author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSE MENDOZA, Defendant-Appellee.
    Fifth District
    No. 5—91—0467
    Opinion filed September 17, 1992.

      Paula Phillips, State’s Attorney, of Effingham (Norbert J. Goetten, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Lawrence J. O’Neill, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

The People of the State of Illinois appeal from an order of the circuit court of Effingham County, entered June 10, 1991, suppressing evidence consisting of over 15 pounds of cannabis found in the gas tank of defendant’s automobile. We reverse the suppression order and remand this cause for prosecution.

On January 24, 1991, defendant, Jose Luis Mendoza, was charged by information with the offenses of unlawful possession of cannabis (Ill. Rev. Stat. 1989, ch. 56½, par. 704(e)), unlawful possession with intent to deliver cannabis (Ill. Rev. Stat. 1989, ch. 56½, par. 705(e)), unlawful possession of cannabis without cannabis tax (Ill. Rev. Stat. 1989, ch. 120, par. 2160), and cannabis trafficking (Ill. Rev. Stat. 1989, ch. 56½, par. 705.1).

Hearing on defendant’s motion to suppress was held on April 29, 1991. The following evidence was adduced. The defendant, a Mexican, does not understand the English language. An interpreter was appointed to assist him in court. The defendant called as an adverse witness Illinois State Trooper Marla Sapp. She had been on duty from 7 a.m. until 3 p.m. on January 23, 1991. At approximately 9:40 that morning she observed a vehicle owned by defendant. Sapp followed that vehicle for five to seven miles. Defendant was a passenger in the vehicle. The vehicle had Texas license plates.

Sapp stopped the vehicle because the driver’s view was obstructed by fuzzy dice and several other items hanging from the rearview mirror in violation of section 12 — 503(c) of the Illinois Vehicle Code. (Ill. Rev. Stat. 1989, ch. 95½, par. 12 — 503(c).) The driver of the vehicle was Indelacio Valencia, defendant’s cousin. Sapp did not observe the vehicle violate any other traffic laws. Sapp testified that, while the dice did not obstruct the driver from seeing out his rearview mirror, they could have obstructed his view out the front window. In Sapp’s opinion the objects hanging from the rearview mirror materially obstructed the driver’s view. Sapp had made several arrests for obstruction of view during her five years with the Illinois State Police, the last time being a week and a half before the hearing. Sapp issued Valencia a warning ticket for driving with an obstructed view.

Sapp asked Valencia if she could search the vehicle. She was suspicious because there was a map in the car and Valencia and Mendoza seemed nervous. Also, when she asked Valencia whether he had ever been arrested before, Valencia lied and told her he had not. Sapp had already checked Valencia’s criminal history over her car radio. Further, defendant’s car was being followed by a car owned by Valencia. This other car did not stop when Valencia was pulled over. This also raised Sapp’s suspicions. When Sapp asked Valencia for consent to search, Valencia was seated in Sapp’s vehicle. Sapp knew that Valencia was not the owner of the vehicle, but that defendant was. Sapp did not speak with defendant because she did not speak Spanish and defendant did not speak English.

Sapp radioed for assistance from Sergeant Oliverio. Troopers are not permitted to search a vehicle without assistance. Sapp had first contacted Trooper Daniels, who arrived but could not stay. Sapp did not contact these other troopers until after she had stopped defendant’s vehicle.

Sapp identified the written consent to search form which she had used in this instance. It is written in English on one side and in Spanish on the other side. Valencia consented verbally to the search and also signed the Spanish side of the consent-to-search form.

When Trooper Oliverio arrived, he asked Valencia to translate his English to defendant and translate defendant’s Spanish to him. Defendant indicated that he could read and write Spanish, and he was given a written consent-to-search form.

The troopers then conducted a search of defendant’s vehicle. While they did not find any drugs, they did find evidence that the gas tank on the vehicle had been removed. There were fresh scratches on the tank and the dust on the straps which held it to the vehicle had been disturbed. The gas tank was leaking and there was an extra can of gas and some hoses in the vehicle. Trooper Oliverio asked Valencia and defendant if he could conduct a further search of the gas tank. Both Valencia and defendant agreed. Valencia and defendant were free to refuse and leave.

The vehicle was driven to a nearby service station, where it was placed on a hoist or lift. Valencia and defendant remained in the garage area with the vehicle. The gas tank was removed from the car and lowered to the ground. By shining a flashlight inside the gas tank, Sapp could see metal containers inside the tank. The troopers never sought any additional consent specifically to remove the gas tank or look inside it. Sapp testified, however, that Valencia and defendant knew that that was the trooper’s intention.

After the troopers viewed the metal containers inside the gas tank, Valencia and defendant were taken to police headquarters. The gas tank was taken to a nearby welding shop, where it was cut open. The metal containers were also cut open and were found to contain marijuana.

State Police Sergeant Oliverio was also called as an adverse witness by defendant. He responded to a call for assistance from Trooper Sapp on January 23, 1991. Sapp did not call Oliverio until after she had stopped defendant’s vehicle. Oliverio identified the written consent-to-search form used in this instance. The form gives consent to search the entire vehicle including luggage and the contents thereof. Oliverio thinks that the entire vehicle includes the gas tank.

Upon searching the vehicle, Oliverio determined that the gas tank had been removed from the vehicle. Valencia and defendant were free to go even after this search because no contraband had been found. Oliverio advised Valencia that he and defendant were not trader arrest. Valencia indicated that he understood that. Oliverio asked Valencia to tell defendant the same thing and to tell defendant that Oliverio was interested in the gas tank specifically. Oliverio believed that Valencia did correctly translate to defendant because defendant’s responses were appropriate. Oliverio asked defendant about the gas tank. Oliverio asked if he could inspect the gas tank closer by taking the vehicle to a service station and lifting it. Valencia talked with defendant, received a positive response and agreed to follow Oliverio to the service station. While Oliverio may not have told defendant expressly that he was going to remove the gas tank from the car, that was certainly implied by his explanation that he wanted to look more closely at the gas tank. Defendant knew that Oliverio was looking for contraband. Valencia and defendant followed Oliverio to the service station of their own free will. They were not under arrest. Oliverio was certain that defendant knew he was going to remove the gas tank. Defendant observed while Oliverio removed the gas tank. Neither defendant nor Valencia ever raised any objection to Oliverio removing the gas tank.

After removing the gas tank from the vehicle, Oliverio inserted his expandable baton inside it and felt the metal containers. He knew that they were not factory equipment. Through his experience and training, Oliverio recognized them as a way to smuggle contraband. Oliverio directed that Valencia and defendant be placed under arrest. Oliverio felt at this point that he had probable cause to arrest defendant based on his training and experience.

The gas tank was taken to a welding shop where it was opened. The containers were removed and opened.

On cross-examination by the State, Oliverio testified that he felt Valencia correctly translated to and from defendant because of defendant’s responses. When Oliverio asked Valencia and defendant to follow him to a service station, he made it clear that they were free to refuse and leave. Oliverio did not believe that defendant did anything against his will. Valencia and defendant followed Oliverio to the service station.

Oliverio was alerted by the gas tank for several reasons. It had a small leak which had been patched. The dust line on the straps which held it to the car had been disturbed, indicating that the straps had been moved recently. There were some scratches on the bottom of the tank which were not front to rear, but side to side. This is consistent with a gas tank having been removed from the car and placed on the ground to be worked on. The dust was also disturbed around the bolts which held the straps to the car. The nuts themselves had fresh tool marks on them, showing that they had been removed recently. The fact that the vehicle was also carrying a gas can and hoses indicated a possibility that something was concealed in the gas tank. The area of the gas tank which can hold gas is reduced because of the concealed items, so extra gas is carried.

While at the service station, defendant appeared to be very nervous. He was extremely stressed. After lowering the gas tank from the car, but before removing it, Oliverio observed a nonfactory weld on the tank. It appeared that the tank had been cut in half and then welded back together. He had observed the same thing in other contraband concealment cases. The welding was not done for purpose of repair.

The defendant testified in support of his motion to suppress. He had completed only the second year in school. He does not speak or read English but can read Spanish. He recalled being stopped by the police on January 23, 1991. Defendant acknowledged his signature on the written consent-to-search form. Valencia had told him to sign it. Valencia did not tell defendant that the police wanted to search the gas tank. Valencia told defendant that the police wanted to take the car to a service station to look at it further but did not tell him that they were going to look further at the gas tank. Defendant was not told that the police were going to remove the gas tank. Defendant did not consent to put the car on the hoist or lift. Valencia was told by the police to do so. Valencia drove the car to the service station. No one asked defendant for permission to remove the gas tank. Defendant signed the consent-to-search form because Valencia told him the police wanted it.

Defendant’s court-appointed interpreter testified that there is a difference between the English version of the written consent-to-search form and the Spanish version. While the English version gives consent to search the vehicle including luggage and contents thereof, the Spanish version gives consent to search the vehicle including the trunk and its contents. The defense rested.

The State called Trooper Sapp to testify. She testified that it was her opinion that the objects hanging from the rearview mirror of defendant’s car materially obstructed the driver’s view in violation of section 12 — 503(c) of the Illinois Vehicle Code. When the driver is looking forward and to the right, the objects would materially obstruct his view. Sapp did not radio for assistance until after Valencia was seated in her car and he had lied to her about never having been arrested before. Valencia had already consented to the search. The map in the vehicle caught her eye because it had been highlighted in yellow although the driver told her he had made the trip numerous times before.

Sapp has been specially trained in the highway interdiction program. It is an officer-awareness program to teach officers to dig a little deeper, ask questions, after a traffic stop. Officers are taught to look for things such as conflicting stories, multiple air fresheners or anything that is not normal. They observe whether individuals appear nervous, are unable to look the officer in the eye or evade questions. Based upon her training and experience, Sapp suspected that there might be more involved in the instant traffic stop than a mere traffic violation.

Valencia read the written consent-to-search form and indicated that he understood it. He signed it.

On cross-examination, Sapp testified that she followed defendant’s vehicle for approximately seven miles. She observed the objects hanging from the rearview mirror through the back window of defendant’s vehicle.

Trooper Oliverio was called to testify by the State. He identified the written consent-to-search form which was signed by defendant. With Valencia interpreting, Oliverio asked defendant where he had had his gas tank repaired. Through Valencia, defendant responded that the gas tank had not been off the car. Oliverio did understand defendant to say “Lufkin, Texas” in response to the question. When Oliverio handed defendant the written consent-to-search form, defendant appeared to read it. Oliverio asked defendant in Spanish if defendant understood it, and defendant responded that he did.

The State rested. There was no rebuttal.

While the court did not immediately rule on defendant’s motion, taking it under advisement, the court did make certain findings of fact immediately after the hearing. The court found that Officer Sapp acted properly in stopping defendant’s car. Sapp had testified that she believed that the objects hanging on the rearview mirror constituted a material obstruction of the driver’s view in violation of the Illinois Vehicle Code.

The court entered its order by way of docket entry on June 10, 1991. The order initially found that there was no probable cause to search the vehicle and that the search was not incident to a lawful arrest. Therefore, the legality of the search was dependent on consent. The State had failed to show that defendant, who did not read or understand English, gave voluntary consent to the search where the police officers did not understand Spanish and defendant’s cousin, who interpreted at the time of the arrest, was not produced at trial and defendant testified at trial that his cousin told him that he had to sign the consent form. Accordingly, the court granted defendant’s motion to suppress evidence uncovered in the search. The court further found that, even if defendant’s consent to the search was found to be voluntary, it would still suppress the evidence as the search far exceeded the scope of the consent. Because of the language of the Spanish version of the consent-to-search form, defendant could have believed that the search would only include the passenger compartment of the car and its trunk. The search exceeded this scope of consent. It is unreasonable to conclude in this case that defendant’s consent to search included consent to remove the gas tank from the car.

The State appeals. We reverse the order of the trial court because we are persuaded that voluntary and valid consent to search the car was given by the car’s driver, Valencia, and that this was sufficient to justify the search.

The United States Supreme Court made clear in United States v. Matlock (1974), 415 U.S. 164, 171, 39 L. Ed. 2d 242, 249-50, 94 S. Ct. 988, 993, that when the State seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. “Common authority” rests on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of those having access has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. (Matlock, 415 U.S. at 171 n.7, 39 L. Ed. 2d at 250 n.7, 94 S. Ct. at 993 n.7; People v. Posey (1981), 99 Ill. App. 3d 943, 948, 426 N.E.2d 209, 212.) This standard for third-party consent, i.e., the common-authority test, was adopted by the Illinois Supreme Court in People v. Stacey (1974), 58 Ill. 2d 83, 88-89, 317 N.E.2d 24, 27.

This rule has been held applicable to motor vehicles. In People v. Harris (1990), 199 Ill. App. 3d 1008, 1013, 557 N.E.2d 1277, 1280, a case remarkably similar to the one at bar, it was held that the driver of a car stopped for speeding could validly consent to a search of that car where the owner was a passenger in the car at the time of the stop and did not object to the search. Under Illinois law, a third party may give legally sufficient consent for a search if he has actual authority over the property shared in common with the defendant. The court explained that, by allowing the driver to exercise authority over a vehicle, a defendant assumes the risk that the driver will allow someone to look inside it.

“A driver of a car has the authority to consent to a search of that car because he is the person having immediate possession and control of the vehicle. [Citation.] As the driver, he has joint access and control over the entire vehicle, including its trunk, glove compartment and other components.” (199 Ill. App. 3d at 1013, 557 N.E.2d at 1280.)

The court further found that the driver’s consent was not negated by the presence of the defendant/owner as a passenger in the car. The defendant/owner had the power to delegate common authority over the car to the driver and to revoke it at any time. In Harris, the defendant remained silent and never expressed his ownership interest or evidenced a revocation of the driver’s common authority. Furthermore, defendant/owner never refused consent to the search or objected to the driver’s consent.

In United States v. Morales (3d Cir. 1988), 861 F.2d 396, 399, it was held that because the driver of a vehicle has immediate possession of and control over the vehicle, he also has general access to all areas of the vehicle. Accordingly, that driver may consent to a full search of the vehicle, including its trunk, glove box and other components. Morales further held that the silence of the passenger/owner of the car is material in assessing the driver’s authority to consent to the search. Thus, where the passenger/owner remains silent during the search, he is deemed to have impliedly consented to the search.

In Morales, it was found that the owner had no special privacy interest in the hidden area behind the rear seat where contraband was found other than that which he had in the car itself. Therefore, the driver had authority to consent even to a search of this hidden compartment. Neither the driver nor the owner had revoked or limited the scope of the consent in any way. The court held that the fact that certain compartments or their interiors are hidden from view is in and of itself immaterial. There is no separate privacy interest in a particular compartment simply because it is hidden from view. Of course, the court recognized that there may be a separate privacy interest in some area of the car where the driver’s access and authority have been limited by the owner, as where the driver has not been given the key to the trunk or glove box. (Morales, 861 F.2d at 399; Harris, 199 Ill. App. 3d at 1013-14, 557 N.E.2d at 1280.) Such was not found to be the fact in either Morales or Harris.

We think the instant case is very similar to both Morales and Harris. In the instant case, the driver of the car, Valencia, gave consent to search the car. There is no evidence that Valencia’s consent was not voluntary. As driver of the car, Valencia had authority to consent to a search of the entire car, including its trunk, glove compartment, any hidden compartments and any other components of the car. There is no evidence that Valencia’s authority over the car was limited in any way. Finally, defendant, who was present at all times, never objected to the search and never revoked or limited Valencia’s authority or consent. We think that Valencia’s consent to search the vehicle was sufficient to justify the search.

Because the trial court found, alternatively, that the search was illegal because it exceeded the scope of any consent, we must also address this issue, keeping in mind that the consent justifying the search was given by Valencia, rather than by defendant. The trial court found that the Spanish version of the written consent-to-search form authorized a search of the vehicle including the trunk and its contents. The court found, therefore, that

“[s]ince the ‘trunk’ is a part of the vehicle, it is very likely that the defendant believed the scope of the search was to be the passenger compartment of the vehicle and the trunk as specified. As the testimony in this case bears, the search far exceeded this scope with the subsequent removal of the gas tank from the vehicle and the cutting open of said gas tank. ***
[T]his Court believes it unreasonable to believe that the defendant, by giving consent to search his vehicle including the trunk, agreed to the removal of his gas tank from the vehicle.”

As we have said, the consent justifying the search here was given by the driver of the car, Valencia, and not the defendant. Valencia did understand written and spoken English, and therefore, although Valencia signed the Spanish version of the consent-to-search form, any finding as to the scope of the consent is not dependent on the Spanish version of the written consent form.

It is true that consent to search waives the warrant requirement only to the extent granted by that consent. Therefore, a consensual search is reasonable only if kept within the scope of the consent. (People v. Porter (1986), 141 Ill. App. 3d 71, 73, 489 N.E.2d 1154, 1156.) A consensual search should be conducted within the time limits and physical boundaries set by the consent. A consent to search which is unlimited as to time and number of searches must be judged under a rule of reason, that is, whether the search is reasonable. (People v. Logsdon (1991), 208 Ill. App. 3d 989, 993, 567 N.E.2d 746, 749.) What is reasonable is a factual determination to be made after considering all the circumstances under which the consent has been executed. People v. Shelton (1982), 110 Ill. App. 3d 625, 629, 442 N.E.2d 928, 932.

While consent to search may be limited to a specific place or item (People v. Rodgers (1981), 96 Ill. App. 3d 416, 418, 421 N.E.2d 203, 205), there is no evidence in the instant case that there was any limitation on the scope of the search. The written consent-to-search form signed by Valencia authorized a search of the vehicle, including the trunk and its contents. While the trial court found that it was unreasonable to conclude that this language included consent to remove and search the gas tank, it is uncontradicted that verbal consent to do exactly that was given by Valencia. Trooper Oliverio explained to Valencia that he wanted to take the car to a local service station to inspect the gas tank more closely. Oliverio explained that the car would be placed on a hoist and raised for this purpose. Although told that he was not obligated to consent, Valencia agreed to drive the vehicle to the service station for further search. Furthermore, neither Valencia nor defendant objected as they observed Oliverio begin to lower and remove the gas tank from the car. Consent to search may be implied from actions as well as expressly granted. (Rodgers, 96 Ill. App. 3d at 417, 421 N.E.2d at 205.) Valencia’s act of voluntarily following the troopers to the service station and driving the vehicle onto the hoist, as well as his failure to object when the gas tank was lowered and removed, certainly implies his consent to the search of the gas tank. Nor does the temporary interruption of the search in order to drive the car to the service station cause us any problem. See People v. Manikowski (1989), 186 Ill. App. 3d 1007, 542 N.E.2d 1148.

A trial court’s determination as to whether consent to search was voluntarily given and, we think, the scope of that consent will be overturned where it is clearly unreasonable. (People v. Krull (1985), 107 Ill. 2d 107, 119, 481 N.E.2d 703, 709, rev’d on other grounds (1987), 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160.) We think the trial court’s failure to find, on the facts before it, that Valencia validly and voluntarily consented to a search of the entire vehicle, including the inside of the gas tank, was clearly unreasonable.

On appeal, defendant argues that, regardless of whether there was valid consent to the search of the car and its gas tank, the decision of the trial court must be upheld because the initial stop of the car for a minor traffic violation was a mere pretext to detain defendant and search his car. Defendant correctly points out that if the ruling of the trial court is correct, even if premised upon different reasons from those which we find applicable, it will be sustained. (People v. Gardner (1977), 56 Ill. App. 3d 606, 609, 371 N.E.2d 1164, 1165.) However, we do not find the reason for affirmance advanced by defendant to be applicable here.

Defendant is correct that an officer’s authority to investigate a traffic violation may not become a subterfuge to obtain other evidence based on suspicion. (People v. Thomas (1979), 75 Ill. App. 3d 491, 494, 394 N.E.2d 624, 627.) If the police make an arrest or detain a suspect as a pretext to conduct a search for which probable cause is lacking, the subsequent search is unconstitutional. (United States v. Causey (5th Cir. 1987), 818 F.2d 354, 359.) Where the purpose of a traffic stop is a pretext for a search or detention rather than for a traffic violation, such a search or detention is improper. People v. Mathis (1977), 55 Ill. App. 3d 680, 684, 371 N.E.2d 245, 249.

In determining whether a traffic stop is pretextual, it is now well settled that it is the objective reasonableness of the stop which must be examined, rather than the subjective motivation of the officer. If the stop is objectively reasonable, it is not invalidated solely because the officer acted out of an improper or dual motivation. (People v. Perry (1990), 204 Ill. App. 3d 782, 786, 562 N.E.2d 618, 621.) Thus, the proper inquiry is whether a reasonable officer would have made the stop in the absence of an illegitimate motive. People v. Guerrieri (1990), 194 Ill. App. 3d 497, 502, 551 N.E.2d 767, 770; United States v. Smith (11th Cir. 1986), 799 F.2d 704, 708.

Some Illinois courts have held that a stop will not be found to be pretextual where police officers do no more than what they are legally permitted to do, regardless of what their motives are. (People v. Fickett (1990), 204 Ill. App. 3d 220, 226, 562 N.E.2d 238, 241.) Thus, in People v. Jones (1990), 207 Ill. App. 3d 30, 565 N.E.2d 240, a cracked windshield was found sufficient to justify a stop as not pretextual where the Illinois Vehicle Code makes it unlawful to drive a vehicle with a windshield so defective as to materially impair the driver’s vision. (Ill. Rev. Stat. 1989, ch. 95½, par. 12—503(e).) In Guerrieri (194 Ill. App. 3d at 502, 551 N.E.2d at 770), a stop for failure to signal a turn in violation of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, par. 11—804) was found to be objectively reasonable because it is the primary statutory duty of Illinois State Police troopers to enforce the Illinois Vehicle Code. Ill. Rev. Stat. 1989, ch. 121, par. 307.16.

Defendant argues that Officer Sapp’s stop of defendant’s vehicle was pretextual because she had an improper motive in that her true purpose for stopping the car was to obtain consent to search it in hopes of finding evidence of a more serious crime. Defendant’s car had Texas license plates, a known drug-source State, and the occupants were .Hispanic. Furthermore, given the very minor nature of the traffic violation involved here, it is highly unlikely that a reasonable officer would have stopped the defendant’s vehicle without the hope that some other criminal activity might be discovered. Defendant argues that the objects hanging from the rearview mirror could not have materially obstructed the driver’s view and there is no evidence that the officers instructed Valencia to remove the items from the mirror before driving the car to the service station. However, there is no evidence that the officers did not instruct Valencia to remove the items from the mirror, and Valencia was issued a warning ticket for the offense.

We disagree with defendant’s analysis of the evidence. Trooper Sapp testified that she stopped defendant’s vehicle because of a material obstruction of the driver’s view caused by fuzzy dice and other items hanging from the rearview mirror. She was quite adamant that, in her opinion, the items would have materially obstructed the driver’s view in some directions. She had viewed the hanging objects from her vehicle while following defendant’s vehicle. Trooper Sapp had made numerous such vehicle stops and had issued a ticket for the same offense only IV2 weeks prior to hearing in the instant case. She issued Valencia a warning ticket for driving while his view was materially obstructed. She did not decide to ask consent to search the vehicle until after she had stopped the vehicle, and did not radio for assistance from other officers until after she had obtained verbal consent to search from Valencia.

We think Trooper Sapp’s stop of defendant’s vehicle was objectively reasonable. Sapp believed that the driver of defendant’s vehicle was in violation of the Illinois Vehicle Code. The trial court made an express factual finding that Sapp’s stop of defendant’s vehicle was justified by the alleged violation. We do not think this finding is manifestly erroneous or against the manifest weight of the evidence. Findings of fact of the trial court are not to be disturbed unless against the manifest weight of the evidence. People v. Thomas (1979), 75 Ill. App. 3d 491, 493, 394 N.E.2d 624, 627.

In summary, we find that Valencia had authority to, and gave, voluntary and valid consent to search defendant’s vehicle, and the scope of that consent included consent to remove and search the gas tank of the vehicle. We further find that the initial stop of defendant’s vehicle for violation of the Illinois Vehicle Code was not a pretext to search but was a valid stop. Accordingly, we reverse the order of the circuit court of Effingham County suppressing evidence found in the search of defendant’s vehicle and remand this cause for further proceedings.

Reversed and remanded.

GOLDENHERSH, P.J., and HARRISON, J., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    MARLENE TRENT, Adm’r of the Estate of Phillip Lynn Trent, Deceased, Plaintiff-Appellee, v. CATERPILLAR, INC., et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 1—90—1746, 1—90—1747 cons.
    Opinion filed August 13, 1992.

      Michael R. Feagley, Michele Odorizzi, and Janet L. Reed, all of Mayer, Brown & Platt, of Chicago, for appellant Caterpillar, Inc.
    Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, James K. Horstman, Thomas H. Neuckrantz, and Lloyd E. Williams, Jr., of counsel), for appellant Goodyear Tire & Rubber Company.
    Philip Harnett Corboy, Jr., of Corboy & Demetrio, P.C., of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Marlene Trent, brought a wrongful death action in the circuit court of Cook County, in her capacity as administrator of her husband’s estate, against defendants, Caterpillar, Inc. (hereinafter Caterpillar), and Goodyear Tire & Rubber Company (hereinafter Goodyear). Plaintiff alleged that her husband, Phillip Lynn Trent, was killed as a result of a defect in a truck manufactured by Caterpillar, or a defect in the tires on that truck that were manufactured by Goodyear. Caterpillar and Goodyear made motions to dismiss the action based upon the doctrine of forum non conveniens. The trial court denied these motions. Defendants then filed petitions for leave to appeal pursuant to Supreme Court Rule 306(a)(1)(ii)- (134 Ill. 2d R. 306(a)(1)(ii).) The appellate court granted defendants leave to appeal on July 20, 1990.

The sole issue on review is whether the trial court abused its discretion by denying defendants’ motions to dismiss on the grounds of forum non conveniens.

We reverse and remand.

Phillip Lynn Trent owned and operated Trent Enterprises, a business that engaged in strip mining. On August 28, 1988, Trent Enterprises was strip mining a site in Norton, Virginia, when Phillip heard an explosion. He left his office to investigate and discovered that an eight-foot tire on a hauler truck had exploded. The tire which exploded was manufactured by defendant Goodyear in Akron, Ohio. The hauler truck was manufactured by defendant Caterpillar in Peoria, Illinois. As Phillip examined the truck, the left rear tire, which was also manufactured by Goodyear, exploded and fatally injured him.

At the time of the accident, decedent and plaintiff were residents of Virginia. Plaintiff was appointed the executor of her husband’s estate by a Virginia State court. On December 29, 1989, plaintiff, in her capacity as executor, brought a wrongful death action against defendants in the circuit court of Cook County, Illinois. The complaint stated that a defect in either the truck or the tires caused the explosion which killed her husband. Plaintiff alleged negligence and strict liability in tort on the part of both defendants.

Defendants moved to dismiss the complaint on the grounds of forum non conveniens and sought venue in a Virginia State court located in Wise County, Virginia. Defendants maintained that the complaint should be dismissed and venue changed for the following reasons: (1) neither the truck nor the tires were designed or manufactured in Cook County, Illinois; (2) all of the nonparty witnesses who could testify with respect to the maintenance and operation of the vehicle reside in Virginia; (3) all of the witnesses who could testify to the events surrounding the accident, including decedent’s medical condition, reside in Virginia; (4) the expense incurred in investigating, interviewing and deposing numerous Virginia residents in Cook County, Illinois, would be excessive; and (5) the litigation has no factual connection to Cook County, Illinois.

In opposing the motions, plaintiff argued that Cook County, Illinois, is an appropriate forum because she chose it and because it is more accessible to defendants’ employees and both parties’ expert witnesses than is rural Virginia.

After a hearing on the motions, the trial court entered an order without opinion denying defendants’ motions to dismiss. Subsequently, defendants petitioned this court for leave to appeal pursuant to Supreme Court Rule 306(a)(1)(ii)-134 Ill. 2d R. 306(a)(l)(ii).

On appeal, defendants contend that the trial court erred in denying their motions to dismiss on the grounds of forum non conveniens. The trial court has broad discretion in determining whether to transfer a cause to another jurisdiction on the basis of forum non conveniens (see Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395, 398), and its decision will not be disturbed absent a clear abuse of discretion. Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 257, 70 L. Ed. 2d 419, 436, 102 S. Ct. 252, 266; Walsh v. Ramada Inns, Inc. (1989), 194 Ill. App. 3d 945, 947.

‘Forum non conveniens is a doctrine that is founded in considerations of fundamental fairness and sensible and effective judicial administration.’ ” (Vinson v. Allstate (1991), 144 Ill. 2d 306, 310, quoting Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514.) A court may decline to exercise jurisdiction over a case under the doctrine of forum non conveniens whenever it appears that there is another forum with proper jurisdiction over the parties and the subject matter, which is more convenient and which may better serve the interests of justice. Boner v. Peabody Coal Co. (1991), 142 Ill. 2d 523, 527.

When deciding whether to grant a motion to dismiss pursuant to the doctrine of forum non conveniens, a trial court must balance the public interests affecting the administration of the courts with the private interests affecting the convenience of the litigants. (Vinson, 144 Ill. 2d at 310.) The private and public interest factors which courts must balance were established by the United States Supreme Court in Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839. In Gulf Oil Corp., the Supreme Court held that the relevant private interest factors include the accessibility of sources of proof, the availability of witnesses, the availability of compulsory service of process to compel the appearance of unwilling witnesses, the cost of obtaining witnesses, the possibility of viewing the premises in question if appropriate, the convenience of the parties, and “all other practical problems that make trial of a case easy, expeditious and inexpensive.” Gulf Oil Corp., 330 U.S. at 508, 91 L. Ed. at 1062, 67 S. Ct. at 843; Vinson, 144 Ill. 2d at 310.

The relevant public interest factors “include the administrative difficulties flowing from court congestion; ‘a local interest in having localized controversies decided at home’; and the unfairness of burdening citizens in an unrelated forum with jury duty.” Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 224, quoting Gulf Oil Corp., 330 U.S. at 509, 91L. Ed. at 1063, 67 S. Ct. at 843.

Under the doctrine of forum non conveniens, deference is usually given to the plaintiff’s choice of forum. (Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 106; Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 843.) However, a plaintiff’s choice is entitled to less deference when the plaintiff does not reside in the chosen forum (Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 255-56, 70 L. Ed. 2d 419, 435-36, 102 S. Ct. 252, 266; Griffith, 136 Ill. 2d at 106), “because it is less reasonable to assume that a foreign forum is convenient.” Walsh v. Ramada Inns, Inc. (1989), 194 Ill. App. 3d 945, 948.

Our Illinois Supreme Court recently provided additional guidance in balancing the public and private interests on a motion to dismiss on the grounds of forum non conveniens in Vinson v. Allstate (1991), 144 Ill. 2d 306, and Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395.

In Vinson, plaintiffs, residents of Missouri, filed an insurance claim with Allstate Insurance Company after their home was destroyed in a fire. Allstate refused to pay the claim and plaintiffs brought an action in the circuit court of Alexander County, Illinois. The trial court denied Allstate’s motion to dismiss on the grounds of forum non conveniens. The trial court found that since Allstate conducted business in Alexander County and was a corporate resident in Illinois, Alexander County court was an appropriate forum. It further found that Allstate would not have difficulty obtaining the attendance of witnesses and that the case would not unduly burden the Alexander County court. After the appellate court refused to take defendant’s appeal, the Illinois Supreme Court granted a petition for leave to appeal and reversed. The court found that it was error to weigh the fact that Allstate conducted business in Alexander County in conjunction with the other private and public interest factors in ruling on the motion. The court stated that “ ‘[M]erely conducting business in [Alexander] County does not affect the forum non conveniens issue ***.’” (Vinson, 144 Ill. 2d at 311, quoting Boner v. Peabody Coal Co. (1991), 142 Ill. 2d 523, 540.) The court also recognized that most of the witnesses resided in Missouri and that Illinois courts did not have subpoena power over them. Vinson, 144 Ill. 2d at 312.

The court also found that the public interest factors did not favor Alexander County. The court reasoned that since plaintiffs were residents of Missouri and the accident occurred in Missouri, residents of Illinois should not be burdened with jury duty. (Vinson v. Allstate (1991), 144 Ill. 2d 306, 313.) The court stated that the dispute had significant connections to Missouri and that the residents of Missouri would certainly have “ ‘a local interest in having localized controversies decided at home.’ ” Vinson, 144 Ill. 2d at 313, quoting Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 224.

Similarly, in Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395, the court found that the public interest in having the controversy decided in the forum where the injury occurred and where the plaintiff resided was not outweighed by other considerations. In Washington, plaintiffs resided in Bond County but chose to file an action in nearby Madison County after their son was killed, allegedly by defendant’s uninsulated electrical power lines. The trial court denied defendant’s motion for transfer to Bond County on forum non conveniens grounds and the appellate court, in a split decision, affirmed. See Washington v. Illinois Power Co. (1990), 200 Ill. App. 3d 939.

On appeal, the Illinois Supreme Court reversed. In doing so, the court recognized that the same considerations of convenience and fairness applied in deciding a motion for interstate transfer are applicable in deciding a motion for intrastate transfer. (Washington, 144 Ill. 2d at 400, citing Torres v. Walsh (1983), 98 Ill. 2d 338, 351.) The court recognized that since plaintiffs were not residents of Madison County, the county in which they chose to bring the action, their choice of forum was entitled to less deference. The court also noted that although plaintiffs had witnesses who were located closer to Madison County than to Bond County, proximity was only one factor on the list of considerations. (Washington, 144 Ill. 2d at 401.) The court stated that although Madison County may be more convenient, it did not weaken the considerations favoring trial in Bond County. (Washington, 144 Ill. 2d at 401.) The court also found that the sources of proof were located in Bond County.

In weighing the public factors, the court found that the local interest in hearing the case was greatest in Bond County, where the accident occurred. The court stated that, “[ajlthough it is true that any county to which [defendant] provides service has an interest in the outcome of the case, the interest of none of these [forums] is greater than that of *** where the accident occurred.” (Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395, 403.) In conclusion, the court found that there was no reason for imposing the burden of jury duty upon the citizens of Madison County, since they had no relation to the litigation. Washington, 144 Ill. 2d at 404.

In the case at bar, defendant Caterpillar manufactured the allegedly defective truck in Decatur, Illinois, which is located in Macon County. Caterpillar has its principal place of business in Peoria, Illinois, which is in Peoria County. The truck was shipped to Virginia, where it was purchased by Trent Enterprises. The tire that exploded was manufactured in Ohio by defendant Goodyear, which is headquartered in Akron, Ohio.

Plaintiff asserts that she must conduct discovery into the processes behind the design and manufacturing of Caterpillar’s truck and Goodyear’s tires. Plaintiff further asserts that most of the records and witnesses will be found in defendants’ offices, which are located in Illinois and in Ohio. Plaintiff further asserts that since there are two major airports and many major hotels in Chicago, Cook County is an appropriate forum for this litigation. Lastly, plaintiff asserts that Cook County is more convenient because her attorney practices law in Chicago. Defendants counter that most of the witnesses who are qualified to testify with respect to the maintenance of the truck and tires reside in Virginia. Defendants further contend that the only people who are qualified to testify concerning the decedent’s medical condition are residents of Virginia. Defendants also contend that dismissal is warranted because there are no relevant documents in Cook County and this litigation has no connection to Cook County.

The court in Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395, found that accessibility alone is not enough to make a county convenient where there are no witnesses in the chosen forum. (Washington, 144 Ill. 2d at 401.) Furthermore, the court recognized that in weighing the private interests on a motion to transfer on the grounds of forum non conveniens, the cost and convenience of both plaintiffs’ and defendants’ witnesses should be taken into consideration. See Washington, 144 Ill. 2d at 402.

Here, there are no witnesses who reside in Cook County, nor are there any relevant documents in Cook County. Most of the witnesses, including the persons who operated and maintained the truck, who observed the explosion, and who treated the decedent prior to his death, reside in Virginia and are, therefore, beyond the compulsory process of an Illinois court. In addition, there is no evidence in the record to suggest that defendant Goodyear has any relevant connection to Illinois. Although Cook County may be a convenient forum for plaintiff, it does not weaken the considerations favoring a trial in Virginia. See Washington, 144 Ill. 2d at 401.

We now turn our attention to the public interest factors. Our supreme court has made clear that the place of injury is a critical factor to be considered where a nonresident plaintiff seeks redress for an injury that occurred outside his or her chosen forum. Here, plaintiff is a resident of Virginia and the injury giving rise to this litigation occurred in Virginia. We believe the local interest in having this controversy decided is greatest in Virginia where the accident occurred. Although Illinois residents have an interest in promoting the safe construction of machinery within its boundaries, Virginia has a greater interest in protecting its citizens from unsafe products.

Having considered each of the public interest factors, we find that Virginia has the most significant relationship with the occurrence and the parties and, therefore, the law of Virginia should apply here. We recognize that “[t]he need to apply the law of a foreign jurisdiction has been considered a significant factor favoring dismissal of a suit on grounds of forum non conveniens.” Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 80.

Lastly, according to the Annual Report of the Administrative Office of the Illinois Courts, the court dockets in Cook County are congested. (Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395, 403 (where the court found the Annual Report of the Administrative Office of the Illinois Courts to be a proper source of reference in assessing court congestion); see also Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 230.) We find no sound reason to further congest the Cook County court dockets, nor do we find reason for imposing the burden of jury duty upon the citizens of Cook County since they have no relation to this litigation. (See Washington, 144 Ill. 2d at 404.) Finally, the fact that plaintiff’s attorney practices law in Cook County “ ‘cannot be permitted to override the public interest in, and need for, an orderly, efficiently operated judicial system.’ ” (Emphasis in original.) Washington, 144 Ill. 2d at 403, quoting Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 123.

On balance, we believe that plaintiff’s choice of forum is outweighed by other considerations. We therefore find that the trial court abused its discretion when it denied defendants’ motions to dismiss on the grounds of forum non conveniens.

For the aforementioned reasons, we reverse the trial court’s order and remand the cause with directions to grant defendants’ motions to dismiss on the grounds of forum non conveniens. Pursuant to Supreme Court Rule 187(c)(2) (134 Ill. 2d R. 187(c)(2)), the trial court’s order is contingent upon defendants agreeing to waive the statute of limitations as a defense and agreeing to accept service of process in an alternative forum.

Reversed and remanded, with directions.

JIGANTI, P.J., and LINN, J., concur.


author: PRESIDING JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NICHOLAS CASAS, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—2121
    Opinion filed May 1, 1992.

      Larry Axelrood and Stuart B. Dubin, Ltd., & Associates, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Walter P. Hehner, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Following a bench trial, defendant Nicholas Casas was convicted of two counts of possession of more than 15 grams of a controlled substance with intent to deliver and sentenced to concurrent terms of 10 years’ imprisonment. The issues on appeal are: (1) whether the State proved beyond a reasonable doubt that defendant was guilty of possession of a controlled substance with intent to deliver; (2) whether the trial court erred when it denied defendant’s request for a Franks hearing (Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674); and (3) whether the trial court erred in allowing the admission of hearsay testimony.

The relevant facts are as follows. Chicago police officer Brad Williams testified that at approximately 10 p.m. on February 23, 1988, he helped to execute a search warrant in the rear apartment at 378 East Kensington in Chicago, Illinois. The search warrant authorized the search of “a male white hispanic known as Nick.” Officer Williams described the building as a boarded-up, “mom and pop” grocery store in front and an apartment in the rear. The main entrance to the apartment was in the rear of the building, but a side entrance also led to the apartment. The store in the front was not used, and its front door was boarded up.

Officer Williams testified that he entered the building’s side door, which led him to the apartment’s kitchen. After an Hispanic female let him enter the apartment, he noticed defendant leaning on the kitchen wall next to the rear bedroom doorway. When Officer Williams searched the rear bedroom, he discovered a scale, bagging materials and an automatic weapon in a dresser. He discovered cocaine and heroin in two separate thermos jugs in a plastic bag hanging on a nail on the closet doorjamb. He found a revolver in a crib in the bedroom. There were adult male and female clothes in the bedroom closet, on the closet door and strewn throughout the rear bedroom. He also discovered money. In the front room were two teenagers and three or four toddlers.

Defendant was then arrested. He took a coat hanging on the doorknob in the rear bedroom. The thermoses were discovered approximately two feet from where defendant retrieved his coat.

On cross-examination, Officer Williams testified that the search warrant described Nick as approximately 27 years old, 6 feet 0 inches tall, 165 pounds, and curly hair. When he asked who “Nick” was, the defendant said that he was “Nick.” None of the evidence was dusted for fingerprints. Defendant’s hair was straight at trial but was not straight on the day of his arrest. The parties stipulated that defendant was 38 years old on the day of his arrest. Officer Williams admitted that he had not taken any of the clothing found in the rear bedroom apartment and that he did not find any proof of defendant’s residency.

Officer Williams testified that there was a door that connected the rear apartment to the storefront. He stated that in the storefront he saw a bed and a chair. Officer Williams testified the officers could not enter the front of the building because it was boarded up. He could not remember hearing the name Ignacio Aguirre during the investigation.

Chicago police officer June Evans testified that she helped execute the search warrant on the night in question. She initially watched the back door and then entered through the building’s side door. When she entered the kitchen, she saw defendant being searched by Officer Williams.

Officer Evans then entered the vacant storefront. Two boards were nailed across the front door to prevent entry from the outside. The door to the store opened into the kitchen, and she did not recall seeing any locks on the store side of the door. Officer Evans testified that there was a door in the storefront that led down to the basement, but there was no door leading from the basement to the outside. The only way to get out of the storefront was to go into the rear apartment. In the old store was a bed, clothing rack, stereo, small desk with books and papers and a couch. The store did not contain a kitchen, bathroom or running water. Officer Evans testified that the bed in the storefront was a single bed. The books were school books. The clothing was that which a male teenager would wear. The tapes were the kind teenagers would have, and Officer Evans recognized “Journey” but did not recognize the others.

When Officer Evans was getting a drink of water in the kitchen, there was a knock at the door. When she asked who it was, a male voice responded, “I am looking for Nick.” On cross-examination, Officer Evans testified she wrote down the names of the people who knocked on the door, but she lost the paper. Officer Evans testified that these people were present during a portion of the search but no one else took their names. The State stipulated that no reference to these people appeared in the police report.

The defense presented the testimony of Gustavo Bautista, who testified that he was 14 years old and lived in the rear apartment at the time of the search. He lived there with his mother, Maria, his brothers, Hortencio, Armando, and Roberto, his sister, Veronica, and his uncle, Ignacio Aguirre. Gustavo testified that defendant was a friend of the family and that defendant did not live with them, but defendant did live in the storefront apartment. Defendant used only the bathroom in the rear apartment. Gustavo testified that Ignacio Aguirre was 23 years old, had curly hair, and was taller than defendant. On the date of trial Ignacio was in Mexico because he did not want to go to jail on a drug charge in Will County.

Gustavo testified that he slept in the rear bedroom with his brother, Hortencio and his uncle, Ignacio. His other brothers and sister slept with his mother in the front bedroom. Gustavo testified that on the day in question, after the police entered the apartment, they started searching and asking him where “Nick” was. Gustavo said Nick was not present and did not live there. Gustavo then heard defendant, Maria, and Armando come in from the grocery store. Defendant was arrested. Ignacio was not home at the time and did nót come home that night. Ignacio’s nickname was “Nacho.”

On cross-examination, Gustavo testified that defendant kept the door to the front apartment locked and defendant did not have easy access to the rear apartment. Defendant did not have a kitchen, bathroom, or running water in his apartment. Gustavo’s mother never cooked for defendant, and defendant could not get to the rear apartment from the basement. Defendant would have to knock on the apartment door when he needed to use the bathroom and he would have to leave if no one was home. Gustavo testified that although defendant was out shopping with Maria when the police arrived, that was the first time defendant went shopping with Maria. Defendant never helped pay for rent or for food. Defendant never ate in the rear apartment.

Gustavo testified that he and his brother owned a “Journey” tape. He also testified that there were two functioning doors in defendant’s front apartment. He never played any of his “Journey” tapes in Nick’s front apartment and he did not have a tape player at Nick’s front apartment. Gustavo also testified that he would occasionally see Nick use the front door to the front apartment and that the only adult male living in the rear apartment was Ignacio.

Seventeen-year-old Hortencio A1 Bautista’s testimony as to defendant’s arrest was virtually identical to that of Gustavo. Hortencio also testified that only Ignacio kept personal belongings in the rear apartment. Defendant did not have curly hair, but Ignacio did. Ignacio left the apartment during the morning of the day the police came and left the thermoses behind. The door to the storefront was locked and defendant could not enter the rear apartment without permission. To go to the bathroom, defendant would have to knock on the door. When defendant had to urinate, he would do so in his apartment or go to the basement. There was no bathroom in the basement but there was a drainage system.

Hortencio slept in the same bed with Gustavo and Ignacio, but he never saw Ignacio with the scale and he did not know if Ignacio had the thermoses the day before the police searched the apartment. Armando Bautista also corroborated the testimony of Gustavo and Hortencio.

The parties stipulated that Ignacio Aguirre had a possession with intent to deliver charge pending in Will County. A bond forfeiture warrant was issued in that case, and the Will County State’s Attorney’s office had a copy of a deportation order from the United States Department of Immigration and Naturalization.

It was also stipulated that further investigation showed that defendant was not listed on the phone, gas or electric bills for the rear apartment at 378 East Kensington.

The first issue raised by defendant on appeal is whether the State proved beyond a reasonable doubt that defendant had constructive possession of the seized narcotics. To obtain a conviction for unlawful possession of a controlled substance, the State must prove that defendant had knowledge of the drug and that it was in his immediate and exclusive control. (People v. Nettles (1961), 23 Ill. 2d 306, 178 N.E.2d 361.) Possession may be established by evidence of actual possession or constructive possession. (People v. Scott (1987), 152 Ill. App. 3d 868, 505 N.E.2d 42.) Constructive possession may be proved by showing that the defendant controlled the premises where the narcotics were found. (People v. Morrison (1988), 178 Ill. App. 3d 76, 532 N.E.2d 1077.) Whether the defendant had knowledge and possession are questions for the trier of fact and will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt as to the defendant’s guilt. People v. Gallagher (1990), 193 Ill. App. 3d 566, 550 N.E.2d 255.

Defendant claims the instant case is virtually identical to People v. Pugh (1967), 36 Ill. 2d 435, 223 N.E.2d 115, wherein the police executed a search warrant for the premises in question and found defendant in shorts and a T-shirt under blankets in bed. They also found narcotics hidden behind a wall molding in the bedroom. Defendant testified that he did not live in the apartment and that he had no knowledge of the presence of narcotics. The court found that constructive possession was not proved beyond a reasonable doubt since there was no evidence that defendant rented or lived in the apartment, his personal effects were not found in the apartment and there was no evidence that he had any clothes in the apartment other than those he put on when he left with the officers.

Like the defendant in Pugh, defendant here was present in the rear apartment when the police arrived and he was in close proximity to the narcotics. However, in the instant case there is additional proof of defendant’s control of the premises which was not present in Pugh. It is undisputed that defendant lived at 378 East Kensington. The disputed fact at trial was whether defendant lived in the abandoned storefront or the rear apartment. The trial court found that “the facts in this case indicate that no one was living isolated and confined to this room close to the front, the room that used to be part of the store.” It was not unreasonable for the trial court to reach this conclusion in light of the fact that the storefront had no access to the outside, no kitchen or bathroom, and there was no evidence present in the storefront to suggest that an adult was actually living there. The evidence instead proves beyond a reasonable doubt that defendant lived in the rear apartment. Most significant is the fact that during the search, two people knocked on the door of the rear apartment and said that they were looking for Nick. The record further reveals that after defendant was arrested, he entered the rear bedroom and took his jacket off the bedroom’s doorknob which was approximately two feet from where the narcotics were found. In addition, men’s clothing was found in the rear bedroom. Also, a defense witness testified that the reason defendant was not home when the police arrived at the apartment was because he was out buying groceries with Maria. Therefore, we agree with the trial court that the State proved beyond a reasonable doubt that defendant controlled the premises in question and therefore had constructive possession of the narcotics found on the premises.

Defendant next maintains that the trial court erred when it denied defendant’s request for a hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, because defendant failed to establish that he had a legitimate expectation of privacy in the searched apartment or a possessory interest in the seized evidence. Formerly the rule was that a defendant accused of a crime in which possession was an element was granted “automatic standing” to challenge a search or seizure allegedly made in violation of the defendant’s fourth amendment rights. (Jones v. United States (1960), 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725.) In Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421, the Court found this standard to be too broad and instead stated that in a motion to suppress evidence illegally seized in violation of a defendant’s fourth amendment rights, the defendant must show he had a legitimate expectation of privacy in the area searched. According to this rule, a defendant who completely denies any interest in the seized material does not have standing to argue suppression of the evidence. (People v. Morrison (1988), 178 Ill. App. 3d 76, 532 N.E.2d 1077; People v. Dowery (1988), 174 Ill. App. 3d 239, 528 N.E.2d 214.) Furthermore, under the current standing rules, the State may contend that defendant possessed an illegal substance in a place where the defendant did not have a legal expectation of privacy. Defendant’s admissions at hearings on motions to suppress evidence are not admissible at trial. (United States v. Salvucci (1980), 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547.) With the right of defendant to testify at a suppression hearing without jeopardizing his defense at trial, “a prosecutor may simultaneously maintain that a defendant criminally possessed the seized good, but was not subject to a Fourth Amendment deprivation without legal contradiction.” Salvucci, 448 U.S. at 90, 65 L. Ed. 2d at 627,100 S. Ct. at 2552.

While none of the above-mentioned cases address whether it is proper for the State to argue possession while also arguing that defendant had no standing to raise a Franks issue (see Franks, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674), this issue was recently addressed by the Fourth District Appellate Court in People v. Bond (1990), 205 Ill. App. 3d 515, 563 N.E.2d 1107. The defendant in Bond was convicted of possession of a controlled substance with intent to deliver after he was discovered in an apartment that the police searched pursuant to a warrant. The search warrant was issued for defendant’s person and the apartment. The warrant was based on the sworn statement of a police officer and informant implicating defendant in drug trafficking from the apartment. The court held that the defendant could not attack the affiant’s veracity because he did not establish standing to challenge the search of the apartment. The court reasoned:

“[N]ot every aggrieved defendant may seek to exclude evidence obtained allegedly in violation of the fourth amendment because that amendment’s constitutional safeguards are personal protections that may not be vicariously asserted.
* * *
In the present case, defendant has repeatedly asserted that he has no interest in or connection with the residence that was searched. Without a legitimate interest in the residence searched, defendant cannot challenge the sufficiency of the search warrant [citation] and accordingly, has no standing to assert a Franks hearing.” (Bond, 205 Ill. App. 3d at 518, 563 N.E.2d at 1109.)

We follow the holding in Bond that the State may argue that defendant had control over the premises where the narcotics were found, but had no legitimate expectation of privacy in the residence searched and therefore had no standing to challenge the sufficiency of the search warrant.

Defendant’s last contention is that the trial court improperly admitted hearsay evidence that two undisclosed persons knocked on the apartment door looking for Nick and were present during a portion of the search. The trial court ruled that the statement was not hearsay because the testimony was offered, not to prove that the defendant lived there, but to characterize the use of the rear apartment. The trial reached the proper conclusion in light of the fact that when an out-of-court statement is used, not as evidence of the fact asserted, but as circumstantial evidence for another purpose, it is not hearsay. People v. Foster (1990), 198 Ill. App. 3d 986, 556 N.E.2d 1214; People v. Roti (1971), 2 Ill. App. 3d 264, 276 N.E.2d 480 (Police officer’s testimony that he answered the telephone during the search of defendant’s house and “received bets” was not hearsay since it was offered to show the manner in which the telephone was used (for gambling purposes) and not to prove the veracity of the caller’s statements).

Accordingly, for the reasons set forth above, defendant’s conviction is affirmed.

Affirmed.

LORENZ and GORDON, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT LANGFORD, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—0794
    Opinion filed June 29, 1992.
    Rehearing denied September 16, 1992.

      Michael J. Pelletier and Linda Signer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Rebecca Davidson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

On January 31, 1986, defendant Robert Langford shot James Allen and John Goolsby to death while they were standing near an apartment building at 345 West 72nd Street in Chicago. Defendant subsequently was convicted of the murders (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1) following a jury trial. The jury declined the State’s request to impose a death sentence, and defendant was ordered imprisoned for the rest of his life without the possibility of parole.

Defendant now claims, for several reasons, that he was deprived of his constitutional right to a fair trial.

We affirm.

Defendant first contends the State calculated to elicit surprise testimony from Jacqueline Capleton, an eyewitness who knew defendant, that one of defendant’s attorneys had intimidated her into recanting her identification of defendant to police shortly after the murder.

At trial, Capleton stated that early one morning approximately six weeks prior to trial, she was visited by one of defendant’s attorneys, Shelton Green, and an investigator. During that visit, Green intimated to Capleton that the State’s Attorney’s office could not protect her. Capleton, already fearful of defendant, then told Green, untruthfully, that she was not certain the gunman was defendant. Green had impressed upon Capleton that defendant was innocent and that “because a stray bullet don’t miss anyone, anything could happen” to her or her family. Capleton admitted her fears caused her to then sign an untrue written statement which represented that she had earlier identified defendant only after being harassed by police.

In a conference outside of the jury’s presence, Green advised the trial judge that Capleton’s testimony concerning his alleged statements was a surprise. Green withdrew from the case. Defendant moved for a mistrial, and the public defender’s office moved to be allowed to withdraw from the case. Both motions were denied.

Defendant argues he was denied a fair trial because the State failed to notify the defense of Capleton’s testimony. He points to opening comments made by the State that Capleton was pressured by defense attorneys to recant her identification of defendant as an indication that the State knew how Capleton would testify. Defendant’s objection to those comments was sustained. Defendant also claims his right to counsel was violated because Green already had established a relationship with the jurors such that Capleton’s accusations tainted the entire defense team. Defendant argues the State was, at most, obligated to notify the defense of Capleton’s testimony as the State must do in instances of exculpatory evidence, citing, principally, Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, and United States v. Bagley (1985), 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375. At least, defendant contends, the State had an ethical duty under Disciplinary Rules 1 — 102 and 1 — 103 to disclose the nature of Capleton’s testimony. 134 Ill. 2d Rules 1—102, 1—103.

Assuming the State was aware of the reasons Capleton would give for her recantation of the written statement she gave to defense counsel, we are not persuaded that the State’s failure to disclose that matter to defendant constitutes reversible error. The reasons Capleton gave for recanting her written statement simply have no relation to the question of defendant’s innocence. For that reason, defendant’s reliance on Brady v. Maryland, requiring the disclosure of exculpatory evidence, and United States v. Bagley, extending that rule to evidence favorable to the defense, is misplaced. Furthermore, even if we were to assume a violation of Disciplinary Rule 1 — 102 or 1 — 103 would provide a means to affect defendant’s conviction, nothing in the language of either rule compels disclosure of the content of Capleton’s testimony given its nonexculpatory nature.

Defendant next maintains the trial judge permitted the State to present improper testimony concerning two rival Chicago street gangs to establish defendant’s motive.

The State presented the challenged evidence through the testimony of Chicago police detective John Bloor, who was qualified as an expert for that purpose. In particular, Bloor testified that defendant was a member of one of the gangs. Bloor recounted the history of the gangs and described the continuing dispute between them over the right to sell drugs in the area where the murders occurred. Bloor established it was that dispute that motivated defendant to shoot the victims, who he stated were members of that rival gang.

Defendant contends Bloor’s testimony was improper because the testimony was not supported by the type of evidence ordinarily relied upon by such experts in the field. Defendant points out that Bloor’s testimony was based, primarily, on information gathered by police by talking to gang members. Defendant also complains that Bloor’s testimony was irrelevant to establish defendant’s motive.

Illinois courts recognize that a police officer’s testimony regarding gang activity is proper when the officer’s testimony qualifies as expert opinion, the testimony is relevant, and the prejudicial effect of the opinion does not outweigh its probative value. People v. Jackson (1986), 145 Ill. App. 3d 626, 495 N.E.2d 1207.

The trial judge’s allowance of Bloor’s testimony here did not constitute an abuse of discretion so as to provide a basis to disturb defendant’s conviction. (See People v. Gonzalez (1991), 142 Ill. 2d 481, 568 N.E.2d 864.) Bloor’s experience with gang activity qualified him as an expert. Bloor worked as a gang crimes specialist for 10 of his 16 years on the police force. The area to which he was assigned was the area in which the murder occurred. In this case, Bloor’s testimony was relevant to the extent that Bloor explained defendant was motivated to shoot the victims because they were members of a rival street gang vying for the same geographic area in which to sell narcotics. For that same reason, the establishment of a motive for the shooting, the admission of Bloor’s testimony did not outweigh its probative effect. See People v. Ayala (1990), 208 Ill. App. 3d 586, 567 N.E.2d 450.

Defendant also complains about the State’s presentation of evidence that defendant was in Federal custody in Tennessee at the time the police located him, one month after the murders. Defendant claims the allowance of that testimony was prejudicial because it informed the jury of defendant’s arrest in another matter.

We do not agree. Evidence concerning defendant’s presence in Tennessee was established through the testimony of Chicago police detective William Foley. The record indicates that care was taken to introduce that testimony in such a way as to prevent the jury from discovering the existence and nature of any other charges against defendant. The evidence that defendant was in Tennessee was admitted properly as evidence of flight from which the jury could have inferred consciousness of guilt. See People v. Nightengale (1988), 168 Ill. App. 3d 968, 523 N.E.2d 136, appeal denied (1988), 122 Ill. 2d 587, 530 N.E.2d 258.

Finally, defendant complains that comments made by the State in closing argument and rebuttal were prejudicial. Defendant argues the State sought to imply how defendant’s counsel had coerced Capleton’s statement by having the jury draw a comparison to defendant’s counsel’s courtroom demeanor during delivery of his opening statement. Defendant contends the State improperly referred to Capleton’s courage in testifying and otherwise bolstered the credibility of witnesses for the State and its theory of the crime. Defendant points to other comments as indicating an attempt to disparage defendant’s counsel.

Generally, a prosecutor is permitted a great deal of latitude in making the closing argument, and the trial judge’s determination of the propriety of the argument will be followed absent a clear abuse of discretion. (People v. Cisewski (1987), 118 Ill. 2d 163, 514 N.E.2d 970.) Improper remarks are the basis of reversal only when they result in substantial prejudice to the defendant. People v. Harris (1989), 132 Ill. 2d 366, 547 N.E.2d 1241, cert. denied (1990), 496 U.S. 908, 110 L. Ed. 2d 275, 110 S. Ct. 2594.

We note that the complained-of comments relating to attempts to bolster the credibility of the eyewitnesses were not objected to at trial and therefore are waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) As for the remaining comments, we cannot conclude, based on the evidence presented, that the comments resulted in substantial prejudice to defendant. Overwhelming evidence of defendant’s guilt was supplied by the testimony of Capleton and Deanna Henderson, a second eyewitness. Both viewed the murders at close range from separate vantage points. Each knew defendant’s identity and positively identified him as the murderer at trial. In light of that evidence, we do not conclude the trial judge’s decision to permit the State to make the comments now cited by defendant as improper constituted an abuse of discretion.

Affirmed.

BUCKLEY, P.J., and MANNING, J., concur.


text:
    RONALD J. ZIARKO, Plaintiff-Appellee, v. SOO LINE RAILROAD COMPANY, Defendant-Appellant and Counterplaintiff-Appellant and Counter-defendant-Appellant and Third-Party Plaintiff-Appellant (Milwaukee Motor Transportation Company, Defendant and Counterdefendant-Appellee and Counterplaintiff-Appellee; Nielson Brothers Cartage Company, Third-Party Defendant-Appellee).
    First District (1st Division)
    Nos. 1—90—2112, 1—90—2151, 1—91—1871 cons.
    Opinion filed June 29, 1992.
    Rehearing denied July 28, 1992.

      Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Ivar A. Azeris, and Edward M. Kay, of counsel), for appellant.
    Cassiday, Schade & Gloor, of Chicago (Timothy J. Ashe, Lynn D. Dowd, and Kathlein K. Krider, of counsel), for appellee Milwaukee Motor Transportation Company.
   JUSTICE O’CONNOR

delivered the opinion of the court:

While Ronald J. Ziarko tended to his tractor-trailer rig in a railroad yard owned by the Soo Line Railroad Company (Soo Line), one of that company’s trains struck the rig which then struck Ziarko. The resulting injuries to Ziarko were extensive and necessitated amputation of his right leg.

Ziarko subsequently sued Soo Line and Milwaukee Motor Transportation (Milwaukee Motor), the entity which operated the area of the yard where the accident occurred. Based on the same alleged acts, Ziarko charged Soo Line with negligence and willful and wanton conduct in respective counts. The single count against Milwaukee Motor sounded in negligence. In turn, Soo Line and Milwaukee Motor filed counterclaims against each other which actions included counts for contribution (see Ill. Rev. Stat. 1989, ch. 70, par. 302).

Ziarko’s action proceeded to trial before a jury which rendered a verdict of $7,061,854.63 against both Soo Line and Milwaukee Motor. A special interrogatory revealed that the jury’s award against Soo Line was premised on the determination that its conduct was willful and wanton, not negligent. The jury further determined Soo Line was 95% at fault in the accident and Milwaukee Motor was 5% at fault. Judgment was entered on the counterclaims with liability apportioned against each defendant accordingly.

Soo Line and Milwaukee Motor pursued separate appeals. With review of those matters pending, Soo Line tendered, and Ziarko accepted, monies in settlement of all claims against both defendants. We then ordered the circuit court to consider whether Soo Line was entitled to contribution in view of the following pertinent language of the Contribution Act:

“The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is liable to make contribution beyond his own pro rata share of the common liability.” Ill. Rev. Stat. 1989, ch. 70, par. 302(b).

Because the amount of the settlement differed from the verdict entered, a question arose, with attendant consequences, as to which amount should be used to determine the “common liability.” If common liability equalled an amount paid in settlement of the underlying claim, Soo Line would be entitled to recover 5% of that sum from Milwaukee Motor because the jury limited Soo Line’s pro rata share of the liability at 95%. Alternatively, if common liability equalled the amount of a jury’s verdict, Soo Line could recover nothing from Milwaukee Motor because the amount of the settlement, $6,650,000, was less than 95% of the $7,061,854.63 verdict, $6,709,761.73. In that case, Soo Line actually would have paid less than its pro rata share of liability.

The trial judge measured common liability against the jury verdict and denied contribution to Soo Line. We conclude the trial judge was correct in his interpretation of the Contribution Act. Moreover, based upon the recent decision of our supreme court in Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, it appears the Contribution Act can afford no remedy to Soo Line because the jury determined Soo Line’s conduct was willful and wanton.

In Burke, the supreme court resolved a conflict amongst Illinois courts regarding the characterization of willful and wanton conduct, distinguishing that type of conduct from simple negligence. (Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d at 443.) The court determined willful and wanton conduct constitutes conduct that is either intended or done with a conscious disregard or indifference for the consequences when the known safety of other persons is involved. (Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d at 443.) That conclusion was reached in the context of answering whether a defendant’s liability based on willful and wanton conduct could be reduced by the plaintiff’s negligence, not in the context of a contribution action among joint tortfeasors. Prophetically, however, in Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 501 N.E.2d 830, the appellate court reached the same conclusion in precluding contribution to a joint tortfeasor whose liability had been premised on willful and wanton conduct. The holding in Bresland would appear strengthened by the holding in Burke. Because we agree with the basis upon which Bresland was decided, we conclude Soo Line has no remedy under the Contribution Act against Milwaukee Motor.

Nevertheless, because Burke does not answer the specific question presented in Bresland and now here, we consider it appropriate to address Soo Line’s argument that under the Contribution Act it has paid more than its pro rata share of liability.

No contribution action has been decided under the same set of facts as are in issue here. However, Soo Line directs attention to Mallaney v. Dunaway (1988), 178 Ill. App. 3d 827, 533 N.E.2d 1114, arguing that case determines the question of whether the settlement sum or the verdict best represents defendants’ common liability. That case involved a collision between a motorcycle operated by Patrick Mallaney and an automobile driven by James Dunaway. Sandra Horton was a passenger on Mallaney’s motorcycle at the time of the collision. Horton sued Dunaway for injuries she sustained in the accident. Horton did not sue Mallaney. Prior to trial, Horton settled with Dunaway for $98,500.

Dunaway filed a contribution action against Mallaney. Prior to commencement of that action, Dunaway sought an order to fix the amount of common liability at $98,500. Dunaway asserted that Mallaney’s trial strategy was to show that Dunaway’s percentage of fault was greater than Mallaney’s by introducing evidence showing Horton’s damages were greater than $98,500. The circuit court denied the motion.

A majority of the appellate court reversed. The court determined that the settlement amount was the proper measure of common liability, reasoning that “the phantom dollar figure” Mallaney sought to establish bore “no true relation to the amount the tortfeasors [were] obligated to pay to the injured party.” (Mallaney, 178 Ill. App. 3d at 831, 533 N.E.2d at 1116.) The majority noted that its determination furthered a policy of the Contribution Act to encourage good-faith compromise and settlement. Mallaney, 178 Ill. App. 3d at 833, 533 N.E.2d at 1117.

The court in Mallaney was correct to conclude that the settlement amount was the proper measure of common liability in that case. The majority’s opinion, however, does not speak to the distinguishing aspect of the present case, and, to that extent, Soo Line’s insistence that Mallaney decides the issue simply is wrong. Here, unlike the situation in Mallaney, a jury rendered a verdict regarding liability, determining the appropriate compensation for Ziarko, and a judgment was entered. That verdict is no phantom dollar figure.

Nevertheless, guidance does exist in Mallaney as to the appropriate measure of common liability given both a verdict and a settlement. But that guidance is found in Justice Heiple’s dissent, not the majority opinion. Justice Heiple recognized why, given a situation such as presented here, the common liability cannot be measured by the terms of an amount paid in settlement of the injured party’s claims:

“Assume that a blameless person has been injured by two joint tortfeasors to the tune of $100. Assume further that each tortfeasor was 50% at fault. Assume further that the blameless person has settled the $100 claim in full with one of the tortfeasors. The Act permits the tortfeasor who was 50% at fault but who paid the entire claim to recover 50% ($50) from the other joint tortfeasor. ***
* * *
*** If the claim was, in fact, worth $200 and if tortfeasor one was 50% at fault, then, given a $100 settlement, tortfeasor two should pay nothing. That is because tortfeasor one, in such case, paid only his fair share. That is to say, tortfeasor one was 50% at fault and paid $100 on a $200 loss. That is exactly what tortfeasor one should have paid. Tortfeasor two owes him nothing.
Likewise, if the $100 claim was, in fact, only worth $10, tortfeasor one, in making a settlement for $100, has overpaid the claim by $90. He has paid 10 times what the claim was objectively worth. He may even have done so in good faith. If tortfeasor two was 50% at fault, should he be required to contribute $50 towards the settlement of a claim which was only worth $10? Certainly not. Tortfeasor two should not be required to contribute more than 50% of the fair value of the claim. That is to say, $5.” (178 Ill. App. 3d at 834-35, 533 N.E.2d at 1117-18 (Heiple, J., dissenting).)

Only a verdict can be the measure of the “objective[ ] worth” or “fair value” of a claim because the fact finder’s determination of liability and compensation based upon the evidence presented at trial is the sole measure of any tortfeasor’s true liability. (Mallaney, 178 Ill. App. 3d at 834-35, 533 N.E.2d at 1117-18 (Heiple, J., dissenting).) Although the point should be obvious, that understanding is bolstered by realization that an amount accepted in a good-faith settlement may actually bear no accurate representation to the injured party’s damages. (See Mallaney, 178 Ill. App. 3d at 833, 533 N.E.2d at 1117.) If one joint tortfeasor is allowed to use the amount paid in settlement as the measure of common liability in a contribution action where a verdict has been rendered, that tortfeasor is empowered to determine what the actual dollar amount of his pro rata share will be. That amount may bear no relation to the tortfeasor’s fault. Nothing in the Contribution Act can be so read to empower tortfeasors.

Soo Line argues that only in using the settlement amount as the measure of common liability is the goal of the Contribution Act to encourage compromise fostered. Ironically, Soo Line’s position might just as well be seen to work at cross-purposes to that end. A principal joint tortfeasor might find it more advantageous to reject, out of hand, pretrial settlement negotiations that he believed accurately approximated the injured party’s damages, electing, nevertheless, to contest liability at trial. The tortfeasor would be comforted by the notion that, faced with a jury verdict apportioning liability, he could then offer the injured party a marginally lesser amount to avoid the cost of appeal and thereby effectively decrease the actual dollar amount of his pro rata share of liability. That is a curious type of compromise and one we do not believe was envisioned by the Contribution Act.

As Milwaukee Motor accurately points out, Soo Line’s argument ignores the difference between a plaintiff’s right to settle and a defendant’s right to seek contribution. Ziarko’s willingness, after judgment, to accept some lesser amount, avoiding both the expense of appeal and the risk of reversal, has little to do with an objective determination of Soo Line’s true liability as determined by a verdict rendered after a full trial. Moreover, the reality of Ziarko’s acceptance of the post-judgment settlement, which, we note, resulted in Soo Line paying in excess of $600,000 less than 95% of the amount determined by the jury, indicates the Contribution Act’s goal of encouraging settlement is not seriously jeopardized.

We conclude that where a verdict has been rendered by the fact finder, it is that amount, and not the amount of a settlement, that represents the common liability for purposes of the Contribution Act. Accordingly, we affirm the decision of the circuit court denying Soo Line contribution from Milwaukee Motor.

Affirmed.

CAMPBELL and MANNING, JJ., concur.