text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JIMMY LEE WASHINGTON, Defendant-Appellant.
    Second District
    No. 2—87—1039
    Opinion filed June 21, 1989.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Jimmy Lee Washington, was found guilty in a jury trial in the circuit court of Kane County of the offense of possession of a stolen or converted motor vehicle in violation of section 4— 103(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95½, par. 4 — 103(a)(1)), a Class 2 felony (Ill. Rev. Stat. 1985, ch. 95½, par. 4 — 103(b)). He was subsequently sentenced to a four-year term of imprisonment.

Three issues are presented for review: (1) whether section 4— 103(b) of the Vehicle Code is constitutional; (2) whether the giving of a jury instruction defining “converted property” combined with the failure to instruct the jury on the definition of “theft” denied defendant a fair trial; and (3) whether defendant’s pro se assertion after trial of ineffective assistance of his trial counsel entitles him to remandment for another post-trial hearing on that assertion with appointed counsel other than his trial counsel.

Evelyn Smith and her mother, Ethel Smith, testified that on December 14, 1986, at about 4:45 p.m., they parked a 1979 Oldsmobile Cutlass owned by Evelyn on a side street near 936 West 53rd Street in Chicago, where they were visiting Ethel Smith’s aunt. Upon returning to the location where the car was parked approximately an hour later, they discovered the car was missing and contacted the police. Both witnesses testified that the car was locked after they parked and that neither had given anyone permission to take the car. Evelyn Smith next saw her car the following morning in Aurora, after having been contacted by the Aurora police. At that time she discovered that the lock had been pulled out of the trunk, the glove compartment had been pulled out, the ignition had been pulled out, and wires were hanging from the steering column.

Daniel Booth, a patrolman with the Aurora police department, testified that, while on duty on December 15, 1987, at approximately 1:30 a.m., he spotted a 1979 Oldsmobile Cutlass parked with the front end jacked up and the hood open north of 9 South West Street in Aurora. According to Booth, defendant was seated behind the steering wheel and two other individuals, later identified as Robert Moore and Willie House, were outside the car. Booth, believing the car to be disabled, approached the car. Defendant told him his gas pedal was sticking, causing the engine to overheat. After advising the men that the car should not be driven, Booth started to leave, at which point he observed that the lock was missing from the trunk of the car. He copied the license plate number. Booth then drove around the block and determined by radio communication that the vehicle had been reported stolen. Booth returned to where the car was parked. He saw the vhree men entering the house at 9 South West Street. Booth followed them into the house. Shortly thereafter, Booth was joined by several other officers, and defendant, Moore, and House were placed under arrest.

The State introduced into evidence a written statement given by defendant to Aurora police in which he indicated that on December 14, 1986, without permission he took a 1979 Oldsmobile Cutlass which he had found between Michigan and Wabash on 44th Street in Chicago, with its keys in the ignition and the engine running. In his statement, defendant stated, “I just took [the car] for transportation I was going to give it back, take it back to Chicago where I got it from.” He further stated that Moore and House did not know the vehicle was stolen. He also stated that a person named “John” drove to Aurora with him.

In his testimony at trial, defendant offered a different account of the events preceding his arrest. According to defendant, on the afternoon of December 14, 1986, he was with Denise Lawson at her residence. Between 7 p.m. and 8 p.m. he left to pick up his and Denise’s daughter, returning at about 10 p.m. He then left again accompanied by a friend, Peewee Bates, in Bates’ car. According to defendant, while headed toward 45th and Michigan, they came upon Johnny Fleming, defendant’s cousin, and an unidentified individual in the Cutlass. Defendant and Bates caught up with Fleming, and defendant got into the back seat of the Cutlass. The three agreed to drive back to Aurora. In Aurora they stopped to meet Twanda Harris, and eventually ended up at 9 South West Street. Johnny Fleming left in another car. Later, defendant, Moore, and House went outside and tried to fix the car. Defendant testified that he never drove the car or knew it was stolen.

Defendant testified that the version in his written statement — that he took the car after finding it with the keys in the ignition — was suggested by police during questioning. According to defendant, he was told that if he signed the statement, Moore and House would be released. A certified copy of defendant’s prior conviction in 1982 of robbery was admitted into evidence on rebuttal.

Denise Lawson testified that defendant was with her on December 14, that he left about 7 p.m., and that he returned and left again at around 10 p.m.

Twanda Harris testified that defendant, Johnny Fleming, and another individual arrived at her residence in Aurora around midnight on December 14 in a 1979 Oldsmobile Cutlass driven by Fleming and that she joined them. After making several stops, they arrived at the location where defendant was later arrested. No one ever stated that the car was stolen.

Defendant, relying on the appellate court decision in People v. Bryant (1988), 165 Ill. App. 3d 996, 520 N.E.2d 890, first contends that section 4 — 103(b) of the Vehicle Code (Ill. Rev. Stat. 1985, ch. 95½, par. 4 — 103(b)) is unconstitutional because an amendment increasing the penalty for possession of a stolen or converted motor vehicle was not reasonably designed to remedy the evil which was the object of the amendatory act and because it allows a lesser included offense to be punished more severely than the greater offense.

By the time of oral argument in this case, the appellate court decision in Bryant had been reversed by our supreme court, and defendant waived further argument on this issue.

In People v. Bryant (1989), 128 Ill. 2d 448, the supreme court upheld the constitutionality of section 4 — 103(b), rejecting the same challenges advanced by defendant in this case. (See also People v. Ambrose (1988), 171 Ill. App. 3d 87, 525 N.E.2d 536; People v. Carlyle (1987), 159 Ill. App. 3d 964, 513 N.E.2d 61; People v. Smith (1987), 159 Ill. App. 3d 156, 512 N.E.2d 71; People v. Larson (1987), 158 Ill. App. 3d 135, 511 N.E.2d 191.) Thus, we decide this issue adversely to defendant.

Defendant next maintains that the jury was never called on to determine if the vehicle was the subject of a theft because the jury was never instructed on the elements to be proved in a theft, which include the intent to permanently deprive. Defendant further contends that the word “converted” in section 4 — 103(a)(1) is not defined in the statute and that the trial judge erroneously instructed the jury on the definition of “converted” by using the Black’s Law Dictionary definition.

The State responds that the phrase “stolen property” which is contained in section 4 — 103(a)(1) was defined as “property over which control has been obtained by theft” in an instruction given by the court. This, the State contends, is sufficient to imply an unlawful taking, and theft need not have been defined, as all the elements of theft are not elements to be proved in a prosecution under section 4— 103(a)(1) of the Vehicle Code. The State further contends that the instruction defining the term “converted” was proper.

The circuit court gave the Illinois Pattern Jury Instructions defining possession of a stolen or converted motor vehicle and delineating the issues presented by the charge of possession of a stolen or converted motor vehicle. (Illinois Pattern Jury Instructions, Criminal, Nos. 23.14, 23.15 (2d ed. 1981) (hereinafter IPI Criminal 2d).) In connection with the proposition, required to be proved by the State, “[t]hat the defendant knew the motor vehicle was stolen or converted!]” (IPI Criminal 2d No. 23.15), the court gave the pattern jury instruction defining “stolen property” as “property over which control has been obtained by theft.” (IPI Criminal 2d No. 13.18.) Defendant argues that the jury should have been further instructed that theft requires an intent to permanently deprive the owner of property of its use or benefit. Defendant contends that the jury, not apprised that theft requires an intent to permanently deprive, may have believed his written statement that he intended to return the car where he found it, but nonetheless found him guilty.

The failure to instruct the jury that theft requires intent to permanently deprive was not error as defendant was not charged with theft, but with knowing possession of a stolen or converted motor vehicle. There is no authority that intent to permanently deprive is an element of this offense, and defendant’s mental state in this respect was irrelevant. It is true that a conviction under section 4— 103(a)(1) may be predicated upon possession by the same individual who allegedly committed the theft of the motor vehicle (see People v. Mijoskov (1986), 140 Ill. App. 3d 473, 479-80, 488 N.E.2d 1374) and, in such a case, proof of that person’s mental state inconsistent with that required for theft would prevent a conviction under section 4— 103(a) based on possession of a stolen motor vehicle. (See People v. Cramer (1981), 85 Ill. 2d 92, 100, 421 N.E.2d 189.) In the instant case, however, all the evidence submitted by both defendant and the State indicates that someone other than defendant took Evelyn Smith’s car near 53rd Street and defendant later obtained possession, either, as his written statement indicates, by finding it on 44th Street, or when he was picked up by Johnny Fleming. Whether defendant intended to permanently deprive the car’s owner of its use or benefit has no bearing on the car’s character as stolen property. While, as defendant contends, the jury could have believed his statement that he intended only to use the car for transportation and to return it where he found it, this would not be exculpatory in view of the evidence that the car was already stolen at the time he obtained possession.

In instructions, a term which is employed in a general, nontechnical context need not be defined as long as nothing in the instruction obscures its meaning. (People v. Hicks (1987), 162 Ill. App. 3d 707, 713, 516 N.E.2d 807.) Thus, applicable here, where the term “theft” was used merely to aid the jury in understanding the term “stolen property,” are the cases, such as those cited by the State, holding that in certain contexts, because “theft” is a word in common usage generally meaning the unlawful taking of property, it is not necessary to give an instruction specifically defining the term theft. See People v. Johnson (1981), 98 Ill. App. 3d 228, 234, 424 N.E.2d 610; People v. Browry (1972), 8 Ill. App. 3d 599, 604, 290 N.E.2d 650; People v. Parks (1971), 133 Ill. App. 2d 348, 351, 273 N.E.2d 162 (no error in failing to instruct as to definition of theft in prosecution for burglary).

Defendant also contends that the circuit court improperly instructed the jury as to the definition of converted property. The court instructed the jury that “[t]he phrase ‘converted property’ means property over which unauthorized control has been obtained by the act of actually appropriating the property of another to his own beneficial use and enjoyment.” There was no IPI definition of the term at the time, and the non-IPI instruction was obtained from Black’s Law Dictionary. Defendant maintains in his reply brief, citing People v. Sergey (1985), 137 Ill. App. 3d 971, 485 N.E.2d 506, that, in the context of section 4 — 103(a)(1) of the Vehicle Code, conversion requires an intent to permanently deprive the owner of his property and that the failure to so instruct the jury requires reversal.

In Sergey, in considering the defendant’s claim that as a matter of law his acts did not constitute conversion, this court noted, inter alia, the absence of an intent to permanently deprive the owner of his vehicle in finding that the defendant, who had taken the vehicle himself under the mistaken belief that he had the owner’s permission, had not converted the vehicle. This court did not state, however, that in all instances such an intent must be present to sustain a conviction under section 4 — 103(a)(1), its decision being limited to the particular factual situation of that case. Sergey is not authority that a jury must be instructed as to intent to permanently deprive. Indeed, contrary to defendant’s contention that the jury need be so instructed, the most recent supplement to the Illinois Pattern Jury Instructions, Criminal, defines “converted” in the context of section 4 — 103 as follows:

“Property has been ‘converted’ if a person lawfully entitled to possession of that property has been wrongfully deprived of it.” (IPI Criminal 2d No. 23.15A (Supp. 1989).)

The non-IPI instruction given is not substantially different from this new instruction. Hence, defendant’s contention is without merit.

Defendant’s final contention is that because, following trial, he expressed dissatisfaction with his trial counsel’s handling of his case, noting counsel’s failure to contact certain alibi witnesses suggested by him, he should have had other counsel appointed for him in presenting this claim below and this cause should be remanded for a new post-trial hearing with new counsel appointed to investigate and to present this claim. Defendant primarily relies on the decision of our supreme court in People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E. 2d 1045.

The State responds that the record shows that defendant made a similar claim during pretrial proceedings and the trial court said defendant should have the witnesses present on the day of trial. The State further points out that defendant was released on bond and was able to contact these witnesses himself.

The record reveals that during a status hearing on September 10, 1987, defendant indicated he wanted to hire a private lawyer and would be talking to the lawyer before the trial was to begin on September 14. Defendant also informed the court that he had certain witnesses whom his present appointed counsel had not contacted even though they were trying to reach the attorney. He identified the witnesses as his three-year-old daughter, Peewee Bates, Robert Moore, a codefendant whose case had been dismissed, and Denise Lawson. Defendant’s counsel was ordered to subpoena Bates. Defendant had no specific address for Moore who, defendant said, lived in Aurora. The court also told defendant to bring the witnesses to court on September 14 and defense counsel could talk with them and they could testify.

Defendant did not secure new counsel. The next indication of defendant’s dissatisfaction with his trial counsel was in a letter to the court filed October 7, following his trial, wherein he stated, without elaboration, that his counsel handled his case improperly. Further, on October 22, following the denial of his post-trial motion and at the end of his sentencing hearing, defendant informed the court that his counsel failed to contact alibi witnesses Johnny Fleming, Robert Moore, and defendant’s sister, Patricia Washington, the latter two being now present in court. He informed the court that Fleming had been in the Cook County jail and his counsel failed to talk with him. Essentially, defendant related that these witnesses could have testified that defendant did not know the car was stolen and that Fleming drove the car. Defendant’s counsel responded that he had five letters written to defendant while the case was pending germane to his work on the case and notes of interviews with witnesses which relate to the allegations and what he did with the information provided. These documents are not a part of the record on appeal. .

In People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E. 2d 1045, the defendant, following trial, presented pro se a motion alleging ineffective assistance of his trial counsel based on counsel’s failure to present an alibi defense and to contact an alibi witness suggested by defendant. Our supreme court, upon the agreement of appellate counsel for the State and the defendant that counsel should have been appointed below to represent defendant on this allegation, remanded for a new hearing on the motion with new counsel appointed for defendant. (Krankel, 102 Ill. 2d at 189, 464 N.E.2d at 1049.) The holding in Krankel has been interpreted by the appellate court not to establish a per se rule that all pro se motions for a new trial by defendants alleging ineffective assistance of counsel mandate appointment of new counsel to assist in the motion irrespective of the basis of the motion and in the absence of a request for new counsel. (People v. Mallette (1985), 131 Ill. App. 3d 67, 75, 475 N.E.2d 237; People v. Jackson (1985), 131 Ill. App. 3d 128, 138-39, 474 N.E.2d 466; see also People v. Generally (1988), 170 Ill. App. 3d 668, 676, 525 N.E.2d 106.) Rather, the trial court should examine the factual matters underlying the defendant’s claim, and, if the claim lacks merit or pertains to matters of trial strategy, then no new counsel need be appointed. Only if the allegations show possible neglect of the case for which counsel could undertake an independent evaluation of defendant’s complaint and present the matter to the court should new counsel be appointed. Generally, 170 Ill. App. 3d at 676, 525 N.E.2d at 111; Jackson, 131 Ill. App. 3d at 139, 474 N.E.2d at 474-75.

In the case at bar, defendant did not request counsel to assist him and the record does not reveal a neglect of defendant’s case. It is readily ascertainable from the record that counsel did not, as a general matter, neglect defendant’s case. Moreover, we do not view defendant’s allegations with respect to counsel’s failure to contact particular witnesses as constituting neglect under the circumstances of this case. The matters on which these witnesses would purportedly testify, defendant’s lack of knowledge that the vehicle was stolen and his status as a passenger in the vehicle, rather than as a driver, are cumulative to his testimony and that of Twanda Harris, and these witnesses are not properly characterized as alibi witnesses. The proposed witnesses were all friends or relatives of defendant and, under the facts of the case, would have added little to defendant’s defense. Furthermore, as the direct testimony of these witnesses could have been of such limited value to the defense, the possible dangers in subjecting these witnesses to cross-examination would be a strategic concern militating against presentation of their testimony. Defendant’s trial counsel did represent that he did interview witnesses that relate to the allegations by defendant. Thus, defendant’s allegations are on their face insufficient to show possible neglect of defendant’s case but rather show decisions by counsel well within the bounds of proper trial strategy. Remanding for a new hearing on defendant’s claim with new counsel is not warranted in this circumstance. Generally, 170 Ill. App. 3d at 676-77, 525 N.E.2d at 111.

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

Affirmed.

UNVERZAGT, P.J., and LINDBERG, J., concur.


source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JON D. ANGELL, Defendant-Appellant.
    Second District
    No. 2—88—0426
    Opinion filed June 22, 1989.

      William E. Glisson, of Aurora, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Jon D. Angelí, after a bench trial in the circuit court of Du Page County, was found guilty and fined $500 for the offense of transporting alcoholic liquor in a motor vehicle. (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 502(a).) Defendant filed a timely notice of appeal. Defendant argues he was not proven guilty beyond a reasonable doubt.

There were no verbatim transcripts of defendant’s trial, and the following facts come from the brief bystanders’ reports of defense counsel and the State’s Attorney filed by defendant pursuant to Supreme Court Rule 323(c) (107 Ill. 2d R. 323(c)).

Officer McGrath of the Naperville police department testified that he was on duty September 28, 1987. At 12:43 a.m. Officer Mc-Grath effectuated a traffic stop on defendant’s vehicle at North Aurora Avenue and Route 59. Officer McGrath, at trial, identified defendant as the driver of the vehicle and Tim Gabrielson as the person seated in the front passenger seat. Officer McGrath smelled alcohol emanating from the vehicle, and while looking into the vehicle from the passenger’s side, he saw two open Budweiser beer cans in plain view. Officer McGrath seized the two beer cans, each of which contained liquid. Officer McGrath, after stating that he had smelled beer on hundreds of prior occasions, testified that in his opinion the liquid in the cans was beer. While Officer McGrath had placed some of the liquid from each can in vials for later laboratory analysis, no analysis had been performed, and the State only introduced the two beer cans into evidence and relied solely on Officer McGrath’s testimony to establish the contents of the cans at the time of the traffic stop. Officer McGrath further testified that defendant did not admit to any drinking, although he stated that he and his passenger had been to a sport’s attraction at the Rosemont Horizon. Further, defendant was administered and passed a field sobriety test and was not charged with driving under the influence.

Defendant testified that he did not know the beer cans were in the car and did not have possession of the cans. Defendant’s passenger, Tim Gabrielson, testified that he had possession of the cans and that defendant neither knew nor had possession of the beer cans. The passenger further testified that he had pled guilty to the possession of the beer cans.

On appeal, defendant attacks the sufficiency of the evidence. Defendant argues the State failed to prove beyond a reasonable doubt that defendant knowingly possessed open beer cans in his vehicle. First, we address the specific nature of the acts involved in the offense with which defendant was charged by the State and convicted of by the trial court to determine if knowledge and possession are elements of the crime charged. Defendant, as the driver of the vehicle, was charged with the offense of transporting alcohol in an open container in the passenger area of a motor vehicle upon the highways of this State. (See Ill. Rev. Stat. 1987, ch. 95½, par. 11— 502(a).) Defendant was not charged with possession of alcohol in an open container. Section 11 — 502 of the Illinois Vehicle Code (Code) provides in relevant part:

“Transportation or possession of alcoholic liquor in a motor vehicle, (a) Except as provided in paragraph (c), no driver may transport, carry, possess or have any alcoholic liquor within the passenger area of any motor vehicle upon a highway in this State except in the original container and with the seal unbroken.
(b) Except as provided in paragraph (c), no passenger may carry, possess or have any alcoholic liquor within any passenger area of any motor vehicle upon a highway in this State except in the original container and with the seal unbroken.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 9572, pars. 11 — 502(a), (b).)

A plain and ordinary reading of this statute indicates that the legislature intended that the driver of a vehicle, as opposed to the passenger, may violate the statute by the act of transporting open alcohol in the passenger area of a vehicle, irrespective of whether the driver possessed, carried, or had open alcohol in the passenger area. (Sostak v. Sostak (1983), 113 Ill. App. 3d 954, 447 N.E. 2d 1345 (in determining intention of legislature, the statutory language should be given its plain and ordinary meaning).) Contrary to defendant’s argument on appeal, there is no requirement that defendant physically or constructively possessed the beer cans where defendant, as a driver of the vehicle, was charged and convicted of transporting open beer cans in a vehicle, not of possessing open beer cans. The issue on review is whether the evidence was sufficient to convict defendant of illegal transportation of alcohol.

Defendant also contends that the evidence was insufficient to prove that he knowingly violated section 11 — 502 of the Code (Ill. Rev. Stat. 1987, ch. 9572, par. 11 — 502). The State argues that proof of knowledge is not required, but that section 11 — 502 creates an absolute liability offense. (See People v. Graven (1984), 124 Ill. App. 3d 990, 464 N.E .2d 1132 (knowledge is not a required element in illegal transportation of alcohol offense).) This district has not yet had the opportunity to address whether the prosecution of a defendant for a violation of section 11 — 502 requires proof of a mental state. We hold that proof of a mental state is not required.

The Appellate Court, Fourth District, after earlier holding that proof of defendant’s knowledge was required, overruled its prior holding and held section 11 — 502 of the Code (Ill. Rev. Stat. 1987, ch. 9572, par. 11 — 502) created an absolute liability offense in that no proof of a mental state was required. (People v. Graven (1984), 124 Ill. App. 3d 990, 464 N.E.2d 1131, overruling People v. Hutchison (1977), 46 Ill. App. 3d 725, 361 N.E .2d 328.) The court in Graven adopted the well-reasoned analysis of Justice Mills’ dissenting opinion in Hutchison, which recognized that section 4 — 9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 9) provides that a person may be convicted of an offense without proof of a mental state, even where the statute defining the offense does not clearly impose absolute liability, if the offense is a misdemeanor for which imprisonment may not be imposed and the fine does not exceed $500. (People v. Graven (1984), 124 Ill. App. 3d 990, 996, 464 N.E.2d 1132, 1136-37; People v. Nunn (1979), 77 Ill. 2d 243, 396 N.E.2d 27.) As Justice Mills discussed in his dissent in Hutchison, several sections of the Illinois Vehicle Code prior to the passage of section 4 — 9 of the Criminal Code of 1961 had been interpreted as absolute liability offenses and that, following 1961, these sections of the Vehicle Code were consistently interpreted as not requiring any particular scienter. People v. Hutchison (1977), 46 Ill. App. 3d 725, 727-28, 361 N.E.2d 328, 329 (Mills, J., dissenting), overruled by People v. Graven (1984), 124 Ill. App. 3d 990, 464 N.E.2d 1132.

The Appellate Court, Third District, however, in People v. DeVoss (1986), 150 Ill. App. 3d 38, 501 N.E.2d 840, declined to follow People v. Graven (1984), 124 Ill. App. 3d 990, 464 N.E.2d 1132, and held that proof of knowledge was required to show a violation of section 11 — 502(b) of the Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11— 502(b).) In DeVoss, the issue of whether section 11 — 502 is an absolute liability offense arose in the prosecution of a passenger under section 11 — 502(b). The DeVoss court reasoned that if section 11— 502(b) imposed absolute liability upon a passenger for the unknowing transportation of alcohol, ridiculous results, not intended by the legislature, would result. (People v. DeVoss (1986), 150 111. App. 3d 38, 40, 501 N.E.2d 840, 842.) As an example, the court in DeVoss reasoned that an unsuspecting elderly gentleman, who accepted a ride home from an altar-guild member who was transporting open communion wine in her handbag, would be guilty of violating section 11 — 502(b). (People v. DeVoss (1986), 150 Ill. App. 3d 38, 41, 501 N.E.2d 840, 842.) However, we believe the court’s opinion in DeVoss is based upon a mistaken interpretation of section 11 — 502(b). Section 11— 502(b), as discussed earlier, does not make a passenger liable for transporting open alcohol but only for possessing, carrying or having open alcohol. The elderly man in the court’s example in DeVoss did not possess, carry or have open alcohol in violation of section 11— 502(b) and was not made liable where he simply accepted a ride home with a person who was transporting open alcohol. (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 502(b).) We agree with the resolution of the issue as expressed by the Appellate Court, Fourth District, in People v. Graven (1984), 124 Ill. App. 3d 990, 464 N.E.2d 1132, and hold that section 11 — 502 creates an absolute liability offense in that the State, in prosecuting a defendant for illegal transportation, is not required to prove that the defendant, as the driver of the vehicle, had knowledge of the existence of the open container of alcoholic liquor. 111. Rev. Stat. 1987, ch. 95½, par. 11 — 502.

A court of review will not set aside a criminal conviction unless the evidence is so unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Adams (1985), 109 Ill. 2d 102, 485 N.E.2d 339.) The evidence adduced at trial was sufficient to allow a rational trier of fact to conclude beyond a reasonable doubt that defendant committed the offense of illegal transportation of alcohol. (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 502(a).) According to defense counsel’s bystander’s report, defendant’s passenger and witness, Tim Gabrielson, admitted in his testimony to possessing the open beer cans within the passenger area of the vehicle and to pleading guilty to possessing the beer cans. We assume Tim Gabrielson, as a passenger, pled guilty to violating section 11 — 502(b) of the Code by possessing alcoholic liquor in the open beer cans since possession of empty beer cans is not proscribed by the statute. (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 502(b).) The testimony of defendant’s witness, viewed in a light most favorable to the State, alone, was sufficient to prove that alcoholic liquor, not in the original container with its seal unbroken, was in the passenger area of defendant’s vehicle.

Defendant implicitly argues that the failure of the State to introduce testimony concerning a chemical analysis of the contents of the beer cans somehow precludes a finding of guilty. Defendant cites no authority, and we are unaware of any authority, which supports such a conclusion. (See People v. Jacquith (1984), 129 Ill. App. 3d 107, 472 N.E.2d 107 (testimony of arresting officer, alone, if qualified can be enough to sustain a conviction for driving while under the influence of intoxicating liquor).) Defendant does not argue that Officer McGrath was not competent to testify to his observations and opinion that the beer cans, which were introduced at trial, contained alcohol at the time of the traffic stop. (See People v. Jenkins (1974), 20 Ill. App. 3d 727, 315 N.E.2d 269 (officer who testified to smelling marijuana on numerous occasions could testify that he associated odor in defendant’s apartment with marijuana).) The trial court as the trier of fact could properly rely on this testimony. (See People v. Jacquith (1984), 129 Ill. App. 3d 107, 472 N.E.2d 107 (layman is competent to testify regarding intoxication from alcohol, since such observations are within competence of all adults of normal experience).) Defendant does not dispute that he was the driver of the vehicle stopped by Officer McGrath or that Tim Gabrielson was a passenger in the vehicle. The evidence amply supported a finding that defendant, as a driver of a vehicle on the highways of Illinois, trans-

ported alcohol in an open container within the passenger area of a vehicle. Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 502(a).

The judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT, P.J., and REINHARD, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSE MIRANDA, Defendant-Appellee.
    Second District
    No. 2—87—0677
    Opinion filed June 21, 1989.

      Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      G. Joseph Weller and Francine Harrison, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

The State appeals from a judgment of the circuit court of Lake County granting the post-conviction petition of defendant, Jose Miranda. We affirm.

Defendant was charged with attempt (murder) (Ill. Rev. Stat. 1983, ch. 38, pars. 8 — 4, 9 — 1), aggravated battery (two counts) (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4), and armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A — 2). Pursuant to a plea agreement, defendant pled guilty to one count of aggravated battery and the other charges were nol-prossed. On August 28, 1984, the circuit court sentenced defendant to a 30-month term of probation for aggravated battery.

Defendant filed a post-conviction petition (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq.) on February 26, 1987. The petition alleged, inter alia:

“2. [Tjhat at the time I entered the plea, I was represented by an attorney named Ronald Schwartz ***.
3. [Tjhat Mr. Schwartz did not speak Spanish and I did not speak English; my mother tongue is Spanish.
4. [Tjhat Mr. Schwartz and I communicated through the wife of one of my cousins, Maria Ortiz, who is Hispanic but speaks some English.
5. [Tjhat I believe that Mr. Schwartz must have known that I was an immigrant from Latin America, because of my inability to communicate in English and the fact that I spoke only in Spanish.
6. [Tjhat Mr. Schwartz never requested that an interpreter be appointed for me, pursuant to Ch. 38, Sec. 165 — 11, 111. Rev. Stats.
7. [Tjhat Mr. Schwartz never informed me that there could be adverse consequences with regard to the United States Immigration and Naturalization Service as a result of my plea of guilty.
8. [Tjhat I have recently learned that I am eligible for Permanent Resident Status with the U.S. Immigration and Naturalization Service because I have resided in this country since before 1982, but for my record of a felony conviction in 1984.
9. [Tjhat I recently learned that a felony conviction would automatically make me deportable even without the Immigration Reform Act of 1986.
10. [T]hat I believed and believe that I had a meritorious defense to the charges against me in 1984.
11. [T]hat had I understood the true nature of my plea in 1984,1 would not have entered it.
12. [T]hat I believe that Mr. Schwartz rendered me ineffective assistance of counsel by not requesting an adequate interpreter and not informing me of the immigration consequences of my plea.”

A hearing on this petition was held on June 25,1987.

At the hearing, two witnesses testified: defendant and his former attorney, Ronald Schwartz. Defendant testified that he has been in the United States since 1977, having resided previously in Mexico. He was represented by Schwartz at the time he pled guilty and was sentenced. Defendant speaks only Spanish, understanding some expressions or phrases in English but being unable to speak that language. Schwartz speaks only English, and not Spanish, so they communicated through Maria Ortiz, the wife of a friend of defendant’s. Prior to pleading guilty, defendant spoke with Schwartz twice in the jail: once for 20 or 30 minutes when defendant was still represented by the public defender and a second time for about half an hour after Schwartz took defendant’s case. Defendant also spoke to Schwartz on the two occasions they were in court {i.e., when he pled guilty and when he was sentenced). Neither Schwartz nor the judge nor the public defender ever told defendant anything about the effect of a guilty plea with regard to the immigration laws.

Schwartz testified that he visited defendant in jail on at least two and possibly three occasions and that he spoke with defendant on both occasions they were in court. Schwartz does not speak or understand any Spanish, so he communicated with defendant through an interpreter named Maria Ortiz. Schwartz believed defendant was from Mexico and believed him to be in this country illegally but did not discuss with defendant, investigate himself, or speak with any lawyer with a practice concentrated in immigration law about the immigration law ramifications of a guilty plea.

The trial court entered an order in which it found that defendant was an illegal alien at the time he pled guilty and that he and Schwartz had never discussed the effect of a felony conviction on his residency in this country. The court gave defendant leave to withdraw his guilty plea and reinstated all charges dismissed as a result of the guilty plea.

The State filed a “Motion to Vacate Order Allowing Defendant to Withdraw Plea” on July 10, 1987, which was denied on July 14, 1987. The State filed a notice of appeal from the trial court’s June 25 and July 14,1987, orders on July 21,1987.

The issue is whether defendant was denied his right to the effective assistance of counsel when his attorney, knowing that he was an alien in this country illegally, did not advise defendant as to, or even research, the effect of a guilty plea and conviction on his immigration status. The State contends that the judgment of the circuit court granting defendant’s post-conviction petition should be reversed because “a defense attorney has no duty to sua sponte advise his client regarding the effect of a guilty plea upon his immigration status.” Defendant contends that the judgment should be affirmed because “a criminal defense attorney has a duty to advise his client of all collateral consequences of a guilty plea, including the effect of a guilty plea and a conviction upon a defendant’s immigrant status and the failure of counsel to so advise his client amounts to the ineffective assistance of counsel and renders the client’s guilty plea involuntary.” The circuit court did not err in finding that defendant had been denied his right to the effective assistance of counsel and so did not err in granting defendant’s post-conviction petition.

To prevail on an ineffective-assistance-of-counsel claim, a defendant must establish (1) “that counsel’s representation fell below an objective standard of reasonableness” and (2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984), 466 U.S. 668, 688, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068.) In the context of a guilty plea, the first part of the Strickland test is “whether counsel’s advice ‘was within the range of competence demanded of attorneys in criminal cases.’ ” (Hill v. Lockhart (1985), 474 U.S. 52, 56, 58, 88 L. Ed. 2d 203, 208, 210, 106 S. Ct. 366, 369, 370, quoting McMann v. Richardson (1970), 397 U.S. 759, 771, 25 L. Ed. 2d 763, 773, 90 S. Ct. 1441, 1449; see also People v. Correa (1985), 108 Ill. 2d 541, 549-50, 553, 485 N.E.2d 307, 310, 312 (Illinois Supreme Court, prior to Hill v. Lockhart, utilized McMann v. Richardson in applying the Strickland test to counsel’s performance in the context of a guilty plea).) The second part of the Strickland test “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process,” which requires the defendant to “show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Hill v. Lockhart (1985), 474 U.S. 52, 59, 88 L. Ed. 2d 203, 210, 106 S. Ct. 366, 370; see also People v. Correa (1985), 108 Ill. 2d 541, 553, 485 N.E.2d 307, 312 (Illinois Supreme Court, prior to the opinion in Hill v. Lockhart, after determining that counsel’s advice was not within the range of competence required of counsel in the situation at hand, focused on whether the defendant’s decision to plead guilty had been affected by counsel’s erroneous advice).) The State’s claim of error— that the post-conviction petition should not have been granted because defense counsel had “no duty to sua sponte advise [defendant] regarding the effect of a guilty plea upon his immigration status” — goes only to the first or competence part of the ineffective-assistance-of-counsel test.

The Illinois Supreme Court has said:

“It is counsel’s responsibility, and not the court’s, to advise an accused of a collateral consequence of a plea of guilty; the consequence of deportation has been held to be collateral. [Citations.] ***
Deportation, although collateral, is, nonetheless, a drastic consequence. [Citation.] In most cases this collateral consequence is more severe than the penalty imposed by the court in response to the plea.” (People v. Correa (1985), 108 Ill. 2d 541, 550-51, 485 N.E .2d 307, 310-11.)

In Correa, counsel had misadvised the defendant as to the immigration consequences of a guilty plea, prompting the Supreme Court to say:

“We need not here consider the passive conduct of counsel in failing to discuss with a defendant the collateral consequences of a guilty plea, because in our case we have unequivocal, erroneous, misleading representations that were made to defendant in response to his specific inquiry, the accuracy of which counsel could have ascertained before the pleas were entered.” (People v. Correa (1985), 108 Ill. 2d 541, 551-52, 485 N.E.2d 307, 311.)

Although limited by the court in this way, Correa establishes several significant points: (1) defense counsel has the responsibility of advising a defendant of collateral consequences of a guilty plea in at least some circumstances; (2) immigration consequences — particularly deportation — may be drastic, often being harsher than the sentence itself; and (3) giving erroneous and misleading advice on deportation falls outside of the range of competence demanded of attorneys in criminal cases.

In People v. Padilla (1986), 151 Ill. App. 3d 297, 502 N.E .2d 1182, the defendant testified that “trial counsel incorrectly assured him that no deportation consequences would result from pleading guilty” while his trial attorney testified that “the subject of deportation was never discussed with his client.” (People v. Padilla (1986), 151 Ill. App. 3d 297, 301, 502 N.E.2d 1182, 1185.) The Padilla court noted:

“The circuit court made no comment as to the credibility of the witnesses when denying the petition. In view of our disposition of this case, however, we need not further address this issue.” (People v. Padilla (1986), 151 Ill. App. 3d 297, 301, 502 N.E.2d 1182, 1185.)

The court stated the disposition to which it referred as follows:

“The overall trend in State courts favors finding ineffective assistance rendering a guilty plea involuntary where counsel knows his client is an alien and does nothing to inform him of possible deportation consequences. [Citation.] We are persuaded that this is the correct result under such circumstances. *** Accordingly, we hold *** that failure of an attorney to inform a client that a guilty plea may result in deportation, when that consideration may be material to the client’s interest, constitutes ineffective assistance of counsel making the guilty plea involuntary.” (People v. Padilla (1986), 151 Ill. App. 3d 297, 303, 502 N.E.2d 1182, 1186.)

Thus, where an attorney knows a client is an alien, Padilla establishes that the attorney’s representation falls outside of the range of competence demanded of attorneys in criminal cases if the attorney fails to inform the client of the possibility of deportation when that may be material to the client’s interests.

In the case at bar, the trial court granted defendant’s post-conviction petition in reliance upon Padilla. The State argues that this reliance on Padilla was erroneous for several reasons.

The State argues that Padilla is factually distinguishable from the case at bar because:

“In Padilla, the defendant twice specifically raised deportation questions with his trial counsel. Therefore, it was obvious that the subject of Padilla’s immigration status was of paramount importance to him. Here, to the contrary, Miranda never exhibited any interest in his potential for deportation.”

The State has ignored Padilla’s attorney’s testimony that deportation was never discussed, the Padilla court’s statement that the circuit court never resolved the credibility question presented, and the Padilla court’s conclusion that it did not matter whether the subject was raised by Padilla because he was entitled to relief even if it was not. People v. Padilla (1986), 151 Ill. App. 3d 297, 301-03, 502 N.E.2d 1182, 1185-86.

The State also in effect contends that we should not follow Padilla because it was wrongly decided. We disagree and decline the State’s invitation to adopt the position taken in the cases decided contrary to the holding in Padilla. (See People v. Padilla (1986), 151 Ill. App. 3d 297, 303, 502 N.E.2d 1182, 1186 (and cases cited therein).) We also decline to follow United States v. George (7th Cir. 1989), 869 E2d 333. We note that George is premised upon a holding that the sixth amendment’s assurance of the effective assistance of counsel does not extend to collateral aspects of the prosecution. Even if we thought Padilla wrong we could not follow the rationale of George since our supreme court has held that “[i]t is counsel’s responsibility *** to advise an accused of a collateral consequence of a plea of guilty.” (People v. Correa (1985), 108 Ill. 2d 541, 550, 485 N.E.2d 307, 310; see People v. Richardson (1985), 139 Ill. App. 3d 598, 600, 487 N.E.2d 716, 717 (when the Illinois Supreme Court has decided an issue, the appellate court lacks the power to decide the same issue in a contrary fashion); People v. Nurse (1985), 131 Ill. App. 3d 590, 594, 475 N.E.2d 1000, 1004 (“It is well settled that the appellate court may not overrule or modify decisions of the supreme court. [Citations.] It is beyond this court’s power as an intermediate court of review to allow defendants’ argument to prevail when direct supreme court authority to the contrary exists”).) The State contends that, because under People v. Thomas (1968), 41 Ill. 2d 122, 242 N.E.2d 177, a trial court need not tell an alien defendant when pleading guilty that he may become subject to deportation, counsel need not tell such a defendant either. Despite the State’s protestation that if the trial judge does not have such a duty, “then it is only common sense that a defense attorney also does not have such a duty,” it is clear that a trial judge’s duty to advise a defendant pleading guilty is not identical to defense counsel’s. The Illinois Supreme Court recognized this and stated, “[i]t is counsel’s responsibility, and not the court’s, to advise an accused of a collateral consequence of a plea of guilty; the consequence of deportation has been held to be collateral.” People v. Correa (1985), 108 Ill. 2d 541, 550, 485 N.E.2d 307, 310.

The State, citing Allen v. Hardy (1986), 478 U.S. 255, 92 L. Ed. 2d 199, 106 S. Ct. 2878, and Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708, argues'that Padilla should not be applied retroactively. However, Padilla did not announce a rule of criminal procedure that was a clear break with the past but, rather, “did nothing more than apply settled precedent to different factual situations,” making retroactive application appropriate. Griffith v. Kentucky (1987), 479 U.S. 314, 324, 93 L. Ed. 2d 649, 659, 107 S. Ct. 708, 714.

The State in its reply brief argues that the case at bar is distinguishable from Padilla because defendant is an illegal alien and so not subject to the loss of legal resident alien status and that any adverse effects resulting from a conviction for defendant are based on conjecture or speculation too tenuous to justify requiring defense counsel to inform him of them. This argument was raised in the trial court but was not raised in the State’s initial brief in this court. This contention is not properly before us. (People v. Calhoun (1970), 46 Ill. 2d 60, 63, 263 N.E.2d 69, 71.) Even if it were properly before us, it would not alter the result of this case.

It is not necessary that a bad collateral consequence be a certitude for it to be one defense counsel should discuss with defendant before a guilty plea. Rather, it is only necessary that the consequence may be material to the client’s interests. (People v. Padilla (1986), 151 Ill. App. 3d 297, 303, 502 N.E.2d 1182, 1186.) A consequence is material if, under all of the circumstances, including both the severity and the likelihood of the particular consequence, it is one that may affect a client’s decision to plead guilty. The immigration consequences of the guilty plea to defendant at bar were of such magnitude.

Immigration consequences to an illegal alien may be very serious. An alien who has been convicted of a crime of moral turpitude is ex-cludable. (8 U.S.C.A §1182(a)(9) (West Supp. 1989).) An alien may reapply for admission into the United States if he has been deported on the basis of illegal entry, since that does not sustain a finding that the applicant is a person of bad moral character. (In re Carbajal (IC Oct. 26, 1978), Interim Decision No. 2765, at 279.) The Board of Immigration Appeals (BIA) has held that aggravated assault is a crime of moral turpitude. (In re Medina (BIA March 19, 1976), Interim Decision No. 2481, at 612; see also In re Lopez-Lopez (BIA Aug. 27, 1985), 2 ICR Bl-208, 212 (Vacca, board member, dissenting).) Thus, if defendant were deported after this conviction, he could not apply for admission into the United States since he would be excludable. Consequently, defendant has been harmed by pleading guilty.

In addition, by pleading guilty to a crime of moral turpitude, defendant is ineligible for discretionary relief from deportation. The Attorney General may, in his discretion, grant voluntary departure in lieu of deportation. (8 U.S.C.A. § 1254(e) (West Supp. 1989).) “An alien who is granted voluntary departure avoids the stigma of deportation and is allowed to choose his destination. Furthermore, future reentry into the United States is considerably easier for an alien who has departed voluntarily than for one who has been expelled.” (Jain v. Immigration & Naturalization Service (2d Cir. 1979), 612 F.2d 683, 686 n.l.) To qualify for voluntary departure, the alien must establish that he or she is a person of good moral character for at least five years prior to the application for voluntary departure. (8 U.S.C.A. § 1254(e) (West Supp. 1989); Delgado-Chavez v. Immigration & Naturalization Service (9th Cir. 1985), 765 F.2d 868, 869.) An alien is statutorily ineligible to be considered of good moral character if he or she has been convicted of a crime of moral turpitude. (Kabongo v. Immigration & Naturalization Service (6th Cir. 1988), 837 F.2d 753, 758.) Thus, defendant could not be granted voluntary departure if he had a conviction of a crime of moral turpitude, but would be eligible for such relief if he was not convicted.

Other forms of relief denied to aliens who have been convicted of crimes of moral turpitude and/or particularly serious crimes are suspension of deportation (8 U.S.C.A. § 1254(a) (West Supp. 1989)), withholding of deportation (8 U.S.C.A. § 1253(h)(2)(B) (West Supp. 1989)), waiver of deportation (8 U.S.C.A. § 1182(c) (West 1970)), and waiver of excludability (8 U.S.C.A. § 1182(h) (West Supp. 1989)). Since the record is devoid of facts regarding defendant’s immigration history, we will not speculate as to whether he would be eligible for any of these forms of relief.

These immigration consequences were sufficiently likely to affect defendant’s decision to plead guilty that counsel, knowing defendant was an illegal alien, should have advised defendant of them. Counsel’s failure to do so resulted in his advice falling outside of the range of competence demanded of attorneys in criminal cases. Since the State does not contend that defendant failed to establish prejudice, this conclusion is sufficient to uphold the judgment of the circuit court.

The judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT, P.J., and REINHARD, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LEMUEL E. OSBORN, Defendant-Appellee.
    Second District
    No. 2—88—0907
    Opinion filed June 22, 1989.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Donald N. Novelle and Michael O’Donnell, both of Serpico, Novelle, Dvorak & Navigato, of Chicago, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

The State appeals the judgment of the circuit court of Du Page County granting the petition of defendant, Lemuel Osborn, to rescind the statutory summary suspension of his driver’s license. The court found in favor of defendant because defendant had not been served with notice of the summary suspension as required by statute and due process of law. On appeal the State contends that since defendant availed himself of his right to a hearing, he was not prejudiced by the lack of statutory notice that he could avail himself of a hearing. This argument was not raised below and therefore has been waived for purposes of this appeal. People v. Weigt (1987), 155 Ill. App. 3d 862, 865, 508 N.E.2d 1183, 1185; People v. Valdez (1980), 81 Ill. App. 3d 25, 28, 400 N.E.2d 1096, 1098.

Even if the argument were properly before this court, we would find it unpersuasive. This case arose out of a charge of driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 9572, pars. 11— 501(a)(1), (a)(2)). A defendant’s driver’s license can be summarily suspended under section 11 — 501.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 9572, par. 11 — 501.1). The statute requires that a defendant be given immediate notice of the statutory summary suspension and the right to a hearing. (Ill. Rev. Stat. 1987, ch. 9572, pars. 2 — 118.1(a), 11 — 501.l(f— 1).) Under section 2 — 118.1(b) of the Code (Ill. Rev. Stat. 1987, ch. 9572, par. 2 — 118.1(b)), the defendant can petition the circuit court in a civil proceeding to rescind a section 11 — 501.1 summary suspension of his license.

In this case, the notice was never served. However, based on the law enforcement officer’s sworn report, the Secretary of State issued a confirmation of statutory summary suspension. Defendant Osborn filed his petition to rescind under section 2 — 118.1 on the ground that the requisite notice had not been served. The circuit court agreed and entered the judgment of rescission.

The State argues that defendant had not been prejudiced by his failure to receive the notice, since he was able to bring a petition anyway. This argument is unpersuasive. The fact that defendant was diligent in protecting his rights cannot cure the failure of due process in not being served. The cases cited by the State (In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501; In re A.H. (1988), 165 Ill. App. 3d 543, 519 N.E.2d 59) are not applicable. These cases do not deal with an indispensable party. The question of lack of notice in Saal v. County of Carroll (1989), 181 Ill. App. 3d 327, 336, 536 N.E.2d 1299, 1305, was moot as an opportunity to cure was given and the case decided on other grounds.

This court in People v. Gerke (1987), 156 Ill. App. 3d 43, 508 N.E.2d 1223, concluded that the statutory summary suspension procedure established by section 2 — 118.1 of the Code (Ill. Rev. Stat. 1985, ch. 9572, par. 2 — 118.1) satisfied the requirements of due process and noted specifically that the “Illinois statute provides that the suspension will not be effective until defendant receives written notice.” (See People v. Gerke (1987), 156 Ill. App. 3d 43, 48, 508 N.E.2d 1223, 1226.) Moreover, this court held in People v. Cooper (1988), 174 Ill. App. 3d 500, 528 N.E.2d 1011, that where, through an uncorrected administrative error, the notice bore the date of April 11, whereas the breathalyzer test was not given until shortly after midnight the next day, April 12, the notice was defective and would not support the denial of defendant’s petition to rescind the summary suspension. We reversed the trial court’s denial of the petition. Thus, these cases establish that the service of the notice is a necessary part of the summary suspension of a driver’s license. The suspension cannot take effect until 46 days after the notice is given to defendant. (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.1(g).) This requirement is reiterated in section 2 — 118.1(a). Failure to give notice would mean that a suspension would pend indefinitely. Due process requires that a defendant be given notice as required by statute. (See U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2; People v. Orth (1988), 124 Ill. 2d 326, 334, 530 N.E.2d 210, 214.) Thus, until defendant was served with notice of summary suspension there could be no suspension either to be confirmed or otherwise. The trial court did not err in rescinding the purported suspension.

For these reasons, the judgment of the circuit court is affirmed.

Affirmed.

WOODWARD and DUNN, JJ., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES SPEER et al., Defendants-Appellees.
    Second District
    No. 2—87—1191
    Opinion filed June 22, 1989.

      Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Barbara Paschen, both of State Appellate Defender’s Office, of Elgin, for appellee James Speer.
    Theodore S. Potkonjak, of Smoker & Starck, of Waukegan, for appellee Christopher Kucharski.
   JUSTICE DUNN

delivered the opinion of the court:

Defendants, James Speer and Christopher Kucharski, were charged with unlawful possession of less than 15 grams of a controlled substance (cocaine); unlawful possession with intent to deliver more than 5 but less than 15 grams of a substance containing cocaine; unlawful possession of more than 30 but less than 500 grams of cannabis; unlawful possession with intent to deliver more than 30 but less than 500 grams of cannabis; unlawful possession of less than 15 grams of a controlled substance containing lysergic acid diethlamide; unlawful possession of less than 15 grams of a controlled substance containing diazepam; and possession of a firearm without a firearm owner’s identification card.

These charges were brought as a result of evidence seized by the police after a warrantless search of defendants’ apartment. Defendants moved to suppress the evidence, and after a suppression hearing, this motion was granted. The State’s motion to reconsider was denied. The State filed a certificate of impairment pursuant to People v. Young (1980), 82 Ill. 2d 234, 247, to allow an appeal under Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)), and now raises three issues on appeal: (1) whether the warrantless search of the apartment was permissible under an emergency exception to the warrant requirement where police reasonably believed a woman in the apartment was suffering from a drug overdose; (2) whether the warrantless search was permissible due to consent by one with apparent authority; and (3) whether the warrantless search was permissible under a theory of ratified authority where a resident of the apartment consented after an unauthorized person gave consent. For the reasons stated below, we reverse.

The following evidence was introduced at the suppression hearing. Becky Kuzmickus testified as follows: On June 16, 1987, she received a phone call from the mother of Denise Lopez, who told her that Denise had called and asked her to call Kuzmickus to tell her that her daughter, Nina Sanchez, was overdosed on narcotics. Kuzmickus said she was alarmed by this call. She went to Denise Lopez’s home to meet Denise, who was going to take her to Nina. When Kuzmickus arrived at Denise’s, Denise was not there. Denise’s boyfriend was there and told Kuzmickus where she could find Nina. At this point Kuzmickus called police detective Marty Gram on his pager. (Kuzmickus was acquainted with Detective Gram, and he had given her his pager number in case she ever needed his assistance.) Kuzmickus stated she called Detective Gram because she was afraid to go to the residence alone. Kuzmickus told him she thought her daughter was in serious condition. Detective Gram told her that because he was off duty he would have to call a uniformed officer for assistance. He also told her that since Nina was 20, if she did not want to leave the premises, he could not force her. He told Kuzmickus he would accompany her to make sure nothing happened to her. He told her to meet him at a street corner, and they would go to the residence.

Kuzmickus, along with her husband, met Detective Gram on a street corner at Tenth and Jackson and proceeded to 920 South Jackson, the address at which Kuzmickus was told Nina was overdosed. The three were also accompanied by a Waukegan police officer. When they arrived at the residence, one of the officers knocked on the door, and a man answered. The officer asked if Nina Sanchez was inside, and the man replied no, he had dropped her off in Grayslake. Kuzmickus testified that Nina’s car was out back behind the residence. An officer asked if they could come inside. The man said fine and let them in. Upon entering the apartment, the officers asked who owned the apartment and asked again if they could look around. Defendant Speer replied yes. Kuzmickus and her husband looked through the different rooms in the apartment, but did not find Nina.

Detective Marty Grum testified as follows: He received a call at about 10 a.m. from Kuzmickus, who told him she had been informed that her daughter was unconscious due to an excessive amount of narcotics, and she was lying in only her underwear on the floor of an apartment where there were several men. She told him she believed her daughter’s safety was in jeopardy. Grum told her to determine the exact location where she believed her daughter was located. He was not certain whether the location was in Waukegan or North Chicago. He called the North Chicago police department to tell them he might need its assistance. Grum also called the Waukegan police department, who dispatched Officer Paul Hansen to the corner where Grum was to meet Kuzmickus. At the corner, Detective Grum explained to Officer Hansen what Kuzmickus had told him, and they proceeded to the residence. They arrived at the residence at approximately 11 a.m.

At the residence, Officer Hansen knocked on the door, and David Sanchez opened it about 90 degrees. Detective Grum could not see any drugs or drug paraphernalia from this vantage point. Officer Hansen asked Sanchez if Nina was in the apartment. He said she was not. Then Officer Hansen asked Sanchez if he lived in the apartment, and Sanchez responded that he did. Sanchez said they could enter, and they stepped inside. From inside the doorway in the living room, Detective Grum could see into the kitchen, where he saw a glass pipe with white residue. Officer Hansen then asked if anyone else lived in the apartment. Sanchez said that defendant Speer lived in the apartment. Detective Grum asked Speer if they could look for Nina, and he said go ahead. Detective Grum walked through the apartment with Kuzmickus behind him and looked into each room for Nina. He observed two rifles, a shotgun, and a handgun in a bedroom. In the kitchen he observed another glass pipe, a pair of forceps, and a mirror with white residue on it. He also saw a white powder on top of the kitchen cabinet and a bag with a green leafy substance in the bottom cabinet, which was partly open. After making these observations, Detective Grum returned to the living room and informed Officer Hansen, who called for assistance.

Officer Paul Hansen testified as follows: He was dispatched to meet Detective Gram at the corner of Tenth and Jackson. The dispatcher did not tell him that he was to investigate a possible overdose. He learned about the possible overdose when he met Detective Gram and Ms. Kuzmickus and her husband at Tenth and Jackson. Detective Gram and Nina’s parents indicated that Nina could be in danger. The parents were distraught and concerned. The four proceeded to 920 South Jackson, and, after a knock on the door, David Sanchez answered. Detective Gram asked him if Nina was inside. He told Sanchez he had been told that Nina was passed out on the floor in her underwear intoxicated from drags, and they were concerned about her well-being. Sanchez told him he had taken her home to Grayslake. At this point Officer Hansen still believed Nina could be in the residence in distress. He asked Sanchez if he lived in the apartment and if they could come inside. Sanchez answered yes to both questions. Officer Hansen and Detective Gram entered the apartment. Officer Hansen saw defendant Speer lying on the couch in the living room and asked him if he lived in the apartment. Speer told him he did and gave him permission to look around. Officer Hansen and Detective Gram looked around the apartment for Nina and did not find her. Detective Gram pointed to some drag items on the kitchen table. Officer Hansen observed the items and called for assistance.

David Sanchez testified as follows: He answered the door to defendants’ apartment and was asked by a police officer if Nina was inside. He stated that she was not, that he just took her home. An officer asked permission to come inside, and he turned around to wake up defendant Speer. At this point the police came inside. He had not told the police that they could enter. After they came through the door they began talking to defendant Speer. Sanchez said he never lived in this apartment.

Defendant Speer testified as follows: He was sleeping on the living room couch when he was awakened by a uniformed police officer and Nina’s mother and father walking past the couch. He asked what was going on. He said they began looking through the apartment, and at some point an officer stated that they were looking for Nina. Detective Gram stood inside the doorway. Detective Gram recognized Denise Lopez, who was sitting on a chair in the living room and made some greeting to her. Speer said no one asked him for permission to search his house, but he did later sign a consent form to search presented to him by an officer other than Gram or Hansen after the two officers had searched the apartment.

Defendant Kucharski testified as follows: He lived at 920 South Jackson with defendant Speer. He was in the kitchen when the police came to the door. He went into the living room and observed the police speaking with David Sanchez. He heard an officer ask if they could come inside. He could not clearly hear what Sanchez said to the officer, but he never heard Sanchez give permission to come in. He saw Sanchez turn around toward Speer, and the police followed him right in. They asked Speer if they could come in, and he replied sarcastically, “Hey, you’re already here.” Kucharski was never asked for permission to search the apartment and never told the officers they could do so.

After hearing the evidence the trial court granted defendants’ motion to suppress the evidence seized in defendants’ apartment, holding that the initial warrantless entry to defendants’ apartment violated the fourth amendment. The court found that the facts did not support an exigent circumstances exception to the warrant requirement because there was no probable cause to believe a crime was committed. The trial court also found that David Sanchez did not consent to a search which would intrude upon the apartment residence and that he had no authority to consent because he was a social guest. Finally, the court held that defendant Speer’s consent made after the officers were inside the residence did not validate the search because the officers saw the drug paraphernalia just after they stepped in the apartment and before Speer consented.

We first address the second issue raised by the State, whether there was consent to search the apartment. The State contends that the search of defendants’ residence was valid because David Sanchez, who answered the door, consented to the search. It is well recognized that a search may be conducted without a warrant, if done with consent. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 222, 36 L. Ed. 2d 854, 860, 93 S. Ct. 2041, 2045.) Consent need not be obtained from the defendant himself; it is valid if obtained from a third party who possessed common authority over, or other sufficient relationship to, the premises. (United States v. Matlock (1974), 415 U.S. 164, 170, 39 L. Ed. 2d 242, 249, 94 S. Ct. 988, 993.) Defendants argue that the trial court found that Sanchez did not consent to the search, and we may not reverse this finding unless it is contrary to the manifest weight of the evidence. We need not decide whether this finding is contrary to the manifest weight of the evidence because under Illinois law, even if Sanchez did consent to the search, it would be invalid because Sanchez did not have authority to consent. It is undisputed that Sanchez did not live at the apartment, and there was no evidence to suggest that he was anything more than a social guest. Thus, he did not possess common authority or have some other suffident relationship to the apartment to validate a search by the police.

The State argues that because it appeared Sanchez had authority, the search passes constitutional muster. The Supreme Court has never decided whether a search may be valid where the person who consented appeared to have authority to consent, though several lower courts have recognized that a search made after consent by one with apparent authority does not violate the fourth amendment. (See 3 W. LaFave, Search and Seizure, §8.3(g) (2d ed. 1987).) Nonetheless, the Illinois Supreme Court has considered and rejected the apparent authority doctrine (People v. Miller (1968), 40 Ill. 2d 154), and this court recently held in accordance with this opinion in People v. Vought (1988), 174 Ill. App. 3d 563. Accordingly, we decline to find the search valid under a doctrine of apparent authority.

Next, we find no merit to the third issue raised by the State, whether the search was constitutional under a theory of ratified consent. The State argues that though Sanchez did not have authority to consent, his consent was ratified by Speer, who was a resident, when Speer gave his consent to search after the police stepped into the apartment. The State has not cited, nor are we aware, of any case law which has applied this agency principle of ratification to the issue of consent to search. Suffice it to say, we are not persuaded to adopt such a novel theory.

Finally, we address the State’s first contention on appeal, that the warrantless entry to defendants’ apartment was legal under the emergency exception to the warrant requirement where the police had a reasonable belief that a woman inside the apartment was in danger from a drug overdose. Defendant Kucharski argues that this issue is waived because it was not raised at the suppression hearing and was not raised in the State’s motion for reconsideration. We disagree. The trial court interrupted the prosecutor in the beginning of his argument to tell him that he did not believe the emergency exception was applicable to this case. Thus, the prosecutor cannot be held to have waived this issue below. Secondly, we know of no rule, statute, or case which requires this court to find an issue waived, as in the case of a post-trial motion, where the State did not raise an issue in a motion to reconsider a suppression order.

A warrantless search of a home is presumptively an unreasonable search in violation of the fourth amendment. (Payton v. New York (1980), 445 U.S. 573, 586, 63 L. Ed. 2d 639, 651, 100 S. Ct. 1371, 1380.) The Supreme Court has recognized an “emergency” exception to the warrant requirement in instances where police officers “reasonably believe that a person within is in need of immediate aid.” (Mincey v. Arizona (1978), 437 U.S. 385, 392, 57 L. Ed. 2d 290, 300, 98 S. Ct. 2408, 2413.) Illinois courts, including this court, have repeatedly recognized this exception in cases where officers reasonably believe an emergency exists which dictates the need for immediate action to provide aid to persons or property in a home. (People v. Koniecki (1985), 135 Ill. App. 3d 394, 399; People v. Bondi (1984), 130 Ill. App. 3d 536, 539-40; People v. Meddows (1981), 100 Ill. App. 3d 576, 579-81.) During the course of their legitimate emergency activities, the police may seize any evidence that is in plain view. Mincey v. Arizona (1978), 437 U.S. 385, 393, 57 L. Ed. 2d 290, 300, 98 S. Ct. 2408, 2413.

The trial court held that the exigent circumstances exception did not apply to this case because there was no probable cause to believe a crime had been committed within the residence. In emergency cases such as the one presented here, however, where the police testified that the purpose of entering the residence was to check on the welfare of a person, rather than to make an arrest or search for evidence, the issue is not whether there was probable cause to believe a crime had been committed, but whether the police reasonably believed that an emergency existed which required them to act immediately to provide aid to someone in the residence. Koniecki, 135 Ill. App. 3d at 399.

The trial court found that the officers were not attempting to gain entry to the residence for a purpose other than checking on Nina Sanchez, the woman believed to have overdosed. The judge stated that he did not believe this was a “masquerade attempt” to enter the residence to search for narcotics, and he found that the officers “reasonably” told the person answering defendants’ door that they were looking for Nina Sanchez. It is clear that the trial court believed that the officers entered defendants’ residence for a purpose other than to search or arrest. But, the court failed to make a finding on whether the police had a reasonable belief that they were faced with an emergency.

Ordinarily, a trial court’s ruling will not be disturbed on appeal unless it is manifestly erroneous. (People v. Hardin (1989), 179 Ill. App. 3d 1072, 1075.) When the facts are undisputed, however, an appellate court may review the evidence de novo. (Hardin, 179 Ill. App. 3d at 1075.) We find the facts going to the emergency exception undisputed, and, therefore, we will make our own determination of whether the facts support the application of the emergency exception in this case.

As already stated, for a warrantless search to be found permissible under the emergency exception, the State must show that the officers had a reasonable belief that a person within was in need of immediate aid. (Koniecki, 135 Ill. App. 3d at 399.) The reasonableness of the belief that an emergency exists is determined by the entirety of all the circumstances known to the police at the time of entry. (Koniecki, 135 Ill. App. 3d at 399; Meddows, 100 Ill. App. 3d 576; see generally 2 W. LaFave, Search and Seizure, §6.6(a) (2d ed. 1987).) There is no simple test for determining whether an officer’s belief that an emergency existed is reasonable; however, we find Chief Justice (then judge) Burger’s comments in his opinion in Wayne v. United States (D.C. Cir. 1963), 318 F.2d 205, 212, a helpful introduction to our analysis.

“[A] warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. Fires or dead bodies are reported to police by cranks where no fires or bodies are to be found. Acting in response to reports of ‘dead bodies,’ the police may find the ‘bodies’ to be common drunks, diabetics in shock, or distressed cardiac patients. But, the business of policemen and firemen is to aet, not to speculate or meditate on whether the report is correct. People could well die in emergencies if police tried to act with the calm deliberation associated with the judicial process. Even the apparently dead often are saved by swift police response. A myriad of circumstances could fall within the terms ‘exigent circumstances’ [citation], e.g., smoke coming out a window or under a door, the sound of gunfire in the house, threats from inside to shoot through the door at police, reasonable grounds to believe an injured or seriously ill person is being held within.” (Emphasis in original.)

In this case, the State contends the police entered defendants’ residence under the reasonable belief that a woman inside the residence had overdosed on narcotics. Detective Grum testified he received a call on his pager from Becky Kuzmickus. He said Kuzmickus told him she was concerned for her daughter’s safety; she had been told that her daughter, Nina Sanchez, was overdosed on narcotics and was lying unconscious in only her underwear on the floor of a residence where there were several men. Kuzmickus corroborated this testimony. Detective Grum also communicated this information to Officer Hansen. The record establishes that the only other circumstance known to the officers at the time of entry is that David Sanchez, who answered defendants’ door, stated that Nina was not in the apartment, that he had taken her home.

We believe that the circumstances known to the officers were sufficient to create a reasonable belief that Nina Sanchez was in serious danger and in need of immediate assistance. The information Kuzmickus told Detective Gram alerted him to a potentially life-threatening situation. It cannot be disputed that a person overdosed on narcotics is likely to be dangerously ill and in need of immediate assistance. It also cannot be disputed that time is of the essence in treating the victim of a narcotics overdose. As stated in La Fournier v. State (1979), 91 Wis. 2d 61, 280 N.W.2d 746, 749, where the Wisconsin court held it proper for a police officer to enter a dwelling in response to a telephone call that reported a drug overdose, “[a] victim of drag overdose clearly presents an emergency of sufficient proportion to render a warrantless entry ‘reasonable.’ ”

Also, we do not believe that David Sanchez’s statement that he took Nina home was sufficient to dissipate the reasonable belief that Nina was in danger. If Nina had been inside and in danger from an overdose or anything else, it is not at all certain that someone answering the door would readily admit this to the police, at least in this situation, where no one in the apartment called the authorities requesting assistance for Nina. We note also that Nina’s mother testified that her daughter’s car was out back behind the apartment.

Next, we address defendants’ contention that the officers did not actually believe Nina was in need of immediate assistance when they entered the apartment. Defendant Speer suggests that this was merely an instance where the police were assisting a mother who wanted to remove her “errant” daughter from defendants’ residence. We disagree. First, we point out that the State need not show that the officers believed with certainty that Nina was in need of immediate assistance. Again, as stated in Wayne v. United States (D.C. Cir. 1963), 318 F.2d 205, 212,

“[T]he business of policemen and firemen is to act, not to speculate or mediate on whether the report is correct. People could well die in emergencies if police tried to act with the calm deliberation associated with the judicial process.” (Emphasis in original.)

(See also People v. McGee (1986), 140 Ill. App. 3d 677, 681-82.) Second, we reiterate that the officer’s reasonable belief is determined by the totality of the circumstances known to the officer at the time of entry. (Koniecki, 135 Ill. App. 3d at 399.) Thus, in determining whether the officers had an actual reasonable belief, we are concerned only with what the officers knew at the time of entry. With these principles in mind, we review the factors defendants contend prove the officers did not actually believe there was an emergency situation.

Defendants note that Kuzmickus, after receiving the call from Denise Lopez’s mother, did not at first call Detective Grum. She first went to the home of Denise Lopez because Denise was to show her to the residence where Nina was located. It was not until she got to Denise’s and found Denise not there that she called Detective Grum. Defendants also point to the statement made by Kuzmickus that she called Detective Grum to make sure nothing happened to her when she went to check on her daughter. Defendants add that Kuzmickus did not call for medical assistance.

These factors do not disprove the officers’ reasonable belief for two reasons. First, we do not believe that Kuzmickus’s conduct demonstrates that she did not believe her daughter was in need of immediate assistance. The evidence established that Kuzmickus was distraught and concerned. That she hesitated in involving the police and did not call for medical assistance does not disprove her belief that her daughter was in need of immediate aid. Kuzmickus acted as soon as she heard about Nina by going to Sanchez’s home to meet Denise Sanchez. It may be that she hesitated- in calling the authorities because she believed her daughter took illicit drugs. At any rate, the conduct and motives of Kuzmickus are not relevant to this analysis since there is no evidence to indicate that Detective Grum or Officer Hansen was aware of these facts. The evidence shows that the officers knew at the time of entry only the information Kuzmickus learned from the phone call and that Kuzmickus stated she believed her daughter was in serious danger.

Defendants also point to a statement made by Detective Grum where he told Kuzmickus he could not force Nina to leave the premises if she was not intoxicated and no harm had come to her. Kuzmickus testified Detective Grum told her he could not force Nina to leave the premises if she did not want to leave, but he would go with Kuzmickus to make sure nothing happened to Kuzmickus. This statement does not prove that Detective Grum lacked a reasonable belief that there was an immediate need to enter the premises to check on Nina. It proves only that he was not certain that Nina was overdosed.

Defendants also note that approximately one hour passed from the time Kuzmickus called Detective Grum and the time they arrived at defendants’ residence. We do not believe this factor has anything to do with the the belief of the officers in this case. There is nothing in the record to indicate that the officers did not act as swiftly as possible as soon as they learned of the overdose report. Thus, the fact that it took them an hour to respond does not prove that they believed this was not an emergency.

The only other information which the record discloses that Detective Gram and Officer Hansen were aware of at the time of entry is that Sanchez, who answered the door, stated he took Nina home. There is nothing in the record to indicate that Detective Gram was satisfied by this statement that Nina was not in danger. Moreover, Officer Hansen testified that he still believed after Sanchez’s statement that Nina could be inside in danger.

We find that the evidence shows that the officers had an actual reasonable belief that there was an immediate need to enter defendants’ apartment to aid Nina Sanchez. The officers were informed that Nina was overdosed at this location, and their conduct demonstrates that they took this information seriously. We do not believe that the factors discussed by defendants prove that the officers believed this was merely a case of helping a mother get her errant daughter home. The record indicates that the concern was that Nina was overdosed. None of the factors mentioned by defendants sufficiently prove otherwise.

Our finding that the facts here are sufficient to support a finding of an emergency exception to the warrant requirement is consistent with two of our recent opinions concerning the emergency exception. In People v. Koniecki (1985), 135 Ill. App. 3d 394, we found the following facts justified a reasonable belief by the police that an emergency existed requiring immediate action: Defendant’s girlfriend appeared at a police station at approximately 4:45 a.m. in a disheveled and disoriented state complaining she had been attacked by defendant, who was trying to kill her. An officer was called to the station who lived across the street from defendant and his girlfriend. The officer knew that defendant and his girlfriend had a history of domestic violence and that the girlfriend had been under psychiatric care. When he asked the girlfriend where the defendant was, she responded that she did not know. The officer became concerned that defendant might be dead or seriously injured so he sent two police officers to defendant’s residence to check on him. When the officers knocked on his door at approximately 6 a.m. and received no response, they went into the house to check on defendant.

In People v. McGee (1986), 140 Ill. App. 3d 677, we held that an officer had a reasonable belief that an emergency situation existed where the officer, responding to a report that a foul odor emanated from a house where there were several barking dogs running loose on the roof, smelled a strong odor emanating from the house and observed through a window several bird cages with no birds in them and a dusty office area with a chair overturned. When no one answered after he rang the bell, he entered the house.

In both Koniecki and McGee, like the instant case, the police were faced with a situation where they had a reasonable belief that someone inside the premises could be in danger and in need of immediate assistance. The officers did not have a certain belief that this was the case, but the circumstances were such that it was a reasonable belief which dictated immediate action. We believe in the instant case that the cumulative information known at the time of the entry was sufficient to create a reasonable belief that a woman was overdosed in defendants’ apartment, and, thus, it was necessary to take immediate action. Therefore, any evidence seized after being seen in plain view during the course of a search for the woman is not inadmissible as a violation of the fourth amendment. We reverse the decision of the circuit court of Lake County and remand the cause for further proceedings.

Reversed and remanded.

McLAREN and NASH, JJ., concur.