text:
    GEORGE ANTONOPOULOS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Morse/Diesel of Illinois, Inc., Appellee).
    First District (Industrial Commission Division)
    No. 1—89—1190WC
    Opinion filed March 16, 1990.

      Ritsos & Ritsos, of Chicago, for appellant.
    Wiedner & McAuliffe, Ltd., of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, George Antonopoulos, sought worker’s compensation benefits for an injury allegedly suffered while working for respondent, Morse/Diesel of Illinois, Inc. An arbitrator awarded no benefits. The Industrial Commission affirmed that decision, which in turn was confirmed by the circuit court of Cook County. Petitioner -appeals, contending that the Commission’s finding that he failed to prove a causal connection between his accidental injuries and his condition of ill-being is against the manifest weight of the evidence.

At the arbitration hearing, petitioner testified through an interpreter that on May 7, 1979, he was 51 years old and had worked as a laborer for respondent for seven years. At 10:30 a.m. that day, while dismantling a wooden construction ladder at Michael Reese Hospital in Chicago, petitioner was struck on the left side of the head by a two-by-four board with two nails protruding from it. When he fell, he “was out.” After Roger Winter, a co-employee, washed off the blood, he took petitioner to the hospital emergency room.

At the emergency room, petitioner was seen by a doctor at 5:30 p.m. The doctor simply instructed him to return if the skin punctures swelled. He left the hospital at 8 p.m. and took the bus home.

The May 7, 1979, hospital emergency room record describes the nature of the complaints. A board with nails fell on the left side of petitioner’s face. He complained of problems seeing and pain when he opened his mouth. There were two small puncture wounds next to his left ear. The report states: “He suffered no loss of consciousness.” The discharge diagnosis was “2 nail wounds on face,” and he was instructed to keep the area clean, and return if the skin became red, swollen or tender.

Petitioner worked the next two days, and then saw his family physician, Dr. Elias Stambolis. At work, petitioner noticed he had trouble standing. The foreman changed his job duties. He then worked until February 1, 1980, except for several months of layoff. He took aspirin for pain and headaches during that period. In February, he entered the hospital. He has not worked since that time. He had never experienced dizziness or hearing problems prior to the accident.

At the December 1984 arbitration hearing, petitioner testified that he continued to suffer from dizzy spells and problems on the left side of his head. He sees Dr. Stambolis every few weeks. Dr. Stambolis also treats him for high blood pressure, which he was not treated for prior to the accident.

On cross-examination, petitioner testified that in February 1980, he might have given the hospital a history of dizziness for two months. He did not tell the hospital he had been treated for a left ear infection since November 1979.

Roger Winter testified for petitioner that on May 7, 1979, he was working with petitioner and witnessed the accident. “He fell to his knees” and was unconscious for four or five minutes. Winters helped clean up some blood from the left side of his face, then took him to the emergency room and left. As he left, it seemed like petitioner “was in a daze.”

Dr. Elias Stambolis testified for petitioner at a 1985 evidence deposition. While his residency training was in obstetrics, he now had a general practice. On May 10, 1979, he examined petitioner and found “some infected wound around the ear, posterior.” He continued to treat petitioner and saw him about 100 times from that time until October 1984. In May 1979, petitioner had a normal blood pressure and had complaints of dizziness, headaches and earaches. Dr. Stambolis opined there was a causal connection between those complaints and the injury “[bjecause before he had no complaints. In the beginning I thought it was nothing, just infection.” But the symptoms persisted, and he concluded that “the injury caused his complaints.” The diagnosis was cerebral concussion and trauma. The condition was permanent.

In February 1980, Dr. Stambolis began treating petitioner for high blood pressure. He also hospitalized petitioner for tests regarding the dizziness. Dr. Stambolis acknowledged the hospital records reported a history of only a few months of dizziness, beginning in November 1979. In regard to having treated petitioner for a left ear infection for only three months, Dr. Stambolis denied knowing of that. Dr. Stambolis was not aware petitioner suffered from a bilateral hearing problem. Dr. Stambolis relied on Dr. Hart’s opinion that the hearing problems resulted from the injury at work.

Dr. Cecil Hart testified for petitioner at an evidence deposition on October 3, 1984. He first saw petitioner on February 29, 1980. Initially, there was a balance problem and some hearing loss on the left side. A December 16, 1980, note by Dr. Hart states that petitioner was injured at work when he “was struck over the left ear, knocked out, and taken to the hospital. His diagnosis at this time is one of a brain and labyrinthine concussion.” The prognosis was poor.

On May 7, 1981, Dr. Hart examined petitioner and found a significant change in his hearing. On July 17, 1981, he performed exploratory surgery of the left ear. He cleaned away some scar tissue, and petitioner’s hearing improved. A February 1983 hearing test showed the hearing in the left ear to be better than it had been prior to surgery, but not as good as in the right ear. Dr. Hart testified that he then changed his opinion regarding causation and now concluded that the work accident did not cause petitioner’s condition of ill-being. He believed that the problems were due to infectious disease rather than the injury. Dr. Hart had noted that the original report of petitioner’s injury showed that the two nails did not enter the ear canal, but struck petitioner on the outside of the ear.

Dr. Hart’s opinion on causation would differ if there had been a loss of consciousness. In regard to the dizziness, a blow to the head could cause a concussion of the inner balance organ or the balance centers in the brain. The dizziness, however, could also be from petitioner’s significant depression, high blood pressure or atrophy of the brain. He pointed to the fact that initially there had been no hearing loss, and the fact that the loss of balance was on both sides, not just the left side.

Respondent offered several reports of Dr. M. Reese Guttman, an otolaryngologist. On October 5, 1982, Dr. Guttman examined petitioner, who stated that he was “unconscious for one-half hour” following the accident. Dr. Guttman diagnosed a total loss of vestibular function, bilateral. The condition was not the result of the minor trauma described and was unrelated to petitioner’s employment. He based his opinion on the absence of certain clinical findings he would expect to find in such a case. He noted there was no history of loss of consciousness mentioned in the emergency room report. Moreover, the nail wounds did not enter the ear, and there was no blood found in the ear canal. In addition, the hearing problems did not begin for almost a year. The hospital records also showed that in February 1980, petitioner had been treated for dizziness and ear infections for only a few months, and not since the May 1979 accident. The surgery report indicated findings which were characteristic of a long-continuing infectious process. High blood pressure and cervical arthritis could also have caused the dizziness.

In an October 5, 1984 evidence deposition, Dr. Guttman offered opinions similar to those in his reports. He also testified that his opinion on causation would remain the same if he were told petitioner had been unconscious for a half hour after the accident.

The arbitrator found that petitioner failed to prove a causal relationship between the accidental injuries and his condition of ill-being. The Commission agreed, relying on Dr. Hart’s opinion that the left hearing loss was most likely caused by scar tissue from an ear infection rather than the blow to his ear. It pointed to Dr. Hart’s belief that the dizziness could be related to high blood pressure, depression, brain atrophy or a loss of balance function in the inner ear on both sides. The Commission also relied on Dr. Guttman’s opinion that the hearing loss and dizziness were unrelated to trauma, based on his conclusions that the audiometric curves and acoustic reflexes showed a hearing loss consistent with persons in his age group; the absence of middle ear pathology until one year after the accident; and on medical evidence that the dizziness was caused by marked hypertension.

Petitioner maintains that the Commission’s finding of no causal connection is against the manifest weight of the evidence. The question of causal connection is one within the unique province of the Industrial Commission, and we will not disturb its finding unless it is contrary to the manifest weight of the evidence. (Certi-Serve, Inc. v. Industrial Comm’n (1984), 101 Ill. 2d 236, 461 N.E.2d 954; Cook v. Industrial Comm’n (1988), 176 Ill. App. 3d 545, 531 N.E.2d 379.) It is the function of the Commission to resolve conflicting testimony, including medical testimony, and draw inferences from the evidence. Its determinations will not be set aside if there is credible evidence in the record to support them. (Lyons v. Industrial Comm’n (1983), 96 Ill. 2d 198, 449 N.E.2d 1323.) Moreover, in the presence of conflicting medical opinions, the Commission’s determination is given substantial deference. (Material Service Corp. v. Industrial Comm’n (1983), 97 Ill. 2d 382, 454 N.E.2d 655.) It is for the Commission to decide which of two conflicting medical opinions given in a case is to be accepted. Caterpillar Tractor Co. v. Industrial Comm’n (1983), 97 Ill. 2d 35, 454 N.E.2d 252; Health & Hospitals Governing Comm’n v. Industrial Comm’n (1979), 75 Ill. 2d 159, 387 N.E.2d 676.

In the present case, conflicting medical opinions were presented to the Commission as to whether there was a causal relationship between the work-related incident and petitioner’s condition of ill-being. There was ample, credible medical evidence adduced in the record to support the Commission’s determination that there was no causal relationship. In reaching that result, the Commission as trier of fact was entitled to rely on the opinions of Drs. Guttman and Hart, and to reject the opinion offered by Dr. Stambolis.

As we have noted, Dr. Guttman offered strong medical foundation for his belief that petitioner’s state of ill-being was the result of a continuing, unresolved infectious process that started in November 1979, seven months after the May 1979 accident. Dr. Guttman also stated that petitioner’s condition was neither caused nor aggravated by the work incident. Likewise, Dr. Hart, although he originally thought otherwise, believed there was no causal connection after seeing the emergency room report showing the two nails did not enter the ear canal, and when he performed surgery and saw indications that the hearing problems had been the result of infectious disease. Dr. Hart concluded that it would be difficult to ascribe the hearing loss to the accident. Both doctors also stated that petitioner’s condition could have been caused by significant depression, high blood pressure or atrophy of the brain.

Petitioner, however, points to the factual issue of whether he lost consciousness. We note that petitioner mentioned it only on cross-examination. He told Dr. Guttman he had been unconscious for-a half hour. Winter, however, recalled it was “like he was out for maybe four or five minutes.”

Most significantly, the emergency room report states: “No loss of consciousness.” Moreover, nothing in the report indicates that after an observation of' petitioner, the medical personnel were concerned about a possible concussion. The discharge diagnosis referred only to “2 nail wounds on face.” The instructions given him concerned only the cleaning of the two wounds and watching for infection in that area. There were no instructions regarding dizziness, loss of hearing, or loss of consciousness.

Furthermore, Dr. Guttman did not believe there had been a loss of consciousness, despite petitioner’s testimony to the contrary. If a patient came into the hospital reporting a blow to the head, he most certainly would be asked whether he was unconscious. If he was, that fact definitely would be recorded, and the patient would have been treated much differently than petitioner was treated. A patient reporting a half-hour period of unconsciousness would be admitted to the hospital and given extensive neurological tests. Dr. Guttman also stated that his opinion on causation would remain the same even if petitioner had been unconscious.

Petitioner points to Dr. Hart’s testimony that his opinion that no causal connection existed would differ if there had been a loss of consciousness. Dr. Hart testified that he would expect a patient who suffered a hearing loss to have had “a history of a concussion or loss of consciousness to cause something of that magnitude.” (Emphasis added.) However, in the medical records he saw no indication of concussion; no indication of loss of consciousness; a loss of balance function on both sides, not just the left side; and surgical findings indicating an infection had been present for some time. Thus, it appears Dr. Hart would need more than a belief that loss of consciousness occurred in order to drastically alter his opinion on.causation.

The Commission, therefore, was entitled to find no causal connection had been proved, whether or not it believed petitioner had lost consciousness at some point.

Petitioner also argues that his language problems prevented him from offering an accurate report of the unconscious period to the emergency room staff. While there are several cursory references to the language problems in the medical records, we believe the exact nature and extent to any language problem would have to be left to the arbitrator and Commission.

We conclude that it was within the province of the Commission to determine whether petitioner proved causal connection and to resolve the conflicting medical testimony. We will not disturb the Commission’s findings because they are strongly supported by credible evidence in the record. Its decision is not against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of Cook County confirming the decision of the Industrial Commission is affirmed.

Judgment affirmed.

BARRY, P.J., and WOODWARD, McCULLOUGH and LEWIS, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BUCKLEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. FRANK BORAS, Defendant-Appellee.
    First District (1st Division)
    No. 1—86—3402
    Opinion filed March 19, 1990.

      Cecil A. Partee, State’s Attorney, of Chicago (Margaret M. Regan, Special Assistant State’s Attorney, and Thomas V. Gainer, Jr., and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
    No brief filed for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

In this appeal the State assigns error to a ruling of the circuit court of Cook County which dismissed the charge set forth in a traffic citation issued to defendant for lack of specificity. Defendant has not filed a brief in response to this assertion; however, we may consider the issue raised by the State under the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The record shows that at 4:15 a.m. on January 3, 1986, Chicago police officer Franklin Johnson observed defendant erratically driving his automobile on Lincoln Avenue and executed a traffic stop. After further investigation of the situation, Johnson cited defendant for driving under the influence of alcohol and failing to stay in the proper lane.

Several months before trial, defendant filed a motion in limine requesting that any evidence of tests conducted by police with regard to this incident, and their observation of him, be excluded from the trial. He also filed a motion to quash his arrest and suppress any resulting evidence as well as a motion to dismiss the case based on the finding of no probable cause which had been entered in the statutory summary suspension hearing. When the matter was called on October 30, 1986, the court asked if there were any motions. Defense counsel responded that he did not believe so, then informed the court that the defense would not be proceeding on the motions noted above.

At trial, Officer Johnson testified to the events which occurred on the morning of January 3, 1986, and led to the current charges against defendant. Johnson stated that he was driving on Lincoln Avenue behind defendant when he observed defendant weaving his car across the southbound lanes. Johnson activated his emergency lights and followed defendant into the parking area of a motel in the 5300 block of Lincoln Avenue, where he observed defendant step out of his car and stumble towards the police vehicle using his car as a support. In the conversation which followed, Johnson detected a heavy odor of alcohol on defendant’s breath, and further observed that his balance was unsure and that he had difficulty negotiating a turn. Johnson placed him under arrest for driving under the influence of alcohol, and at the station observed that his eyes were bloodshot and that it was difficult for him to walk up the stairs. When he told defendant to sit down, he also observed that defendant had difficulty and appeared to be unsure of where to turn. Johnson further stated that defendant refused to take the performance tests he requested and told him that he had been drinking beer at a bar. In the end, Johnson cited defendant for failing to stay in his own lane and driving under the influence.

During cross-examination, Johnson stated that he first observed defendant’s vehicle in the 5700 block of Lincoln Avenue, and although it was snowing at the time, no snow had accumulated on the ground. He also stated that he and defendant were the only two persons driving on that road at that time, then acknowledged that defendant told him that he had hurt his knee some months ago, but without further detail regarding the nature of his injury.

Defendant testified that he is an owner of the motel in question, and about 2:45 a.m., left that place and drove to a bar at 5300 Lincoln Avenue, where he drank almost two beers. About 3:45 a.m. he drove back to the motel, and along the way noticed the officer behind him. Defendant stated that the officer had not activated his lights or other emergency equipment at that time, but when he drove into the parking lot, the officer ordered him to get out of his car. He then tendered his driver’s license to the officer, who took his car keys away and told him that he was drunk.

With regard to his walking difficulties observed by the officer, defendant explained that he had broken his knee, and although the cast placed on it had been removed about five months before the incident, the knee continued to bother him and was doing so that morning. He later admitted, however, that this condition did not prevent him from driving. Defendant further stated that he understood what it meant to be “under the influence” and denied being in that condition that morning.

After both sides rested, the court invited the arguments of counsel. Defense counsel began with the assertion that the complaint was defective and failed to confer jurisdiction upon the court and must therefore be dismissed. As grounds for his assertion, counsel pointed out that the complaint did not contain a proper citation to the ordinance or statute that was allegedly violated, or apprise defendant of the crime he may have committed. In addition, he argued that the “DWI” description of the violation was insufficient to state an offense. The State responded that the complaint well advised defendant of the charges against him, and although the officer failed to check the designated box for the proper charging authority, i.e., “People of the State of Illinois or City of Chicago,” defendant knew the identity of the party-plaintiff, as well as the nature of the offenses set forth therein.

In rendering its decision the court focused on the content of traffic complaint W4 — 314—179. The court noted that neither of the boxes designating the party plaintiff had been checked, that the traffic conditions were not specified or were rendered ambiguous by lines appearing in that area, and that the offense was described only with the initials “DWI.” The court determined that these cumulative deficiencies failed to properly inform defendant of the charge against him and granted defendant’s motion to dismiss. In this appeal, the State takes exception to that ruling and requests that the order of dismissal be reversed.

Initially we observe that section 111 — 3(a) of the Code of Criminal Procedure of 1963 requires that a criminal charge be in writing, state the name of the offense, cite the statutory provision alleged to be violated, and set forth the nature and elements of the offense charged, the date and counts of the offense, and the name of the accused. (Ill. Rev. Stat. 1985, ch. 38, par. 111—3(a).) In the case at bar, defendant was charged by name in a verified traffic complaint with an offense which occurred about 4:15 a.m. on January 3, 1986, on Lincoln Avenue in Cook County. This offense was designated as a violation of “section 11 — 501A2” and described with the initials “DWI,” but the complaint did not indicate whether this was a violation of a municipal ordinance or the Illinois Vehicle Code, nor designate the party-plaintiff. In dismissing the complaint on the basis of cumulative deficiencies, the court, in essence, found that the complaint failed to meet the requirements of section 111—3.

We note, however, that in a case dealing with the sufficiency of a traffic ticket, drag racing vis-a-vis reckless driving, the supreme court recognized:

“Inasmuch as the Uniform Traffic Ticket is only used for misdemeanors, is written by an arresting officer rather than a State’s Attorney and is generally written at the time the offense is committed, we believe that naming the offense and citing it is sufficient and will generally be understood by the person charged. Under section 111 — 6 [citation] the accused may request a bill of particulars which will enable him ‘to prepare his defense’. We hold that a conviction based on a Uniform Traffic Ticket naming an offense and citing the statutory provision, where there is no objection to the sufficiency of the ticket or request for a bill of particulars, will not be set aside for failure to comply with section 111 — 3(3).” People v. Tammen (1968), 40 Ill. 2d 76, 78-79, 237 N.E.2d 517.

Following that decision reviewing courts have found implicit in the court’s ruling the requirement that any objection to the sufficiency of a uniform traffic ticket be made prior to trial. (People v. Sikes (1986), 141 Ill. App. 3d 773, 491 N.E.2d 168; People v. Domovich (1980), 91 Ill. App. 3d 870, 414 N.E.2d 290; see also People v. Schultz (1988), 173 Ill. App. 3d 738, 527 N.E.2d 984.) This conclusion reflects the court’s recognition of the peculiar circumstances attendant to the issuance of traffic tickets, and the fact that they are drawn without the care and precision required in charging instruments alleging more serious offenses (see People v. Brausam (1967), 83 Ill. App. 2d 354, 227 N.E.2d 533; Schultz, 173 Ill. App. 3d 738, 527 N.E.2d 984), yet protect the rights of the accused in this narrow class of cases to demand the nature and cause of the accusation, and to be apprised of the nature and elements of the offense charged (Domovich, 91 Ill. App. 3d 870, 414 N.E.2d 290; see also Tammen, 40 Ill. 2d 76, 237 N.E.2d 517).

In the case at bar, defendant failed to raise the sufficiency of the charge set forth in the complaint prior to trial. Thus, under Tam-men and its progeny (Domovich, 91 Ill. App. 3d 870, 414 N.E.2d 290; People v. Askeland (1988), 166 Ill. App. 3d 78, 519 N.E.2d 494; Sikes, 141 Ill. App. 3d 773, 491 N.E.2d 168), the traffic ticket must be considered sufficient and the circuit court’s contrary decision erroneous.

Moreover, here, as in Askeland, it is clear that defendant knew precisely what charge he was required to defend, and, in fact, did so in the proper venue. (See People v. Doherty (1986), 139 Ill. App. 3d 1028, 487 N.E.2d 1227; Ill. Rev. Stat. 1985, ch. 95½, par. 16—102.) Although the offense was described in the complaint by the initials “DWI,” and we are aware that abbreviations are not favored in criminal charges, they may be tolerated when they are not disputable, are well defined and well understood. (People v. Allen (1972), 8 Ill. App. 3d 176, 289 N.E.2d 467.) Applying that principle to the case at bar, we observe that drunken driving offenses are commonly referred to as “DWI” or “DUI,” and are satisfied here that when the abbreviated description of the offense is read in conjunction with its designation as a violation of “Section 11 — 501A2,” even though the Illinois Vehicle Code was not specified, that defendant was sufficiently apprised of the charge against him and was able to prepare his defense. (See People v. Atwell (1984), 129 Ill. App. 3d 724, 473 N.E.2d 89.) In addition, we find our conclusion bolstered by defendant’s pretrial motion in limine where defendant alleged, among other things, that he was issued a traffic citation for a violation of “Chapter 951/2, section 11 — 501A2, Illinois Revised Statutes” and that the evidence in the probable cause hearing on the statutory suspension of his driving privileges revealed that the officer did not have probable cause to believe that he was driving “while under the influence of alcohol.” (See Askeland, 166 Ill. App. 3d 78, 519 N.E.2d 494.) Thus, while the traffic complaint was not a work of art or precision (see Doherty, 139 Ill. App. 3d 1028, 487 N.E.2d 1227; Atwell, 129 Ill. App. 3d 724, 473 N.E.2d 89), and is not to be considered the model or norm, we find it clear on this record that defendant knew the charge against him and was able to prepare a defense to it; and, as a result, that the circuit court erred in its dismissal on the basis of the insufficiency of the charge. Domovich, 91 Ill. App. 3d 870, 414 N.E.2d 290; Askeland, 166 Ill. App. 3d 78, 519 N.E.2d 494; Schultz, 173 Ill. App. 3d 738, 527 N.E.2d 984.

The judgment of the circuit court of Cook County is therefore reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOUIS PRICE, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—0712
    Opinion filed March 21, 1990.

      Allan A. Ackerman, RC., of Chicago (Allan A. Ackerman and Peter J. O’Malley, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and David R. Butzen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Following a bench trial, the circuit court found defendant Louis Price guilty of felony possession of a controlled substance with intent to deliver in violation of section 402(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56½, par. 1402(a)(2)) and sentenced him to six years in the custody of the Illinois Department of Corrections. Defendant appeals, alleging that the court erred in denying his motion to quash arrest and to suppress physical evidence consisting of more than 30 grams of cocaine recovered during a search of defendant’s carry-on luggage at O’Hare International Airport. We affirm.

At a hearing on defendant’s motion to suppress on October 20, 1987, Special Agent Bob Fulkerson of the Federal Drug Enforcement Administration testified that on July 9, 1986, he received a telephone call from Lieutenant David Hamm of the Illinois Department of Criminal Investigation (DCI). Hamm informed Fulkerson that his office had received information that a person by the name of Louis Price was believed to be in Miami, that Price would be returning to Chicago with an indeterminate amount of cocaine, that he normally travelled on Delta Airlines and that he used a credit card for purchasing airline tickets. Hamm promised to advise Fulkerson if Price’s name would appear on any Delta reservations to Chicago. Later that same evening, Hamm informed Fulkerson that his agents had ascertained that Price was on board Delta flight 402 from Miami, due to arrive in Chicago at 9:15 p.m.

At 9 p.m. Fulkerson arrived at the airport, where he met Hamm and four or five other DCI officers, including Officer Crowley. Accompanying them was a narcotics-trained canine. Fulkerson and Crowley observed a male fitting defendant’s physical description exit the jet-way from Delta flight 402 and walk down the concourse toward the main terminal building, carrying a brown leather tote bag. Fulkerson and Crowley followed defendant closely, while the other officers remained farther behind. About halfway down the concourse, defendant looked over his shoulder in the direction of the officers, boarded an escalator to the lower level and again looked back, this time directly at Fulkerson and Crowley. At the bottom of the escalator, defendant turned left and began walking at a quickened pace towards the door.

At this time, Fulkerson and Crowley walked up to and alongside defendant and, without blocking his movement, identified themselves as police officers and asked whether they could speak with him. Defendant said “yes,” stopped, and the three stepped out of the way of other pedestrians. Upon Crowley’s request, defendant produced his Illinois driver’s license, and in response to questions from Crowley, claimed he had arrived from Atlanta, Georgia, where he had stayed for a couple of days visiting friends. Crowley returned the driver’s license and asked defendant to produce his airline ticket, which defendant said he had left on the airplane. Asked by defendant to explain what was going on, Crowley answered that the officers were conducting a drug investigation but that defendant was not under arrest.

Crowley testified further that he then asked defendant to open the brown leather tote bag, explaining that the search would be voluntary and defendant could decline. Defendant refused to give his consent unless the officers had a search warrant. Once again, Crowley informed him that he had a right not to consent.

At this time Fulkerson intervened and told defendant that the officers had reason to believe that there were drugs in the tote bag, which they would have to detain so that the narcotics dog that was standing by could sniff it. Fulkerson explained that if the dog did not alert, the bag would be returned; but if the dog did alert, the officers would attempt to obtain a search warrant. The officer repeated that defendant was not under arrest and was free to leave. After some hesitation, defendant answered: “Go ahead and search it,” and placed the bag on the floor. Crowley asked him again whether he was consenting to the search, and defendant answered “yes.” Fulkerson then unzipped the bag and retrieved the contraband, which was later confirmed to be 143.4 grams of cocaine.

Defendant Price also presented his version of the airport encounter, which included the following additional or conflicting testimony. He stated that when he first exited the jetway he noticed six or seven police officers in plainclothes standing in a semicircle in the gate area. When Fulkerson and Crowley first approached him he was nearing the exit door; they showed him their badges, told him they were looking for someone and asked if he could help. Defendant replied “yes.”

According to defendant, during his conversation with the two officers, Fulkerson and Crowley were about 1 to IV2 feet away, whereas the other four or five officers stood to the side, about three to four feet away. Agent Fulkerson testified in rebuttal that the other officers stood at least 50 feet away.

Defendant testified that he never gave the officers permission to search his luggage; however, he was uncertain whether in response to Fulkerson’s statement that the tote bag would be subjected to a sniff test he said, “If that’s what you have got to do, that’s what you have got to do,” or “If that’s what you have got to do, go ahead and do it.”

Defendant also testified that between the time Fulkerson informed him that the luggage would be detained and the time the actual search took place, another officer walked up and asked defendant for his driver’s license a second time and began to copy his name and address.

Finally, defendant testified that the entire conversation with the officers until his arrest lasted 10 to 15 minutes; according to Fulkerson, the entire encounter was no longer than four or five minutes.

At the end of the hearing the circuit judge found that “[defendant’s] testimony parallels Agent Fulkerson’s almost right down to the crossed Ts and dotted Is” with three “glaring” exceptions: that defendant claimed he never gave consent, that the other officers were standing only about four feet away, and that he was asked to produce his license for a second time. The court resolved all three contradictions in favor of Fulkerson’s testimony.

At the final suppression hearing on November 12, 1987, relying on United States v. Place (1983), 462 U.S. 696, 77 L. Ed. 2d 100, 103 S. Ct. 2637, and People v. Long (1983), 99 Ill. 2d 219, 457 N.E.2d 1252, the judge found that defendant’s stop was a consensual, police-citizen encounter for which the officers needed neither an articulable suspicion nor probable cause. Furthermore, the information received from Lieutenant Hamm, later corroborated by defendant’s arrival at O’Hare International Airport on a specific flight from Miami, provided the officers with an articulable suspicion that the defendant was indeed carrying a controlled substance in his luggage. Based on this information, the officers were held to be justified in informing defendant that his bag would be detained briefly for a sniff test.

Defendant complains that the warrantless search of his carry-on luggage violated his rights under the fourth and fourteenth amendments to the United States Constitution and article I, section 6, of the Illinois Constitution. Because constitutional analysis requires a separate inquiry into the reasonableness of police conduct for the seizure of a person and the subsequent search of his personal belongings (see Place, 462 U.S. at 699 & n.1, 77 L. Ed. 2d at 116 & n.1, 103 S. Ct. at 2640 & n.1), we determine first whether the law enforcement officers properly detained defendant and second whether defendant’s consent to the search was voluntary. The State does not contest that during the encounter with defendant the. officers had no arrest warrant or search warrant.

Defendant attacks the constitutionality of the detention of his person and property, claiming he was detained on a conglomeration of “hunches” that did not rise to the level of an articulable suspicion sufficient to justify his seizure. According to defendant, the officers possessed insufficient facts to match him to the drug courier profile, the information supplied by Lieutenant Hamm was unreliable. Defendant claims support for his position in a.series of superseded appellate court decisions, People v. DeLisle (1982), 104 Ill. App. 3d 297, 432 N.E.2d 954, People v. Kiser (1983), 113 Ill. App. 3d 501, 447 N.E.2d 858, People v. Steckhan (1983), 116 Ill. App. 3d 173, 452 N.E.2d 122, and People v. Blevins (1983), 118 Ill. App. 3d 221, 454 N.E.2d 802, which require that an articulable suspicion must accompany every investigatory airport stop.

Searches and seizures must be reasonable under both the fourth amendment to the United States Constitution and article I, section 6, of the Illinois Constitution. In Florida v. Royer (1983), 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324, however, the Supreme Court held that a purely consensual encounter between a police officer and a citizen is not a seizure demanding objective justification. Overruling DeLisle and the cases following it, this court adopted Royer in People v. Brett (1984), 122 Ill. App. 3d 191, 195-96, 460 N.E.2d 876, 879, in which it held that a defendant who was objectively free to leave the presence of police officers during an airport encounter had not been “seized” for fourth amendment purposes.

Here, without in any way blocking defendant Price’s movement, the officers approached him, identified themselves as police officers and asked whether they could speak to him. Defendant agreed. Upon request, he produced his driver’s license, which after a brief examination was promptly returned. The officers told defendant that he was not under arrest. When the officers asked defendant for his consent to search the bag and when they eventually detained the bag, he was under no restraint: once again the officers informed him he was not under arrest. These circumstances indicate that defendant was objectively free to leave the presence of the officers (Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319; People v. Lebron (1987), 161 Ill. App. 3d 815, 515 N.E.2d 312; People v. Brett (1984), 122 Ill. App. 3d 191, 460 N.E.2d 876), who in no way used any force or show of authority to restrain his movement (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. Long (1983), 99 Ill. 2d 219, 457 N.E.2d 1252). Thus, the detention of defendant for the legitimate law enforcement purpose of ascertaining whether he was carrying contraband was a consensual encounter which ripened into a full-blown seizure only after the officers obtained probable cause to arrest.

Because we agree with the trial court that no fourth amendment seizure of defendant’s person occurred, we need not address defendant’s contention that the information on which the officers relied for the purpose of detaining him was insufficient to meet the reasonable suspicion or probable cause standards. Thus, defendant’s arguments concerning the sufficiency of the evidence identifying him with the drug courier profile and the reliability of Lieutenant Hamm’s information need not be addressed at this point; however, the existence of reasonable suspicion becomes relevant in connection with the second issue, and we will examine it there.

Defendant’s next contention is that the officers searched his luggage without his voluntary consent. He maintains that a coercive atmosphere vitiating consent was created because the two officers initially approached him sporting badges, the group of additional officers standing at a distance appeared to “surround” him, his questioning lasted 10 to 15 minutes, he was moved out of the flow of pedestrian traffic, a third officer requested to see his identification a second time, more than two officers effected his arrest, and he suffered public indignity by the impermissible seizure of his person in a public place. As a result of these circumstances, defendant states that he had “no choice” but to surrender his bag.

Whether defendant consented voluntarily to the search of his luggage depends largely on whether the police officers had a right to threaten defendant with detaining his luggage for a sniff test. If the police have actual grounds to carry out a threatened course of conduct, communicating their intent amounts to no more than informing defendant of his legal status and does not vitiate consent. (People v. Magby (1967), 37 Ill. 2d 197, 226 N.E.2d 33; People v. Griffin (1987), 158 Ill. App. 3d 46, 510 N.E.2d 1311; People v. Turner (1984), 122 Ill. App. 3d 81, 460 N.E.2d 797, cert. denied (1984), 469 U.S. 867, 83 L. Ed. 2d 141, 105 S. Ct. 210; People v. Holliday (1983), 115 Ill. App. 3d 141, 450 N.E.2d 355; 3 W. LaFave, Search & Seizure § 8.2(d), at 189 (2d ed. 1987).) Here, Officer Crowley informed defendant that the officers had reason to believe he was carrying illicit drugs in his bag, which would have to be detained to allow the narcotics dog to sniff it. Defendant was aware that if the dog did not alert, he could keep the bag; otherwise, the officers would attempt to get a search warrant.

For fourth amendment purposes, the exposure of luggage in a public place to a narcotics-trained canine does not constitute a search. (United States v. Place (1983), 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637.) A police officer may briefly detain a traveller’s luggage for investigation, including a canine sniff test, provided he has a reasonable suspicion that the luggage contains narcotics. (Place, 462 U.S. at 706, 77 L. Ed. 2d at 120, 103 S. Ct. at 2644.) Although the quantum of information justifying a reasonable suspicion of criminal activity must create more than a mere intuitive feeling that something may be amiss, it need not rise to the level necessary to show probable cause. (People v. Long (1983), 99 Ill. 2d 219, 457 N.E.2d 1252.) In executing a search or seizure a police officer may properly rely on information obtained from other police officers, even if he is personally unaware of the underlying facts. (People v. Poe (1971), 48 Ill. 2d 506, 272 N.E.2d 28 (reliance on hearsay from fellow officers), cert. denied (1971), 404 U.S. 942, 30 L. Ed. 2d 256, 92 S. Ct. 292; People v. Corral (1986), 147 Ill. App. 3d 668, 498 N.E.2d 287 (reliance on investigation and observations of fellow officers); see also 2 W. LaFave, Search & Seizure § 3.5(b), at 9 & n.37 (2d ed. 1987) (reliance on communication between law enforcement officials of different States).) A court must consider the totality of the circumstances to determine whether the police indeed had a reasonable, articulable suspicion at the time of detention. (United States v. Sokolow (1989), 490 U.S. 1, 104 L. Ed. 2d 1, 109 S. Ct. 1581; People v. Nelson (1989), 188 Ill. App. 3d 619, 544 N.E.2d 1111.) Absent manifest error, a reviewing court will not disturb a trial court’s determination that sufficient evidence existed to justify a seizure. People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280.

In the present case, the circuit court found that the information Lieutenant Hamm had in his possession and which he shared with Special Agent Fulkerson concerning the particulars of defendant’s arrival and the probability of his carrying cocaine created an articulable suspicion that defendant was engaged in criminal activity justifying a brief investigatory detention of his carry-on luggage. As Fulkerson’s testimony reflects, and as we have already indicated, given this information from another department, there was no need to rely on the drug courier profile as a basis for detention. We agree with the circuit court’s finding of reasonable suspicion. Accordingly, we find that by informing defendant of their intent to subject his luggage to a canine sniff test and to seek a search warrant if the test were positive, the officers merely and properly apprised him of his legal status with respect to his luggage.

The burden of proving voluntariness rests with the State. (People v. Griffin (1987), 158 Ill. App. 3d 46, 510 N.E.2d 1311.) In determining whether consent was voluntarily given, a court must evaluate the totality of the circumstances alleged to comprise consent. (158 Ill. App. 3d 46, 510 N.E.2d 1311.) Voluntariness is thus a question of fact for the trial court, whose determination will survive review unless clearly unreasonable. Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319; People v. DeMorrow (1974), 59 Ill. 2d 352, 320 N.E.2d 1.

Defendant’s complaint that the circumstances of his encounter with the officers produced psychological pressures which coerced his consent essentially presents an inquiry into the credibility of the State’s witnesses in this case. Here the trial court determined that defendant was interviewed by two plainclothes officers who identified themselves as law enforcement agents but who at no time used any force or other show of authority. Several other officers remained at a considerable distance. The court also found that once and possibly twice defendant voluntarily surrendered his license for a brief inspection, and it was promptly returned. In fact, the officers told defendant several times that he was not under arrest and was free to leave. When they asked him for permission to search his bag, he initially refused, but after being informed that if he did not consent, the bag would be detained for a sniff test, he said, “Go ahead and search it.” Asked a second time whether he was consenting to the search, defendant replied, “yes.”

Necessarily handicapped in our evaluation of a cold, inanimate record, we must defer to the trial court’s decision to resolve the differences between defendant’s and Special Agent Fulkerson’s testimony in favor of voluntary consent. Indeed, the sum total of the facts as established in the trial court indicates that defendant was objectively free not only to refuse permission to seárch, but also to leave the presence of the officers. The trial judge could readily and easily perceive, and so can we, that, confronted with information that the officers would seek a search warrant if the sniff test were positive, defendant freely and rationally chose to submit to an immediate search. Absent manifest error, a reviewing court will not disturb a trial court’s finding in a hearing on a motion to suppress. (People v. Long (1983), 99 Ill. 2d 219, 457 N.E.2d 1252.) We agree with the circuit court’s conclusion that defendant voluntarily consented to a search of his bag during a consensual encounter with the police; accordingly, we affirm his conviction.

Affirmed.

HARTMAN and BILANDIC, JJ., concur.

       defendant charges the State with confusing the issue of justification by injecting defendant’s similarity to the drug courier profile as an alternate legal ground for stopping him and searching his luggage. Although Special Agent Fulkerson testified at the suppression hearing that defendant fit the profile of a drug smuggler with respect to points of travel, method of payment, proposed length of stay and behavior at the airport, he stated that in this case it was unnecessary to rely on the profile for the purpose of identifying defendant, because the officers had information about him from a law enforcement agency in Miami. We agree with the trial judge that the officers relied exclusively on the information from Miami in identifying defendant at the airport and that this information provided an articulable suspicion of illegal drug activity sufficient to justify executing a canine sniff test on defendant’s carry-on bag.


text:
    THE PEOPLE ex rel. RICHARD M. DALEY, State’s Attorney of Cook County, Plaintiff-Appellee, v. ONE 1978 BUICK AUTOMOBILE, Vehicle Identification No. 4N69Y8X101063, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—1429
    Opinion filed March 21, 1990.
    Law Offices of Joseph V. Roddy, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Lacoulton Walls, and James D. Brosnahan, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Larry J. Elenz (Elenz) appeals from an order of the circuit court authorizing the forfeiture of a 1978 Buick automobile which the State alleges he used in the commission of the offense of gambling. Elenz maintains that the vehicle is not subject to forfeiture because the State failed to prove by a preponderance of the evidence that it was used to facilitate gambling. We affirm.

At the forfeiture hearing in the circuit court on April 27, 1988, two investigators of the Cook County sheriff’s police, Jose Rivera and Wayne Wieczorek, testified for the State; no witnesses testified for the defense; consequently, the undisputed facts are as follows.

On December 26, 1987, at about 10:45 a.m., members of the Cook County sheriff’s police department observed Elenz leaving his residence at 834 Oak Street, Winnetka, Illinois. Elenz walked across the street toward his automobile, a 1978 Buick. As he inserted a key in the door and was about to enter the vehicle, the officers approached him and, pursuant to a warrant for gambling paraphernalia, conducted a search of Elenz’s person, his residence and his car.

The officers retrieved a check, $537 in cash and a tally sheet from Elenz’s right front pants pocket. Figures on the tally sheet indicated bettors’ identification numbers, amounts wagered and whether the amounts were paid. In the trunk of the vehicle, the officers found a booklet entitled “Doc’s Journal” containing schedules of college and professional football games and blank spaces for recording scores. Also in the trunk were 13 documents bearing college football pools, all of which contained the statement: “Contest Rules $5.00,” and two of which were filled out. On the front seat there was a briefcase containing gambling periodicals. Finally, the officers recovered documents with recorded gambling wagers from Elenz’s residence. Elenz was subsequently arrested. After being advised of his Miranda rights, he said that one of the betting slips from his residence was a bet he had made through a friend in Las Vegas and that he thought it was legal. He also repeated a number of times that he felt somebody must have talked. The parties stipulated that the record owner of the 1978 Buick, vehicle identification No. 4N69Y8X101063, was Larry J. Elenz.

After the hearing, the circuit judge found that the State proved by a preponderance of the evidence the Elenz’s 1978 Buick was used in the commission of the offense of gambling while in his possession and control and that the automobile was lawfully seized. Accordingly, the judge authorized the forfeiture of the car pursuant to Article 36 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 36—1 et seq.). Invoking our jurisdiction under Supreme Court Rule 307 (107 Ill. 2d R. 307), Elenz appeals.

Forfeiture is a civil proceeding in rem. (People v. Dugan (1985), 109 Ill. 2d 8, 485 N.E.2d 315.) The forfeiture provisions in the Criminal Code of 1961 (Code) provide in pertinent part as follows:

“§36-1. Seizure. Any *** vehicle *** used with the knowledge and consent of the owner in the commission of, or in the attempt to commit *** an offense prohibited by (a) Section *** 28 — 1 of this Code *** may be seized and delivered forthwith to the sheriff of the county of seizure.” (Ill. Rev. Stat. 1987, ch. 38, par. 36—1.)
“§36 — 2. Action for forfeiture, (a) *** The State shall show at such hearing by a preponderance of the evidence, that such *** vehicle *** was used in the commission of an offense described in Section 36 — 1. The owner of such *** vehicle *** may show by a preponderance of the evidence that he did not know, and did not have reason to know, that the *** vehicle *** was to be used in the commission of such an offense ***. Unless the State shall make such showing, the Court shall order such *** vehicle *** released to the owner.” (Ill. Rev. Stat. 1987, ch. 38, par. 36—2(a).)

Under section 28 — 1(a) of the Code, a person commits the offense of gambling when he, inter alia:

“(5) Knowingly owns or possesses any book, instrument or apparatus by means of which bets or wagers have been, or are, recorded or registered ***; or
(6) Sells pools upon the result of any game or contest of skill or chance ***.” (Ill. Rev. Stat. 1987, ch. 38, pars. 28—1(a)(5), (a)(6).)

A reviewing court shall sustain the circuit court’s determination that a vehicle was used in the offense of gambling if the determination is not against the manifest weight of the evidence. People v. Dugan, 109 Ill. 2d 8, 485 N.E.2d 315.

Defendant urges this court to follow the rule of law enunciated in People ex rel. Mihm v. Miller (1980), 89 Ill. App. 3d 148, 411 N.E.2d 592, People ex rel. Barra v. Lee (1984), 128 Ill. App. 3d 128, 470 N.E.2d 46, and People ex rel. Kilquist v. One 1978 Mazda GLC Automobile, Vehicle Identification Number FA4TS660606 (1988), 165 Ill. App. 3d 540, 518 N.E.2d 1287, which applied section 36 — 1 of the Code to circumstances implicating violations of the Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56½, par. 1100 et seq.). Those three decisions required the State to show that the vehicle sought to be forfeited added an element of privacy to the contraband found inside the vehicle. Thus, for example, if an illegal substance is found inside an occupant’s purse which is in turn found inside a car, the purse rather than the car is held to have provided cover for the substance, and the car is therefore not forfeitable. (People v. Lee, 128 Ill. App. 3d 128, 470 N.E.2d 46.) In People v. One 1978 Mazda, the court affirmed an order denying forfeiture, because the illegal substance was found hidden in a shaving kit, concealed inside a duffle bag. (People v. One 1978 Mazda, 165 Ill. App. 3d 540, 518 N.E.2d 1287.) Although People v. Miller articulated the same rule of law, the court reversed in favor of forfeiture. (People v. Miller, 89 Ill. App. 3d 148, 411 N.E.2d 592.) In that case a packet containing contraband fell out of the car owner’s pocket when he stepped out of his vehicle. The court held that the car added a dimension of privacy because the pocket was obviously not very secure. Elenz argues by analogy that because the gambling periodicals, the only possibly incriminating pieces of evidence retrieved from his vehicle, were found inside a briefcase, the vehicle did not provide an added dimension of privacy.

Elenz’s promethean efforts, alas, prove unavailing, for he assumes too much when he claims that the only incriminating evidence was inside the briefcase; we find entirely unconvincing his arguments that the other items retrieved from his person and car did not constitute gambling paraphernalia and that they were too dated to be evidence of criminal activity. Furthermore, language requiring a vehicle to add a dimension of privacy is pointedly lacking in People v. Dugan (1985), 109 Ill. 2d 8, 485 N.E.2d 315, a supreme court decision which specifically addresses the forfeiture statute in the context of a gambling offense. In Dugan, the vehicle contained, among other things, gambling club membership cards, playing cards, variously colored poker chips, gambling table covers and $30,000 in cash. In upholding the circuit judge, the court held that “[t]he use of the car as a mobile office or safe was sufficiently connected to the gambling activity, and therefore it may be considered to have been used in the commission of the offense.” 109 Ill. 2d at 18, 485 N.E.2d at 320.

In the present case, Elenz’s car contained a number of gambling periodicals, a journal with college and professional football game schedules and a place to record scores, and 13 college football pools. Additionally, Elenz was carrying a tally sheet with recorded wagers on his person and kept other records of wagers in his residence. Taken together, this evidence tends to establish that Elenz, like the vehicle owner in Dugan, used his car as a mobile office and means of transporting gambling paraphernalia in furtherance of illegal gambling activity. Moreover, contrary to Elenz’s contentions, the tally sheet found on his person and the other records of wagers found in his residence are relevant to the extent that they help establish that he was involved in illegal gambling activity. (See Dugan, 109 Ill. 2d at 17-18, 485 N.E.2d at 320 (reviewing court considered evidence that a portion of the cash recovered in the vehicle “had been gambled by [undercover] agents at the club the night the car was seized”).) Accordingly, we find that the trial judge’s decision ordering the forfeiture of Elenz’s 1978 Buick was eminently correct and fully supported by the evidence.

Affirmed.

HARTMAN and BILANDIC, JJ., concur.

      On cross-examination, Officer Rivera testified that the games listed in 13 football pools were not dated and therefore “[i]t could be possible” that they were games played in 1983. He also testified, however, that Elenz’s copy of “Doc’s Journal,” a publication often used in connection with football pools, was copyrighted in 1987.


author: PRESIDING JUSTICE DiVITO

text:
    JOYCE SAMPSON et al., Indiv. and on Behalf of all Persons Similarly Situated, Plaintiffs-Appellees, v. EASTMAN KODAK COMPANY, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—0205
    Opinion filed March 21, 1990.

      Rudnick & Wolfe, of Chicago (William J. Campbell, Jr., and John Chen, of counsel), for appellant.
    Kevin M. Forde, Ltd., of Chicago (Kevin M. Forde and Katrina Veerhusen, of counsel), for appellees.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Plaintiffs filed a class action suit against Kodak to recover damages for the loss of use of their instant cameras as a result of an injunction issued in a separate patent lawsuit brought by Polaroid Corporation. That suit was settled, and plaintiffs’ counsel petitioned the trial court for an award of attorney fees. The trial court awarded fees based on a lodestar amount and a risk multiplier of three. Kodak appeals, challenging only the amount of fees awarded.

The issues raised are (1) whether this court has jurisdiction to hear Kodak’s appeal pursuant to Supreme Court Rule 303(a)(3) (107 Ill. 2d R. 303(a)(3)); (2) whether Kodak has standing to bring this appeal; (3) whether the trial court erred in applying a risk multiplier of three in determining the amount of attorney fees awarded; and (4) whether the trial court erred in applying a risk multiplier to hours between the date the settlement agreement was reached by the parties and the date it was approved by the court. We affirm.

In September 1985, an injunction was entered in a patent lawsuit brought by Polaroid Corporation prohibiting Kodak from manufacturing or selling film for over 16 million “instant” cameras it had sold. In January 1986, Kodak announced that it would implement an “Exchange Program” under which camera owners who called a toll-free number by December 31, 1986, and registered their names could exchange their cameras for either a Kodak “disc” camera and film, a $50 rebate coupon, or one share of Kodak stock.

On January 21, 1986, Joyce and William D. Sampson filed this class action suit. The complaint alleged that Kodak was liable in damages to the owners of instant cameras as a result of the patent lawsuit injunction and that the Exchange Program was unfair. Thirteen similar suits against Kodak were subsequently filed in other State and Federal courts. On February 13, 1986, this action was certified as a class action, the other actions were enjoined, and Kodak was prohibited from implementing the Exchange Program.

On August 5, 1986, an eight-count amended complaint was filed naming over 100 plaintiffs from throughout the United States and alleging breaches of express and implied warranties, fraud, and violation of Federal and State consumer laws. Seven of the eight counts were dismissed for failure to state a claim. The first count alleging breach of an implied warranty of freedom from a patent infringement survived Kodak’s motion to dismiss, and plaintiffs were granted leave to file a second amended complaint. Plaintiffs’ second amended complaint was filed on April 22, 1988, and, again, alleged breaches of express and implied warranties, fraud and violations of State and Federal consumer laws. Cross-motions for summary judgment were filed but never resolved due to a settlement arrived at by the parties.

Settlement negotiations began once the class was certified. On May 16, 1988, the parties filed a “Stipulation of Settlement” to pay out benefits to class members. The trial court then entered an order approving notices of the proposed settlement to the class. Notices were sent to over four million class members and published all over the country. About 200 class members formally objected to the proposed settlement. One objector, Steven Baird, appeared through counsel Torshen, Schoenfield & Spreyer, a Chicago firm, and Marc L. Goldstein and Albert E. Levy from California.

The proposed settlement required Kodak to (1) pay $108 million into a settlement fund; (2) make an additional payment of $42 million, provide rebate coupons worth $126 million, or provide a combination of cash and coupons; (3) pay $400,000 for the cost of publication of notices; (4) pay $1,180,000 for the cost of printing and mailing notices; (5) pay $15,811,000 for the cost of operating a toll-free telephone system; and (6) pay $8 million for costs of administering the settlement agreement exceeding $8 million. The settlement also provided that plaintiffs’ counsel could petition the court for an award of attorney fees up to $6 million.

On September 20, 1988, the trial court held an evidentiary hearing on the fairness of the settlement, and on September 26, 1988, issued a memorandum opinion finding the settlement to be fair, adequate, and reasonable. A final order of dismissal was entered on September 30,1988. No appeal from that order was taken.

On September 12, 1988, plaintiffs’ counsel, represented by William J. Harte, Ltd., filed a joint petition for attorney fees and expenses. Plaintiff’s counsel sought a fee award of either 4% of the $150 million settlement or an amount based on a lodestar of $2,289,686 and a risk multiplier of three. Kodak challenged the use of the percentage of recovery method and the lodestar amount claimed by Cohen, Shapiro, Polisher, Shiekman and Cohen. Kodak also challenged the application of a risk multiplier of three, claiming that the multiplier was excessive in light of the existence of the Exchange Program, and that no multiplier should be applied, in any event, to post-settlement hours.

On October 6, 1988, counsel for Steven Baird filed a petition for fees and expenses based on a lodestar amount in excess of $180,000 and a multiplier of three. Kodak challenged the lodestar amount and objected to the use of a multiplier.

On October 31, 1988, the trial court held an evidentiary hearing on the fee petitions. Three expert witnesses testified for plaintiffs’ counsel. Herbert B. Newberg, author of the well-known treatise on class actions, testified that in his opinion a reasonable fee would be the lodestar multiplied by Sxk to 4 and that the requested fee of $6 million “readily falls at the modest end of the reasonable range of fee awards in cases of common fund recoveries of comparable magnitude and risk.” Newberg testified that the Exchange Program “should not delimit in any way petitioner’s right to a substantial multiplier” because it was not a formal offer approved by Kodak’s board of directors and because camera owners would receive little if any cash for Kodak stock and no cash if they received coupons or a disc camera. Newberg described the litigation as “a highly contingent *** venture for Class Counsel which remained contingent until [the trial court’s] approval of the stipulation of settlement on September 26, 1988, and involved a major risk of time and money during the entirety of the litigation.”

Richard W. Austin, a partner at Winston & Strawn, testified that a reasonable fee for plaintiffs’ counsel would be the lodestar amount times a multiplier of 2.75 to 3.25. He also testified that the Exchange Program did not affect his opinion as to the reasonableness of the requested fee and that plaintiffs’ counsel remained at risk until the settlement was approved by the court. Finally, Michel A. Coccia, a former partnef at Baker & McKenzie, testified that in his opinion a reasonable fee for plaintiffs’ counsel would be the lodestar amount times a multiplier of 3 to 3.25.

On December 20, 1988, the trial court read its findings into the record. The trial court awarded objector Baird’s counsel $100,000 and plaintiffs’ counsel $6 million dollars, the maximum amount allowable under the settlement agreement. With respect to plaintiffs’ counsel’s fees, the trial court found the lodestar amount to be $2,063,826.20 and applied a multiplier of three. The trial court noted that liability at the time of the lawsuit was “remote,” “burden of proof was steep because of the complexity of the legal issues involved,” damages were “very, very uncertain,” and the quality of benefits obtained by plaintiffs’ counsel was “extremely high.” The trial court did not make any specific findings with respect to the effect of the Exchange Program on the risk of recovery and did not distinguish between presettlement and post-settlement hours in applying the multiplier.

Two separate orders were entered, one on December 21, 1988, awarding plaintiffs’ counsel fees, and the other on December 22, 1988, awarding fees to Baird’s counsel. On January 19, 1989, Marc L. Goldstein and Albert Levy, Baird’s California counsel, without having raised any objection in the trial court, appealed from both orders, challenging the trial court’s application of a multiplier to post-settlement hours in the award to plaintiffs’ counsel and challenging the trial court’s refusal to apply a multiplier to their own award.

On February 2, 1989, Kodak joined the appeal by Goldstein and Levy, asserting jurisdiction under Supreme Court Rule 303(a)(3). On April 3, 1989, plaintiffs’ counsel moved to dismiss Kodak’s appeal, and this court ordered the motion to be taken with the case. Goldstein and Levy subsequently settled their fee dispute with Kodak, agreeing to return a portion of their fees to the settlement fund in exchange for Kodak’s agreement not to pursue its cross-appeal against them. Goldstein and Levy then decided not to go forward with their appeal from the order awarding fees to plaintiffs’ counsel.

I

Plaintiffs’ counsel maintain first that this appeal must be dismissed because Kodak did not file a notice of appeal within 30 days of the December 21, 1988, or December 22, 1988, orders and cannot rely on Supreme Court Rule 303(a)(3) because this court lacked jurisdiction to hear the earlier appeal by Goldstein and Levy from the December 21, 1988, order awarding fees to class counsel. Plaintiffs’ counsel argue that Goldstein and Levy lacked standing to appeal from that order because they were not parties to the class action suit; were not class members; no appeal was filed by their client, Steven Baird; and no objection was made by Baird in the trial court to class counsel’s fee petition. Plaintiffs’ counsel assert that the December 21, 1988, order did not affect the fees sought by Goldstein and Levy because there were sufficient funds to pay any additional fees sought without reducing the award to class counsel. We disagree.

Counsel may appeal from a trial court order regarding their own fees. (Leader v. Cullerton (1976), 62 Ill. 2d 483, 343 N.E.2d 897.) The filing of the notice of appeal is the only jurisdictional step in the appellate process. (Danaher v. Knightsbridge Co. (1978), 56 Ill. App. 3d 977, 372 N.E.2d 862.) If counsel files and serves a timely notice of appeal, then under Supreme Court Rule 303(a)(3), in order to avoid piecemeal or multiple appeals (see Kenney v. Churchill Truck Lines, Inc. (1972), 6 Ill. App. 3d 983, 286 N.E.2d 619), “any other party within 10 days after service upon him *** may join in the appeal *** by filing a notice of appeal.” 107 Ill. 2d R. 303(a)(3).

In this case, it is undisputed that Goldstein and Levy filed a timely notice of appeal challenging their own fee award. Although the notice specifies that the appeal was taken from “the order of December 20, 1988,” it is plain from the grounds raised in the notice that the appeal was from the orders actually entered on December 21, 1988, and December 22, 1988. In any event, plaintiffs’ counsel here do not assert that the notice was improper because it failed to specify the correct dates on which the orders were entered. Instead, plaintiffs’ counsel argue that Supreme Court Rule 303(a)(3) is not properly invoked to render Kodak’s notice of appeal timely because Goldstein and Levy did not have standing to challenge the December 21, 1988, order.

Plaintiffs’ counsel, however, fail to recognize that a notice of appeal is jurisdictional only and, indeed, is the only jurisdictional step in the appellate process. The appellate court is not divested of jurisdiction simply because the notice of appeal lists grounds for relief not properly raised by the named party in addition to grounds that are properly raised. Indeed, if plaintiffs’ counsel’s argument is accepted, then in multiparty litigation, a party must file a separate notice of appeal within 30 days of the order appealed from if it seeks relief on grounds not properly raised by the other parties. But Rule 303(a)(3) is designed to avoid such multiple appeals. The rule plainly does not limit subsequent parties to grounds for relief properly relied on by the first party in its notice of appeal. Thus, this court has jurisdiction to hear Kodak’s appeal pursuant to Rule 303(a)(3) even though Kodak’s grounds for appeal, based on the December 21, 1988, order, might not properly be asserted by Goldstein and Levy.

II

Plaintiffs’ counsel maintain next that Kodak has no standing to object to the fee award because it has no further interest in the settlement fund and would not benefit from a favorable decision by this court. Plaintiffs’ counsel rely principally on Boeing Co. v. Van Gemert (1980), 444 U.S. 472, 62 L. Ed. 2d 676, 100 S. Ct. 745, where the Court rejected Boeing’s appeal from an award of attorney fees to class counsel, stating that Boeing “had no cognizable interest in further litigation between the class and its lawyers over the amount of fees ultimately awarded from money belonging to the class.”

Kodak argues that Boeing is inapposite because the Court there found that Boeing, which claimed that fees should have been charged against only the claimed portion of the fund, had no further interest in the fund only because it failed to file a timely appeal from the judgment of liability and the award of fees against the entire fund. Kodak notes that the Seventh Circuit has construed Boeing to mean that “in all common fund cases, the defendant has at least ‘a colorable claim’ to any unclaimed monies.” (See Skelton v. General Motors Corp. (7th Cir. 1988), 860 F.2d 250, 254 n.1.) Kodak argues that it has standing here because it has a continued interest in the administration of the settlement fund, may recommend how unclaimed funds should be distributed, and has an interest in maximizing recovery to the class to protect its goodwill.

Generally, to have standing, a litigant must show (1) it has suffered some actual or threatened injury; (2) the injury “fairly can be traced to the challenged action”; and (3) the injury is likely to be redressed by a favorable decision. (Valley Forge Christian College v. Americans United for Separation of Church & State, Inc. (1982), 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752.) A party to the record may appeal if it considers itself “aggrieved by the judgment” regardless of whether it was actually aggrieved. (Vece v. DeBiase (1964), 31 Ill. 2d 542, 202 N.E.2d 482.) Nevertheless, in a class action suit, where a lump sum settlement has been negotiated and attorney fees have been awarded from the fund, the defendant ordinarily has no standing to object to the fee award because it no longer has an interest in the fund. (See Copeland v. Marshall (D.C. Cir. 1980), 641 F.2d 880, 905 n.57 (“In 'common fund' cases, the losing party no longer continues to have an interest in the fund; the contest becomes one between the successful plaintiffs and their attorneys over the division of the bounty”); H. Newberg, Attorney Fee Awards §2.27, at 92-93 (1986).) We recognize, however, that a defendant with a “colorable claim” to the unclaimed portion of the fund may have standing to challenge the fee award. In Boeing Co. v. Van Gemert (1980), 444 U.S. 472, 62 L. Ed. 2d 676, 100 S. Ct. 745, for example, the Court stated that Boeing had no further interest in the settlement fund because it failed to appeal from the order awarding damages to the class, but nevertheless heard the appeal on its merits, finding that Boeing had a “colorable claim” for the return of excess funds.

In this case, Kodak does not have standing to appeal because it does not have even a “colorable claim” to any unclaimed portion of the settlement fund. Kodak argues that it nevertheless meets the test for standing because paring down the fee award and distributing the extra money to the class would increase its customer goodwill and satisfaction. Although Federal courts have recognized that protection of goodwill is a sufficient interest to support standing to use (see Southwest Suburban Board of Realtors, Inc. v. Beverly Area Planning Association (7th Cir. 1987), 830 F.2d 1374; Estate of Presley v. Russen (N.J. 1981), 513 F. Supp. 1339), Kodak cites no cases, nor have we found any, where protection of goodwill was held a sufficient basis for a defendant in a common fund case to appeal from a fee award. Although Kodak now considers itself aggrieved by the fee award and believes that a successful appeal, reducing the award to about $2 million, would enhance customer goodwill and satisfaction, its position seems untenable given the terms of the settlement agreement permitting a maximum fee of $6 million. Moreover, if, as Kodak asserts, class members accused Kodak of conspiring with class counsel to permit a large fee award in exchange for a favorable settlement, or threatened to stop buying Kodak products because of the fee arrangement, the class members could have challenged the award themselves. That class members have not done so belies Kodak’s contention.

Finally, if Kodak has standing to appeal in this case, there would be little to distinguish any case where the defendant settled a lawsuit brought by its customer. Under such circumstances, it would be best to heed Justice Rehnquist’s remark that the defendant “has no more standing to press its appeal than would a losing defendant have standing to contest the division of an award between plaintiff and his attorney pursuant to a contingent-fee arrangement.” See Boeing Co. v. Van Gemert, 444 U.S. at 488 n.4, 62 L. Ed. 2d at 688 n.4, 100 S. Ct. at 754 n.4 (Rehnquist, J., dissenting).

Ill

Kodak maintains that the trial court failed to consider the likelihood of settlement and erred in applying a risk multiplier in awarding attorney fees. Kodak argues that the likelihood of settlement must be considered alone with the likelihood of success on the merits in determining the appropriate risk multiplier. In this case, Kodak maintains, the court considered only the novelty of plaintiffs’ claims and failed to consider that the Exchange Program showed the existence of a large fund for recovery and demonstrated, even before the onset of the litigation, that Kodak would likely settle a lawsuit involving its instant cameras. Kodak also maintains that the low risk factor is demonstrated by the eagerness with which plaintiffs’ counsel and counsel all over the country filed suit against Kodak.

We do not reach the merits of this issue because of our conclusion above that Kodak does not have standing to bring this appeal. Nevertheless, we briefly discuss the relevant law and the facts of this case and note that while a risk multiplier of three is generally quite high and should be applied sparingly, we do not believe the trial court abused its discretion in applying such a multiplier in this case.

An award of attorney fees is a matter within the discretion of the trial court. (Leader v. Cullerton (1976), 62 Ill. 2d 483, 488, 343 N.E.2d 897.) The trial court may in its discretion apply a risk multiplier in calculating the award based on the benefits conferred upon the class and the contingent nature of the lawsuit. (Fiorito v. Jones (1978), 72 Ill. 2d 73, 91, 377 N.E.2d 1019.) A trial court’s decision awarding fees will not be disturbed on appeal unless it was an abuse of discretion. Lurie v. Canadian Javelin Ltd. (1982), 93 Ill. 2d 231, 239, 443 N.E.2d 592.

In this case, considering the novelty of the claim, namely, breach of an implied warranty of freedom from patent infringement, and considering the large recovery for the class, we could not conclude that the trial court abused its discretion. Kodak’s argument that the trial court failed to consider the existence of the Exchange Program is not persuasive because the trial court heard the testimony of two experts that the Exchange Program did not affect their opinion regarding the reasonableness of the fees requested. In any event, although the record is rather incomplete on this point, it appears that the Exchange Program was worth less to the class than the settlement amount because the Exchange Program did not offer camera owners any cash and the proposed offer of Kodak stock had not been approved by Kodak’s board of directors or by the Securities Exchange Commission. Accordingly, it is likely that some multiplier would have been justified based on the difference in the value of the Exchange Program and the settlement amount.

IV

Finally, Kodak maintains that the trial court erred in failing to distinguish “presettlement” from “post-settlement” hours. Kodak argues that the risk multiplier should not have been applied to hours worked after the parties filed the “Stipulation of Settlement” on May 16, 1988. Plaintiffs’ counsel maintain that the risk multiplier was properly applied to hours worked up until the settlement was approved by the court on September 26, 1988.

Again, we do not reach the merits of this issue. We believe, however, that there is little support for Kodak’s contention that the contingency was removed at the time the “Stipulation of Settlement” was entered into by the parties. Although in determining a fee award, “the trial court should delineate pre-settlement hours from post-settlement hours and not apply the multiplier to the latter since the contingency nature of the action was removed at the time of settlement” (see Heckmann v. Hospital Service Corp. (1982), 104 Ill. App. 3d 728, 432 N.E.2d 891), there is no definition of when pre-settlement hours end and post-settlement hours begin, other than the Illinois Supreme Court’s statement that the contingency is removed when class counsel receive their “guarantee of remuneration” (see Fiorito v. Jones (1978), 72 Ill. 2d 73, 92, 377 N.E.2d 1019). In this case, after the “Stipulation of Settlement” was filed, there were 200 objectors, one of whom appeared through counsel. Two experts gave unrebutted testimony that class counsel was at risk until the trial court approved the settlement agreement. On this record, we would be reluctant to conclude that the trial court abused its discretion in applying a risk multiplier to hours worked prior to the trial court’s approval of the settlement.

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

Affirmed.

EGAN and GORDON, JJ., concur.