author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD FINKE, Defendant-Appellant.
    Second District
    No. 2 — 89—0778
    Opinion filed October 24, 1990.
    Rehearing denied November 28, 1990.

      Anderson, Deitsch & Associates, P.C., of Wheaton (Robert J. Anderson, of counsel), for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Ronald Finke, was charged with the offenses of driving with a breath-alcohol concentration of .10 or more (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501(a)(1)), driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501(a)(2)), and making an improper right turn (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 801). After a jury trial, defendant was found not guilty of driving with a breath-alcohol concentration of .10 or more and guilty of both driving under the influence of alcohol and making an improper right turn. He was sentenced to one-year probation, 80 hours of public service, and was assessed $500 in costs. Defendant appeals, raising the following issues: (1) whether the trial court erred in failing either to sustain defendant’s objection or to grant a motion for mistrial when the State violated the trial court’s order granting a defense motion in limine; (2) whether the trial court abused its discretion in failing to give the jury defendant’s tendered instruction on prior inconsistent statements; (3) whether the trial court abused its discretion by sustaining the State’s objection to defendant’s testimony on redirect as to why he was driven home, rather than driving himself, after he left the police station; (4) whether defendant’s right to a fair trial was violated by cumulative errors; and (5) whether the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of driving while under the influence of alcohol. We reverse and remand for a new trial.

Prior to the commencement of defendant’s jury trial, a motion in limine was filed by defendant wherein he requested, inter alia, that the State’s witnesses be directed to make no reference of any type to defendant’s exercise of his fifth amendment right to refuse to answer questions asked after his arrest. A hearing was held on. the motion on February 3,1988, and the trial court granted the motion.

A jury was then selected, and the presentation of evidence commenced on February 4, 1988. The first witness to testify was Officer Mary F. Cabrera, on behalf of the State. She testified that she is an officer for the Downers Grove police department. While on duty on January 3, 1987, at approximately 12:16 a.m., she was in the intersection of Ogden Avenue and Main Street, facing westbound on Ogden, waiting to make a left-hand turn onto southbound Main. At that time, Cabrera observed a gray vehicle, traveling eastbound on Ogden, making an exceptionally -wide right turn onto Main Street crossing the center double lines and entering the turn lane for oncoming traffic on Main Street. Cabrera testified that in making the turn, the gray vehicle almost struck another vehicle that was stopped at a red light on Main Street and was positioned on the inside lane of the two lanes of northbound traffic for Main Street. Cabrera stated that she saw the expression of the driver in the other car and that the expression on her face was that she thought she was going to be hit.-The turning vehicle then swerved back into the southbound lanes of traffic.

Cabrera testified that she then made her turn onto Main Street. She put her red lights on and initiated a traffic stop about three quarters of a block past the intersection. Cabrera stated that she exited her vehicle and approached the driver of the stopped vehicle, who was defendant. She asked defendant for his driver’s license, which he produced. Cabrera testified that at that time she smelled a strong odor of alcohol on defendant’s breath and his eyes were extremely bloodshot. Cabrera indicated that while defendant spoke very little during the stop, saying basically yes or no, she noticed that his speech was slurred. She stated that she asked defendant to step out of his vehicle to perform field sobriety tests. When defendant walked to the rear of his car, Cabrera noticed that he was unsure of his balance, was swaying and stumbling. Cabrera testified that the area where defendant was walking was asphalt, that it had snowed a few days prior to the arrest, but the snow had been plowed. She explained that the street had been salted, leaving it part wet and part dry.

Cabrera stated that, when defendant reached the rear of the car, she asked him to perform a heel-to-toe test. She testified that she described the test and performed it for defendant. Cabrera explained that the test consisted of taking five steps touching the heel to the toe; on the fifth step, defendant was to pivot, turn around, and walk five steps back, again, heel to toe. Defendant indicated that he understood and then attempted to perform the test. Officer Cabrera stated that as defendant attempted to take the test, he merely walked forward in a staggering motion, never walking heel to toe. Cabrera estimated that defendant took five or six steps and then just stood there and stared at her without saying anything.

Cabrera testified that she then asked defendant to perform a finger-to-nose test, which she also described and demonstrated for him. Cabrera stated that when she asked defendant if he was ready to start and informed him that he could begin, defendant just stood there and made no attempt to perform the test. Cabrera opined that defendant was intoxicated and testified that she then placed defendant under arrest and took him to the police station. Cabrera stated that she was present when defendant was tested on a breathalyzer machine.

Thereafter, at 1:18 a.m., Cabrera read defendant his Miranda warnings, which he indicated he understood. Cabrera testified that she then asked defendant questions from an alcohol-influence report. The prosecuting attorney then questioned Cabrera:

“Q. Did you have occasion to ask the defendant whether or not he was operating a vehicle?
A. Yes, I did.
Q. What was his reply?
A. ‘No comment.’ ”

Counsel for defendant then objected and asked to be heard. A conference was held in chambers outside the presence of the jury. The trial court determined that a preliminary hearing should be held to determine whether defendant did indeed invoke his fifth amendment privilege. At the conclusion of the hearing in chambers, the trial court denied the motion for mistrial. The court held that defendant’s “no comment” answer would stand; however, the court ruled that no other questions in regard to defendant’s exercise of his fifth amendment right would be allowed.

The trial then resumed with Officer Cabrera returning to the stand. On cross-examination, Cabrera testified that she had prepared several reports about the arrest which she had read to refresh her recollection prior to testifying. She estimated that the right turn she observed defendant make onto Main Street took three seconds. She testified that within that time she also observed the face of the driver that was heading north on Main Street; however, Cabrera made no attempt subsequently to locate this driver.

Cabrera testified that, although the roadway that night was part wet and part dry due to snow, it was dry on the asphalt pavement where the field tests were given. Counsel for defendant then showed Cabrera the uniform citation and complaint which she issued for the improper right turn, wherein she had checked that the road conditions were wet. Cabrera explained that “[t]he road was partially wet and partially dry. The road was basically wet. Where I tried to test I looked for a dry spot and that’s where I did the test.”

Cabrera testified that after observing defendant make the improper turn, she turned her lights on and started calling in the stop at 12:16 a.m. Cabrera stated that approximately two minutes had elapsed from the time she called in the stop and the time defendant was placed under arrest at about 12:18 a.m. Within that time, defendant was asked to perform the two field tests. Counsel for defendant asked Cabrera questions about a supplemental report which was prepared after defendant was released. The report indicated that defendant was asked to perform “field sobriety test,” singular, not plural, and it did not indicate which test defendant was asked to perform. Cabrera explained, “I might have forgotten an s.”

On the alcohol influence report form, Cabrera had indicated what observations she made about defendant’s balance and his walking during the walk-and-turn test, but she made no indication of the finger-to-nose test. On re-cross-examination, the following colloquy occurred:

“Q. [Defense counsel]: In terms of the observations in regard to the walk-and-turn test, the observation that you marked on the alcoholic influence report form, it is true, is it not, Officer, that you checked on this alcoholic influence report that the turning test was not made?
A. [Cabrera]: That’s right. He did not turn.
Q. Officer, you also checked, did you. not, that a coin test was not made, is that correct?
A. That’s right.
Q. Officer, you did not ask him to perform a coin test, did you?
A. No, I did not.
Q. So you made the same entry for the coin test that you didn’t ask him to do as you did for the turning test which you did ask him to do; is that correct?
A. That’s correct.”

The only other witness to testify on behalf of the State was Officer Shields, who is a certified breathalyzer operator. When asked whether he had an opinion as to whether defendant was under the influence of alcohol at the time in question, Shields indicated that he did have such an opinion, but the defense counsel objected based on lack of foundation. The trial judge stated, “I think your objection may be premature. I will allow him to lay a foundation if indeed he can, Counsel.” Shields then testified that he was present in the same room with defendant for approximately 30 minutes and was a width of a table away from defendant. Officer Shields was not asked again his opinion regarding whether defendant was intoxicated. Thereafter, the State rested, and the defense moved for a directed finding, which was denied.

The first witness to be called by the defense was Edward Steffan, who is 35 years old and a friend of defendant’s for 20 years. Steffan is a rehabilitation counselor who deals with a large number of people that become dependent on drugs and alcohol after being injured either on their jobs or in automobile accidents. Steffan testified that on January 2, 1987, he had attended a party at Tom Sheppy’s home, arriving at about 7:45 p.m. Defendant also attended the same party, arriving at approximately 9:30 p.m. They watched a football game on television with defendant sitting on the couch next to Steffan until around midnight. Steffan testified that during that time he observed defendant drink a little over two beers; Steffan himself had nothing alcoholic to drink that evening.

As defendant was leaving the party, at approximately midnight, Steffan had an opportunity to observe him and testified that defendant had no difficulty walking, talking, or understanding people. Steffan opined that defendant was not under the influence of alcohol when he left the party. Steffan explained that in 1968 defendant had been in an accident and was thrown through the windshield of a car. Steffan testified that as a result, defendant has a large scar on his forehead and has a dryness problem with his eyes, which makes them almost always bloodshot.

Next, the defense called Tom Sheppy as a witness. Sheppy testified that he too was 35 years old and had known defendant for 20 years. Sheppy’s testimony was substantially similar to that given by Edward Steffan. Sheppy testified that he had a party with about 13 or 14 people in attendance, including defendant. Sheppy stated that he served three big submarine sandwiches and potato chips at the party and that defendant had “quite a bit of one of the sandwiches.” Sheppy remembered defendant leaving at approximately midnight. At that time, Sheppy observed defendant walk, talk, and speak; Sheppy opined that defendant was not under the influence of alcohol. On cross-examination, Sheppy admitted that he, himself, had consumed approximately five beers that evening. He did not see defendant drink any beer, but he saw beer sitting in front of defendant on the table. Sheppy testified that he did not know how much defendant had to drink that night.

- The next witness to testify on behalf of the defense was Richard Vaughan, defendant’s brother-in-law. Vaughan is employed as a detective sergeant with the Du Page County sheriff’s department assigned to the crime laboratory as a forensic scientist supervisor. Vaughan testified that he received a call from defendant on January 3, 1987, at approximately 12:45 a.m. Vaughan stated that he had no difficulty understanding defendant and that defendant sounded normal. Vaughan testified that he evaluated and assessed defendant’s speech and advised defendant to take the breathalyzer test. Vaughan went to the Downers Grove police department at approximately 2 a.m. At that time, he personally observed defendant walk to Vaughan’s car. Defendant got into Vaughan’s car, and the two drove away. Vaughan testified that defendant did not appear to have any difficulty walking, and Vaughan had no difficulty understanding him. Vaughan opined that defendant was not under the influence when they spoke over the phone at 12:45 a.m. or when he saw him at 2 a.m.

Next, defendant testified on his own behalf. He testified that he was 36 years old, 6 feet 2 inches tall, and weighed approximately 203 pounds at the time in question. He testified that on January 2, 1987, he had a cold and was taking medicine for it. He stated that he had half a grapefruit for breakfast, no lunch, played racquetball for over an hour, and ate dinner at approximately 6:30 p.m. Dinner consisted of a steak, a salad, a baked potato, corn, and a dinner roll. Along with dinner, he consumed two glasses of white wine.

Defendant then went to Tom Sheppy’s home, arriving between 9:30 and 9:45 p.m. He testified that he watched a football game with Ed Steffan. He ate about four or five inches of a submarine sandwich and other snacks at the party. Defendant testified that he drank two beers and part of a third.

Defendant explained that as a result of a 1968 car accident, he has a problem with his eyes being dry and consequently red. Defendant stated that he had severe lacerations of the forehead and middle scalp and had to have plastic reconstructive surgery from his forehead to the top of his head and also ranging down from his eyes.

Defendant testified that he left Sheppy’s at approximately midnight. At that time he had no difficulty walking or talking and opined that he was not under the influence of alcohol. Defendant stated that when he left Sheppy’s it was cold, overcast, and misting. He testified that when he approached the intersection of Ogden Avenue and Main Street, he was in the right-hand lane heading east on Ogden. He stated that he stopped at the traffic signal. His right-turn signal was engaged as he made the turn. He testified that, in turning, a portion of his left front bumper went into the left-hand lane of southbound Main Street. After making the turn, defendant saw Officer Cabrera in his rearview mirror with her lights activated. Defendant testified that he pulled his car into the right-hand lane and curbed it about a half or three quarters of a block from the intersection. Officer Cabrera approached defendant’s car and asked for his driver’s license, which he produced without any difficulty. Cabrera asked defendant to step out of the car, which he did without any difficulty. He was asked to step between the rear of his car and the front of Cabrera’s car onto the sidewalk out of the way of traffic. Defendant stated that the roadway was wet and it was still misting. Cabrera asked defendant to perform a field-sobriety test, and he agreed. Defendant testified that Cabrera demonstrated the finger-to-nose test and asked him to perform it. Defendant testified that he did perform it and he felt he did fine. Defendant was then taken back to Cabrera’s car and placed under arrest at about 12:18 a.m.

Defendant testified that from the police station he called Rick Vaughan and talked with him for approximately 10 minutes. Thereafter, defendant agreed to take the breathalyzer. Vaughan subsequently came to the police station and picked defendant up at around 2 a.m. Defendant testified that he accompanied Vaughan in his vehicle back to defendant’s home.

On cross-examination, defendant testified that in making the right turn, he did not cross the double yellow line on Main Street. He claimed that he performed the finger-to-nose test, that Officer Cabrera never described or demonstrated the heel-to-toe test, and he did not take it. When asked whether the police gave defendant his car keys upon being released, defendant said he could not remember, but he thought they had. Defendant testified that he knew his car had been moved to a vicinity around where he was stopped. Defendant then admitted that when he left he had his keys and Vaughan drove him home.

On redirect examination, defendant was asked the reason why Rick Vaughan drove him home. The State objected, and the objection was sustained. A discussion oh this issue occurred outside the presence of the jury but was on the record. The judge ruled that the fact that defendant did not drive himself home was not impeaching testimony and, thus, such testimony could not be rehabilitated. The judge stated that any inference created by the testimony is a question of fact for the jury.

Thereafter, defendant resumed testifying. Defendant stated that at the time he left the police station, he felt fine, other than being nervous, and opined that he was not intoxicated.

The jury returned verdicts finding defendant not guilty of the offense of driving while under the influence of alcohol with a breath concentration of .10% or more; guilty of the offense of driving under the influence of alcohol; and guilty of the offense of improper right turn at an intersection. Defendant’s post-trial motion was denied, and he was sentenced to one year’s probation, 80 hours of public sendee, and was fined $500. Defendant timely appeals.

On appeal, defendant first argues that the State violated the in limine order when it elicited testimony that defendant exercised his fifth amendment right to remain silent. Specifically, defendant argues that the following questioning by the State of Officer Cabrera was improper:

“Q. Did you have occasion to ask the defendant whether or not he was operating a vehicle?
A. Yes, I did.
Q. WHhat was his reply?
A. ‘No comment.’ ”

Defendant maintains that after this exchange occurred the trial court erred in failing either to sustain defendant’s objection or to grant a motion for mistrial. We agree.

When the objection was raised at trial as to the above questioning, the trial judge determined that a preliminary hearing should be held to decide whether defendant invoked his fifth amendment privilege. At the hearing, Cabrera testified on direct examination that, after the “no comment” reply, she asked defendant the next question on the alcohol-influence report form. Counsel then questioned her as to whether she asked defendant where he was going, to which she responded that she had, and his reply was “home.” Cabrera testified that she asked defendant what direction he was traveling, to which he replied “going eastbound Roosevelt Road.” Counsel for the State told the judge that after that question he had intended to quit so as not to violate the in limine order. Cabrera explained that after asking defendant that question, defendant informed her that he was not going to answer any more questions.

On cross-examination, Cabrera again testified that, after the “no comment” response, she asked defendant where he was going and he said “home.” After being shown a copy of the alcohol-influence report, she remembered that the next question she asked defendant was “what street or highway were you on” to which he responded, “I am not going to say anything at this point.” Cabrera proceeded to ask him the next question which was “what direction of travel were you proceeding,” and defendant told her he was going eastbound on Roosevelt Road. Cabrera then asked defendant from where did he start, and he, again, informed her that he was going to refuse to answer any more questions.

Defendant then testified on his own behalf at the hearing in chambers. He claimed that he was in the squad car prior to receiving his Miranda warnings when Officer Cabrera asked him where he was heading and what road he was on and that it was then when he answered “home” and “Roosevelt Road.” He testified that later when Cabrera asked him if he was operating a vehicle he had responded, “I have no comment until I talk to an attorney.” When Cabrera then asked him where he was going, defendant claims he again made the same response.

The trial judge then denied the motion for a mistrial and held that defendant’s “no comment” answer would stand in the absence of any invocation of defendant’s sixth amendment right to counsel; however, the court ruled that no other questions in regard to defendant’s exercise of his fifth amendment right would be allowed. We find this ruling to be in error. In Miranda v. Arizona (1966), 384 U.S. 436, 468 n.37, 16 L. Ed. 2d 694, 720 n.37, 86 S. Ct. 1602, 1624 n.37, the Supreme Court stated:

“[I]t is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”

Under Miranda, it is clear that defendant’s fifth amendment privilege may be evoked either by standing mute or by the use of some verbal response. The Miranda warnings do not advise defendant of the exact words he must use in order to invoke this privilege. We find that by responding “no comment,” defendant in the case at bar did sufficiently invoke his right to remain silent in accordance with Miranda. We reject the State’s argument that by voluntarily answering subsequent questions defendant thereby chose not to exercise his right to remain silent. (People v. Pittman (1973), 55 Ill. 2d 39, 56; People v. Burbank (1972), 53 Ill. 2d 261, 266; People v. Dees (1977), 46 Ill. App. 3d 1010, 1022.) Defendant’s subsequent responses, whether voluntary or not, are immaterial as they would not permit introduction to the jury of the fact that defendant initially exercised his right to remain silent. Defendant’s attorney timely objected to the introduction of this inadmissible evidence, and the court, consistent with its prior ruling on the motion in limine, should have sustained the objection and advised the jury to disregard the answer. The court’s failure to do so was prejudicial to defendant and deprived him of a fair trial. Thus, we reverse the trial court’s judgment and remand for a new trial.

Because remaining issues raised by defendant may surface again on retrial, we will address them now for the sake of judicial economy.

Defendant contends that the trial court abused its discretion in failing to give the jury the defense-tendered jury instruction regarding prior inconsistent statements. The instruction tendered incorporated Illinois Pattern Jury Instruction, Criminal, No. 3.11 (2d ed. 1981) and provided:

“The believability of a witness may be challenged by evidence that on some former occasion he or she made a statement that was not consistent with his or her testimony in this case. Evidence of this kind may be considered by you only for the purpose of deciding the weight to be given the testimony you heard from the witness in this courtroom.”

At the instructions conference, defense counsel argued that the instruction was proper since Officer Cabrera had been impeached with prior inconsistent statements. The trial judge refused the instruction, stating “[i]t is my recollection of the testimony — and I took very careful notes with respect to Officer Cabrera — that there was no actual impeachment by means of either omission or by means of the transcript from the summary suspension hearing.”

Defendant argues that the trial judge incorrectly focused on whether there was or was not impeachment based on the transcript from the earlier summary suspension hearing. He maintains that Cabrera’s testimony was substantially impeached by inconsistencies in the written documents she prepared on the date of the arrest. Specifically, defendant contends that the traffic ticket which Cabrera prepared on the date of the arrest differed from her testimony at trial in that on the ticket she said that the pavement was wet, while at the trial she testified it was dry. In addition, the supplemental police report indicated that she asked defendant to perform “field sobriety test”; at trial she testified that she asked defendant to perform two field sobriety tests. Further, the alcohol-influence report form which Cabrera filled out on the date of the arrest was blank in the area of the finger-to-nose test, yet she testified that she asked defendant to perform the test.

The function of jury instructions is to convey to the jury the appropriate principles of law, so that it may apply the correct legal principles to the facts of the case and arrive at the proper conclusion according to the law and evidence. (People v. Mitchell (1975), 27 Ill. App. 3d 117, 121.) The pattern jury instruction regarding inconsistent statements is appropriately given only where two statements are inconsistent on a material matter. (People v. Thomas (1988), 172 Ill. App. 3d 172, 177.) Materiality exists where the contradiction reasonably tends to discredit the testimony of the witness on a material matter (Thomas, 172 Ill. App. 3d at 177), and this determination lies within the discretion of the trial court. People v. Villa (1981), 93 Ill. App. 3d 196, 202.

A review of Cabrera’s testimony indicates that the inconsistencies of which defendant complained did not constitute a material contradiction. We do not find the moisture of the pavement to be material in the case at bar; however, Cabrera did explain the inconsistency stating that the pavement itself was wet but where defendant performed the tests was dry. In addition, Cabrera explained that, while she did ask defendant to perform two field sobriety tests, the supplemental police report only indicated one, and she must have therefore forgotten to add the “s” on to the word “test.” This explanation is consistent with the alcohol-influence report form and Cabrera’s testimony wherein she explained that while she asked defendant to perform both the heel-to-toe test and the finger-to-nose test, he did not perform the finger-to-nose test, and therefore it was left blank on the alcohol-influence report form. Under the circumstances, we find that the instruction covering impeachment by prior inconsistent statements was not warranted here. See Thomas, 172 Ill. App. 3d at 178.

Next, defendant contends that the trial court abused its discretion by sustaining the State’s objection to defendant’s testimony on redirect as to why he was driven home, rather than driving himself, after he left the police station. Defendant argues that he was impeached by prior inconsistent conduct; namely, his conduct in not driving his car home was inconsistent with the defense theory of the case because it created the inference that he did not drive due to his intoxicated condition. We disagree. First, as noted by the State, it was the defense who brought out on direct examination that defendant did not drive himself home; thus the testimony elicited on cross-examination in this regard did not contradict or impeach defendant’s prior testimony, making rehabilitation unnecessary. Further, even if error had been committed, we would find such error to be harmless, given that immediately after the objection had been sustained, defendant testified that he felt fine at the time he left the police station, other than being nervous, and opined that he was not intoxicated. Thus, in essence, defense counsel ultimately received the rehabilitating answer that he was apparently seeking. See People v. Orange (1988), 121 Ill. 2d 364, 376-77.

Finally, defendant contends that the evidence adduced at trial was insufficient to prove him guilty beyond a reasonable doubt of driving while under the influence of alcohol. When an appellate court reverses a criminal conviction and remands the cause for a new trial and defendant has contended that the evidence at trial was insufficient, the reviewing court must consider defendant’s claim or else risk subjecting defendant to double jeopardy. (People v. Taylor (1979), 76 Ill. 2d 289, 309.) In support of his contention that the evidence was insufficient, defendant argues that he and three defense witnesses testified that he was not under the influence of alcohol on the date of the arrest. The only witness to render an opinion that defendant was under the influence of alcohol was the arresting officer, Mary Cabrera, whose testimony defendant maintains was substantially impeached and incredible.

We note that defendant’s intoxication is a question of fact for the jury to decide. A conviction of driving under the influence of alcohol may be sustained based solely on the testimony of the arresting officer, if credible. (People v. Janik (1989), 127 Ill. 2d 390, 402.) The credibility of the witnesses and the weight of the evidence are for the trier of fact to assess. (Janik, 127 Ill. 2d at 401.) In the case at bar, defendant admittedly consumed alcohol on the evening in question. Officer Cabrera stopped defendant for making a wide right turn. Cabrera testified that she smelled alcohol on defendant’s breath, that defendant’s eyes were bloodshot, that his speech was slurred, and that defendant swayed and was unsure of his balance and walk. Cabrera stated that defendant simply would not perform the finger-to-nose test, and she opined that he was intoxicated. Though there was a conflict in the evidence, we find that the evidence presented by the State, if believed by the jury, was sufficient to support the conclusion that defendant was guilty beyond a reasonable doubt of driving while under the influence of alcohol. This finding does not constitute in any way an implication as to defendant’s guilt or innocence which would be binding on retrial and is intended only to protect defendant from the risk of being subjected to double jeopardy.

For the foregoing reasons, the judgment of the circuit court of DuPage County is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

WOODWARD and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    PATRICK M. McCAFFREY et al., Plaintiffs-Appellants, v. EARL J. NAUMAN et al., Defendants-Appellees.
    Second District
    Nos. 2 — 89—1363, 2 — 90—0257 cons.
    Opinion filed October 24, 1990.
    Rehearing denied November 29, 1990.

      David W. Badger, of Badger & Badger, of Dixon, for appellants.
    Henry S. Dixon, of Law Offices of Henry S. Dixon, of Dixon, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Citing Supreme Court Rule 301 (107 Ill. 2d R. 301), plaintiffs appeal the trial court’s order which, in addition to ordering the sale of plaintiffs’ partnership, imposed a covenant not to compete upon the plaintiffs. Plaintiffs also appeal, in a consolidated case, from the trial court’s striking of their notice of appeal from the order imposing the noncompetition covenant.

Plaintiffs, Patrick and Helen McCaffrey (McCaffreys), and defendants, Earl and Shirley Nauman (Naumans), together purchased an existing restaurant and associated property in September 1984. Relations soured between the owners, and on September 16, 1986, the McCaffreys filed a complaint seeking to dissolve the partnership formed to carry on the business of the Long Branch Saloon. The parties had no written partnership agreement, but they all agreed that, by carrying on a business for profit, they had formed a partnership at will. The Naumans admitted all the allegations contained in the complaint.

A receiver was appointed by agreed order on February 2, 1987. The receiver obtained an appraisal of the business assets and also solicited offers for purchase of the business from both the McCaffreys and the Naumans. The offer submitted by the Naumans contained a condition that, if their offer were accepted, a covenant not to compete must be imposed on the McCaffreys for the area within two miles of the City of Amboy for a period of two years after entry of judgment. The receiver recommended acceptance of this offer in his report filed August 18, 1987. The McCaffreys objected to the receiver’s report and requested the court to order a public sale of the business assets. The court then directed the receiver to accept bids from the two parties.

On February 3, 1988, the receiver conducted a private sale, and the Naumans’ bid was highest. The court entered a judgment order on February 18, ordering the dissolution of the partnership and the sale of the business to the Naumans. This order also prohibited the McCaffreys from competing with the Naumans for the area and balance of time provided in the contract by which the partners purchased the business in 1984. The closing was held on June 20. The receiver filed his report of sale on September 8,1988.

On November 17, 1989, the McCaffreys filed a request that the court approve the report of sale. The court did so on that date and also discharged the receiver; both actions were made in an order entered nunc pro tunc as of September 8, 1988. The McCaffreys filed a notice of appeal on December 15, 1989, seeking reversal of the trial court’s order which prohibited the McCaffreys from competing with the Naumans. This notice of appeal was stricken by the trial court on February 21, 1990. The McCaffreys then appealed from the striking of their notice of appeal. Both appeals have been consolidated here for our review.

The McCaffreys first contend that the trial court exceeded its authority in striking their notice of appeal filed December 15. We conclude that the trial court was in error. The court struck the notice of appeal because it determined that the notice should have been filed within 30 days of the February 1988 order. However, this question must be decided in this court, not the trial court. (See People ex rel. Doty v. Dusher (1962), 24 Ill. 2d 309, 310; People v. Mulgrew (1974), 19 Ill. App. 3d 327, 330.) The order striking the McCaffreys’ notice of appeal is therefore void, and we will consider whether the notice of appeal was timely filed.

The trial court struck the December 15, 1989, notice of appeal after finding that the judgment order of February 18, 1988, was a final and appealable order; therefore, according to the court, any appeal from that order should have been taken within 30 days of that judgment. The McCaffreys contend that the judgment order of February 18, 1988, did not become final until the court approved the receiver’s report on November 17, 1989; thus, the notice of appeal filed December 15, 1989, was within the required 30-day period.

“A final decree is one which disposes of the merits of the case, although incidental matters may be reserved for consideration.” (Bernard Brothers, Inc. v. Deibler (1951), 344 Ill. App. 222, 228.) The fact that the trial court retains jurisdiction for some purposes does not make an order any less final. (Impey v. City of Wheaton (1965), 60 Ill. App. 2d 99, 103; see also Callier v. Callier (1978), 61 Ill. App. 3d 1011, 1012.) The real test is whether the order terminates the litigation on the merits or retains jurisdiction over matters of substantial controversy. Bernard Brothers, 344 Ill. App. at 228.

We conclude that the order of February 18, 1988, was interlocutory but immediately appealable pursuant to Supreme Court Rule 304(b)(2), which allows appeal without the special findings required in Rule 304(a), from

“[a] judgment or order entered in the administration of a receivership, rehabilitation, liquidation, or other similar proceeding which finally determines a right or status of a party and which is not appealable under Rule 307(a).” (107 Ill. 2d R. 304(b)(2).)

The court, in this order, adjudged the Naumans to be the purchasers of the partnership, specified the price of the purchase, itemized the distribution of the proceeds, and finally determined the rights and duties of all parties in the aftermath of the sale. The order dissolved the partnership. Nothing remained to be done after the order except the closing, the distribution, and the filing of the receiver’s report. The merits of the litigation were disposed of in the February order. The matters over which the trial court retained jurisdiction related only to the implementation of its order. All substantial controversy between the parties was terminated by the court’s order.

The McCaffreys argue that finding the order of February 18 to be immediately appealable would encourage piecemeal appeals. We disagree. The rights and obligations of the parties were set by the February order. Any future problems involving implementation of the order would be addressed in the trial court via a rule to show cause in a contempt proceeding. Our ruling today in no way causes multiple appeals from the same case.

Because the order of February 18, 1988, was immediately appeal-able, the McCaffreys’ notice of appeal filed December 15, 1989, was not timely. Therefore, we need not address the contentions raised in the notice of appeal.

Appeal dismissed.

GEIGER and INGLIS, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    HIRAM C. HALL, Plaintiff, v. COUNTRY CASUALTY INSURANCE COMPANY, Defendant-Appellee and Cross-Appellant (Ansvar America Insurance Company, Defendant-Appellant and Cross-Appellee; Dennis A. Shaw, Defendant).
    Second District
    No. 2 — 89—1072
    Opinion filed October 24, 1990.

      Jay S. Judge and Martin D. Hoke, both of Judge & Knight, Ltd., of Park Ridge, for appellant.
    David J. Brown, of Tuite, Shaw, Gesmer, Finnegan & Tuite, of Rockford, Wilson D. Burnell, of Stoecker & Stoecker, of Aurora, and Joseph P. Condon, of Condon & Zopp, of Crystal Lake, for appellees.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendants, Ansvar America Insurance Company (Ansvar) and Country Casualty Insurance Company (Country Casualty), appeal and cross-appeal, respectively, from the summary judgment entered by the circuit court of McHenry County upon the plaintiff’s, Hiram Hall’s, and Country Casualty’s cross-motions for summary judgment in Hall’s complaint for declaratory judgment. In light of the pendency of a counterclaim for declaratory judgment filed by Ansvar against defendants Country Casualty, Hall and Shaw, the court modified its summary judgment to include its finding pursuant to Supreme Court Rule 304 that there was no reason to delay enforcement or appeal of the judgment. 107 Ill. 2d R. 304(a).

Ansvar insured a 1972 Chevrolet Monte Carlo and a 1976 American Motors Pacer for its named insured, defendant Dennis Shaw. Country Casualty Insurance Company insured a 1977 Oldsmobile station wagon belonging to its named insured, Evelyn Walters. On September 11, 1984, Shaw was driving Walters’-Oldsmobile while towing an inoperable 1965 Ford Mustang which he had recently purchased as a repair project for his son. The plaintiff, Hiram Hall, was riding in and steering the Mustang. On a curve in rural McHenry County, the Mustang broke loose from the Oldsmobile, crossed over the center line, and was struck by an oncoming car driven by Robert Nebel. Hiram Hall was injured in this accident. There was no damage to the Oldsmobile.

Hall subsequently filed the instant declaratory judgment action against Ansvar, Country Casualty and Dennis Shaw seeking a determination as to the coverage available for Shaw while driving Walters’ 1977 Oldsmobile and towing the 1965 Ford Mustang. Specifically, Hall asked the court to find that Walters’ Country Casualty policy provided medical payment coverage and liability coverage for and on behalf of Hall and Shaw, respectively; that Shaw’s newly acquired Mustang either fell within Shaw’s Ansvar policy’s newly acquired vehicle provision or the insured vehicle provision of Walters’ Country Casualty policy; and that Shaw’s Ansvar policy provided medical payment coverage and liability coverage for and on behalf of Hall and Shaw, respectively.

In answer to Hall’s second amended complaint for declaratory judgment, each insurer asked the court to determine that no coverage for the incident was owed under its policy.

After depositions were taken, Hall moved for summary judgment against Country Casualty. Supported by excerpts of the deposition testimony of Walters and Shaw, Hall contended there was no genuine issue of material fact regarding Shaw’s status at the time of the accident as a permissive user of the 1977 Oldsmobile. Consequently, he asserted, there was no issue of fact regarding Country Casualty’s coverage for Shaw’s use of the vehicle.

Country Casualty responded by filing a cross-motion for summary judgment. Although the motion purported to incorporate therein “a summary of the relevant facts supported by excerpts from the discovery depositions of Evelyn Walters and Dennis Shaw and other documents,” we have been unable to locate such summary or excerpts in the record. We note Shaw’s complete discovery deposition and excerpts of Walters’ deposition appear otherwise in the record, however. Country Casualty contended in its motion that Shaw, not Walters, was the owner of the Oldsmobile on the date of the accident; that the towed Mustang was not a “trailer” entitled to coverage under Walters’ policy with it; and that Ansvar had insurance coverage on both the Oldsmobile and Mustang as either additional or replacement vehicles in lieu of Shaw’s 1976 Pacer which, it is undisputed, was disposed of by Shaw prior to the accident. Country Casualty requested a summary determination of the insurance coverages available for both vehicles and of the “rights, duties,' and obligations” of both itself and Ansvar under their respective policies.

After reviewing the parties’ memoranda of law and hearing oral arguments, the trial court found that Evelyn Walters did not make a gift of the 1977 Oldsmobile to Dennis Shaw until after the accident and that Shaw was a permitted user of the Oldsmobile at the time of the accident. Consequently, coverage under Walters’ Country Casualty auto policy followed the vehicle. The court also found that the 1965 Ford Mustang was not a covered auto under Walters’ Country Casualty policy and did not qualify for coverage under that policy as a trailer. Without further explanation, the court concluded, “Ansvar America Insurance Company must provide primary coverage for the damages caused by the Mustang.” It ordered that:

“1. Defendant Country Casualty Insurance Company provide coverage for those damages occasioned by the involvement of the 1977 Oldsmobile station wagon in the accident on September 11, 1984; and
2. Defendant Ansvar America Insurance Company provide the coverage contained in its policy for those damages occasioned by the involvement of the 1965 Ford Mustang in the accident on September 11, 1984.”

Ansvar contends the court erred in determining that Shaw’s 1965 Ford Mustang was a covered automobile under the terms of its “Advantage Auto Policy” because the Mustang was neither a “replacement” vehicle entitled to automatic coverage, nor was it entitled to coverage as an “additional” vehicle where Shaw did not request Ans-var to insure it within 30 days of its acquisition. Country Casualty responds that the Mustang was automatically covered under the “replacement” or “additional” covered auto provisions of Shaw’s Ansvar policy and, in its cross-appeal, contends the court erred in its determination that Evelyn Walters did not make a gift of the 1977 Oldsmobile station wagon to Dennis Shaw prior to the date of the accident.

At the outset, we consider Ansvar’s motion, taken with the case, to strike those portions of Country Casualty’s brief which support affirmance of the court’s order that Ansvar must provide coverage under Shaw’s policy for those damages occasioned by the involvement of the 1965 Ford Mustang. Ansvar contends Country Casualty is not a proper appellee in its appeal since Country Casualty has no interest which is adverse to a setting aside or reversal on appeal of the court’s judgment against Ansvar with respect to the Mustang. See Hoffman v. Nustra (1986), 143 Ill. App. 3d 259, 264 (defining “appellee”).

Country Casualty filed its objections to Ansvar’s motion to strike, arguing it does have an interest adverse to a setting aside or reversal of the court’s judgment as to the Mustang inasmuch as both insurers’ policies contain similar “Other Insurance” provisions, to wit:

“OTHER INSURANCE
If there is other applicable liability insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance.”

In light of these reciprocal “other insurance” provisions, Country Casualty argues its right to contribution from Ansvar in the event it is required to pay for any injuries or damages incurred by the plaintiff is “ ‘adverse to setting aside, or reversing the judgment.’ ” Country Casualty cites no authority in support of its contention concerning its right to contribution under the “Other Insurance” provisions.

This court requested Ansvar’s reply to Country Casualty’s objections pursuant to Supreme Court Rule 361. (107 Ill. 2d R. 361(b)(2).) Therein, Ansvar argues Country Casualty’s objections should be rejected inasmuch as they are premised improperly on the fact the Mustang was a covered automobile under Shaw’s Ansvar policy which “fact” is the ultimate issue presented in Ansvar’s appeal. Ansvar contends the only parties with interests adverse to a setting aside of the court’s judgment are its insured, Dennis Shaw, and the plaintiff, Hiram Hall. Neither of those parties has filed an appellee’s brief. In contrast, Country Casualty has no direct interest in Ansvar’s appeal since the court’s judgment against it was only “for those damages occasioned by the involvement of the 1977 Oldsmobile station wagon.” The damages, if any, occasioned by the involvement of the Oldsmobile have yet to be determined. Whatever the result of such determination, Ansvar argues, a determination by this court that coverage for the Mustang does not exist under the Ansvar policy is not tantamount to a finding that coverage for that automobile must be provided under the Country Casualty policy.

As to Country Casualty’s “right to contribution,” Ansvar asserts such a right under the Illinois Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.) exists only as to Dennis Shaw; that is, Country Casualty “stands in the shoes of its insured, Evelyn Walters, and seeks to recover contribution from Shaw for any damages it might have to pay because of the involvement of Shaw’s automobile (the 1965 Mustang).” Ansvar argues a reversal of the court’s judgment regarding the Mustang would not affect Country Casualty’s right to contribution from Shaw. Rather, it would simply eliminate one source of funds Shaw could turn to in the event a contribution judgment was entered against him.

We reject Country Casualty’s argument it is a proper appellee in Ansvar’s appeal in light of the “Other Insurance” provisions of Shaw’s and Walters’ policies. In Pekin Insurance Co. v. Cincinnati Insurance Co. (1987), 157 Ill. App. 3d 404, 406, the court defined “contribution” as “an equitable principle arising among coinsurers which permits one who has paid the entire loss to receive reimbursement from the other insurer liable for the loss.” In any contribution action, there must be identity between the policies as to the parties and insurable interests and risks; that is, the policies are written to cover the same insured and the same risk. (Pekin, 157 Ill. App. 3d at 407.) Country Casualty and Ansvar are not coinsurers where there is no identity between the policies as to the same insured and the same risk. Further, if Shaw is considered a permissive user of Walters’ car, he is an “insured” under Walters’ Country Casualty policy, which is then primary. If Shaw is considered the owner rather than the permissive user of the 1977 Oldsmobile station wagon, his own Ansvar policy would be primary. This comports with the general rule that the owner’s policy is primary whereas the driver’s policy is excess, and until such time as the limits of the primary coverage are exhausted, the secondary coverage does not provide any collectible insurance. Farmers Automobile Insurance Association v. Iowa Mutual Insurance Co. (1966), 77 Ill. App. 2d 172.

Accordingly, we grant Ansvar’s motion to strike. This effectively places the appeal in the posture of having no appellee’s brief, and, as such, we proceed to consider the merits of Ansvar’s appeal pursuant to the guidelines established in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

We are asked here to determine whether the trial court erred in entering the instant summary judgment against Ansvar and Country Casualty because (1) (Ansvar’s appeal) the 1965 Ford Mustang did not fall within the definition of “Your Covered Auto” in Shaw’s Ansvar policy and (2) (Country Casualty’s cross-appeal) Evelyn Walters made a gift of the 1977 Oldsmobile station wagon to Shaw before the accident occurred.

Before turning to the merits of these issues, we bear in mind that entry of summary judgment in declaratory judgment proceedings is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Butler v. Economy Fire & Casualty Co. (1990), 199 Ill. App. 3d 1015, 1021; Mortell v. Insurance Co. of North America (1983), 120 Ill. App. 3d 1016, 1024; Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) Summary judgment is a drastic means of disposing of litigation; it should not preempt the opposing party’s right to a jury trial if there is a genuine issue of material fact (Kolakowski v. Voris (1979), 76 Ill. App. 3d 453, aff’d (1980), 83 Ill. 2d 388), and it should be granted only when the right of the moving party to such judgment is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) When considering a motion for summary judgment, the trial court must consider all of the evidence before it and construe it most strictly against the movant and liberally in favor of the party against whom judgment is sought. (Butler, 199 Ill. App. 3d at 1021.) On review, the court will reverse an order granting summary judgment if it determines that a material question of fact exists and that the moving party is not entitled to judgment as a matter of law. Riley v. Physicians Weight Loss Centers, Inc. (1989), 192 Ill. App. 3d 23, 33.

We first consider Ansvar’s contention the 1965 Ford Mustang was not a covered auto under Shaw’s policy with it. Contracts of insurance are subject to the same rules of construction applicable to other types of contracts. (Butler, 199 Ill. App. 3d at 1021.) If the writing is unambiguous, the court must necessarily determine the intention of the parties solely from the language in the document itself. (Comet Casualty Co. v. Holloman (1983), 113 Ill. App. 3d 271, 275.) Where the facts are not in dispute, their legal effect, such as whether those facts fall within the provisions of an insurance policy, is a matter of law rather than the province of a fact finder. (United Farm Bureau Mutual Insurance Co. v. Elder (1981), 86 Ill. 2d 339, 346.) As a question of law, the question of the coverage provided under the terms of the policy can be determined upon review independent of the trial court’s judgment. Butler, 199 Ill. App. 3d at 1021; Bohnen International, Inc. v. Liberty Mutual Insurance Co. (1983), 120 Ill. App. 3d 657, 662-63.

According to the applicable terms of an amendatory endorsement to Shaw’s policy with Ansvar, “Your Covered Auto” means:

“1. Any vehicle shown in the Declarations.
2. Any of the following types of vehicles on the date you become the owner:
a. a private passenger auto; or
b. a pickup, panel truck or van.
This provision applies only if:
a. you acquire the vehicle during the policy period;
b. you ask us to insure it within 30 days after you become the owner; and
c. with respect to a pickup, panel truck or van, no other insurance policy provides coverage for that vehicle.
If the vehicle you acquire replaces one shown in the Declarations, it will have the same coverage as the vehicle it replaced. You must ask us to insurance a replacement vehicle within 30 days only if:
a. you wish to add or continue Coverage for Damage to Your Auto; or
b. it is a pickup, panel truck or van used in any business or occupation, other than farming or ranching.
If the vehicle you acquire is in addition to any shown in the Declarations, it will have the broadest coverage we now provide for any vehicle shown in the Declarations.”

Ansvar contends the terms of its “Advantage Auto Policy” covering Dennis Shaw are clear and unambiguous and must be applied as written. We agree and find the Mustang was not a covered auto under Ansvar’s policy.

As noted previously, Shaw’s Ansvar declarations listed coverage for a 1972 Chevrolet Monte Carlo and a 1976 American Motors Pacer. Because the Mustang was not one of the two autos “shown in the Declarations,” coverage extended to the Mustang if Shaw acquired it either as a replacement vehicle or an additional vehicle during the policy period. If it was a replacement vehicle, Shaw need not ask Ansvar to insure it unless he wished to add or continue “Coverage for Damage to Your Auto.” Otherwise, the replacement vehicle automatically had the same coverage as the vehicle it replaced. If it was an additional vehicle, it would have the broadest coverage provided for any vehicle shown in the Declarations only if Shaw asked Ansvar to insure it within 30 days after he became the owner.

Ansvar concedes the Mustang was acquired during the policy period. As to whether the Mustang was an additional vehicle or a replacement vehicle, Ansvar points out the simple act of purchasing a vehicle does not automatically place it in the category of a replacement vehicle. (Comet Casualty Co. v. Holloman (1983), 113 Ill. App. 3d 271, 274.) Rather, a five-part test has been applied to determine whether the purchase of a specific automobile generates automatic coverage under replacement-vehicle policy provisions: • (1) the automobile must be acquired after the policy was issued; (2) the policy must not have expired before the acquisition; (3) the second vehicle must be acquired to replace the vehicle described in the policy, which vehicle (4) must either be disposed of or (5) be incapable of further service. United Farm Bureau Mutual Insurance Co. v. Elder (1981), 86 Ill. 2d 339, 343; Comet, 113 Ill. App. 3d at 274.

The object of the test is to fulfill the intention of the parties at the time they agreed to the policy (i.e., to insure Shaw’s two named autos, the Monte Carlo and Pacer) while at the same time recognizing that some sort of automatic continuous coverage is desirable in light of the frequency with which motor vehicles are bought and sold. (United Farm Bureau, 86 Ill. 2d at 344.) The insured’s intention in acquiring the vehicle, although clearly relevant, is not the sole determinant, nor is the operability of the named insured vehicle. United Farm Bureau, 86 Ill. 2d at 345-46.

A claimed lack of intention to utilize the vehicle as a replacement auto is not, as Ansvar argues, “fatal” to an insured’s claim for automatic coverage of a vehicle as a replacement. Ansvar’s reliance on United Farm Bureau for that proposition is misplaced. Referring to the case Nationwide Insurance Co. v. Ervin (1967), 87 Ill. App. 2d 432, the supreme court’s opinion in United Farm Bureau included the statement: “There was evidence [in Nationwide] that the named insured had not intended to replace the named vehicle with the second car and so it could not be considered a replacement vehicle even if the named [insured] vehicle was inoperable.” (United Farm Bureau, 86 Ill. 2d at 346.) A reading of Nationwide makes it clear that the “evidence” referred to by the supreme court in United Farm Bureau was the objective evidence of the insured’s intent as revealed by all the facts and circumstances and not merely the insured’s subjective intent. The insured in Nationwide testified, in fact, that he purchased the second car to replace the named insured vehicle. There was other direct and circumstantial evidence, however, which negated his stated intent. Consequently, the second car was determined not to be a covered replacement vehicle. 87 Ill. App. 2d at 434-37.

Applying the replacement vehicle test to the evidence at bar, it is undisputed the Mustang was acquired after the policy was issued and was in effect and that one of Shaw’s two named insured vehicles, the 1976 Pacer, was “disposed of” when Shaw transferred title to it to Debra Maness on July 26, 1984. Relevant excerpts of Shaw’s deposition testimony concerning the Mustang show he did not intend it to be a replacement vehicle for the Pacer:

“Q. Now, was this Mustang being used as a replacement vehicle for any of your — the other two automobiles that you had?
A. No.
Q. And the two automobiles that you previously testified that you had owned were operable and, in fact, were being used by the family at the time that you picked up the Mustang?
A. No, I didn’t say they were operable, I don’t think.
Q. Okay. Let me back up.
A. The Pacer was not much more than junk.
Q. Could you drive it down the road?
A. I don’t think so. I think the transmission at that time was too bad.
Q. So the Pacer, the ’76 American Pacer, on or about the time of the accident was inoperable because of the transmission?
A. I really don’t remember whether we drove it. If we drove it, it was just local right there in Hebron.
Q. Was the Mustang going to be a replacement automobile; in other words, an automobile that you family members would use in place of the Pacer?
A. No. He wanted it — -my son wanted the car just to work on. He wanted something to set in the garage and go out and play with and work on and fix up.
Q. So it was your intent to keep the Pacer, also?
A. No.
Q. You were going to get rid of the Pacer?
A. Yes. I gave it away.
* * *
Q. And the Mustang was a vehicle, more or less a learning project, for your son—
A. (Interrupting) Yes.
Q. (Continuing) — to fix up and drive? Is that correct?
A. Yes.”

In addition to this evidence of Shaw’s subjective intent concerning the Mustang, there was undisputed evidence that the Mustang itself was inoperable and had been acquired in even exchange for Shaw’s son’s motorcycle, an uninsured “dirt bike” which his son played with around the house. There was further undisputed evidence that in addition to his other car, the 1972 Monte Carlo, Shaw had the unrestricted use of Evelyn Walters’ 1977 Oldsmobile station wagon beginning late in June or early in July 1984 after his wife, Kathy, told Walters that he needed a car and might be interested in the station wagon which Walters was considering selling.

Applying the test to all this evidence, we conclude the Mustang was not a replacement vehicle and not automatically covered under the Ansvar policy. We further conclude it was not covered under the Ansvar policy as an additional vehicle.

As noted above, an additional vehicle is a covered auto “on the date you become the owner *** only if *** you acquire the vehicle during the policy period [and] *** you ask us to insure it within 30 days after you become the owner.” It is undisputed the Mustang was acquired the same day the accident occurred and that this was during the policy period. As to whether he ever asked Ansvar to insure it, Shaw testified during his discovery deposition as follows:

“Q. Did you ever procure insurance for the ’64 Mustang either before or after the accident?
A. It was ’65.
Q. Or ’65 Mustang either before or after the accident?
A. No.
Q. Was the Mustang totaled in the accident?
A. Yes.
Q. Following the accident did you notify your insurance company, Ansvar America, of your accident?
A. Yes.
Q. Do you recall when you did that, approximately? Was it soon after?
A. Yes.
Q. And how did you do that, by telephone?
A. Yes.
Q. Who did you call?
A. No idea. I have no idea.
MR. BROWN: I have no further questions.”

Even assuming arguendo Shaw’s report of this accident occurred within 30 days after he acquired the Mustang, there is no evidentiary material in the record which supports a finding that the accident report somehow amounted to a request for insurance on the Mustang. Shaw testified unequivocally that he never requested insurance for the Mustang, either before or after the accident, and that the Mustang was “junked” after the accident. Moreover, we note Shaw had a duty under his liability coverage with Ansvar “for the ownership, maintenance or use of any auto” (including Evelyn Walters’ Oldsmobile) to report the accident promptly.

In sum, we conclude the court erred in finding as a matter of law that Ansvar must provide coverage for any damages occasioned by the Mustang since it was neither a “replacement” nor “additional” covered auto as provided in the policy.

We now turn to Country Casualty’s cross-appeal from the court’s judgment finding it liable for the damages occasioned by the involvement of the 1977 Oldsmobile station wagon. Country Casualty contends the court erred when it found: “Evelyn Walters intended to eventually give the Oldsmobile to Shaw, however, her intent had not finalized and the gift [had not] become complete prior to September 11, 1984.” It argues that when Walters delivered possession of the Oldsmobile to Dennis Shaw she intended to and did give him whatever interest or right to receive she had in the Oldsmobile station wagon from her deceased husband’s estate, and it was not necessary for her to have received the letters testamentary or to have transferred the certificate of title to Shaw before the gift was complete.

Ansvar responds that although possession of the station wagon passed from Walters to Shaw, the gift of the car was not complete prior to the date of the accident because Walters did not possess the requisite donative intent when she relinquished possession to Shaw, nor did Shaw have exclusive dominion and control over the station wagon.

A “gift” is a voluntary, gratuitous transfer of property by one to another where the donor manifests an intent to make such a gift and absolutely and irrevocably delivers the property to the donee. (In re Marriage of Cook (1983), 117 Ill. App. 3d 844, 849.) The elements of a valid gift are donative intent, the donor’s parting with exclusive dominion and control over the subject of the gift, and delivery thereof to the donee. (Pocius v. Fleck (1958), 13 Ill. 2d 420, 427-28; Wencordic Enterprises, Inc. v. Berenson (1987), 158 Ill. App. 3d 913.) Intent and delivery are separate elements of proof: that is, the fact delivery of the alleged gift has occurred is not conclusive as to whether a gift has been made. (In re Marriage of Simmons (1980), 87 Ill. App. 3d 651.) “Donative intent” is intention on the part of the donor that there be a present and irrevocable transfer of title to the subject matter of the gift; delivery of the subject matter of the gift is the means whereby the donative intent of the donor is given effect. (Gordon v. Gordon (1969), 113 Ill. App. 2d 191, 194.) To create a gift, there must be some communication, oral or written, of donative intent between donor and donee. (In re Estate of Miller (1973), 11 Ill. App. 3d 867.) A gift to a donee is not shown unless the donor has relinquished all present and future dominion and power over the subject matter of the gift. In re Marriage of Cook, 117 Ill. App. 3d at 849.

The question as to what constitutes a gift is one of law, and on the facts in the particular case, it involves a mixed question of law and fact. (38 Am. Jur. 2d Gifts §108 (1968).) To establish a gift, the proof must be clear and convincing, and the burden is upon the alleged donee to prove the existence of a donative intent in the donor. (Schramm v. Schramm (1958), 13 Ill. 2d 281, 288.) If different inferences can be drawn by a reasonable man from the facts in evidence, an issue of fact is considered to exist, and summary judgment must be denied. (Williams v. Alfred N. Koplin & Co. (1983), 114 Ill. App. 3d 482.) Where, however, the pleadings, depositions, and other evidence before the court show that at trial a verdict would have to be directed, entry of summary judgment is proper. Pyne v. Witmer (1989), 129 Ill. 2d 351; Kennedy v. Joseph T. Ryerson & Sons, Inc. (1989), 182 Ill. App. 3d 914.

It is undisputed that Walters delivered possession of the station wagon to Shaw when he came to her house to pick it up late in June or early in July 1984. Previously, in May or June, Walters’ husband died, and Shaw’s wife, Kathy, helped her with some of her personal affairs. Dennis Shaw was the pastor of the church Walters attended for about seven years. When Kathy mentioned a youth group she would be taking on a trip to Virginia Beach, Walters suggested she use the 1977 Oldsmobile station wagon for the trip which was to be in June or early in July. Walters also mentioned to Kathy that she was thinking about selling the station wagon, and Kathy said her husband, Dennis, was in need of a car and to let him know of her desire to sell the station wagon. Walters subsequently flew to Atlanta, where her husband had resided, and picked up a new Thunderbird her husband had bought before he died.

Walters testified that when Shaw’s wife mentioned Dennis’ need for a car, she thought about it for a couple of weeks and decided to make the car a contribution to Dennis for use in his ministry. She did not tell Kathy about it right away; she stated she was very slow in moving, so she was contemplating it. She did not remember exactly when she decided to tell the Shaws they could have the car. When asked if she recalled telling Dennis that she had the station wagon just sitting at her house and that she wanted him to take it and use it and keep it running and then when the estate got finalized she would give it to him, Walters responded:

“A. Well, that was my intent.
Q. And your understanding of when the estate would be finalized is when your attorney would send you the testamentary letters; is that correct?
A. Yes.
Q. And then at that time you would give the car to Dennis Shaw; is that correct?
A. Yes.”

Dennis Shaw stated that when Walters returned from Atlanta, she told him she was going to be driving thé. Thunderbird and would he please drive the station wagon “just to keep the battery up and whatever.” On a Sunday late in June or early in July, Walters said to him: “ T have a car and my car that’s sitting up here is better than the car you have. Why don’t you drive this car[?]’ She made it seem as though she — I was doing her a favor to drive her car.” He picked up the car at her house that day or the next day.

There was no conversation at the time he picked up the car regarding its use, and he never discussed who would provide insurance for the car while he was using it. His understanding was that it was her car and he was using it. It was also his understanding that she would provide insurance and he would provide gas. When he picked the car up, it had license plates on it, and he never changed them before the accident occurred. He offered to return the car to her several times. He testified he saw her every Sunday and would say to her, “ ‘Are you ready for your car to come back?’ and she would say, ‘Keep driving it’ or ‘No, I’m not.’ ” Shaw kept the car at his house and used it as he saw fit.

Walters testified she thought that when Dennis got the car he realized that she did not yet have her letters testamentary and that when she got them the car was going to be his. When asked: “And is it fair to say that you felt the vehicle was still yours prior to receiving your letters of [sic] testamentary?” she responded: “Well, now you get into a hard thing. In my heart it was his. I had given it to him. That was my intent and purpose, but legally it was — *** I didn’t consider it had become legal until he had the title.”

Dennis Shaw testified that the first time Walters told him that she was going to give the station wagon to him was two weeks or a month after the accident occurred, and she told him she would bring the title over. She did that, not too long after that time. Once he had title, Shaw procured insurance and license plates for the station wagon. Shaw had no independent recollection of when title was transferred, but the date of transfer shown on the title was February 14, 1985.

Country Casualty correctly points out, and Ansvar concedes, the rule in Illinois is that the gift of an automobile can be effected without going through the Secretary of State’s office. A certificate of title is evidence of title, but it is not conclusive and one can own an automobile though the certificate of title is in the name of another. (State Farm Mutual Automobile Insurance Co. v. Lucas (1977), 50 Ill. App. 3d 894, 898.) It also correctly notes Walters’ gift of the automobile to Shaw is not defeated merely by the fact she did not have her letters testamentary at the time she delivered possession of the car to Shaw since she needed no such letters to give to Shaw whatever interest she had in the station wagon, whether that interest was labeled an expectancy or a vested legal or equitable title. In Poirot v. Gundlach (1936), 284 Ill. App. 349, 354-56, the court wrote:

“Every species of property, real and personal, legal or equitable, in possession, reversion or remainder, vested or contingent, incorporeal as well as corporeal, and including choses in action may be the subject of a gift inter vivos.” Poirot, 284 Ill. App. at 355.

We agree with Ansvar that the evidence before the court clearly showed Evelyn Walters’ delivery of possession of the station wagon to Dennis Shaw was not accompanied by the requisite present donative intent, nor did she relinquish exclusive dominion and control over the station wagon to Shaw.

Although she decided at some uncertain point that she would contribute the station wagon to Shaw for use in his ministry, she believed, albeit incorrectly, that she could not do this before she had her letters testamentary, and she never communicated to Shaw her intent to give him the car until after the accident occurred. The evidence shows the posture assumed by both Shaw and Walters was that Walters was still the owner of the station wagon and had the power to terminate Shaw’s use of the car at her discretion. Walters’ acknowledgment of the reservation of this right in herself, including the facts that she maintained the insurance and the license plates on the car, is contrary to a finding that she had relinquished all present and future dominion and power over the subject matter of the gift to Shaw.

We conclude the court did not err in finding that Walters had not made a gift of the station wagon to Shaw prior to the date of the accident. Accordingly, we affirm the court’s summary judgment that Country Casualty must provide coverage for those damages occasioned by the involvement of Walters’ station wagon.

For the reasons above, the judgment of the circuit court of McHenry County is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

REINHARD and WOODWARD, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CATHY L. PERRY, Defendant-Appellee.
    Second District
    No. 2 — 89—0459
    Opinion filed October 16, 1990.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers, Colleen M. Griffin, and Cynthia N. Schneider, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Francine Harrison, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The State appeals pursuant to Supreme Court Rule 604(aXl) (107 Ill. 2d R. 604(aXl)) from an order of the circuit court of Du Page County granting a motion to quash arrest and suppress evidence filed by defendant, Cathy L. Perry.

The State raises the following issues on appeal: (1) whether the circuit court’s determination that the stop of defendant’s vehicle was pretextual is manifestly erroneous; and (2) whether the search of defendant’s purse was valid under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, or, alternatively, was valid as a search incident to arrest.

Defendant was charged by information with the offense of the unlawful possession of less than 15 grams of a controlled substance containing cocaine (Ill. Rev. Stat. 1987, ch. 56V2, par. 1402(b)). Defendant filed a motion to quash her arrest and suppress the evidence seized, contending that the traffic citation issued to her was a mere pretext for an illegal stop and seizure, and that the subsequent search of her purse resulted from the illegal stop and was without probable cause.

The only witness to testify at the suppression hearing was Jack Pearson, a police officer with the Itasca police department. He testified that he observed defendant’s car pull into a parking lot on West Irving Park Road on July 12, 1988, at about 8:50 a.m. He observed that the car did not have a rear registration plate visible. The vehicle stopped in the parking lot, and the driver remained sitting in the vehicle. Several minutes later, the car backed out of the parking lot and proceeded about a block down Irving Park Road. Pearson, who had remained in the area on a fire department assistance call, then stopped the vehicle based on the fact that there was no rear registration plate. Pearson originally stated that he did not recall viewing a registration plate anywhere on the vehicle prior to the stop. After refreshing his recollection with the police report he completed regarding this offense, Pearson stated that he did obtain information regarding the registration plate prior to the stop. He did not remember whether he got the registration plate number from the front of the car or from a plate located somewhere inside the vehicle.

Pearson called in the registration plate number and was informed that the plates were registered to defendant. He was also informed over the radio that defendant had prior weapons offenses. He did not obtain any information as to the nature of those charges. Pearson recognized the name Cathy Perry from prior incidents and, after the stop, recognized defendant as an individual who had used numerous aliases. He asked defendant for her driver’s license. She responded that she did not have one. He then issued her a citation for having no rear registration plate and informed her that she would have to go with him to the Itasca police department to post bond.

Pearson testified that defendant was excited and insisted on having her purse. Pearson retrieved the purse from defendant’s vehicle. He asked her to sit in the rear of his vehicle and placed the purse on the front seat beside him. He did not allow defendant to have possession of the purse because of the communication that she had prior weapons offenses. When they walked between the two cars to get into the police vehicle, defendant tried to grab the purse. Pearson did not search defendant before she entered his vehicle.

At the police station, defendant continually insisted on having her purse. Pearson told her that he had to check the purse first. He stated that she finally responded, “Check my purse. But I want my purse now.” Pearson then searched the purse, which was a large, bag-type purse. He first pulled out a second purse. He then observed a white “sno-seal” on the inside of the larger bag which he seized. A “sno-seal” is a piece of paper folded in a manner to keep cocaine. He also searched the second purse. Pearson testified that he went through the purse so that, when he handed it back to defendant, he would know that there were no weapons in the purse and that he was safe. Pearson testified that, at the time he searched defendant’s purse, she was under arrest for having no rear registration plate and no driver’s license. He testified that, if she had possessed a driver’s license, she would have been released at the scene.

Following this testimony, the trial judge granted defendant’s motion to quash arrest and suppress evidence. The court noted that it was clear that Pearson learned that there was a registration plate prior to stopping the vehicle, so there must have been some registration on the front of the vehicle. He also stated that a “ticket would not have been issued under the circumstances, had the officer gone over to the vehicle in the first place and seen the proper registration on the front of the car.” He concluded that it was a pretextual stop based on the fact that Pearson testified that he knew of defendant’s past problems. He further noted that he questioned whether Pearson was actually concerned for his own safety as he did not search defendant before he put her into the backseat of the police car and did not initially look in the purse, but waited until he arrived at the police station.

The State first contends that defendant’s motion to suppress should not have been granted because the facts of this case do not support the trial court’s conclusion that the stop of defendant was pretextual. It argues that the uncontroverted testimony of Pearson established that he stopped defendant’s vehicle for a valid purpose, because the rear registration plate was not displayed. The State also maintains that, in any event, courts should not indulge in inquiries as to the subjective intent of an arresting officer if, objectively, probable cause exists for an arrest.

Defendant admits on appeal that there was no evidence presented to contradict the testimony that her car did not have a rear registration plate. She argues, however, that Pearson’s conduct revealed that he actually had other motives for stopping her vehicle that, alone, would not have permitted him to do so.

With respect to a motion to suppress evidence, the defendant has the burden of proving that the search and seizure were unlawful. (People v. Hoskins (1984), 101 Ill. 2d 209, 212, 461 N.E.2d 941.) A trial court’s ruling on a motion to suppress evidence will not be disturbed unless it is manifestly erroneous. People v. Redd (1990), 135 Ill. 2d 252, 289, 553 N.E.2d 316.

Section 3 — 413(a) of the Illinois Vehicle Code provides, in pertinent part:

“Registration plates issued for a motor vehicle *** shall be attached thereto, one in the front and one in the rear.” (Ill. Rev. Stat. 1987, ch. 95V2, par. 3 — 413(a).)

A violation of this provision is a Class B misdemeanor. (Ill. Rev. Stat. 1989, ch. 951/2, par. 3 — 915.) This court has recently held that the visual observation of a missing rear registration license plate constitutes reasonable grounds to stop a vehicle. (People v. Assenato (1989), 186 Ill. App. 3d 331, 338, 542 N.E.2d 457.) Other appellate court decisions have similarly found that it is permissible to stop a car because of the lack of a rear registration plate. People v. Bradi (1982), 107 Ill. App. 3d 594, 599, 437 N.E.2d 1285; People v. Redmond (1979), 73 Ill. App. 3d 160, 166, 390 N.E.2d 1364.

Based on the uncontroverted facts in this case as applied to the established case law, the stop by Pearson of defendant’s car was reasonable and, consequently, a valid, permissible stop. Defendant contends, however, that a pretextual arrest situation is presented here, relying on the facts that Pearson knew her from previous encounters; that he did not approach her in the parking lot when he first saw that the car had no rear plate but waited until she entered the public roadway; and that he did not search her person as well as her purse. Thus, defendant urges that the trial court properly considered the other motives which Officer Pearson had in stopping her vehicle notwithstanding that she admittedly did not have a rear license plate.

The clear trend in Illinois Appellate Court decisions in this area is to determine whether the stop is objectively reasonable, and, if so, it is not invalidated solely because the officer acted out of an improper or dual motivation. (People v. Guerrieri (1990), 194 Ill. App. 3d 497, 501-02, 551 N.E.2d 767; People v. Hattery (1989), 183 Ill. App. 3d 785, 813-19, 539 N.E.2d 368; People v. Anderson (1988), 169 Ill. App. 3d 289, 294-98, 523 N.E.2d 1034; see also People v. Fenner (1989), 191 Ill. App. 3d 801, 807, 548 N.E.2d 147.) We agree with this authority. Because the stop here was objectively reasonable, the finding of the trial court, that the stop was pretextual based upon the court’s assessment of the officer’s subjective motives, was manifestly erroneous.

We next address the issue of whether the subsequent search of defendant’s purse at the police station was valid.

The State contends that the search was valid as a search for weapons based on Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, or, in the alternative, as a search incident to arrest. Defendant argues that the facts here did not justify a protective Terry search; however, no responsive argument is presented to the State’s search incident to an arrest contention beyond the statement that, because the arrest was unlawful, any search incident to that arrest was also unlawful. Inasmuch as we believe the search was valid as incident to defendant’s arrest, we need only address that issue.

We have already determined that the stop based on the defendant’s failure to have a rear registration plate was valid. After defendant's failure to produce a valid driver’s license in violation of section 6— 112 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 6 — 112), the custodial arrest at the scene was both legal and appropriate. (People v. Ramsey (1979), 77 Ill. App. 3d 294, 296, 395 N.E.2d 973; see also People v. Wingren (1988), 167 Ill. App. 3d 313, 323, 521 N.E.2d 130.) Therefore, in determining whether the search of defendant’s purse was valid, the appropriate inquiry is whether the search was proper as a search incident to arrest.

One of the recognized exceptions to the general rule that warrant-less searches are'per se unreasonable is a search incident to a lawful arrest. (See Chimel v. California (1969), 395 U.S. 752, 762-63, 23 L. Ed. 2d 685, 694, 89 S. Ct. 2034, 2040.) It is the fact of the lawful arrest which establishes the authority to search. United States v. Robinson (1973), 414 U.S. 218, 235, 38 L. Ed. 2d 427, 441, 94 S. Ct. 467, 477.

Section 108 — 1 of the Illinois Code of Criminal Procedure of 1963, which provides the circumstances under which a search incident to a lawful arrest may be conducted, states:

“When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of:
(a) Protecting the officer from attack; or
(b) Preventing the person from escaping; or
(c) Discovering the fruits of the crime; or
(d) Discovering any instruments, articles, or things which may have been used in the commission of, or which may constitute evidence of, an offense.” Ill. Rev. Stat. 1989, ch. 38, par. 108 — 1(1).

The statute gives broad authority for a search incident to an arrest. In People v. Hoskins (1984), 101 Ill. 2d 209, 461 N.E.2d 941, our supreme court found the search of a purse to be a valid search incident to arrest. In that case, the purse was searched at the scene after the defendant was arrested for prostitution. The court relied on New York v. Belton (1981), 453 U.S. 454, 459-61, 69 L. Ed. 2d 768, 774-76, 101 S. Ct. 2860, 2864, which held that, as a contemporaneous incident of a lawful arrest, all containers within the area into which an arrestee might reach can be searched regardless of the likelihood that a weapon or evidence of criminal conduct would be found. The Hoskins court found the search valid even though the purse was in the exclusive control of the police at the time it was searched. Hoskins, 101 Ill. 2d at 217, 461 N.E.2d at 945.

It is clear, therefore, that Pearson could have searched defendant’s purse immediately after she was placed under arrest. The question presented here, however, is whether Pearson could legally search the purse shortly after the arrest at the police station. There is no question presented, and the State does not argue, that the search here can be considered a valid station-house inventory search as the record does not show that defendant was to be incarcerated. See People v. Nogel (1985), 137 Ill. App. 3d 392, 398, 484 N.E.2d 516.

The State cites cases, based on United States v. Edwards (1974), 415 U.S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234, to support the subsequent search of the purse at the police station. The court in Edwards, in upholding a seizure of the defendant’s clothing while he was incarcerated 10 hours after the arrest, stated in pertinent part that “[i]t is also plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.” (Edwards, 415 U.S. at 803, 39 L. Ed. 2d at 775, 94 S. Ct. at 1237.) Several Illinois cases which have followed Edwards do not involve the precise factual question raised here but are analogous. See, e.g., People v. Seymour (1981), 84 Ill. 2d 24, 33, 416 N.E.2d 1070 (strip search of person at station charged with misdemeanor weapons offense); People v. Campbell (1977), 67 Ill. 2d 308, 318-19, 367 N.E.2d 949 (continuation of search of luggage at police station seized at airport based on probable cause); People v. Wolsk (1983), 118 Ill. App. 3d 112, 119, 454 N.E.2d 695 (search of person at police station arrested for driving while under the influence of intoxicating liquors); see also People v. Dillon (1984), 102 Ill. 2d 522, 468 N.E.2d 964 (seizure of wallet and finding cocaine therein at police station “may well be *** sustained as a search incidental to defendant’s arrest”).

Professor LaFave, in his well-respected treatise on the law pertaining to search and seizure, states that a station-house search of an arrestee may properly extend to a search of items taken away from an arrestee earlier at the scene of the arrest:

“Indeed, it may be said more generally that the courts assume that this search may be just as extensive as could have been made under Robinson at the scene of the custodial arrest, and this is so even where the arrestee’s access to the object searched was terminated between the time of arrest and the time of the search. That is, the scope of the search at the station is not limited to items then in the ‘immediate control’ of the defendant; it is sufficient that the items were on his person at the time of arrest. The notion seems to be that Robinson recognized that anything on the person was ‘fair game’ for a search, and that the opportunity of the police to search should not be more limited merely because there may have been reasons making a full search there impractical or because the police opted for the less humiliating alternative of a search in the privacy of the stationhouse.” (Emphasis in original.) 2 W. LaFave, Search & Seizure §5.3(a), at 480-81 (2d ed. 1987).

Courts in other jurisdictions faced with this issue have held that the search at the station house of an item previously seized from the defendant at the scene of an arrest incident to the arrest is lawful. United States v. Basurto (9th Cir. 1974), 497 F.2d 781, 792 (search at customs office of wallet seized at scene of arrest); People v. Boff (Colo. 1988), 766 P.2d 646, 648-51 (search at sheriff’s office of backpack seized at scene of arrest); State v. Woods (Mo. App. 1982), 637 S.W.2d 113, 116 (search at police station of purse seized while transporting defendant following her arrest); State v. Horton (1979), 44 N.C. 343, 344, 260 S.E.2d 780, 781 (search at police headquarters of pocketbook taken at scene of arrest).

We believe the principle of law enunciated by the above authorities to be applicable to this case. Here, the search of defendant’s purse at the police station occurred shortly after her valid arrest when her purse was taken from her by Officer Pearson. Under these circumstances, the subsequent search at the police station was proper as an incident to the valid arrest.

For the foregoing reasons, the trial court’s order granting defendant’s motion to quash her arrest and suppress evidence was manifestly erroneous and is reversed.

The judgment of the circuit court of Du Page County is reversed, and this cause is remanded.

Reversed and remanded.

GEIGER and McLAREN, JJ., concur.