text:
    Harry A. Carlson, Plaintiff-Appellee, v. The Village of Worth, Defendant-Appellant.
    (No. 58299;
    First District (3rd Division)
    December 19, 1974.

      Staehlin, Jantomi and Sullivan, of Chicago (John M. Sullivan and Philip J. McGuire, of counsel), for appellant.
    Peter B. Carey, of Chicago (J. Theodore Meyer, Philip J. Carey, and Paddy Harris McNamara, of counsel), for appellee.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Defendant, Village of Worth, Illinois, appeals from a summary judgment entered on plaintiff's declaratory judgment action which challenged the validity of defendant’s ordinance for the licensing and regulation of sanitary landfills. The trial court declared the ordinance to be invalid and enjoined defendant from attempting to enforce its provisions against plaintiffs sanitary landfill operations. Upon appeal defendant contends:

1) The licensing and regulation of sanitary landfills are the proper subjects of ordinance enactment by a non-home rule municipality under the power* conferred in article 11 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 11 — 1—1 et seq.)-.
2) The Illinois legislature, with the enactment of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1001 et seq.), has not preempted the field with respect to the licensing and regulation of sanitary landfills.

Plaintiff, Harry A. Carlson, is the holder of a legal interest in a tract of land commonly known as the Berg Pit, located within the municipal boundaries of defendant. On June 9, 1971, plaintiff was issued Permit No. 1971-19 by the Illinois Environmental Protection Agency, authorizing the operation of a sanitary landfill at the Berg Pit site. The permit stated that it was issued “subject to the standard conditions set forth * * which included the following:

“This permit is granted pursuant to Section 39 of the ‘Environmental Protection Act’ and the Ttules and Regulations for Refuse Disposal Sites and Facilities’ as authorized therein, and is subject to the following conditions:
# at #
4. This authority * * * (c) does not release the permittee from compliance with other applicable statutes of the State of Illinois, or with applicable local laws, regulations or zoning ordinances.”

Defendant, having a population of less than 25,000 is not a home rule unit under article 7, section 6, of the 1970 Illinois Constitution, and has not elected to acquire that status by referendum. As a result, defendant has only those powers which have been delegated to such entities by statute. Ill. Const. (1970), art. 7, § 7.

On June 22, 1971, defendant enacted Ordinance No. 71 — 5 entitled “Village of Worth, Illinois Solid Waste Disposal Ordinance.” The ordinance created permit requirements and regulations for the establishment and operation of sanitary landfills and other waste disposal facilities located within defendant’s municipal boundaries. Subsequently, plaintiff filed a complaint for declaratory judgment, attacking the constitutionality of the ordinance and praying that defendant be enjoined from enforcing it against plaintiff’s sanitaiy landfill operations. The challenge to the validity of the ordinance was twofold. In the first count of the complaint plaintiff alleged that as a non-home-rule unit defendant possessed only those powers expressly granted to it by the legislature, and that there existed no legislative grants empowering defendant to license or regulate sanitary landfills. The second count alleged that the ordinance was invalid because the legislature had preempted the field with the passage of the Surface-Mined Land Conservation and Reclamation Act (Ill. Rev. Stat. 1971, ch. 93, par. 201 et seq.) and/ or the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1001 etseq.).

After a motion to dismiss the complaint was denied, plaintiff moved for summary judgment. On August 4, 1972, the trial court entered summary judgment for plaintiff on both counts which declared defendant’s ‘ordinance to be unconstitutional, invalid and void. (However, the record reflects that the trial court rejected the argument that the Surface-Mined Land Conservation and Reclamation Act preempted the field of sanitary landfill licensing and regulation, but did accept that argument as applied to the Environmental Protection Act.) The trial court further enjoined defendant from attempting in any manner to interfere with the plaintiff’s sanitary landfill operations. Thereafter, this judgment was vácated sua sponte for the stated reason that the injunctive granted was broader than that prayed for in the complaint. On August 30,1972 a subsequent judgment order was entered which again declared the ordinance unconstitutional, invalid and void, but limited the injunctive relief to restraining defendant from attempting to enforce the ordinance against plaintiff’s sanitary landfill operations. It is from this second judgment order that defendant brings this appeal.

It will be unnecessary to consider the contention that the Illinois Municipal Code empowered defendant to enact the instant ordinance, as we conclude that the Environmental Protection Act has preempted the field of sanitary landfill licensing and regulation and thereby removed whatever authority defendant did have in that area. Whether a statute has or has not preempted the field so that no new regulation on that subject matter is within the power of a municipaliy is a question which requires an interpretation of the statute in light of its declared purpose and against the backdrop of prior legislation. (City of Rockford v. Floyd (1968), 104 Ill.App.2d 161, 243 N.E.2d 837.) Our conclusion that the doctrine of preemption arises in the instant case is based upon case law and the legislative history of the Environmental Protection Act.

In O’Connor v. City of Rockford (1972), 52 Ill.2d 360, 288 N.E.2d 432, the Illinois Supreme Court passed upon the relationship of the Environmental Protection Act to local ordinances. There, the City of Rockford, with the intention of operating a sanitary landfill thereon, had contracted to purchase land situated outside its municipal boundaries. The Illinois Department of Public Health had issued to the City a permit authorizing such operations. The owners of property adjacent to the proposed landfill sought a declaratory judgment that the City, prior to commencing landfill operations was required to secure county permission under the zoning ordinances of Winnebago County. The trial court’s judgment in favor of the landowners was reversed by the appellate court. The supreme court relied for its decision on the Environmental Protection Act which became effective after the appellate court ruling. The opinion contains an excellent synopsis of the applicable provisions of the Act and will be quoted at length herein. The court stated at pages 366-368:

“In 1970 the legislature enacted the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, pars. 1001 — 1051) which repealed An Act to prohibit open garbage dumps or sites’ and ‘An Act in relation to the registration and regulation of refuse and disposal sites and facilities and making appropriations therefor.’ Section 2(b) of this Act (par. 1002(b)) states: ‘It is the purpose of this Act, as more specifically described in later sections, to establish a unified, state-wide program * * * to restore, protect and enhance the quality of the environment * * *.’ In section 20 (par. 1020) the General Assembly finds ‘that excessive quantities of refuse and inefficient and improper methods of refuse disposal result in scenic blight, cause serious hazards to public health and safety, create public nuisances, divert land from more productive uses, depress the value of nearby property, offend the senses, and otherwise interfere with community life and development’ and declares: ‘It is the purpose of this Title [Tide V: Land Pollution and Refuse Disposal] to prevent the pollution or misuse of land, to promote the conservation of natural resources and minimize environmental damage by reducing the difficulty of disposal of wastes and encouraging and effecting the re-cycling and re-use of waste materials, and upgrading waste collection and disposal practices.’ Section 22 (par. 1022) provides that the Pollution Control Board established by the Act (par. 1005) may adopt regulations to promote the purposes of Title V and that ‘without limiting the generality of this authority, such regulations may among other things prescribe * * * Standards for the location, design, construction, sanitation, operation, maintenance," and discontinuance of the operation of refuse collection and disposal sites and facilities * * Section 21(e) (par. 1021(e)) requires a permit from the Environmental Protection Agency created under the Act (par. 1004) for the location, design, operation and maintenance of a sanitary landfill, and section 39 of the Act (par. 1039) provides that the Agency may, in granting permits, ‘impose such conditions as may be necessary to accomphsh the purposes of this Act, and as are not inconsistent with the regulations promulgated by the Board hereunder.’
Section 27 (par. 1027) provides that in promulgating regulations ‘the Board shall take into account the existing physical conditions, the character of the area involved, including the character of surrounding land uses, zoning classifications, the nature of the existing air quafity, or receiving body of water, as the case may be, and the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution.’
In our opinion, to hold here that the city’s use of the proposed site as a landfill may be permitted only upon issuance of a conditional, use permit by Winnebago County, or that the county, by reason of its zoning ordinance may prohibit such use, contravenes the clearly expressed legislative intent that such operations be conducted only upon issuance of a permit from the Environmental Protection Agency. By the enactment of the Environmental Control Act, the General Assembly has expressly declared the need for a unified state-wide program’ and provided the means for issuance of appropriate permits under regulations promulgated after taking into account precisely the conflicting interests shown by this record.
The record shows that the order dissolving the permanent injunction was stayed, no landfill operations have been commenced at the proposed site and no pressing need for the facility is shown which would warrant action which might serve to defeat the clearly stated purposes of the Environmental Protection Act. We conclude therefore, that the judgment of the appellate court should be reversed and the cause remanded to the circuit court of Winnebago County with directions to vacate the order dissolving the permanent injunction and to modify the order issuing the permanent injunction by deleting therefrom the following:
‘unless and until the existing zoning regulations of the County of Winnebago and State of Illinois have been fully complied with under the applicable county zoning ordinances and state statutes:’ and substituting therefor unless and until the said defendants shall obtain a permit granted by the Environmental Protection Agency.’”

By its order that the sole criterion for the operation of the sanitary landfill in question was the issuance of a permit from the Environmental Protection Agency the court struck down the power of local public entities to prohibit or indirectly regulate such activities through the vehicle of a zoning ordinance. The court’s same reasoning is even more applicable in the case of an ordinance which seeks to license and regulate part of the very subject matter expressly delegated by the Act to the Pollution Control Board and the Environmental Protection Agency. The practical considerations supporting that conclusion come readily to mind. The purposeless duplication of effort, the likely absence of adequate funding, staffing, and expertise on the local level, and the need for regional action and interaction all bespeak the efficacy of instituting a “state-wide program” to combat environmental damage from all sources. Moreover, the implicit holding in the O’Connor case that the Environmental Protection Act has preempted the field of sanitary landfill licensing and regulation is in keeping with the legislative history of that Act itself and preceding legislation in the same area.

In 1963, the General Assembly passed “An Act to prohibit open garbage dumps or sites” prohibiting the open dumping of garbage or refuse, as well as the operation of open dumps, but expressly excluding from its provisions sanitary landfills. (Ill. Rev. Stat. 1963, ch. 111½, par. 461 et seq.) In 1965, the General Assembly passed “An Act in relation to the registration and regulation of refuse disposal sites and facilities and making an appropriation therefor.” (Ill. Rev. Stat. 1965, ch. 111½, par. 471 et seq.) By this latter statute the Department of Public Health was authorized to supervise and adopt regulations pertaining to the creation and operation of refuse disposal facilities, and all such facilities were required to be registered with the Department. The statute provided, however, that it was inapplicable in counties which had established their own departments of public health under State law, or to political subdivisions which had been issued certificates of exemption by the Department upon proof that their own programs met the minimum requirements of the statute. Each of these statutes was expressly repealed by the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1050), which, unlike the repealed statutes, contains no reservation of authority empowering local public entities to enact coincidental ordinances licensing or regulating sanitary landfills or any other refuse disposal facilities. The legislative history demonstrates that this omission was intentional.

The original draft of the Environmental Protection Act was introduced on April 17, 1970, at the 76th General Assembly as House Bill 3788. Both in its original form and as amended, prior to being sent to the Senate for consideration, section 45(b) of the bill provided that a political subdivision could enact and enforce measures for the control, prevention, abatement or punishment of air or water pollution, or any other environmental damage. This subsection further provided that upon a proper showing to the Pollution Control Board a political subdivision could be certified as the agency with primary responsibility for such matters within its jurisdiction, although the Board and the Environmental Protection Agency would retain their full authority to exercise their respective functions within that certified subdivision. Thus, as sent to the Senate, House Bill 3788 expressly reserved to local public entities the power to enact concurrent legislation concerning those subjects included within its scope. Yet, significantly, the provisions of the Act which were passed into law contain no reservation of local authority whatsoever. (It is also significant that at least one attempt to amend the Act to authorize municipalities to adopt sanitary landfill licensing requirements and regulations coextensive with those promulgated by the Pollution Control Board has been unsuccessful. (See House Bill 256, 78th General Assembly, State of Illinois 1973 and 1974, Legislative Synopsis and Digest, No. 9, March 29, 1973).) It is clear from the Environmental Protection Act itself, its legislative history, and preceding legislation in the same area that the General Assembly intended to thereby exclude any authority of local political entities which could interfere with or frustrate the objective of establishing a unified state-wide system of environmental protection. As a consequence, we hold that the defendant’s ordinance for the licensing and regulation of sanitary landfills was stillborn.

Defendant further argues that regardless of the field of sanitary landfill licensing and regulation being preempted, the Environmental Protection Agency, in the exercise of its statutory discretion, has legitimatized defendant’s ordinance by conditioning plaintiff’s permit upon compliance with applicable state statutes, local laws, regulations and zoning ordinances. The subsection 4(c) “condition” contained in plaintiff’s Environmental Protection Agency permit is a restatement of Rule 2.01 of the Department of Public Health’s Rules on Refuse Disposal Sites and Facilities which were adopted pursuant to the act regulating refuse disposal sites (Ill. Rev. Stat. 1965, ch. 111½, par. 471 et seq.) (repealed effective July 1, 1970). Under the Environmental Protection Act, these rules of the Department of Public Health are continued in force and effect until new rules and regulations are promulgated by the Pollution Control Board. (Ill. Rev. Stat. 1971, ch. 111½, par. 1049.) However, defendant’s reliance on the restatement of the rule in plaintiff’s permit is unfounded.

In view of the effect of the Environmental Protection Act on local regulatory power, this condition could be considered as merely expressing the obvious, that a permittee is not exempt from observing local regulations left viable after the passage of the Act. Further, the same condition was contained in the permit issued by the Department of Public Health to the defendant in O’Connor, supra, and the supreme court there stated that the rule upon which it was based was apparently adopted by the Department as a result of a misreading of the decision in Heft v. Zoning Board of Appeals (1964), 31 Ill.2d 266, 201 N.E.2d 266, 201 N.E.2d 364. Moreover, if the condition were intended to authorize regulatory ordinances such as that enacted by defendant, it would be invalid for two reasons. It would constitute an improper attempt to expand the provisions of the Environmental Protection Act by rule to give local public units authority over areas which the legislature has decreed by the Act that they should not have. (Ruby Chevrolet Inc., v. Department of Revenue (1955), 6 Ill.2d 147, 126 N.E.2d 617.) It would also constitute an improper delegation of the discretion that the legislature vested in the Environmental Protection Agency, contravening the legislative intent that the decision on licensing refuse disposal facilities be made by that agency. (People ex rel. Abner v. Kinney (1964), 30 Ill.2d 201, 195 N.E.2d 651.) The condition contained in plaintiff’s permit cannot operate to validate or ratify a void ordinance.

We hold that defendant’s Ordinance No. 71 — 5, entitled “Village of Worth, Illinois Solid Waste Disposal Ordinance,” is void as an attempted trespass into a field previously preempted by the General Assembly.

The judgment of the trial court is affirmed.

Affirmed.

McGLOON and STAMOS, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ADESKO

license: Public Domain

text:
    Laura Dubin, Plaintiff-Appellee, v. Robert Dubin, Defendant-Appellant.
    (No. 58405;
    First District (4th Division)
    December 20, 1974.
    Rehearing denied January 24, 1975.

      Jason E. Bellows, of Chicago (Bellows & Bellows, of counsel), for appellant.
    Gaines, Boyer & Shepp, of Chicago (Jonah Rosenberg, of counsel), for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

On May 17, 1971, plaintiff, Laura Dubin, filed a complaint for separate maintenance in the Circuit Court of Cook County. On January 24, 1972, a decree was entered which ultimately provided for payment by defendant, Robert Dubin, to plaintiff of $100 per week. There were no children of the marriage. No appeal was taken from this decree. Subsequent to this, on April 14, 1972, defendant filed a motion to modify or terminate the payments provided for in the decree. Following a hearing, this motion was denied and defendant appeals.

It is defendant’s contention on this appeal that what is characterized as the legislative, constitutional and social status of the woman in “today’s world” has vitiated the obligation of a husband to support a wife who is childless and capable of earning her own living. Defendant further argues that this status (or change in status) was recognized by this court in Tan v. Tan, 3 Ill.App.3d 671, 279 N.E.2d 486, and that the trial court was in error when it refused to hear evidence which, it is argued, tended to prove grounds for termination under Tan as a result restricted the evidence introduced at the hearing by defendant to that which would show change of circumstances.

The trial court denied defendant’s motion to modify or terminate the payments since no material change of circumstances was demonstrated that had taken place between the time the decree was entered and the time the hearing on the motion was held. It is not claimed on this appeal that such changes in circumstances took place during this period, but rather that plaintiff was capable of supporting herself and that defendant should not then have been required to make these payments.

Defendant brings certain arguments before this court regarding plaintiff’s ability to earn a living, the very brief time of marriage prior to the entry of the decree (about IV2 years) and various other matters that may have had a bearing on the decision of this case if we were considering the initial decree for separate maintenance. However, as defendant admits in his brief, “the proceedings of the original hearings are not before the court.” All the matters raised by defendant now could and should have been presented to the trial court at the initial hearings which resulted in the granting of the decree for separate maintenance. Once raised, if defendant believed the trial court did not properly consider those matters, he should have raised them in an appeal of that decree. No appeal was taken. Defendant later attempted to bring these matters before the court during the hearing on his motion to modify or terminate payments. As this court noted in Bowman v. Bowman, 11 Ill.App.3d 719, 721, 298 N.E.2d 339:

“Although the trial court clearly has the power to terminate alimony awards, such modifications may not be made arbitrarily or capriciously. The petitioner must show that a substantial change in the circumstances of the parties has taken place since the entry of the decree. Tan v. Tan, 3 Ill.App.3d 671, 279 N.E.2d 486; Gregory v. Gregory, 52 Ill.App.2d 262, 268, 202 N.E.2d 139, 142.” (Emphasis added.)

It is clear from defendant’s own brief that the matter he attempted to raise before the trial court on the hearing to modify or terminate and before this court on appeal did not occur for the first time during the period after the decree was entered nor was there any substantial change in circumstances that would have justified modification or termination of these payments.

Defendant’s reliance upon Tan v. Tan is clearly misplaced, since in that case this court, though it took notice of the changed status of women in today’s world, affirmed the order terminating plaintiff’s alimony as there had been a showing of a substantial change of circumstances, including remarriage of the defendant since the decree and the birth of a child by that marriage since the entry of the decree. (3 Ill.App.3d at 675.) This has not been shown in the instant case.

For the foregoing reasons, the order of the Circuit Court of Cook County denying defendant’s motion will be affirmed.

Judgment affirmed.

BURMAN and JOHNSON, JJ., concur.


author: Mr. PRESIDING JUSTICE ADESKO Mr. JUSTICE BURMAN,

text:
    Sandra Yvonne Evans Jamison, Adm’rx, of the Estate of John Jamison, Deceased, Plaintiff-Respondent-Appellee, v. The City of Chicago et al., Defendants-Petitioners-Appellants.
    (No. 58916;
    First District (4th Division)
    December 20, 1974.

      Rehearing denied January 29, 1975.

    BURMAN, J., specially concurring.
    Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Harvey N. Levin, Assistant Corporation Counsel, of counsel), for appellants.
    Cummings & Wyman, of Chicago (Stanley M. Cahn, of counsel), for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The plaintiff-respondent-appellee (hereinafter plaintiff) brought suit against the City of Chicago and the individual defendants, police officers of the City of Chicago, for the wrongful death of her intestate, John Jamison. The plaintiff’s complaint was filed on December 11, 1972, and on January 22, 1973, the defendants-petitioners-appellants (hereinafter defendants) made a motion to strike and dismiss the complaint. The basis for the motion was section 4 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 4 — 102). On March 6, 1973, after hearing counsels’ arguments, the trial court denied the motion to strike and dismiss the complaint. The defendants on April 3, 1973, presented a motion to the trial court and requested the court to certify the question of the denial of the defendants’ motion to strike and dismiss the complaint pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1971, ch. 110A, par. 308). The trial court granted the motion, finding that its denial of the defendants’ motion to strike and dismiss the complaint involved a question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. The defendants filed a petition for leave to appeal and we granted the petition on May 30, 1973.

The plaintiff’s complaint alleged that on or about January 1, 1972, plaintiff’s decedent, John Jamison, was at Dunn’s Pizzeria and that he was shot dead without any cause or provocation by one James O’Malley. Tire complaint further alleged that on December 29, 30, and 31, 1971, defendants McCurrie, Weaver, Katalinich and “Unknown Persons” were guilty of willful and wanton negligence because on numerous occasions during this period the individual defendants were repeatedly requested to arrest James O’Malley by one or more of O’Malley’s sons and other persons who complained of the highly irrational and criminal behavior of O’Malley during this period, including assault and battery and assault with a deadly weapon upon one or more of O’Malley’s sons, and notwithstanding these requests defendants “in willful and wanton disregard for their duties as law enforcement officers of the City of Chicago, and in willful and wanton disregard of their duty and obligation as such law enforcement officers to protect the safety and well-being of plaintiff’s decedent, as a member of the public, did during said period willfully and wantonly decline and refuse to arrest said James O’Malley, without any lawful justification whatsoever for then refusal to do so.” An amendment to the complaint also alleged that prior to and at the time of the refusals to act, one or more of the individual defendants knew from prior experience of “the dangerous, violent, and law violating propensities of said James O’Malley.” It was alleged that the plaintiff’s intestate’s death was the direct and proximate result of the willful and wanton negligence of the defendants. As previously stated, the defendants’ motion to strike and dismiss the plaintiff’s complaint was based on section 4 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act. Defendants maintain that by virtue of this section of the Act neither public entities nor policemen are liable for failure to supply police protection. Plaintiff takes a contrary position and bases her contention on section 2 — 202 of the Illinois Tort Immunity Act. (Ill. Rev. Stat. 1971, ch. 85, par. 2 — 202.) However, due to the manner in which we view this case, it is unnecessary to deal with this issue.

The allegations and accusations within the plaintiff’s complaint are stated in a broad and general manner. The complaint does not allege any specific acts or omissions by the defendants. During the course of oral argument, plaintiff’s counsel made several factual allegations that were not contained within the complaint. Counsel stated that Daniel O’Malley, one of James O’Malley’s sons, had pleaded several times during the 3-day period in question with the individual defendants who were policemen assigned to the 8th District to arrest his father because he was brandishing a gun, threatening blacks, and had pushed his crippled son out of a wheelchair. Plaintiff’s attorney maintained that this constituted an assertion of the commission of an offense by a citizen and that the police had the power to arrest James O’Malley without a warrant. While this may be true, none of these factual allegations are found in the complaint. In addition, counsel asserted that James O’Malley had been committed to a State institution prior to murdering plaintiff’s intestate and that the police knew this and had in fact dealt with James O’Malley themselves. Counsel was questioned on this point and admitted that this was not spelled out in the complaint.

As was stated in Jarvis v. Herrin City Park District, 6 Ill.App.3d 516, 524, 285 N.E.2d 564, 570 (1972): “It is well settled in Illinois that, in order to withstand a motion to dismiss, a complaint must contain sufficient averments of fact to state a cause of action. (Stenwall v. Bergstrom (1947), 398 Ill. 377, 75 N.E.2d 864.)” We are of the opinion that on the basis of the few facts alleged in the plaintiff’s complaint there is not a sufficient allegation of willful and wanton negligence. This court is aware of the fact that pleadings should be liberally construed (Ill. Rev. Stat. 1971, ch. 110, par. 33). However, substantial averments of fact remain essential to stating a cause of action. The trial court, therefore, erred in not granting the defendants’ motion to strike and dismiss the plaintiff’s complaint.

For the reasons herein stated, the order of the Circuit Court of Cook County is reversed.

Reversed.

DIERINGER, J., concurs.

Mr. JUSTICE BURMAN,

spedafiy concurring:

I agree with the judgment of my brethren, but for a different reason. I find merit in the defendants’ contention that the trial court erred in failing to grant their motion to strike and dismiss the cause of action because the Illinois Local Governmental and Governmental Employees Tort Immunity Act specifically exempts defendants under the facts specified in the complaint.

Section 4 — 102 of that Act (Ill. Rev. Stat. 1971, ch. 85, par. 4 — 102), under “Article IV — Police and Correctional Activities,” provides:

“Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals.” (Emphasis added.)

In addition, section 4 — 107 of the Act (Ill. Rev. Stat. 1971, ch. 85, par. 4 — 107), also under article IV, unequivocally provides:

“Neither a local public entity nor a public employee is hable for an injury caused by the failure to make an arrest or by releasing a person in custody.” (Emphasis added.)

Under the clear import of the language of these sections, the defendants here could not be held liable for failing to effect die arrest of James O’Malley.

The allegation of “wilful and wanton negligence” appearing in the plaintiff’s amended complaint is derived from section 2 — 202 of the same Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 2—202), which sets the general standard for liability of a public employee in Illinois for acts or omissions “in the execution or enforcement of any law.” It provides:

“A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton negligence.”

Plaintiff claims that the defendants alleged failure to enforce the law and effect the arrest of O’Malley exposes them to liability, under section 2— 202, if that failure amounts to “willful and wanton negligence,” despite the mandate of section 4 — 102. Plaintiff asserts that the sections “must be read together” and concludes that section 2 — 202 is a limitation on the immunity granted in section 4 — 102. I disagree.

Section 2 — 202 comes under “Article II — General Provisions Relating to Immunity” and is clearly general in nature. It generally limits the liability of any public employee for any “act or omission in the execution or enforcement of any law” to “willful and wanton negligence.” Sections 4 — 102 and 4 — 107, on the other hand, appear later in the same Act under “Article IV — Police and Correctional Activities,” and are specific and categorical in nature. These sections are clearly intended to relate to the function of the police, and specify certain situations where a failure to act will not result in a local public entity’s or a public employee’s liability. Section 4 — 107 also provides immunity for the active conduct of releasing a prisoner. These specific sections are, in my opinion, meant to limit the application of section 2 — 202, and are not meant to be limited by it.

Other specific sections of the Act are intended to be construed likewise. For example, article V is concerned with “Fire Protection,” and section 5 — 102 thereunder, provides:

“Neither a local public entity that has undertaken to provide fire protection service nor any of its employees is liable for an injury resulting from the failure to suppress or contain a fire or from the failure to provide or maintain sufficient personnel, equipment or other fire protection facilities.” (Ill. Rev. Stat. 1971, ch. 85, par. 5 — 102.)

The statutory framework clearly supports the notion that the legislature intended, by subsequent specific sections in articles IV and V, such as 4 — 102, 4 — 107, and 5 — 102, to limit the effect of section 2 — 202 specifically in relation to police and fire protection. When one considers the great amount of complaints made daily by persons for protective reasons it can easily be understood why the legislature, in its wisdom, would provide the immunity to police as contained in section 4 — 102 and 4— 107 or otherwise municipalities would be exposed to limitless liabilities.

Both parties agree that probably the most extensive and comprehensive analysis of the Immunity Act is an article by David C. Baum appearing in 1966 U. Ill. L. F. 981, entitled “Tort Liability of Local Governments and Their Employees: An Introduction to the Illinois Immunity Act.” Professor Baum’s analysis supports my conclusion. In discussing whether an action based on “malice” should be maintainable under section 2— 201, providing general immunity for discretionary acts of public employes, he concludes in the affirmative, but then states:

“It should be noted, however, that malicious acts will not be actionable if they fall within specific immunities granted by sections of the Immunity Act other than section 2 — 201. Many of these sections are categorical in then language and appear to leave no room for exceptions, even where good faith is lacking.” (1966 U.Ill. L.F. 981, 1004.)

Sections 4 — 102 and 4 — 107 are clearly sections granting specific immunities. If such sections preclude an action based on “malice” under the general provisions of section 2 — 201, as Professor Baum states, they must also do so in regard to section 2 — -202, whether the action is based on “malice” or “willful and wanton negligence.”

Plaintiff contends that the construction of the Act which I adopt would “nullify and sweep away” section 2 — 202 and render it a “meaningless nullity.” This is manifestly not the case. I can certainly conceive of liability under section 2 — 202 for the acts or omissions of various public employees, other than police officers, in the execution and enforcement of various laws (e.g., other than criminal laws) which is not precluded by the specific mandates of sections 4 — 102 and 4 — 107. And of course, as plaintiff contends, section 2 — 202 might well apply to the conduct of police in certain situations not limited by article IV, e.g., shooting an innocent person while effecting the arrest of another as a result of “willful and wanton negligence.” As such, it is not apparent how the construction adopted renders section 2 — 202 a “meaningless nullity.” In fact, it is rather difficult to perceive what purpose sections 4 — 102 and 4 — 107 would serve if plaintiffs construction was intended. Plaintiff appears to read these latter sections as granting immunity in certain specific circumstances relating to law enforcement, but only for ordinary negligence, whereas section 2 — 202 has already provided for that same immunity in more general terms.

The plaintiff contends that the construction adopted is at odds with Arnolt v. City of Highland Park, 52 Ill.2d 27, 282 N.E.2d 144. That is not so. In Arnolt the complaint alleged that the plaintiff sustained injuries while riding in a car which collided with a police vehicle. No question regarding the failure of the police to prevent the commission of a crime or to effect an arrest was involved in that case, unlike in the case at bar. Thus, under the facts in Arnolt, there was no reason to consider sections 4 — 102 or 4 — 107, which were not raised as a defense. Furthermore, in so far as Arnolt implies that section 2 — 202 is applicable to police conduct, it is not inconsistent with the construction of the Immunity Act adopted in this concurring opinion. As indicated above, I agree that section 2 — 202 might well apply to police conduct, but only to the extent that such conduct is not immunized by other sections of the Immunity Act, such as sections 4 — 102 and 4 — 107.

It should finally be noted that even under case law prior to the applicability of the Tort Immunity Act, a municipality was not held liable for failing to prevent others from committing crime. (Keane v. City of Chicago, 98 Ill.App.2d 460, 240 N.E.2d 321; Adamczyk v. Zambelli, 25 Ill.App.2d 121, 166 N.E.2d 93; see also Huey v. Town of Cicero, 41 Ill.2d 361, 243 N.E.2d 214, where it was stated that independent of present statutory concepts of sovereign immunity, a municipality or its employees is generaUy not liable for failure to supply general police or fire protection. ) An exception to the general rule was recognized, however, where a special duty was owed by the police to the victim of a crime. In Gardner v. Village of Chicago Ridge, 71 Ill.App.2d 373, 219 N.E.2d 147, for example, the dismissal of a complaint was reversed. There the facts alleged were that the plaintiff was beaten by four individuals while supervising a teen club dance. The police later apprehended four suspects on the highway and held them in custody while one police officer returned to the dance hall to request the'plaintiff to accompany him and identify them. When the plaintiff arrived, the police allegedly affowed the four suspects to remain in close proximity to him. As a result, the suspects attacked him in the presence of the officers, whereby he sustained severe injuries. The appellate court stated that, although generally a municipality is not liable for failure to prevent the tortious or unlawful acts of others (citing Adamczyk v. Zambelli, 25 Ill.App.2d 121, 166 N.E.2d 93), under the alleged circumstances set out above the police owed a duty to the plaintiff to exercise reasonable care for his safety. No such duty existed in the case at bar. On this basis, however, if it were determined that the legislative intent behind sections 4 — 102 and 4 — 107 was to codify this previous case law, there might be justification for construing the Immunity Act differently in a situation where, unlike the situation here, the police had personally witnessed an assault and, with ample opportunity to do so, failed to protect persons threatened, resulting in their injury.

In view of my construction of the Immunity Act under the facts of this case, I would also reverse the judgment of the circuit court.

       Neither party discusses the applicability of section 4 — 107. I will consider plaintiff’s argument in regard to section 4 — 102 to apply also to section 4 — 107.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Albert Packer, Defendant-Appellee.
    (Nos. 60355-61 cons.;
    First District (3rd Division)
    December 19, 1974.

      Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Michael F. Baccash, and Alan L. Fulkerson, Assistant State’s Attorneys, of counsel), for the People.
    Sam Adam, of Chicago, for appellee.
   PER CURIAM.


author: Mr. JUSTICE JOHNSON.

text:
    James J. Ryan, Plaintiff-Appellant, v. The City of Chicago et al., Defendants-Appellees.
    (No. 57626;
    First District (4th Division)
    December 20, 1974.

      John C. Ambrose and Philip J. Schmidt, both of Chicago, for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Harvey N. Levin, Assistant Corporation Counsel, of counsel), for appellees.
   Opinion by

Mr. JUSTICE JOHNSON.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Allen Ilich, a/k/a Alex Ilich, Defendant-Appellant.
    (No. 59690;
    First District (4th Division)
    December 20, 1974.

      Rehearing denied January 28, 1975.

      Smith, Reilley, Bell, Weinberg and Levinson, of Chicago (James W. Reilley, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Barry Rand Elden and Paula R. Cozzi, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

At a bench trial in the Circuit Court of Cook County on April 18, 1973, the defendant, Allen Ilich, was found guilty of the offenses of theft of property valued at less than $150, criminal damage to property, and driving without a license. He was sentenced to serve 90 days in the Cook County Jail and pay a fine of $100.

The issues presented for review are whether the court abused its discretion by failing to make further inquiry into newly discovered evidence alleged by the defense subsequent to trial; whether the prosecution had suppressed information favorable to the defense; whether the defendant was proven guilty beyond a reasonable doubt; and whether the sentence was excessive.

Officer George Dooling of the North Riverside Police Department testified that on August 16, 1972, he and his partner chained a 10-speed bicycle to a fence at the Korvette Plaza parking lot in North Riverside and proceeded to observe it from a distance of approximately 100 yards. There had been a large number of bicycle thefts there, and the police were on the alert for thieves.

The defendant drove up to the bicycle in an automobile, and the sole passenger in the car got out and stood in front of the bicycle. He then walked over to the cafeteria section of the Korvette store and looked in the window. He returned to the car, spoke to the defendant, and then took out a pair of diagonal cutters from his pocket and attempted to cut the chain on the bicycle. When some people came out of the store, he went back to the car and waited about 5 minutes. He then cut the chain and motioned to the defendant who had remained in the car. The defendant proceeded to drive out of the parking lot, and the other person got on the bicycle and followed the vehicle around the comer.

When the vehicle driven by the defendant got to the rear of the párking lot, the officers stopped the car. One of the officers attempted to apprehend the person on the bicycle, but he dropped the bike in the middle of Cermak Road and escaped across the Illinois Central railroad tracks.

The bicycle was recovered in a damaged condition. The chain Was off the sprocket and the rear wheel was bent.

The defendant testified the person who stole the bicycle was a hitchhiker, named Mike, he had picked up about 10 minutes before arriving at the shopping center. Mike told him he was looking for a friend and that the bicycle staked out by the police belonged to his friend.

Several weeks after the defendant’s conviction, the defense presented a motion for a new trial, and defense counsel made the following “offer of proof.”

“I make an offer of proof, Your Honor, that I discovered after the trial that the party who actually stole the bike was discovered by the police. His name was discovered. It was furnished to the State’s Attorney and it was never furnished to the defense pursuant to our code and pursuant to case law which requires that any witness favorable to the State must be furnished to the defense. That constitutes my offer of proof.”

The court denied the motion for a new trial, and the defendant contends the court should have conducted a hearing to ascertain the accuracy of defense counsel’s offer of proof. The defendant also contends he was denied due process because the prosecution failed to disclose the name of the person who actually took the bicycle pursuant to the motion filed by the defense: “To disclose the name and addresses of any individuals who would be favorable to the defense.”

We find the arguments of the defendant on these points are not persuasive. In People v. Dukes (1960), 19 Ill.2d 532, 538-39, the court stated:

“Applications for new trials on the ground of newly discovered evidence are not regarded with favor and must be closely scrutinized. In order to justify a new trial the newly discovered testimony must be conclusive and not merely cumulative, and the evidence must appear to be of such conclusive character that it will probably change the result if a new trial is granted.” Also see People v. Brown (1970), 125 Ill.App.2d 336.

The phrase “newly discovered evidence” refers to exculpatory evidence, and there has been no showing in the instant case that the name of the principal would in any way be exculpatory. In the offer of proof defense counsel refers to the fact that any witness favorable to the State must be furnished to the defense.

When defense counsel made his offer of proof he did not present the name of any witness who could testify in support of his statement, nor did he suggest that a further proceeding would bring forward evidence to support his allegations. He gave the court a bare accusation. In Wilke v. United States (9th Gir. 1970), 422 F.2d 1298, the defendant made, a motion which the court interpreted as a motion for a new trial based on the statement of the defendant that a witness had informed him the prosecution had pressured the witness to secure his testimony against the defendant. The court denied the motion stating the information was hearsay and provided no support for a new trial motion. In the civil case of Smith v. Illinois Valley Ice Cream Co. (1959), 20 Ill. App.2d 312, the motion for a new trial was based on an affidavit submitted by an attorney associated with defense counsel relating information told him by a juror. The court denied the motion; stating that hearsay cannot be considered as a sufficient basis for a new trial motion. We hold that a mere allegation based on hearsay evidence is insufficient to constitute the “conclusive” evidence needed to support a motion for a new trial.

The defendant maintains that the failure of the prosecution to produce the name of the principal was a violation of due process. In Brady v. Maryland (1963), 373 U.S. 83, the court stated that the suppression by the prosecution of evidence favorable to an accused upon request violated due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. However, in Moore v. Illinois (1972), 408 U.S. 786, 794, the court made it clear that the heart of the holding in Brady “is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment.” Thus, the alleged failure to disclose the name of the principal was not a denial of due process because there was neither a showing nor an allegation that the information would be favorable to the defendant.

The defendant next contends he was not proven guilty beyond a reasonable doubt. He states he never got out of his vehicle and did not touch the bicycle. He relies on the case of People v. Adams (1972), 8 Ill.App.3d 62. In that case the defendants, Charles Adams and Sandra Kemp, were found in a car parked near a service station at 2 A.M., which car belonged to Charles’ brother, David. As the police officer approached the car, they ducked down in an attempt to avoid being seen. It was later discovered that the service station had been burglarized by David Adams. All three were found guilty of burglary. The court stated that in order to sustain convictions of Charles Adams and Sandra Kemp it must be established beyond a reasonable doubt that they “‘(1) * * * solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offenses; (2) that this participation must have taken place either before or during the commission of the offenses; and (3) that it must have been with the concurrent, specific intent to promote or facilitate the commission of the offenses * * (8 Ill.App.3d 62, 66.) The court held that the evidence fell short of establishing any one of the three propositions beyond a reasonable doubt.

The facts in that case are distinguishable from those at bar where there was sufficient interaction between the principal and the defendant to establish the three propositions beyond a reasonable doubt. In the instant case the defendant and the principal arrived together and left at the same time. The principal returned to the car and spoke with the defendant on two occasions, and after the principal had finished cutting the chain, he motioned to the defendant, at which time the defendant drove away.

In the case of People v. Barnes (1971), 2 Ill.App.3d 461, the court held that one may be convicted of a crime without having participated actively in overt acts, and a jury was entitled to look to surrounding circumstances to find that the defendant was not merely present but was an active participant in the crime.

After reviewing the record, we conclude there was sufficient evidence to establish that the defendant was guilty beyond a reasonable doubt.

Finally, the defendant contends the sentence of 90 days was excessive because he had no record of prior convictions. The record reveals the trial judge had the benefit of a presentence investigation report as well as the opportunity to observe the defendant, and the sentence was well within the statutory limitations. Under these circumstances we do not believe the sentence imposed was an abuse of the court’s discretion.

For these reasons the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN and JOHNSON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charlie Hendrix, Defendant-Appellant.
    (No. 59837;
    First District (4th Division)
    December 20, 1974.

      James J. Doherty, Public Defender, of Chicago (Steven Silets and Suzanne M. Xinos, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Michael J. Polelle, Assistant State’s Attorneys, of counsel), for the People,
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The defendant-appellant was convicted in a bench trial of unlawful use of weapons and possession of marijuana. He was sentenced to two concurrent 18-month terms of probation. Defendant appeals and maintains that the trial court erred in not granting his motion to suppress the gun that was recovered from the glove compartment of the vehicle defendant was driving. In addition, defendant contends that his conviction for possession of marijuana should be reversed because inadmissible hearsay evidence was utilized in obtaining the conviction.

On May 11, 1973, at approximately 12:55 A.M., defendant was driving a vehicle in the vicinity of 8 N. Wood in Chicago. He was stopped by Officer Fields of the Chicago Police Department and his partner, for driving a vehicle with an inoperative license plate light. This was a violation of the Illinois Vehicle Code, Section 12 — 201(b). (Ill. Rev. Stat. 1973, ch. 951/2, par. 12 — 201 (b).) Officer Fields asked the defendant to produce his driver’s license but he did not have one. Defendant had a learner s permit which requires that a licensed driver with at least 1 year’s experience be seated next to the person driving on such an instruction permit. (Ill. Rev. Stat. 1973, ch. 95½, par. 6 — 105(a)(1).) There was no one accompanying the defendant. Officer Fields testified that upon defendant’s failure to produce a driver’s license he was arrested. Officer Fields then searched the glove compartment of the vehicle and found a .32-caliber revolver. In regards to the purpose of the search Officer Fields stated, “I was looking for identification of the vehicle.” Officer Fields stated that at the time he searched the glove compartment the defendant was approximately 15 feet away from the vehicle. Fields also testified that after the defendant was arrested he was not allowed access to the automobile. Defendant was then transported to a police station and a search of his person was made. A tea bag containing a substance suspected to be marijuana was found and was submitted to the crime laboratory for analysis.

At trial Officer Fields was asked if a pat-down search was made at the scene of the stop and he responded, “After he was placed under arrest for the no-driver’s license we were going to put him in our squad car and we patted him down for our own protection.” Officer Fields also stated that his partner detained the defendant while he searched the glove compartment and that he had no fear of harm from the defendant as he conducted the search.

During the direct examination of Officer Fields, the assistant State’s Attorney introduced into evidence the Chicago Police Department crime-laboratory report of the analysis that had been made on the tea bag taken from the defendant. Officer Fields was asked if the report being introduced was the report he received from the crime laboratory and he responded affirmatively. Defense counsel stipulated that the substance analyzed by the crime laboratory was the same substance taken from the defendant. However, defense counsel would not stipulate that the total substance was marijuana. He stated, “Some of it was seeds and twigs, so that the total weight wasn’t 3.28 grams.” The assistant State’s Attorney then read the report into the record without objection from defense counsel. The report indicated the total weight of the substance taken from the defendant was 3.28 grams and consisted of crushed green plants, seeds and twigs. The substance was subjected to microscopic and chemical identity tests which revealed the presence of marijuana. The chemist who made the analysis did not testify.

The trial court, as indicated previously, rendered a judgment of guilty on both offenses. After a hearing in aggravation and mitigation, the defendant was sentenced to two concurrent terms of 18 months’ probation.

We are of the opinion that the trial court did err in not granting the defendant’s motion to suppress the gun, and therefore the conviction on the unlawful use of weapons charge must be reversed. There can be no doubt but that a search did occur in the case at bar. As stated in People v. Davis, 33 Ill.2d 134,138, 210 N.E.2d 530, 532 (1965), “A search implies a prying into hidden places for that which is concealed, and it is not a search to observe that which is open to view. People v. Heidman, 11 Ill.2d 501; People v. Marvin, 358 Ill. 426.” The gun recovered from the glove compartment of the vehicle the defendant was driving was concealed and not in plain view. While a search incidental to a lawful arrest can be made, there are boundaries beyond which such a search cannot transcend.

The circumstances in which a search incident to arrest is permissible were well stated by our supreme court in People v. Watkins, 19 Ill.2d 11, 18-19, 166 N.E.2d 433, 437 (1960). The court there stated: “A search incident to an arrest is authorized when it is reasonably necessary to protect the arresting officer from attack, to prevent the prisoner from escaping, or to discover fruits of a crime.” The boundaries beyond which a search incident to a lawful arrest cannot extend were established by the United States Supreme Court in Chimel v. California, 395 U.S. 752, 762-63, 23 L.Ed.2d 685, 694, 89 S.Ct. 2034, 2040 (1969):

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”

When the circumstances surrounding the search conducted in the case at bar are considered in light of the foregoing principles, it cannot be held that the search was a permissible search incidental to a lawful arrest.

Officer Fields testified that after the defendant was arrested, he was not permitted access to the vehicle and at the time the vehicle was searched the defendant was approximately 15 feet away. In addition and most importantly, Fields stated that at the time he searched the vehicle he was under no fear of harm from the defendant. It is, therefore, apparent that the search conducted in the instant case was not authorized under the principles of the Watkins decision and exceeded the boundaries of a search incident to a lawful arrest as outlined in Chimel, supra. The search was not reasonably necessary to protect the arresting officer, to prevent the defendant from escaping, or to discover fruits of a crime. In addition, the area searched was not that within which the defendant might have gained possession of a weapon or destructible evidence. Defendant was 15 feet away from the vehicle and being detained by Officer Fields’ partner.

We agree with the State’s contention that searches incidental to traffic offenses are not automatically invalid. However, the law relating to such searches has also been well established. As stated in People v. Davis, supra, at page 138:

“This court has often dealt with the rights of the police to search the driver and his automobile following an arrest for a traffic violation. In People v. Thomas, 31 Ill.2d 212, we set forth the principle that if circumstances reasonably indicate that the police may be dealing not with the ordinary traffic violator, but with a criminal, then a search of the driver and his vehicle is authorized in order

to insure the safety of the police officers and to prevent an escape.” There is nothing in the record to indicate that Officer Fields and his partner could have reasonably suspected that the defendant was anything other than an ordinary traffic violator. The State has referred this court to the two recent United States Supreme Court cases of United States v. Robinson, 414 U.S. 218, 38 L.Ed.2d 427, 94 S.Ct. 467 (1973), and Gustafson v. Florida, 414 U.S. 260, 38 L.Ed.2d 456, 94 S.Ct. 488 (1973). However, those cases involved searches of the person of a traffic violator. While the Supreme Court held that a full and thorough search of the person could be made incidental to a lawful custodial arrest for a traffic violation, there is nothing in either of these cases to warrant validating the search conducted in the case at bar.

The State also cited the cases of Application of Kiser 419 F.2d 1134 (8th Cir. 1969), and Berlin v. State, 12 Md.App. 48, 277 A.2d 468 (1971), in its attempt to justify as reasonable the search conducted in the case at bar. However, both cases are easily distinguishable. In Kiser, the defendant was arrested for grand larceny of a gun. At the time of the arrest, Kiser was standing next to an automobile and a policeman removed a blanket and uncovered two guns in the back seat of the vehicle. The court held that the search was reasonable because Kiser was within “leaping range” of the guns in the back seat. In the instant controversy, the defendant was approximately 15 feet away from the vehicle and well outside the area of ready accessibility to the weapon. In Berlin the evidence seized was a few feet from the arrestee when it was confiscated. The court held the search and seizure as valid as incidental to a lawful arrest. The court stated at page 57: “The area of immediate control cannot be measured in feet, or by an arm’s length, but is to be measured reasonably with respect to the accessibility of the articles and their nature.” In the case at bar when we view the area of immediate control reasonably and with respect to the accessibility and nature of the article seized, no other conclusion can be reached but that the search was improper. The revolver was in a closed albeit unlocked glove compartment; the defendant was approximately 15 feet away from the vehicle; and the defendant was being detained and controlled by a police officer. Under these circumstances the search was clearly unreasonable and violative of the defendant’s constitutional right to protection against unreasonable search and seizure.

The revolver seized and introduced into evidence in the case at bar was the fruit of an unreasonable search and should have been suppressed. (Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684 (1961).) Without this evidence the defendant’s conviction for unlawful use of weapons could not have been obtained and therefore, the conviction on that charge must be reversed.

Defendant also contends that his conviction for possession of marijuana must be reversed because the State introduced inadmissible hearsay evidence in obtaining the conviction. As previously stated, during trial the assistant State’s Attorney read into evidence the report of the chemical analysis that had been made on the substance taken from the defendant. This report had been made by the Chicago Police Department crime laboratory but the chemist who conducted the analysis did not testify. However, at the time the report was read and introduced into evidence no objection was made by the defendant’s attorney. It is a well established rule of law that failure to object constitutes a waiver of the objection and that the issue cannot be raised for the first time on appeal. (People v. McAdrian, 52 Ill.2d 250, 287 N.E.2d 688 (1972); McElroy v. Force, 38 Ill.2d 528, 232 N.E.2d 708 (1967).) We do not believe the circumstances of this case warrant consideration of this issue under the plain error doctrine. (Ill. Rev. Stat. 1973, ch. 110A, par. 615(a).) Therefore, the defendant’s conviction for possession of marijuana is affirmed.

For the reasons herein stated, the judgment of the Circuit Court of Cook County is reversed in part and affirmed in part.

Reversed in part and affirmed in part.

DIERINGER and JOHNSON, JJ., concur.


author: Mr. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Boney, Defendant-Appellant.
    (No. 59274;
    First District (4th Division)
    December 20, 1974.
    Paul Bradley and Howard B. Augustus, of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Thomas D. Rafter, Assistant State’s Attorneys and William E. Bogner, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

Defendant, Michael Boney, was charged in each of three indictments with aimed robbery, attempt murder, and aggravated battery. Pursuant to his negotiated plea of guilty, defendant was sentenced to serve 9 to 20 years on the armed robbery and attempt murder charges, and 1 to 10 years on the aggravated battery charges, the sentences to run concurrently. On appeal defendants sole contention is that he should be permitted to plead anew. He asserts that in accepting his guilty plea, the court violated Supreme Court Rule 402(b) since it failed to inquire “whether any force or threats or any promises, apart from a plea agreement, were used to obtain the plea.”

Briefly, the facts,stipulated to on the charges are as follows. On April 18, 1972, the defendant armed himself with a sawed-off .22-caliber rifle. At 7:30 P.M. he stole money from one victim, and shot him in the neck. At 10:15 P.M. he entered the apartment of another victim, stole various articles, and shot him in the shoulder. At 10:35 P.M., while riding as a passenger, he robbed and shot a cab driver in the stomach.

A review of the record discloses that the public defender was appointed to represent defendant at trial. After a discussion with his counsel and the State’s Attorney, defendant plead guilty. Before accepting his guilty plea, the court made several pointed inquiries. The court asked defendant whether he was satisfied with his attorney. He responded affirmatively. The court informed him that he had the right to remain silent, to receive a trial by jury or the court, to confront and cross-examine witnesses, and to expect the State to prove each charge beyond a reasonable doubt. When asked whether he was aware that by pleading guilty he would waive those rights, defendant answered in the affirmative. Thereafter, the court read each charge of the indictments to defendant. He stated that he understood them, that he had no questions, and that he wished to plead guilty to all charges because he had in fact committed the crimes. The court explained the consequences of each plea by stating the minimum and maximum sentences that he could receive. The court further explained that it was not bound by the agreement to plead guilty, and that a sentence could be imposed in excess of that agreed to by the State. Defendant said that he understood. At no time did the court specifically ask the defendant whether his plea was coerced in any maimer.

Supreme Court Rule 402 provides in relevant part:

“In hearings on pleas of guilty, there must be substantial compliance with the following:
# # #
(b) * * * The court shall not accept a plea of guilty without first determining that the plea is voluntary. # # * The court, by questioning the defendant personally in open court, shall confirm the terms of the plea agreement, or that there is no agreement, and shall determine whether any force or threats or any promises, apart from a plea agreement, were used to obtain the plea.”

Defendant does not claim that his guilty plea was coerced by any force or threats, or that promises were made to him to obtain his plea. Rather, he contends that regardless of the circumstances, Supreme Court Rule 402(b) imposes an affirmative duty upon the court to specifically inquire into these matters, and that failure to make such inquiry is error entitling defendant to the opportunity to plead anew. In our opinion, Rule 402(b) does not contemplate such ritualistic questioning nor mechanical application.

We note from the outset that by its very terms Rule 402 requires only “substantial compliance” with its precepts; and when viewed as a whole, the clear intent of the Rule is to enforce those safeguards as set forth in Boykin v. Alabama, 395 U.S. 238. In Boykin the United States Supreme Court held that the record must affirmatively establish that the guilty plea was made intelligently and voluntarily. We have held before, that Rule 402 does not require strict adherence to every rule, but rather requires only substantial compliance sufficient to safeguard the rights of the accused. (People v. Krassel, 12 Ill.App.3d 64, 298 N.E. 2d 384.) We have further held that it is not invariably necessary for the court to inquire whether the plea was induced by promises, force or threats. (People v. Campbell, 13 Ill.App.3d 237, 300 N.E.2d 568.) The Rule only requires that the judge determine whether the plea is voluntary and intelligent. Thus, while its objective is fixed, its application is flexible. See People v. Ellis, 16 Ill.App.3d 282, 306 N.E.2d 53.

It is readily apparent from a reading of the whole record that the plea was voluntarily made without any threats or promises to obtain it. By thoroughly questioning the defendant in open court, clearly the trial judge acquired an ample factual basis upon which to make such a determination. He fully advised the defendant of his rights, and the defendant comprehended the consequences of his plea. We have examined the cases cited by the defendant and are not persuaded that the cause should be reversed and remanded so the defendant may plead anew.

For the foregoing reasons the judgment of the circuit court is affirmed.

Affirmed.

DIERINGER and JOHNSON, JJ;, concur.