author: JUSTICE REINHARD

text:
    WILLIAM JONES, Ex’r of the Estate of Gerard Kloss, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF MUNDELEIN et al., Defendants-Appellees.
    Second District
    No. 2 — 89—1166
    Opinion filed October 26, 1990.
    Rehearing denied December 4, 1990.
    Dunlap & Brown, Ltd., of Libertyville (Robert W. Brown, of counsel), for appellant.
    Rosing, Magee & Applehans, Ltd., of Waukegan (Charles F. Marino, of counsel), for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, William Jones, executor of the estate of Gerard Kloss, appeals from an order of the circuit court of Lake County affirming on administrative review the decision of the Board of Fire and Police Commissioners of the Village of Mundelein (Board), defendant, which found that Gerard Kloss had violated certain rules and regulations of the Board and that this violation was cause for his discharge as a Mundelein police officer.

We briefly review the procedural history of this cause. On October 10, 1978, the chief of police of the Village of Mundelein filed charges against Gerard Kloss, a 10-year member of the Mundelein police department, alleging that Kloss violated certain rules and regulations of the Board on October 9, 1978. The substance of the charges was that Kloss, while off duty and in his apartment, yelled, kicked, screamed profanities and threatened to kill a police officer while aiming a gun at him. Following a hearing, the Board found Kloss had violated its rules and regulations and discharged him as a police officer. On administrative review, the circuit court reversed the Board and found that the Board’s decision of guilt as to the charges and cause for discharge was against the manifest weight of the evidence.

On appeal to this court, we held that the circuit court had erred in finding that the Board’s decision on the guilt of the charges was contrary to the manifest weight of the evidence. (Kloss v. Board of Fire & Police Commissioners (1982), 108 Ill. App. 3d 8, 438 N.E.2d 685.) A majority of the court further held, nevertheless, that Kloss’ misconduct was unrelated to the requirements of service and, therefore, did not constitute sufficient cause for discharge. (108 Ill. App. 3d at 13-14, 438 N.E.2d at 689.) The court remanded for appropriate disciplinary action short of discharge. 108 Ill. App. 3d at 14, 438 N.E.2d at 690.

On further appeal to the Illinois Supreme Court in Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 252, 449 N.E.2d 845, the supreme court held: “We agree with the circuit court that the record does not support a finding that plaintiff was guilty of wilful misconduct; accordingly, the board’s determination was contrary to the manifest weight of the evidence.” (96 Ill. 2d at 258, 449 N.E.2d at 849.) In addition to that determination, the court decided that the appeHate court also incorrectly held that Kloss’ “behavior and the type of discipline selected were unrelated to the needs of the police force or the viUage of Mundelein.” (96 Ill. 2d at 259, 449 N.E.2d at 849.) The court also agreed with Kloss’ contention that the Board’s decision to discharge him was arbitrary and unreasonable because it was made without the benefit of more complete medical evidence and without regard to his otherwise unblemished record. 96 Ill. 2d at 259, 449 N.E.2d at 849.

The dispositional paragraph of the supreme court’s decision recites as follows:

“For the reasons stated, the judgment of the appellate court is reversed. In the circumstances presented here we must also vacate the circuit court’s order reinstating plaintiff without requiring any further inquiry into his capacity to serve. We consider it more appropriate to remand the matter to the board so that it may, on the basis of further action not inconsistent with this opinion, determine a proper disposition. Cf. Kreiser v. Police Board (1977), 69 Ill. 2d 27, 31; Basketfield v. Police Board (1974), 56 Ill. 2d 351, 361.” (96 Ill. 2d at 260, 449 N.E.2d at 849.)

The mandate in the cause was issued on June 16,1983.

On remand, Kloss initially filed a motion for declaratory judgment and injunctive relief, contending that the Board lost jurisdiction because no hearing was held within 30 days after issuance of the supreme court’s mandate. The motion was denied. That decision was affirmed on appeal to this court in Jones v. Board of Fire & Police Commissioners (1984), 127 Ill. App. 3d 793, 469 N.E.2d 393. Kloss died on December 7, 1983, during the pendency of this appeal, and William Jones, the executor of his estate, was substituted for him.

Once again proceedings began before the Board on the remandment from the supreme court’s decision. The parties apparently agreed that interpretation of the supreme court’s decision required the Board to allow medical evidence regarding the incident on October 9, 1978, as a continuation of the original hearings begun in November 1978. These hearings were conducted from September 25, 1986, through December 16, 1986. As only one of the present board members had served on the Board at the original hearings, the new board members, by agreement of the parties, also read the transcript of the original proceedings.

The Board heard testimony from five treating physicians and two psychiatrists. Dr. Francis Jeffords had treated Kloss for approximately eight years from 1970 to 1978. Dr. Jeffords testified that in 1970 Kloss had a fatty liver which is commonly associated with excessive drinking of alcohol. Dr. Jeffords advised Kloss of this situation. While treating Kloss, Dr. Jeffords prescribed Darvon, Tylenol with codeine, Motrin, Talwin, Elavil and Tranxene.

Dr. John Ring testified that in 1968 Kloss admitted that he was abusing alcohol. In November 1968, Dr. Ring prescribed Librium for Kloss. Dr. Ring testified that it was his practice to. tell patients not to mix tranquilizers, like Librium, and alcohol and that he would have made Kloss aware of the dangers of mixing prescription drugs and alcohol. In February 1971, Dr. Ring diagnosed Kloss as having cirrhosis of the liver. Dr. Ring continually told Kloss to stop drinking alcohol and finally told Kloss, “Jerry, you’re killing yourself.”

Dr. James McClure testified that he examined Kloss the morning after the incident. At that time, Kloss was alert, oriented and aware of what happened the previous night. Dr. McClure’s admitting diagnosis was that Kloss had an acute psychotic break. Dr. McClure further stated that a person who took Librax, Tagamet, Neo-Synephrine, Dimetapp and Robinul and resumed drinking alcohol after a two-year abstinence would “get drunk quicker.”

Dr. John Hofstra treated Kloss after the incident. Dr. Hofstra thought the incident was the result of a dissociative episode. According to Dr. Hofstra, Kloss had a problem with drinking. Dr. Hofstra thought Kloss might be capable of returning to work after the incident. However, he said, returning to work was going to be a problem.

Dr. Raymond Gavery diagnosed Kloss on September 19, 1978, as having a peptic ulcer and prescribed Tagamet, Librax and Robinul. Although Dr. Gavery was unable specifically to recall warning Kloss, it was his practice to warn patients of the potential dangers of mixing medication with alcohol. After the incident, Dr. Gavery concluded that Kloss was unable to continue working as a police officer and stated that Kloss’ “mental condition was getting to a point where we felt he really wasn’t fit to be a policeman.”

Dr. John Adams, a psychiatrist retained by the Board, opined that Kloss’ actions were the product of imprudent behavior and that the developments of the incident were the product of behavior that Kloss could have averted. Dr. Adams, whose opinions were based solely on Kloss’ medical records, stated that Kloss knew or should have known of the consequences of mixing alcohol with the medication he was taking at the time. Dr. Adams based his opinion on the following factors. First, Kloss had a long and intimate association with alcohol, and Kloss was an intelligent person. Next, Kloss had been a member of Alcoholics Anonymous, which teaches the results of mixing alcohol with drugs. Further, Kloss was an experienced police officer. Also, Kloss had been taking the medication for weeks and did not have any adverse reactions; the reaction only happened when he mixed the medication with alcohol. Dr. Adams also concluded that Kloss was unable to return to work as a police officer after the incident.

Dr. Ronald Baron, a psychiatrist retained by plaintiff, testified that on the night of the incident Kloss was severely mentally impaired and did not realize the significance of what he was doing. According to Dr. Baron, Kloss suffered an acute psychotic reaction known as delirium. Dr. Baron stated that Kloss had told him no doctors had warned Kloss about mixing medication and alcohol. Although Kloss knowingly resumed drinking alcohol, Dr. Baron stated that Kloss thought the beer would not affect him. Although Dr. Baron agreed that a person with Kloss’ background would be aware of the dangers of mixing alcohol with prescription medication, Dr. Baron thought Kloss believed it was safe to mix based on Kloss’ own experience. Dr. Baron opined that on one level Kloss knew it was dangerous to mix drugs and alcohol. However, on another level — his experience of doing it before without effects — Kloss thought it was safe to mix. Dr. Baron agreed that it was standard medical practice to warn patients not to mix alcohol with certain medications. Dr. Baron also admitted that Kloss may not have been able to serve as a police officer after the incident because Kloss “was reaching the end of his rope psychologically.”

In addition to the medical testimony, the Board also heard the testimony of Mrs. Debra Kloss, Kloss’ widow, who was Kloss’ fiancee at the time of the incident. For the period Mrs. Kloss had known Kloss, she had not seen him drink alcohol until the night of the incident. She also knew that he was attending Alcoholics Anonymous meetings. Mrs. Kloss testified that Kloss seemed to be in complete control of his decision to start drinking again. When Kloss first started drinking she asked, “Why start now?” Kloss replied that he could handle it. When Kloss had the second drink, she again questioned him, and he said it was no problem. Although Mrs. Kloss testified that in her opinion Kloss was not intoxicated, Kloss asked her to drive and while in the restaurant Kloss “became quite friendly with just about everybody there, like everybody was his best friend.”

The Board also received into evidence several letters commending Kloss for his actions as a police officer. These letters commended Kloss for finding a witness to an accident, preventing a car from rolling into a busy highway, helping a distraught mother and notifying a church that its doors were unlocked.

In a six-page order, the Board found, in pertinent part, that “[cjonsidering the medically related aspects of this case, [Kloss’] return to alcohol, particularly while taking prescription drugs having narcotic or sedative effects, cannot be considered as an acceptable excuse for his behavior in violation of this Board’s Rules and Regulations.” The Board further found that “cause existed for the discharge” and Kloss “was not capable of continuing to serve as a police officer.” The circuit court on administrative review affirmed these findings.

Plaintiff raises the following issues on appeal: (1) whether the Board’s decision that found Kloss’ actions were caused solely by the consumption of alcohol, which Kloss should have known would have a synergistic effect when consumed with his taking of prescription drugs, was against the manifest weight of the evidence; (2) whether the Board’s decision to discharge was contrary to the manifest weight of the evidence; (3) whether the Board was biased; and (4) whether the Board failed to follow the mandate of the supreme court which precluded discharge.

In considering the points raised by plaintiff on appeal and the proceedings following remand from the supreme court’s decision, we necessarily must examine the supreme court’s resolution of the issues before it and the disposition of those issues. The parties proceeded on remand to the Board to relitigate both the issues of guilt of the charges against Kloss and cause for his discharge. We do not believe that this was the correct procedure pursuant to the mandate of the supreme court, which is as follows:

“It is the decision of this court that the order of the Appellate Court for the Second District be REVERSED insofar as it determined that the Circuit Court erred in finding the Board’s decision was contrary to the manifest weight of the evidence; and that the order of the Circuit Court of Lake County be VACATED insofar as it reinstated Gerald [sic] Kloss without further inquiry into his capacity to serve as a police officer. This cause is remanded to the Board so that it may avail itself of the opportunity to take further evidence to determine a proper disposition of this matter.”

A careful examination of the opinion of the supreme court reveals that the court specifically agreed with the circuit court that the record in the initial hearing does not support a finding that Kloss was guilty of wilful misconduct, the standard employed in evaluating Kloss’ conduct, and concluded that the Board’s determination was contrary to the manifest weight of the evidence. (Kloss, 96 Ill. 2d at 258, 449 N.E.2d at 849.) The dispositional portion of the opinion (Kloss, 96 Ill. 2d at 260, 449 N.E.2d at 849), accordingly, reversed our appellate court opinion which was to the contrary. Nevertheless, the supreme court vacated the circuit court’s order which had reinstated Kloss as a police officer “without requiring any further inquiry into his capacity to serve.” It is apparent that the supreme court found that reinstatement would be inappropriate without further inquiry into Kloss’ capacity to serve because of evidence in the record of irrational behavior and Kloss’ “potential psychological problems” which had occurred while the hearings were being scheduled. Kloss, 96 Ill. 2d at 259, 449 N.E.2d at 849.

In view of the supreme court’s findings for Kloss on the initial guilt stage of the two-step process of reviewing an administrative agency’s decision, there was no authority for the Board on remand to reconsider his guilt of the charges against him and to proceed to determine cause for discharge. The sole purpose of remandment was for the Board to determine Kloss’ “capacity to serve.” If a cause is remanded, the circuit court, and in this case the Board, can take only such action which conforms to the judgment of the court of review. PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 305, 427 N.E.2d 563; Gluth Brothers Construction, Inc. v. Union National Bank (1989), 192 Ill. App. 3d 649, 657, 548 N.E.2d 1364.

We are not unmindful that the supreme court opinion, in discussing the issue of whether Kloss’ behavior and the requirements of discipline selected were unrelated to the needs of the police force or the Village of Mundelein, may have misled the parties into believing that the issues of guilt of the charges and cause for discharge may have been still viable on- remand. However, the supreme court’s consideration of that issue, although unnecessary to resolve the case, was warranted because of our erroneous conclusion to the contrary in our appellate court opinion.

While the parties to this appeal proceeded contrary to the mandate and have not raised this issue on appeal except to respond to our inquiry at oral argument, we are obligated to interpret and follow the mandate of our supreme court in its prior opinion. Consequently, we do not address the issues raised or the Board’s motion to strike certain portions of plaintiff’s brief taken with the case but reverse the order of the circuit court affirming the Board.

Had the Board proceeded in accordance with the opinion of the supreme court and held a hearing to determine Kloss’ “capacity to serve” upon the filing of the mandate in the circuit court on June 20, 1983, a decision could have been rendered by the Board on that issue. The Board, however, did not do so, and Kloss died on December 7, 1983. Inasmuch as the original charges against Kloss were not proved, Kloss would have been entitled to reinstatement by the Board as a police officer unless he was found not to have the capacity to serve. Because no proceedings were undertaken by the Board prior to Kloss’ death to determine this issue as directed by the supreme court, Kloss was a police officer at the time of his death.

While we are fully cognizant from facts in this record of the hearings in 1986 that Kloss may not have had the capacity to serve as a police officer at some point in time after the incident on October 9, 1978, this limited evidence was elicited only incidental to the erroneous continuation of the hearing on the original charges against Kloss and was not an issue raised or decided in the Board hearings. We, therefore, find that, because Kloss was entitled to reinstatement as a police officer unless the Board found he did not have the capacity to serve, and the Board having made no such finding prior to his death on December 7, 1983, Kloss was a police officer at the time of his death and was entitled to back pay and other benefits of a Mundelein police officer at that time.

The judgment of the circuit court of Lake County is reversed.

Reversed.

WOODWARD and DUNN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GEIGER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL L. KRAMER, Defendant-Appellant.
    Second District
    No. 2 — 89—0629
    Opinion filed October 25, 1990.
    Rehearing denied December 4, 1990.

      John R. Corneille, of Cliffe, Foster & Corneille, of De Kalb, for appellant.
    Michael R Coghlan, State’s Attorney, of Sycamore, and Eleesha Pastor O’Neill, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

Following a bench trial, the defendant, Michael Kramer, was convicted of knowingly and unlawfully producing more than 20 but not more than 50 Cannabis sativa plants (Ill. Rev. Stat. 1987, ch. 56V2, par. 708(c)). On appeal the defendant raises two issues: whether the trial court should have suppressed the evidence as the fruit of an illegal search; and whether he was proved guilty of the offense beyond a reasonable doubt. We reverse and remand.

On October 18, 1988, the defendant was approximately three months behind in his rental payments. His landlord, Joseph Vilona, entered the defendant’s apartment to make an inventory of the defendant’s personal property for seizure in connection with a distraint, or distress for rent action. (Ill. Rev. Stat. 1989, ch. 110, par. 9 — 301 et seq.) While in the apartment, Vilona discovered plants which he believed were Cannabis sativa. He relied upon his 10 years as a military policeman to identify the plants.

Mr. Vilona called the DeKalb police and Officer Probasco responded. Vilona met Probasco outside the building and excitedly told Probasco that he had found something in an apartment. He did not specify what he had found. The men entered the apartment, and Vilona showed Probasco the plants. Probasco seized plants which later tested positive for cannabis.

The defendant filed a motion to suppress the plants on the grounds that there had been no exigent circumstances and that he had not consented to the warrantless search. The court, in denying the motion, explained that because the defendant was in default as a tenant, the landlord was lawfully in the apartment to exercise his right to distraint. The court reasoned that based upon his right to enter and possess the apartment for that purpose, the landlord had a right to apprise the authorities of contraband. Lastly, according to the court, where the landlord was exercising distraint, he could consent to a search.

Following a bench trial, the court found the defendant guilty and entered a conviction. The defendant brought this appeal. On appeal the defendant first contends that the evidence of the plants should have been suppressed because the plants were seized illegally. He argues that the search and seizure were constitutionally prohibited because they were not authorized by warrant, not based on exigency, and not supported by valid consent. Particularly regarding consent, the defendant argues that the landlord’s consent was constitutionally ineffective where the lease remained intact and the landlord had no “common authority” over the apartment. On the consent issue, the defendant relies primarily upon People v. Sedrel (1989), 184 Ill. App. 3d 1078.

In Sedrel, the defendant’s lease provided for a five-day rent payment grace period. On the Monday following Thanksgiving the defendant’s rent was three days overdue. On that day the landlord, who had been unable to reach her earlier, entered defendant’s apartment to determine if she still resided there. Thereafter, he reported to police that he had seen suspected contraband in the apartment. The police entered the apartment without a search warrant, field tested and determined that the suspected substance contained cocaine, and only later obtained a warrant.

The Sedrel court reversed the defendant’s conviction, finding that the search and seizure were unreasonable. According to the court, the landlord lacked authority to consent to the search, and there were no other applicable exceptions to the warrant requirement. In reaching its conclusion, the Sedrel court specifically noted the short term of the defendant tenant’s default and found that the lease had not expired or been terminated. (184 Ill. App. 3d at 1081.) It noted that, generally, during the pendency of a lease a landlord cannot validly consent to search of a leased premises. 184 Ill. App. 3d at 1079-80, citing Chapman v. United States (1961), 365 U.S. 610, 5 L. Ed. 2d 828, 81 S. Ct. 776.

The Sedrel court specifically found that the defendant’s delayed payment was not sufficient to lead one to the conclusion of abandonment; it also rejected the State’s argument that the lease provision allowing the landlord to enter the apartment at reasonable times to repair or inspect authorized the consent. The court commented that the case might have been closer if the police could have obtained a search warrant prior to entering the apartment — something they could not do because of the landlord’s unfamiliarity with the appearance of the suspected contraband. 184 Ill. App. 3d at 1081.

The State argues that Sedrel is distinguishable. It first emphasizes that, in the present case, the State did not rely on the landlord’s right to enter under the defendant’s lease to justify the search. It notes that the rent here was months overdue and that the landlord was executing a distraint warrant. The State also emphasizes that unlike in Sedrel, where the landlord could not have supplied sufficiently certain information to support a search warrant, here the landlord was able to identify positively the contraband and could have provided information to support a warrant had he fully informed the police prior to their entry.

The State argues that this case is more nearly analogous to United States v. Botsch (2d Cir. 1966), 364 F.2d 542. There, the court upheld a warrantless search of a storage shanty on the basis of the landlord’s consent. In Botsch the consenting landlord had arranged with the defendant to sign for deliveries to the shanty. With the defendant’s express authorization, he paid freight charges for the defendant and used a key to open the shanty for the defendant’s deliveries. Those deliveries flowed from a suspected fraudulent delivery scheme which was the focus of the search. 364 F.2d at 547.

As the Botsch court emphasized, the landlord there had been made a passive, innocent accomplice in illegal activities. He had an active and direct, although innocent, involvement; consequently, he had a vital interest in cooperating with authorities promptly and voluntarily to exculpate himself. (364 F.2d at 548.) In this case, on the contrary, landlord Vilona had no intertwining with the defendant’s apparently illegal activities. There is no evidence that his connection with the defendant extended beyond leasing the apartment. We find that the landlord here had no need to enable a search in order to relieve himself of suspicion. (Cf. 364 F.2d at 548.) Consequently, we find that the State’s suggested analogy to Botsch is unpersuasive.

We also are unpersuaded by the State’s reliance upon United States v. Diggs (3d Cir. 1976), 544 F.2d 116. There, the defendant had given his father-in-law a locked box for safekeeping; the father-in-law subsequently learned that the defendant had been arrested for armed robbery. The Diggs court held that the custodian father-in-law had risked being unwittingly involved in an offense and that he had a vital personal interest in the box which constituted a sufficient relationship to entitle him to give permission to search its contents. 544 F.2d at 119, 122.

Diggs, like Botsch, is distinct from this case. In this case, there was no indication that the landlord was exposed to some risk of implication in an offense unless he consented to the apartment’s search. We do not find that the landlord’s mere discovery of the cannabis plants established a sufficiently significant interest to entitle him to consent to a search.

Furthermore, we do not find that the landlord’s authority to distrain supported warrantless police involvement. The State correctly observes that under the provisions of distraint or distress for rent under the Forcible Entry and Detainer Act (the Act) (Ill. Rev. Stat. 1989, ch. 110, par. 9 — 301 et seq.), landlord Vilona had the authority to enter the defendant’s apartment to seize his tenant’s personal property for unpaid rent. Also according to the State, the landlord effectively became a bailee holding the defendant’s personal property pending a court’s awarding title to him. Nevertheless, assuming for the sake of argument that both those observations are accurate, the State fails to justify the particular police involvement here.

We note that it has been held that active police involvement in distraint seizure, a process intended for private citizen action, violates the Act. (See Greco v. Guss (7th Cir. 1985), 775 F.2d 161, 166 (interpreting the Act); USA I Lehndorff Vermoegensverwaltung v. Cousins Club, Inc. (1976), 64 Ill. 2d 11.) Furthermore, although this is not a case where the police attempted to evade the warrant requirement, we are aware of no basis upon which to determine that the landlord’s personal authority for a distraint action against the defendant afforded him authority to consent to police involvement on the defendant’s premises. As in Sedrel, no other exception to the warrant requirement applies.

We find that Sedrel, with its recognition of limitations on a landlord’s authority to consent to the search of a tenant’s apartment, controls. The record shows that despite the defendant’s default, his lease was in force at the time of the search. (See Soltwisch v. Blum (1973), 9 Ill. App. 3d 760, 763.) Furthermore, the record does not show that the landlord had some special relationship to the apartment to support his authority to consent.

The State argues that even if the landlord did not have the authority to consent to the search, the seizure still may be upheld under United States v. Jacobsen (1984), 466 U.S. 109, 80 L. Ed. 2d 85, 104 S. Ct. 1652. In Jacobsen, employees of a freight company found bags of cocaine in a damaged package. The employees then notified the Drug Enforcement Administration, whose agents reopened the package and seized the cocaine. The Court held that the seizure did not violate the fourth amendment because the privacy interests of the defendant had already been frustrated by a private citizen. (Jacobsen, 466 U.S. at 126, 80 L. Ed. 2d at 102, 104 S. Ct. at 1663.) Although the State claims that Jacobsen is directly analogous, its reliance is misplaced. As this court clearly explained in People v. Vought (1988), 174 Ill. App. 3d 563, 568, the Jacobsen holding did not apply to searches of premises. Thus, the search cannot be justified under the Jacobsen rationale.

Finally, the State argues that the seizure may be justified on the theory of apparent authority. The Supreme Court has recently accepted the theory of apparent authority to consent to a search of premises. In Illinois v. Rodriguez, the Court explained that a search is not unreasonable and does not constitute a violation of the fourth amendment if the police reasonably, even if incorrectly, believe that the person who gives consent has authority to do so. Illinois v. Rodriguez (1990), 497 U.S. _, _, 111 L. Ed. 2d 148, 159-61, 110 S. Ct. 2793, 2799-802.

In issuing its decision, the Rodriguez court cautioned that police officers may not always accept an invitation to enter premises. Even if the consenter claims to live on the premises, the officers must make further inquiry if the surrounding circumstances would raise a doubt of that claim. (Rodriguez, 497 U.S. at _, 111 L. Ed. 2d at 161, 110 S. Ct. at 2801.) A warrantless entry based upon consent is unlawful unless the facts available to the officer would have warranted a man of reasonable caution to believe that the consenting party had authority to consent or unless that party had actual authority to consent. See Rodriguez, 497 U.S. at _, 111 L. Ed. 2d at 161, 110 S. Ct. at 2801.

We note that common authority justifying a third-party consent to search is not to be implied from a property interest, such as that of a landlord; rather, it rests on mutual use of the property by persons generally having joint access or control. (See United States v. Matlock (1974), 415 U.S. 164, 171 n.7, 39 L. Ed. 2d 242, 250 n.7, 94 S. Ct. 988, 993 n.7.) Consequently, we conclude that the apparent authority doctrine which Rodriguez discusses in terms of a consenting alleged coinhabitant does not support the police entry here.

The consenter here, because he was merely a landlord, generally would be considered to lack authority to consent to the search. (See Chapman v. United States (1961), 365 U.S. 610, 5 L. Ed. 2d 828, 81 S. Ct. 776.) Furthermore, despite the State’s argument that the defendant’s apartment apparently was abandoned by the tenant, thus changing the landlord’s relationship to it, the record is devoid of evidence that the landlord suggested the possibility of abandonment to Officer Probasco before they entered into the apartment. Thus, any evidence of abandonment does not bolster the landlord’s apparent authority to consent. The evidence indicates no basis for a reasonable belief by Officer Probasco that the landlord had the kind of mutual use of the apartment to give him authority to consent to its search.

We find no valid consent, no exigency, and no other applicable exception to the warrant rule. Consequently, we find that the warrant-less seizure of the plants was unlawful and that the trial court erred in failing to suppress.

Because this case presents the possibility of retrial without tainted evidence (compare People v. Boehm (1980), 89 Ill. App. 3d 176, 179), we must also consider the defendant’s challenge to the sufficiency of the evidence at trial. See People v. Taylor (1979), 76 Ill. 2d 289, 309.

In his reasonable doubt argument, the defendant focuses upon the evidence for the requisite number of plants to support the offense. He argues, essentially, that the State’s evidence, including his landlord’s and Officer Probasco’s testimony concerning the number of plants at issue, photographs of groups of plants seized, and lab evidence which found a certain weight of substance containing cannabis, did not add up to sufficient proof of the offense which was defined in terms of the number of cannabis plants'produced. He argues that the State was obligated to prove that a minimum of 20 plants individually tested positive for cannabis.

In his argument, the defendant cites People v. Ayala (1981), 96 Ill. App. 3d 880, 882-83, People v. Park (1978), 72 Ill. 2d 203, 211, and People v. Jackson (1985), 134 Ill. App. 3d 785, 787. The Park and Jackson courts both stated that the positive identification of cannabis requires both microscopic and chemical analysis. In Ayala, the police lab weighed and tested two bags of substance possessed by the defendant. Both bags tested preliminarily positive for heroin, but only one of the bags was subjected to further, conclusive tests. The court held that the proof was insufficient that the preliminarily tested bag also contained heroin; it reduced the defendant’s conviction to reflect the quantity of substance in the conclusively tested bag.

We are not persuaded by the defendant’s argument. The issue here, the identification of individual, intact plants, is fundamentally different from the question of positively testing either bags of suspected powder as in Ayala or suspected dry plant material, as apparently was at issue in Park and Jackson. The identity of living plants is more readily apparent and less subject to question than the chemical content of a quantity of powder or dried plant material. We find, as the State argues, that this case is closer to cases which allow definitive, positive tests on a quantity of randomly selected tablets to support a conviction based on the larger quantity of tablets from which those were selected. See People v. Kaludis (1986), 146 Ill. App. 3d 888, 896.

Here, the court heard both the landlord and Officer Probasco testify to their experience that enabled them to recognize a cannabis plant. Each testified that he had counted a quantity of cannabis plants within the 20 to 50 range defined by the offense. Additionally, the court heard the lab evidence which included a positive chemical analysis for cannabis in the seized plant material. We find that through the testimony of Officer Probasco and the landlord, the State’s photographs, and the positive chemical tests on the plant material gathered from the defendant’s apartment, the court was presented sufficient evidence to find proof beyond a reasonable doubt of the requisite number of cannabis plants.

The judgment of the circuit court of De Kalb County is reversed, and the cause is remanded for further proceedings consistent with our opinion.

Reversed and remanded.

UNVERZAGT, P.J., and DUNN, J., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ELDON D. LUCY, JR., Defendant-Appellee.
    Fifth District
    No. 5-89-0367
    Opinion filed October 23, 1990.
    Rehearing denied December 3, 1990.

      Paula Phillips, State’s Attorney, of Effingham (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 Larry R. Wells, 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 a judgment, entered May 22, 1989, granting the motion of defendant, Eldon D. Lucy, Jr., to quash his arrest. Defendant was arrested for the offense of burglary sometime on November 27, 1988. The defendant argues that he was arrested and taken into custody at approximately 11 a.m., when he accompanied police officers to the police department for questioning. The State argues that defendant was not arrested or taken into custody until approximately 2:30 p.m., after he had confessed to the crime. The trial court found that defendant was arrested at approximately 11 a.m., when he accompanied police officers to the police department. The first issue presented by the State for our review is whether the trial court erred in so finding.

The answer to this first issue is relevant to the second issue presented for our review: whether there was probable cause for defendant’s arrest at the time of his arrest. If the arrest occurred subsequent to defendant’s confession, as the State argues, there can be little doubt that there was probable cause for his arrest. However, the trial court found that the arrest occurred prior to defendant’s confession and that, at that time, there was no probable cause for the arrest. The State argues that even at this time there was probable cause for defendant’s arrest. Thus, the second issue presented for our review is whether the trial court erred in finding no probable cause for defendant’s arrest.

The third issue presented for our review is whether, in the event we hold that defendant’s arrest was illegal, this cause must be remanded for a hearing on the separate issue of whether, despite defendant’s illegal arrest, his confession was voluntary and admissible under Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254. Defendant argues that the State has waived this issue for review by failing to request such a hearing before the trial court and that, in any event, the trial court implicitly ruled on this issue when it granted defendant’s motion. Defendant has also filed a motion to strike this third issue from the State’s brief for the reason that the State, which, as appellant, has the burden of preparing the record on appeal, is relying on an incomplete record to argue that the trial court did not reach this issue. We have ordered that this motion be taken with the case.

The facts adduced at the hearing on defendant’s motion are as follows. The defendant called two witnesses, Sergeant Larry Patton and Detective Leonard Kline, of the Effingham city police department, who testified that on November 27, 1988, they went to defendant’s apartment without an arrest or search warrant, that they did not observe defendant engage in any illegal activity, and that evidence was seized and defendant was questioned and arrested. Defendant then rested.

The State called Detective Leonard Kline to testify. Kline testified that he investigated a burglary of Thies’ Grocery Store which occurred during the late night hours of November 26, 1988, or early morning hours of November 27, 1988. During that investigation, Kline learned that defendant had been observed by another police officer in the vicinity of the burglary the night it occurred. Kline and Sergeant Larry Patton went to defendant’s apartment at approximately 9:30 or 10 the morning of November 27, 1988, to question defendant. The door was opened by Kelly Krone, defendant’s girl friend, who, upon being asked if defendant was home, responded that he had gone to the IGA store for a cup of coffee. The officers informed her that they would wait for defendant in the hallway. Someone in the apartment then stated that he would talk to the officers. Kline, who had heard defendant’s voice in the past, recognized defendant’s voice as that coming from the apartment. The officers were then admitted to the apartment. Defendant was told that there had been a burglary at Thies’ Grocery Store, that he had been seen in the area, and that the officers would like to talk to him. Defendant stated that he was not involved in the burglary. Sergeant Patton asked defendant if they could look in his refrigerator. Defendant consented. The refrigerator contained some 2% milk and two cartons of eggs that were the same brand as had been taken in the burglary. At that point, the officers left. They had spent approximately five minutes in defendant’s apartment.

The officers went to the grocery store and saw that the price tags used there were similar to those on the milk and eggs found in defendant’s apartment. The officers had also called defendant’s mother to ask her if she had given defendant any groceries because defendant had told the officers that his mother had given him the milk and eggs. Defendant’s mother denied having given him any groceries.

At approximately 11 a.m., Kline and Patton returned to defendant’s apartment to ask defendant and Kelly Krone to go to the police department.

The officers were standing in the hallway outside defendant’s apartment when they asked defendant to go to the police department. The officers did not tell defendant that he had to go, but defendant consented. Defendant rode to the police department in Sergeant Patton’s squad car.

At the police department, defendant was taken to Kline’s office, a room approximately 12 feet by 12 feet. At times the door to the room was closed, at times it was left open. The door was never locked. Defendant was never told that he could not leave or that he was in custody. Kline saw defendant there at approximately 1:50 p.m. After having been advised of his Miranda rights by Sergeant Patton, defendant confessed to the crime. Detective Kline then placed defendant under arrest.

On cross-examination, Kline admitted that when he initially went to defendant’s apartment, he already considered defendant a possible suspect in the burglary. Both officers were in uniform, armed and driving a marked squad car. Kline did not recall that defendant asked them if they had an arrest or search warrant. Kline did not investigate whether other grocery stores sold the same brand milk and eggs, with similar price stickers, as those found in defendant’s refrigerator.

At the police station, defendant asked to speak with his mother, who was called and came down to the station. Defendant was also allowed to speak with his girl friend prior to confessing. Kline denied threatening or coercing defendant in any way to make a statement. Defendant did not display any signs of nervousness or anxiety at any time. Defendant was at the police station two to three hours prior to his arrest. Defendant was given lunch at the police station.

The State next called Sergeant Larry Patton to testify. Patton’s testimony was generally consistent with and confirmed Kline’s. Patton testified that, the first time they were at defendant’s apartment, defendant denied any involvement in the burglary. Patton explained that eggs and milk and other groceries had been stolen and that it was likely that the perpetrator would have such items in his refrigerator. Defendant denied having such items in his refrigerator, but consented to Patton looking.

When the officers returned the second time to defendant’s apartment, they informed defendant that they had discovered more information and that they would like defendant to go down to the police department. Defendant consented. Patton offered to let defendant ride with him and defendant agreed. Patton denied that defendant was under arrest. Defendant was not handcuffed or told that he was in custody or under arrest.

Upon arriving at the police department, defendant was taken into Patton’s office. Patton read defendant his Miranda rights, giving defendant a copy to read along. Patton asked defendant if there was anyone he wanted to talk to and defendant responded that he wished to speak with his mother. Patton did not ask defendant any questions, but contacted defendant’s mother. Defendant was left alone with his mother for approximately 10 minutes. After that, Patton was not involved in any further questioning. Patton did eat lunch with defendant and Kelly Krone in the police department lounge. At no time did Patton threaten or coerce defendant in any way. At one point, defendant asked Patton if Kelly would also be in trouble. Patton responded that if she was involved in the burglary, she would be in trouble.

On cross-examination, Patton explained that defendant rode to the police department in the back seat of Patton’s squad car. The back doors lock, and a passenger in the back seat cannot open the doors.

In response to the court’s questioning, Patton explained that defendant’s apartment is located approximately 2xk blocks from the burglarized grocery store. The State rested.

The defendant called Kelly Krone to testify. Kelly testified that on November 27, 1988, she was living with defendant in his apartment. On that morning Officers Kline and Patton came to that apartment and knocked on the door. They asked for defendant. They had neither an arrest warrant nor a search warrant. Kelly told the officers that defendant had gone to the IGA and the officers indicated they would return later. Approximately 10 minutes later the officers returned and again asked for defendant. Kelly told them he was not at home. Patton asked if the shoes on the floor were defendant’s and Kelly said yes. Patton asked what shoes defendant was wearing at that moment and Kelly responded a different pair. At that time defendant spoke up and told the officers to enter.

Patton asked defendant if he knew of the burglary and defendant said no. Patton asked if he could look around. Defendant asked if Patton had a warrant. Kelly could not remember Patton’s response. Patton asked defendant where he had been at the time of the burglary. Patton had not informed defendant of his Miranda rights. Defendant stated that he had gone out that night to the Huck’s store. Patton asked defendant if he could look in the refrigerator and defendant said yes. Upon opening the refrigerator, Patton asked defendant where he had gotten the groceries. Defendant responded, at Huck’s. Patton encouraged defendant to cooperate, but defendant denied any involvement in the burglary. Patton and Kline left.

Approximately one hour later, Patton and Kline returned to defendant’s apartment and asked to speak with defendant. They still had neither an arrest warrant nor a search warrant. Patton asked defendant if he would go to the police station. Both defendant and Kelly agreed. Kelly remembered that both officers were uniformed, but could not remember if they were armed. Kelly rode with Kline in his marked squad car.

At the police station, Kline talked with Kelly about the burglary and defendant’s possible involvement in it. Kelly was allowed to see defendant at the police station. Defendant admitted to her that he had burglarized the grocery store and told her that he was going to speak with his mother. Defendant’s mother arrived and the three of them talked privately. Defendant seemed scared, shaky and upset. At times defendant cried. Defendant and Kelly were provided lunch. Defendant’s shoes had been taken from him.

On cross-examination, Kelly explained that defendant was crying because he felt sorry that he had lied to her about the burglary and not because of anything the police had done. When Kelly and defendant spoke privately, Kelly assured defendant that she was not a suspect in the burglary. Defendant never told Kelly that the police had threatened or pressured him in any way. Kelly advised defendant that he should tell the truth and, if he was guilty, admit it. Defendant agreed that she was right, but stated that he was scared. Kelly was never told that she could not leave the police station, although Kline asked her to stay for further questioning. Kelly did not feel threatened by Kline or Patton.

At defendant’s apartment, defendant did initially tell Patton that he could not look in the refrigerator, but later consented when Patton stated that it would be easier if defendant cooperated. Kelly did not hear the officers tell defendant that he was under arrest or threaten him in any way. Kelly went to the police station voluntarily and believed that defendant did too.

On redirect examination, Kelly stated that she did not feel free to refuse to go to the police station. She did not feel free to leave the police station after she got there.

Defendant’s mother, Joyce Ann Lucy, testified that on November 27, 1988, she talked with defendant at the Effingham police department. When she arrived at the room in which defendant was, the door to the room was locked. Kelly was in the room with defendant. Defendant had no shoes on. Defendant was upset, emotional, scared and nervous. He was crying. Lucy told defendant that if he was guilty, the best thing would be to admit it.

Defendant suffered from a learning disability and was in special classes in school. He has trouble reading, writing and comprehending. Lucy testified that the police did not call her to ask whether she had given defendant groceries until after defendant was already at the police station.

Defendant testified in his own behalf. At the time of the hearing he was 20 years of age. He had dropped out of school in the tenth grade after being in learning disability and special behavior classes. He had served time in the Department of Corrections for aggravated battery.

On November 27, 1988, Officer Patton came to defendant’s apartment. When he entered the apartment, defendant asked him for a search warrant. Patton did not have one. Patton did not advise defendant of his rights before he asked him if he had participated in the burglary. When Patton initially asked to look in the refrigerator, defendant again asked him for a search warrant. Patton told defendant he would leave after he looked in the refrigerator so defendant consented. Defendant said that he had asked Patton and Kline to leave several times. Patton told defendant that he had nothing to fear from him looking in the refrigerator if he was innocent, so defendant agreed. After Patton looked in the refrigerator, the officers left.

Patton and Kline returned later, again without an arrest warrant or search warrant. The officers did not advise defendant of his rights. The officers told defendant that they believed he had committed the burglary and asked him and Kelly to get dressed and go down to the police station with them. Defendant did not know he had a choice to go with them, but felt obligated to do so. Defendant rode with Patton in his marked squad car. Defendant did not feel free to leave. When defendant arrived at the police station, he was not advised of his Miranda rights. Defendant told Patton that he wanted to speak with his mother. At first Patton did not want to call defendant’s mother and told defendant that he could talk to his mother when Patton was finished questioning him. Patton then attempted to interrogate defendant. Patton told defendant that if he was guilty, whatever happened to him could also happen to his girl friend, Kelly. Patton finally called defendant’s mother’s home and spoke to defendant’s father. Patton asked defendant’s father if he had given defendant any groceries.

Defendant asked Patton if he could see Kelly, and Patton agreed. Defendant also was able to see his mother. Defendant was upset at the time because he felt he was being harassed and his shoes had been taken from him. Defendant had asked for his shoes back but was told that his shoes had enough evidence on them to prove his guilt. Defendant’s mother told him that if he was guilty he should just admit it.

Defendant testified that he had asked Patton for a lawyer and Patton had refused. Defendant told Patton he was not going to say anything until a lawyer or his mother was present.

When defendant was finished talking to Kelly and his mother, he and Kelly were taken to a break room. At some point, Patton and Kline took defendant and Kelly back to defendant’s apartment to seize the stolen groceries. The officers still had no search warrant or arrest warrant.

Defendant gave a statement to Kline. Kline advised defendant of his right to an attorney, but Kline already knew that defendant had asked Patton for an attorney. Kline proceeded to ask defendant questions anyway. Although defendant signed a waiver of rights form, he had not read it prior to signing it. He had merely glanced at it and did not understand it. Defendant signed a written statement which he did not read prior to signing. He signed the statement because he was scared. He had been told that if he was found guilty, Kelly could also be in trouble. Upon arriving at the police station, defendant had asked Patton if he could leave and Patton said no because they had taken his shoes.

The State called Sergeant Larry Patton in rebuttal. Patton testified that defendant had never asked him for a lawyer. Patton read defendant his rights while defendant read along with his own copy. Defendant signed the waiver of rights form after his rights were read to him. Detective Kline also testified in rebuttal that defendant had never asked him for an attorney.

This concluded the evidence. The court heard oral argument. Defendant argued that he was illegally arrested without probable cause for purely investigative purposes at the time he was asked to accompany the police officers to the police department. Defendant also argued that a confession made after an illegal arrest is not admissible merely because it was made voluntarily, but something more is required to purge the taint of the illegal arrest. However, defendant did not concede that his confession was voluntary.

The State argued that the police officers did have probable cause to arrest defendant based on what they knew at the time they asked defendant to accompany them to the police station. However, the State did not concede that defendant was arrested at this earlier point in time, but argued that he was not arrested until after he had confessed. The court took the matter under advisement.

On May 22, 1989, the court entered a written order granting the defendant’s motion to quash his arrest. In support of its finding that defendant was arrested prior to his confession, the court found the following facts: “The defendant was told to get dressed to come to the station; he was not told he had a choice; he was taken in a squad car separate from his girl friend; he was locked in the back of the car; his shoes were taken from him at the station; the police would not return his shoes on request; and the defendant was not advised he was free to leave. These undisputed facts together with all the facts in evidence persuade the court that an arrest occurred prior to the defendant’s statement to the police.”

In support of its finding that the police did not have probable cause to effect an arrest at the time the arrest occurred, the court found: “Eggs and milk are common items to be found in many residences. Finding eggs and milk from Thies Grocery Store in a residence located two blocks from the store on the morning after a burglary can hardly be considered unusual. Based on all the evidence the court finds that probable cause did not exist.” The court granted the motion to quash the arrest and set the matter for further hearing to determine if the State desired to proceed with the case. Neither the court in its order nor the parties in their arguments addressed the question of whether the quashing of the arrest would also result in the suppression of defendant’s confession.

The first issue presented for our review is whether the trial court erred in ruling that defendant was arrested prior to his confession when he accompanied the police officers to the police station. A trial court’s findings of fact in connection with a motion to quash an arrest will not be disturbed on review unless they are manifestly erroneous. (People v. Davis (1986), 142 Ill. App. 3d 630, 636, 491 N.E.2d 1285, 1289, cert. denied sub nom. People v. Parker (1987), 479 U.S. 1101, 94 L. Ed. 2d 179, 107 S. Ct. 1327.) We find that the trial court’s ruling that defendant was taken into custody prior to his confession is supported by the evidence and not manifestly erroneous.

Custodial interrogation on less than probable cause violates the fourth amendment whether or not the detention has the technical trappings of a formal arrest. (People v. Davis (1986), 142 Ill. App. 3d 630, 635, 491 N.E.2d 1285, 1288.) Thus, the question of when defendant was arrested for our purposes is not answered by evidence of the time when defendant was told he was under arrest and booked and fingerprinted. Instead, the test for determining whether a person has been taken into custody is whether it can be said that, in view of all the circumstances surrounding the incident, a reasonable person innocent of any crime would have considered himself under arrest or free to go. (People v. Hardy (1986), 142 Ill. App. 3d 108, 117, 491 N.E.2d 493, 500.) This is an objective test, and if a defendant is illegally detained, any consensual aspect of the defendant’s conduct in agreeing to accompany the police is eviscerated. (Hardy, 142 Ill. App. 3d at 117, 491 N.E.2d at 500.) Not every station house interrogation is so custodial as to indicate arrest. Davis, 142 Ill. App. 3d at 636, 491 N.E.2d at 1289.

In the instant case, the trial court found that defendant was taken into custody either at his apartment when he was asked to accompany police officers to the station for questioning or at the station but prior to his confession. Would a reasonable person, innocent of any crime, have believed he was not free to leave at that point in time? The trial court thought so and we cannot say that determination is manifestly erroneous.

At the time the police officers asked defendant to accompany them to the station, it was the second time within a few hours that the two officers had been-to his apartment investigating the crime. The police officers considered defendant a suspect in the crime. Defendant, who had just arisen from bed, was asked to dress and accompany the officers immediately; he was not asked to meet them at the station at his convenience for questioning. Defendant was placed in the back seat of a police squad car. Once at the police station, according to the police, defendant was advised of his Miranda rights and his shoes were taken from him. When defendant stated that he wished to talk with his mother, he was not allowed to leave to do so, but his mother was summoned to the police station. Defendant was not allowed to leave the police station to eat lunch, but had lunch brought to him there by one of the officers. Defendant was never informed that he was free to leave. We think all of these facts, taken together, would lead a reasonable person, innocent of any crime, to believe he was not free to leave and was under arrest. Thus, the trial court did not err in finding that defendant was arrested prior to his confession.

We now must address the question of whether there was probable cause to arrest defendant prior to his confession. The trial court thought not and we agree.

Probable cause for arrest exists when facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. (People v. Lippert (1982), 89 Ill. 2d 171, 178, 432 N.E.2d 605, 608, cert. denied (1982), 459 U.S. 841, 74 L. Ed. 2d 85, 103 S. Ct. 92.) Although mere suspicion is not enough to establish probable cause, neither is evidence sufficient to convict required. Lippert, 89 Ill. 2d at 178, 432 N.E.2d at 608.

Prior to defendant’s confession, the police knew only this: defendant, who lived only 2xk blocks from the burglarized store, had been seen in the vicinity of the store the night of the burglary; defendant’s refrigerator contained milk and eggs which were the same brand, with similar price stickers, as those which had been stolen from the burglarized store; and according to the police, defendant’s mother had not given defendant the groceries, as defendant had claimed. We hardly think this is enough evidence to establish probable cause to arrest defendant for the burglary of the store. That defendant was seen in the vicinity of the store the night of the burglary means little since defendant lived only 21k blocks from the store. Similarly, that defendant had eggs and milk in his refrigerator which may have come from the store 21k blocks from his home is not particularly incriminating. As the trial court pointed out, eggs and milk are items commonly found in people’s refrigerators. Finally, that defendant may have lied or been mistaken about whether his mother had given him the milk and eggs is not sufficient to establish probable cause for defendant’s arrest. While these facts, taken together, may raise a suspicion of defendant’s guilt, they are not sufficient to establish probable cause to believe defendant committed the burglary. The trial court’s finding that the police lacked probable cause to arrest defendant prior to his confession is supported by the evidence and is not manifestly erroneous.

The third and final issue presented for our review is whether this cause must be remanded for a determination whether, despite defendant’s illegal arrest, his confession is admissible under the standard set forth in Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254. In Brown, the Supreme Court held that a confession is not rendered inadmissible simply because it follows an illegal arrest. Instead, a determination must be made as to whether the taint of the illegal arrest was so attenuated at the time of the confession as to render that confession admissible despite the illegal arrest. Some of the factors to be considered in making that determination are: whether Miranda warnings were given; the temporal proximity of the arrest and the confession; the presence of intervening circumstances; and the purpose and flagrancy of the official misconduct. (422 U.S. at 603-04, 45 L. Ed. 2d at 427, 95 S. Ct. at 2261-62.) The burden of showing admissibility of the confession rests on the State. 422 U.S. at 604, 45 L. Ed. 2d at 427, 95 S. Ct. at 2262.

The State argues in its brief that the trial court made no findings regarding the admissibility of defendant’s confession and did not rule on this question. Therefore, the State argues, we must remand this cause to the trial court for such a determination.

Defendant has filed a motion to strike this argument from the State’s brief. We have ordered that this motion be taken with the case. Defendant argues in his motion to strike that docket entries show that two hearings were held subsequent to the hearing on defendant’s motion to quash his arrest, that the State, as appellant, has not provided this court with transcripts of those hearings, and that, therefore, we must assume that the trial court did reach the issue of the admissibility of defendant’s confession and ruled adversely to the State. However, by order dated August 30, 1990, we granted the State’s motion to supplement the record on appeal by filing a transcript of one of those hearings and a court reporter’s certificate that no hearing was actually held on the other date. The transcript with which the record was supplemented corroborates the court reporter’s certificate that no other hearing was held. It also demonstrates that, at the hearing that was held, the issue of the admissibility of defendant’s confession was not raised by either party nor ruled upon by the trial court. It would appear, therefore, that the State has provided this court with a complete record of proceedings before the trial court. It also appears that, indeed, the issue of the admissibility of defendant’s confession was not explicitly ruled upon by the trial court. We therefore deny defendant’s motion to strike this argument from the State’s brief.

In his brief, defendant renews his argument that the State has failed to furnish a complete record on appeal. Defendant also argues that the State has waived any error with respect to this issue by failing to argue Brown before the trial court or request that the trial court make a determination pursuant to Brown. While the State may certainly waive arguments by failing to raise them before the trial court (People v. Dakuras (1988), 172 Ill. App. 3d 865, 870, 527 N.E.2d 163, 167), this court may review alleged error which was waived by the State under the doctrine of plain error. (People v. Oswald (1982), 106 Ill. App. 3d 645, 649, 435 N.E.2d 1369, 1372.) The plain error doctrine will allow us to review an error which, although waived, affects the substantial right of the People. (Oswald, 106 Ill. App. 3d at 649, 435 N.E.2d at 1372.) Review under the plain error doctrine is not a matter of right, but is at the discretion of this court. Oswald, 106 Ill. App. 3d at 649, 435 N.E.2d at 1372.

While we are mindful of the defendant’s right to have this cause determined as quickly as possible and at one proceeding, and of the importance of not presenting litigation piecemeal (People v. O’Neal (1984), 104 Ill. 2d 399, 408, 472 N.E.2d 441, 445), we find that the People’s right to have the trial court make an explicit determination as to the admissibility of defendant’s confession is sufficiently substantial to warrant our reviewing this issue despite the State’s waiver. A defendant’s confession, if voluntary, is one of the most persuasive and reliable forms of evidence. To deprive the People of this piece of evidence would affect their substantial right to completely try the defendant.

Finally, defendant directs us to a recent opinion from our supreme court, People v. Williams (1990), 138 Ill. 2d 377, which, he argues, holds that the State may not relitigate the issue of the admissibility of a confession under Brown where it has failed to raise the issue before the trial court in a timely motion to reconsider. We find Williams to be distinguishable on its facts.

In Williams, the defendant filed a motion to quash his arrest for lack of probable cause and suppress his confession made after the illegal arrest. The trial court found that defendant had been illegally arrested without probable cause and quashed his arrest. The trial court also, without holding a hearing under Brown, suppressed defendant’s confession. The State did not prosecute an appeal from this order. However, more than one year later, the State filed a motion asking the trial court to hold a hearing under Brown on the question of attenuation. This motion was granted on the ground that the issue of attenuation had not been specifically ruled upon before. After conducting a hearing, the trial court found that defendant’s confession was sufficiently attenuated from his illegal arrest to be admitted against him at trial. The cause proceeded to trial, defendant was convicted and he appealed, arguing that the trial court had erred in holding a hearing on the issue of attenuation under Brown where the State had not appealed from the original suppression order nor sought reconsideration of that order within the time allowed by law. Our supreme court held that the State was indeed barred from litigating the issue of attenuation where the suppression order as originally entered was an appealable order from which the State could have appealed. The court held that the attenuation question was part and parcel of the suppression question as originally addressed and could not be severed therefrom and raised at some later point more than one year after entry of the suppression order. The court found that the State either should have sought timely reconsideration of that order or appealed therefrom. The State’s failure to do so precluded it from raising the issue more than one year later.

We think Williams is distinguishable from the instant case because in the instant case the State did file a timely appeal from the suppression order in which it raised the issue of the trial court’s failure to specifically address the question of attenuation. The State is not precluded by the Williams decision from raising that issue in a timely appeal.

The record does not indicate that the trial court made a determination as to the admissibility of defendant’s confession under Brown, thus raising the possibility that the trial court assumed that the illegal arrest rendered defendant’s confession inadmissible. Such an assumption is directly contrary to the decision in Brown, which requires a separate determination as to the admissibility of the confession. We therefore remand this cause to the trial court for a determination as to whether, despite defendant’s illegal arrest, his confession is admissible under Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.

For the foregoing reasons, the judgment of the circuit court of Effingham County is affirmed and this cause is remanded for further proceedings not inconsistent with this order.

Affirmed and remanded.

LEWIS, P.J., and RARICK, J., concur.


author: PRESIDING JUSTICE LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN WAYNE COOPER, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0408
    Opinion filed October 25, 1990.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Gene Gross, State’s Attorney, of Pinckneyville (Kenneth R. Boyle, Stephen E. Norris, and Raymond E Buckley, Jr., all of State’s Attorneys Appellate Proseutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

Defendant, John W. Cooper, appeals his conviction for driving while license revoked, a Class 4 felony due to its enhancement with defendant’s prior conviction for driving while license revoked, and his conviction for the Class 4 felony of driving under the influence of alcohol. He was sentenced to concurrent terms of 18 months’ imprisonment on both offenses after being found guilty at a bench trial.

At trial, evidence of defendant’s August 19, 1985, plea of guilty to two separate acts of driving under the influence of alcohol in Perry County and defendant’s March 10, ■ 1988, plea of guilty to driving while license revoked in Hamilton County was introduced into evidence. Defendant did not object to the entry into evidence of proof of his Hamilton County conviction for driving while license revoked.

On appeal, defendant argues that because the trial court record in the instant case does not demonstrate that defendant was represented or waived representation in the misdemeanor driving while license revoked guilty plea in Hamilton County, the use of that conviction to enhance the Perry County driving while license revoked charge in the case at bar to a felony was improper, and demands that the Perry County conviction be reduced to a misdemeanor.

The State resists the reduction of defendant’s conviction in Perry County from a misdemeanor to a felony, asserting that the defendant waived the issue of whether he voluntarily declined counsel prior to his guilty plea on the predicate offense in Hamilton County by failing to raise that question in the trial court in the instant case. The State further asserts that even if defendant did not make a valid waiver of counsel in the Hamilton County case, it was proper to consider his prior guilty plea conviction because he did not receive a sentence of imprisonment. The State also maintains that the transcript of the Hamilton County guilty plea established that there was, in fact, a valid waiver of counsel at the time defendant pleaded guilty. Because this court denied the State’s motion for leave to supplement the record on appeal with the transcript of the guilty plea hearing in Hamilton County case No. 88 — TR—118, the State’s latter argument cannot be considered for purposes of deciding this appeal.

Defendant contends that under Baldasar v. Illinois (1980), 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585, the use of a prior uncounseled plea of guilty to a misdemeanor is prohibited as an enhancing factor to a subsequent misdemeanor in order to make a subsequent misdemeanor a felony. He asserts that the State must prove that the defendant made a knowing and voluntary waiver of representation in the predicate misdemeanor and argues that there is no presumption that counsel was present at the Hamilton County guilty plea due to the silence of the record on that question.

On appeal, defendant does not assert that he was not properly advised and did not knowingly and voluntarily waive counsel in the Hamilton County misdemeanor driving while license revoked prosecution, nor that he was, in fact, without counsel. He failed to raise the issue in the instant case at trial and concurred in the admission of his prior conviction into evidence in the form of a certified copy of his Hamilton County conviction. Defendant failed to raise the issue of the allegedly uncounseled, involuntary waiver of his rights in the misdemeanor driving while license revoked guilty plea in Hamilton County in a post-trial motion, raising it for the first time in his appellate brief.

In order to preserve an issue for appellate review, that issue must be raised in the trial court by objection as well as by written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) In the absence of such preservation, review will be limited to constitutional issues which have been properly raised at trial and which can be raised later in a post-conviction petition hearing, sufficiency of the evidence and plain error. (Enoch, 122 Ill. 2d at 190, 522 N.E.2d at 1132.) Because of defendant’s failure to both raise the issue at trial and preserve it in a post-trial motion, the issue is waived. People v. Volkmar (1989), 183 Ill. App. 3d 149, 153, 538 N.E.2d 1255, 1257.

Even if, arguendo, the issue has not been waived, defendant’s contentions are without merit. His reliance on Baldasar v. Illinois is misplaced. In Baldasar, the defendant was convicted of theft of property not exceeding $150 in value ás a second offense, a felony. On appeal to the Supreme Court of the United States, that court held that an uncounseled misdemeanor conviction may not be used under the enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term. However, the factual situation in Baldasar differs vastly from that in the case at bar. In Baldasar, the record of the predicate proceeding wherein he pleaded guilty affirmatively showed that Baldasar was not represented by a lawyer and did not formally waive any right to counsel. In the subsequent proceeding in which a misdemeanor was enhanced to a felony due to the prior theft, the defense counsel for Baldasar objected to the admission of his prior conviction, arguing at the time that Baldasar had not been represented by a lawyer in the first proceeding, thus making the conviction too unreliable to support enhancement of the second misdemeanor. The Supreme Court held that the uncounseled misdemeanor conviction could not be used to enhance a subsequent misdemeanor to a felony with a prison term.

The case at bar presents a markedly different scenario. Here, defendant has not alleged, nor has he proven, that he was indigent at the time of his prior plea of guilty to driving while license revoked, nor has he alleged, much less proven, that the State somehow prevented him from obtaining the services of retained counsel. He failed to object to the introduction into evidence of his prior conviction, unlike Baldasar where defendant’s counsel interposed what appears to have been a vigorous objection to the admission of the prior misdemeanor conviction. He stated specifically that because Baldasar had not been represented by a lawyer, the conviction was not sufficiently reliable to be used to enhance the second misdemeanor to a felony. Furthermore, Baldasar presented a record on appeal which substantiated that he was, in fact, not represented by a lawyer, nor did he formally waive his right to counsel. In the case at bar, defendant successfully resisted supplementation of the record with the report of proceedings from defendant’s 1988 Hamilton County conviction for driving while license revoked. This court does not subscribe to defendant’s broad statement of the holding in Baldasar, but rather to the more narrow interpretation of Baldasar set forth in Moore v. Jarvis (11th Cir. 1989), 885 F.2d 1565. In that case, the court held that Baldasar did not forbid predication of an enhanced term of imprisonment upon any conviction obtained in a proceeding in which defendant did not have counsel, but rather forbids only the sentencing of a defendant to an increased term of incarceration solely upon consideration of the prior conviction obtained in a proceeding from which, due to the indigence of the defendant or some misconduct of the State, counsel was unavailable to the defendant. Moore v. Jarvis, 885 F.2d at 1573.

Here, as in Moore, defendant has not alleged on appeal, nor has he proven, that he was indigent at the time of his prior conviction or that the State somehow precluded him from obtaining the services of retained counsel. Thus, his case does not present an authentic Baldasar violation.

Further, defendant’s brief carefully avoids stating that he was not properly advised and did not properly make a waiver of appointed counsel but merely states that “the record does not show” that such advisement and waiver took place in the Hamilton County guilty plea. It is the duty of the party appealing a judgment to preserve and present on review an adequate record from which his allegation of error can be resolved. (People v. Smith (1985), 106 Ill. 2d 327, 336, 478 N.E.2d 357, 361.) Defendant has asserted that there was error in the Hamilton County proceeding, and yet successfully opposed the entry into evidence of the transcript which would have resolved the question.

Defendant argues that because the record does not show that a defendant has waived counsel, the State has the burden of showing defendant knowingly and voluntarily waived counsel, citing People v. Nikonowicz (1984), 127 Ill. App. 3d 738, 469 N.E.2d 625, and People v. McCarty (1981), 101 Ill. App. 3d 355, 427 N.E.2d 1382.

Nikonowicz presents a scenario which is factually quite different from, and thus inapplicable to, the case at bar. There, this court considered the issue of whether the trial court erred in rejecting defendant’s motion to withdraw his guilty plea where no verbatim transcript of his guilty plea existed and defendant actually alleged there was an invalid waiver of counsel. Here, defendant has attacked a predicate guilty plea collaterally, has successfully blocked the State’s efforts to supplement the record on appeal with the verbatim transcript of his guilty plea to the enhancing offense, and has not claimed in plain language that he made an invalid waiver of counsel.

McCarty, too, does not serve to persuade this court to subscribe to the defendant’s thesis. McCarty held that the indigent defendant’s probation for a counseled conviction for felony theft could not be revoked as the result of an uncounseled misdemeanor conviction where there was no transcript of the guilty plea and the docket entry did not demonstrate that the defendant understood his right to counsel or that the misdemeanor conviction could result in revocation of his probation. The situation in McCarty differs in that the allegedly uncounseled guilty plea made subsequent to a felony guilty plea was not used to enhance a crime from a misdemeanor to a felony, but to revoke the defendant’s probation. Furthermore, no transcript of the misdemeanor plea existed. The defendant in McCarty made an assault on the validity of the revocation of his probation by directly attacking the convictions which precipitated his incarceration, not an oblique attack as in the case at bar. The dissent in McCarty is in alignment with this court’s position: in a situation where a defendant never makes an affirmative allegation that the trial court failed to advise him of his right to counsel and never alleges that his right to counsel was denied or infringed, but merely claims that “the record does not show” he waived counsel or was represented in the predicate misdemeanor conviction, the court should presume the trial judge discharged his duty to advise the defendant of his constitutional rights. As the dissent in McCarty states, “Although this inference is subject to challenge, such an attack cannot be successful when its genesis is a silent record.” McCarty, 101 Ill. App. 3d at 361, 473 N.E.2d at 1387 (Heiple, J., dissenting).

In a prosecution for felony driving while license revoked, the State is required to prove only that the defendant was driving while his license was revoked and that the revocation of his driver’s license was for a violation of, inter alia, driving under the influence. (People v. Smith (1987), 162 Ill. App. 3d 739, 743, 516 N.E.2d 335, 336.) The State is not required to prove the predicate misdemeanor by introducing into evidence records of the prior proceedings, or authenticated copies of those records, but merely a certified copy of an order of revocation which states that the reason for such revocation was driving under the influence of alcohol. (Smith, 162 Ill. App, 3d at 743, 516 N.E.2d at 337.) In the instant case, the State complied with the protocol set out in Smith, and defendant’s conviction was properly entered.

For the reasons set forth above, defendant’s conviction and sentence are affirmed.

Affirmed.

HARRISON and GOLDENHERSH, JJ., concur.