2d at 216, 106 S. Ct. at 1812.

We believe Ciraolo is readily distinguishable from the present case. Critical to the court’s decision in Ciraolo was the fact that the officers made their observations from a public vantage point. Contrary to the State’s assertions, Block’s observations were not made from a public vantage point. A person entering a rest room stall manifests an intent to shield his activities from all observation, and a toilet in an adjacent stall is hardly a public vantage point.

Fourth amendment protections arise when an individual holds an expectation of privacy which society accepts as reasonable. (Katz v. United States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507.) While there are no Illinois cases addressing whether an individual in a public rest room stall has a protectable privacy interest, cases from other jurisdictions have answered this question in the affirmative. (People v. Tanner (1988), 42 Ohio App. 196, 537 N.E.2d 702; People v. Mercado (1986), 68 N.Y.2d 874, 508 N.Y.S.2d 419, 501 N.E.2d 27; State v. Biggar (Hawaii 1986), 716 P.2d 493; State v. Bryant (1970), 287 Minn. 205, 177 N.W.2d 800.) These cases and simple common sense persuade us that an individual in a closed public rest room stall has a reasonable expectation of privacy protected by the fourth amendment.

The fourth amendment does not prohibit all intrusion on the individual’s privacy, only unreasonable intrusions. (See, e.g., Oliver v. United States (1984), 466 U.S. 170, 80 L. Ed. 2d 214, 104 S. Ct. 1735; United States v. Chadwick (1977), 443 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476.) We must determine, therefore, whether Block’s search was reasonable. A search is justified where there is probable cause to believe a crime has been committed, is being committed, or is about to be committed. (People v. Jones (1967), 38 Ill. 2d 427, 231 N.E.2d 580.) Probable cause for search exists where, based upon the knowledge and experience of the officer in question, articulable, objective facts exist which indicate the existence of criminal activity is more probable than not. (People v. Exline (1983), 98 Ill. 2d 150, 456 N.E.2d 112.) The existence of probable cause must be determined from the standpoint of the arresting officer. People v. Stout (1985), 106 Ill. 2d 77, 477 N.E.2d 498.

The State concedes that an individual in a rest room stall has a reasonable expectation of privacy, but, citing Mercado, maintains that the facts in this case were such that Block had probable cause to search the stall. The facts in the present case are virtually identical to those in Mercado. In that case, a port authority officer was on duty at New York’s Kennedy Airport when a man approached him and informed him that there were two men in a stall in the rest room. Upon entering to investigate, he saw only one stall with a closed door and could see one pair of feet. Upon coming closer he heard two voices coming from the stall. Looking through the space between the door and the frame, he observed the defendant sitting on the flushing unit with his feet resting on the bowl. The officer then entered the adjoining stall, stood on the toilet bowl, and looked into the occupied stall. The defendant was in the same position as before, and another man was standing with his back to the door and had an envelope containing a white powdery substance in his hand. He ordered both men out of the stall and, upon searching them, discovered 19 bags of heroin.

Mercado argued, as do the defendants here, that looking into the stall constituted an unreasonable search. The court rejected his argument, finding that while a person in a rest room stall has a reasonable expectation of privacy, the presence of two persons in a single-person stall justified the intrusion where the surrounding circumstances made it apparent that they were not using the stall for its intended purpose. The court pointed out that while human imagination could conceive of circumstances where two persons were legitimately using a one-person stall, the test for determining probable cause did not require proof to a substantial certainty or beyond a reasonable doubt. “Based on the *** objective facts *** and the reasonable inferences to be drawn therefrom, it was ‘more probable than not’ that criminal activity was taking place inside that stall.” Mercado, 68 N.Y. 2d at 877, 508 N.Y.S.2d at 422, 501 N.E.2d at 30.

The facts in People v. Tanner are also similar. A Columbus police department officer was working special duty at a theatre and was assigned to work in the rest rooms during intermission. Upon entering the rest room, the officer observed two pairs of legs in a closed stall and heard a sniffing noise. The officer peered over the door and observed the defendant and another man. The defendant had a straw up his nose and was snorting a white powder which was later identified as cocaine. The officer thereupon pushed open the unlocked door and arrested the defendant. On appeal, the defendant argued that the officer had no probable cause to search. On affirming the conviction, the court held that “an individual’s subjective expectation of privacy is limited when two people are in a stall designed for use by one person. [Two people in a rest room stall designed for use by one person] cannot reasonably expect to be free from intrusion when the outward appearance they give is that they are using the single stall for a purpose other than for what it was intended.” Tanner, 42 Ohio App. 3d at 199, 537 N.E.2d at 705.

In the present case, Block saw only one pair of legs but heard two voices. Upon closer inspection, he observed two persons in the stall and it was clear from their positions that they were not using the stall for its intended purpose. Given the objective facts confronting Block, and the reasonable inferences which he could draw based upon his knowledge and experience, he could reasonably conclude that it was more probable than not that a crime was being committed and so had probable cause to search.

The State also argues that the trial court used a higher standard than “more probable than not” in determining that there were insufficient articulable facts to warrant a person of reasonable caution to believe a crime was being committed. The court’s written findings of fact and law, however, clearly demonstrate that the court used the proper standard.

Defendants further argue that even if the search was lawful, the trial court’s order suppressing the evidence should still be affirmed. Defendants point out that although Block testified that he saw a white powdery substance, the court did not specifically make such a finding, but found only that Block saw defendant Bourgeois holding a piece of paper. Block’s report of the incident makes no mention of seeing any white powder when he first looked into the stall, but does indicate that the paper Bourgeois produced from his pocket contained a white powdery substance. Defendants contend that the court’s failure to specifically find that Block saw a white powdery substance when he looked into the stall should be construed as a finding that he did not see it. Even if we accept defendants’ argument, such a finding would clearly be against the manifest weight of the evidence. Block’s testimony that he saw the white powder when he first looked into the stall is uncontradicted. Based upon a review of the record, we believe the defendants’ contention is without merit.

The judgment of the circuit court of Jackson County is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

WELCH and CHAPMAN, JJ., concur.


author: JUSTICE CHAPMAN

text:
    GOLDEN RULE INSURANCE COMPANY, Plaintiff-Appellant, v. MARIA MANASHEROV, Defendant-Appellee.
    Fifth District
    No. 5—88—0782
    Opinion filed July 18, 1990.
    Rehearing denied August 23, 1990.

      Guy E. McGaughey, Jr., of McGaughey & McGaughey, Ltd., of Lawrenceville, for appellant.
    Michael D. Weis, of Northbrook, and Jerry Miller, of Bowen & Miller, of Olney, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The plaintiff, Golden Rule Insurance Company, filed suit in the circuit court of Lawrence County, Illinois, seeking a declaratory judgment that it was not liable to the defendant, Maria Manasherov, on a claim for medical and hospital bills incurred by her daughter. The defendant filed a motion based upon the doctrine of intrastate forum non conveniens to transfer the cause to Lake County or Cook County. The circuit court granted the defendant’s motion and transferred the case to the circuit court of Cook County. We granted plaintiff’s petition for leave to appeal pursuant to Supreme Court Rule 306(a)(l)(ii) (107 Ill. 2d R. 306(a)(1)(ii)). We affirm.

Plaintiff’s complaint alleged that it is an Illinois corporation with its home office and principal place of business in Lawrenceville, Lawrence County, Illinois. The defendant is a resident of Buffalo Grove, Lake County, Illinois. Plaintiff alleged that the defendant filed a written application with Golden Rule for a family health insurance policy through an independent broker, Eugene S. Weil, d/b/a Weil Financial Concepts of Chicago, Illinois. Defendant’s answer denied that Weil was an independent broker and alleged that Weil held himself out to be the agent for plaintiff and had apparent authority to act for the plaintiff. The application for insurance named the defendant as the insured and her husband and two children as covered dependents. The application provided that the insurance would become effective when the application was approved by Golden Rule, and, if approved, the insurance would become effective on the later of: (1) the requested policy date; or (2) the date the application and payment of the premium was received by Golden Rule at its home office. The application also provided that no benefits would be paid for a health condition that existed prior to the date when the insurance took effect. The requested policy date shown on the application was January 6, 1987. The plaintiff alleged, however, that the application and payment of the premium was not received by Golden Rulé at its office until January 12, 1987. In her answer, the defendant denied that the application and premium were received on January 12 and the defendant asserted that she is a recent immigrant from Russia with a limited knowledge of the English language and that she relied upon the representations of Eugene Weil that he was an agent for the plaintiff and that coverage was effective upon the mailing of the premium to plaintiff by the defendant. The defendant’s daughter, Regina Manasherov, was admitted to Northwestern Memorial Hospital in Chicago on January 8, 1987, where she was treated for a viral illness. She was discharged two weeks later. The defendant submitted a claim for Regina’s hospital and medical bills; Golden Rule denied the claim and filed this action for declaratory judgment.

The defendant’s forum non conveniens motion alleged that virtually all sources of proof were located either in Cook or Lake Counties, including the defendant, her husband, her daughter, the hospital, the insurance agency that sold the insurance policy to the defendant, and the bank where the check was drawn for payment of the insurance premium. The defendant also asserted that the courts of Cook and Lake Counties were easily accessible to the defendants and their witnesses while the expense and inconvenience of defending the case in distant Lawrence County would render it virtually impossible for her to proceed. Plaintiff’s response to defendant’s motion to transfer asserted that Lawrence County was the most convenient forum because the defendant’s application and initial premium were received in Lawrenceville, the application was processed in Lawrenceville, telephone calls were made from Lawrenceville regarding the application, the policy was issued from plaintiff’s Lawrenceville office, defendant’s claim was presented to the Lawrenceville office, and her claim for benefits was denied at Lawrenceville. In addition, the affidavit of Frankie J. Deckard, an employee of Golden Rule, named eight Golden Rule employees who took part in reviewing, underwriting and issuing the policy and in dealing with defendant’s claims. Plaintiff also contended that the dockets of the courts of Cook and Lake Counties were more crowded than the docket of the circuit court of Lawrence County.

In granting the defendant’s motion and transferring the case to Cook County, the trial court found that the balance of relevant factors strongly favored the defendant because the access to relevant sources of proof was much greater in Cook County and the “advantages and obstacles to obtaining a fair trial strongly favor Cook County, as time, convenience and access to sources of proof are much greater there, and the congestion of court dockets has not been shown to be any factor which would disfavor any proper venue over another; finally, the convenience to the parties would be far greater in Cook County, which is near the defendant’s home and near the agent and the medical witnesses, whose testimony would determine the status of the parties as to insurance coverage.”

The granting or denial of a forum non conveniens motion lies within the sound discretion of the trial court, and its decision will not be disturbed unless it is shown that the court abused its discretion in weighing the relevant considerations. (McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill. 2d 278, 288, 520 N.E.2d 368, 372; Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 373, 444 N.E.2d 157, 160; McDowell v. Marathon Oil Co. (1987), 151 Ill. App. 3d 1065, 1067, 503 N.E.2d 1190, 1192.) We emphasize that this court’s duty on review is not to determine whether the trial court exercised its discretion wisely, but only whether it abused that discretion. Brummett v. Wepfer Marine, Inc. (1986), 111 Ill. 2d 495, 503-04, 490 N.E.2d 694, 699; McDowell, 151 Ill. App. 3d at 1067, 503 N.E.2d at 1192.

Forum non conveniens is an equitable doctrine designed to promote fair play between the litigants. (Torres v. Walsh (1983), 98 Ill. 2d 338, 351, 456 N.E.2d 601, 607.) Under this doctrine “a court may decline to exercise jurisdiction of a case whenever it appears that there is another forum with jurisdiction of the parties in which trial can be more conveniently had.” (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 223, 506 N.E.2d 1291, 1294.) A decision to grant or deny a forum non conveniens motion involves a balancing of the private interest factors affecting the convenience of the parties and public interest factors affecting the administration of the courts. (Bland, 116 Ill. 2d at 223-24, 506 N.E.2d at 1294.)

“Factors relating to the private interests of the litigants include the ‘relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.’ [Citation.]
Public factors relevant here include the administrative difficulties flowing from court congestion; ‘a local interest in having localized controversies decided at home’; and the unfairness of burdening citizens in an unrelated forum with jury duty.” Bland, 116 Ill. 2d at 224, 506 N.E.2d at 1294, citing Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843.

Based on the record before us, we cannot conclude that the trial court abused its discretion in finding that the relevant factors weighed heavily in the defendant’s favor. The plaintiff argues that its choice of forum should not be disturbed because the insurance policy was sent to and processed at its office in Lawrence County. While this activity is sufficient to establish Lawrence County as a proper venue (see Standard Mutual Insurance Co. v. Kinsolving (1960), 26 Ill. App. 2d 180, 167 N.E.2d 241; Ill. Rev. Stat. 1987, ch. 110, par. 2 — 101), we do not believe it to be a significant factor favoring the plaintiff’s choice of forum. Although there is some question regarding the date on which the insurance application and check were received in plaintiff’s office, the primary factual issue in this case concerns what representations, if any, Eugene Weil made to the defendant with respect to the effective date of the policy. These alleged representations occurred in Cook County; the critical witnesses to the events, Weil and the defendant, are from Cook and Lake Counties. The insurance application was obtained from Weil in Cook County and mailed from Cook or Lake County. Moreover, the defendant’s claim is for treatment that her daughter received in a hospital in Cook County. In view of these facts, the trial court may have been somewhat skeptical of plaintiff’s claim that it will be necessary to call as witnesses all eight employees who “took part in reviewing, underwriting, and issuing the policy and in dealing with defendant’s claims.” We believe, therefore, that the balance of factors relating to the private interests of the litigants strongly favors the defendant.

With regard to the public interest factors, the plaintiff contends that the trial court’s finding that “the congestion of court dockets has not been shown to be a factor which will disfavor any proper venue over another” was contrary to the facts and an abuse of discretion. Plaintiff argues that the court docket in Lawrence County is uncongested while the docket in Cook County is “saturated and overladen with cases” and “[t]hese facts are documented by the statistical records of the administrative office of the Illinois courts and may be judicially noticed.” While we agree with plaintiff that a court may properly take notice of court congestion (see Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 122, 497 N.E.2d 745, 749), the record reveals that the plaintiff did not ask the trial court to take judicial notice of the Annual Report of the Administrative Director to the Supreme Court of Illinois; indeed, there is no reference to the annual report anywhere in the record. The only reference to court congestion contained in the record is in paragraph 6 of plaintiff’s response and objection to defendant’s motion to transfer, which states that “[t]he dockets of Lake County, Illinois and Cook County are more crowded than the docket of Lawrence County, Illinois.” Although we do not doubt that the courts of Cook County are more congested than those in Lawrence County, given the state of the record before it, we discern no significant error in the trial court’s finding that court congestion “has not been shown to be a factor” favoring one venue over another. In any event, even if congestion of the court dockets favors plaintiff’s position, we find that this factor is outweighed by the public interest in having localized controversies decided at home. We believe that it is in the best interest of the public that when a dispute arises over a product, here an insurance policy, that is purchased locally, the best interests of justice are served by resolving that dispute in local courts. We find therefore that the public interest factors also favor the defendant.

We recognize, of course, that the plaintiff’s right to select a forum is a substantial one (Bland, 116 Ill. 2d at 225, 506 N.E.2d at 1295) and that unless the relevant factors strongly favor the defendant the plaintiff should be allowed to exercise his choice in deciding where to file suit (Torres, 98 Ill. 2d at 351, 456 N.E.2d at 607).

“If there are sufficient factors that favor the plaintiff’s choice of forum, then the defendant’s inconvenience should not be considered, provided venue is proper. For unless the balance strongly favors the defendant, then the plaintiff should be able to exercise his statutory right to choose his forum.” Torres, 98 Ill. 2d at 351, 456 N.E.2d at 607.

Although we find that the factors in this case weighing in favor of Cook County are sufficient in themselves to preclude a finding of abuse of discretion by the trial court, we believe that there are two additional factors which weigh against the traditional deference given to a plaintiff’s choice of forum. First, although Golden Rule is the plaintiff in this action, this is by virtue of the fact that Golden Rule chose to file for a declaratory judgment rather than defend the claim that Manasherov had indicated through her attorney that she was going to assert. We agree that Golden Rule was perfectly justified in filing a declaratory judgment action once the disputed nature of the defendant’s claim became apparent, but we are, nevertheless, somewhat uneasy about sponsoring a race to the courthouse and offering deference to the plaintiff’s choice of forum as a prize. We suggest that in such cases the arguments for favoring a plaintiff’s choice of forum are less than compelling.

Second, we note that in the statutes governing both jurisdiction (Ill. Rev. Stat. 1987, ch. 110, par. 2—209(4)) and venue (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 103(e)), it appears that the legislature has evidenced some intent to treat suits against insurance companies differently than suits against other companies or individuals. Section 2— 209(4) of the Code of Civil Procedure provides that one submits to the jurisdiction of this State by “[cjontracting to insure any person, property or risk located within this State at the time of contracting.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 2—209(4).) Section 2—103(e) of the Code of Civil Procedure provides that “[ajctions against any insurance company incorporated under the law of this State or doing business in this State may also be brought in any county in which the plaintiff or one of the plaintiffs may reside.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 2—103(e).

The obvious intent of these two sections is to protect the consumers of insurance products by making it easier for them to enforce their rights against insurance companies. Only in suits against insurance companies are plaintiffs given the additional choice of filing suit in the county in which they reside. This is a significant exception to the general principles of the venue statute which is designed to insure that an action will be brought “either in a location convenient to the defendant, by providing for venue in the county of residence, or convenient to potential witnesses, by allowing for venue where the cause of action arose.” (Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 328, 368 N.E.2d 88, 91.) We believe that this evidence of a legislative intent to protect the buyers of insurance is an additional reason to afford less deference to the plaintiff’s choice of forum in a declaratory judgment action brought by an insurance company.

For the above-stated reasons, we find that the trial court did not abuse its discretion in transferring this cause to Cook County. We affirm and remand for proceedings consistent with this opinion.

Affirmed and remanded.

WELCH and RARICK, JJ., concur.