author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANGELO TORRES, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—0025
    Opinion filed October 19, 1990.
    William H. Laws, of Chicago, for appellant.

      Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Thomas O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Angelo Torres, was charged by information with possession of a controlled substance with intent to deliver. A jury found him guilty of that charge, and the trial court sentenced him to a term of 10 years. On appeal, defendant contends that he was denied due process when the State charged and convicted him of possession with intent to deliver, despite the court’s express finding at a preliminary hearing that probable cause existed only for the possession charge; that the State improperly cross-examined a defense witness; and that he was not proved guilty beyond a reasonable doubt.

Joseph Fallon, a gang crimes specialist of the Chicago police department, testified for the State that on April 14, 1987, he and his partner, Joseph Sparks, were working together in an unmarked squad car. Sparks was driving. Sparks halted the vehicle, and Fallon called out to a Hector Gonzales, who was standing in a doorway. Gonzales and defendant started walking toward the police car. As Fallon was about to exit the vehicle and while the two men were 15 feet away, Fallon observed defendant complete a behind-the-back throwing motion with his right hand. Something orange in color landed between the curb and a parked automobile. Although Fallon did not see the object leave defendant’s hand, the officers recovered what Fallon thought he saw defendant throw. It was lying in the gutter. It was an orange pepper shaker which was full of clear plastic envelopes of white powder. Fallon believed that the envelopes contained narcotics because this was the way narcotics are usually packed. Fallon and Sparks placed defendant under arrest. At a preliminary hearing, Fallon testified that he had already exited the vehicle when he observed defendant’s gesture. Fallon also testified at the preliminary hearing that he actually saw the container leave defendant’s hand.

Officer Sparks testified that he was driving the police car when they stopped to talk to Gonzales. As the officers exited the car, Fallon stated that “he just threw something.” Sparks saw Fallon recover a container and assisted in arresting defendant. Sparks did not see defendant throw anything because Sparks was exiting on the driver’s side and was watching traffic.

The State offered the stipulated testimony of Dr. Krishnan Kaishta. If called to testify, Dr. Kaishta would state that he tested the powder contained in a plastic orange pepper shaker. The tests revealed that the white powder was cocaine in the quantity of 4.27 grams.

Defendant presented two witnesses, Orlando Moleña and Tony Torres. They stated that defendant did not possess a controlled substance and that he did not throw a container. They also stated that the police officer searched the area for 10 minutes before finding the cocaine container.

During trial, defendant requested that the State amend its information to charge him only with possession of a controlled substance instead of possession with intent to deliver. After trial, defendant presented a motion in arrest of judgment based on the argument that the State improperly charged him with intent to deliver after the court at a preliminary hearing made an express finding that no probable cause existed for such a charge. The trial court denied both motions.

Defendant initially contends that he was denied due process where the State charged and convicted him for possession of cocaine with intent to deliver instead of just charging him with possession. Defendant asserts that after a preliminary hearing at which the judge makes a finding of no probable cause for possession with intent to deliver, the State must either seek a grand jury indictment for the crime, or refile the complaint and conduct another preliminary hearing. Neither of these options occurred in the present case.

Following a preliminary hearing on this matter on May 13, 1987, before Judge Morrissey, the following colloquy ensued:

“JUDGE MORRISSEY: Finding of probable cause. Case transferred to the Presiding Judge of the Criminal Division for arraignment June 3rd. Bond will stand. By the way, the finding will be as to the possession of controlled substance only ***.
DEFENSE COUNSEL: Just to clarify, it’s not the included offense?
JUDGE MORRISSEY: I’m finding probable cause and sending the defendant for arraignment June 3rd on the charge of possession of controlled substance, not possession with intent to deliver. Finding, probable cause on the included offense only.”

Where a judge at a preliminary hearing makes an express finding that no probable cause exists for a charge arising from the conduct of the accused, to proceed further the State must either seek a grand jury indictment for the crime, or refile the complaint and hold another preliminary hearing. People v. Hovanec (1979), 76 Ill. App. 3d 401, 394 N.E.2d 1340.

The State concedes that People v. Hovanec is a correct statement of the law and agrees that the procedures set forth in Hovanec were not followed in the present case. It maintains, however, that Judge Morrissey did not make an express finding of no probable cause for possession with intent to deliver. We do not agree. Judge Morrissey’s finding of no probable cause was clear, express, explicit and unequivocal. He stated that probable cause was established “on the charge of possession of controlled substance, not possession with intent to deliver. Finding, probable cause on the included offense only.” (Emphasis added.) We hold that Judge Morrissey made an express finding of no probable cause for possession with intent to deliver. Since the State ignored that finding, and did not indict or file a new complaint, defendant’s conviction for possession with the intent to deliver must be vacated.

The State urges, however, that if we find it ignored the express finding of no probable cause for possession with intent to deliver, remand for a new trial is unnecessary. The State points out that at trial it provided sufficient evidence on the lesser offense which would be the only charge upon which defendant could be tried on remand. Under such- circumstances, the State asks that we vacate defendant’s conviction for possession with intent to deliver and impose instead a judgment of conviction on the possession charge. At oral argument, defense counsel stated that if we found there was evidence to establish defendant’s guilt beyond a reasonable doubt, defendant would have no objection to our entering judgment on the possession of a controlled substance charge.

We turn therefore to defendant’s contention that he was not proved guilty of possession of cocaine beyond a reasonable doubt.

Determinations of credibility and weight to be given to the testimony of witnesses are exclusively within the province of the trier of fact. (People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247.) In the present case, Officer Fallon testified that as defendant and a companion approached the police vehicle, Fallon saw defendant make a motion behind his back and something orange went between the curb and a parked car. The police officers recovered a plastic pepper shaker which contained clear plastic envelopes containing a white powder. Dr. Kaishta tested the powder and found it to be cocaine. This testimony was sufficient to find defendant guilty beyond a reasonable doubt. The jury was fully cognizant of the discrepancies in Fallon’s testimony, but nevertheless chose to believe Fallon over the defense witnesses. After reviewing the record, we are not prepared to say the jury’s conclusion was unreasonable.

In view of defendant’s agreement to the entry of judgment on the lesser offense, it is unnecessary to consider his argument that the prosecutor improperly cross-examined one of the defense witnesses about prior arrests.

Accordingly, the judgment finding defendant guilty of possession of a controlled substance with intent to deliver and the sentence of 10 years are vacated. Judgment is entered for possession of a controlled substance, and the maximum sentence of three years is imposed. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(7).

Judgment for possession of a controlled substance with intent to deliver is vacated; judgment imposed for possession of a controlled substance.

LaPORTA, P.J., and EGAN, J., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    LAWRENCE CELESTE, JR., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Coca Cola Bottling Company, Appellee).
    First District (Industrial Commission Division)
    No. 1—90—0468WC
    Opinion filed October 19, 1990.

      Gary B. Friedman, Ltd., of Chicago, for appellant.
    Wiedner & McAuliffe, Ltd., of Chicago, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The issue before us is whether an employee who seeks review of an Industrial Commission (Commission) decision must file a bond to confer subject-matter jurisdiction upon the circuit court. We hold there is no such statutory requirement.

This dispute arose as the result of proceedings which occurred after this court remanded the case to the Commission following a prior appeal. (Celeste v. Industrial Comm’n (1988), 165 Ill. App. 3d 1156 (unpublished order under Supreme Court Rule 23).) Upon remand, claimant filed a motion for interest which was not heard prior to the time respondent paid the award. Included in the sum tendered and accepted was an amount specifically designated to cover interest. Nevertheless, the Commission later ruled that claimant was not entitled to interest. Claimant sought review in the circuit court but did not file a bond. On respondent’s motion, summons was quashed because of the failure to file a bond.

Section 19(f)(2) of the Workers’ Compensation Act states in pertinent part:

“No such summons shall issue unless the one against whom, the Commission shall have rendered an award for the payment of money shall upon the filing of his written request for such summons file with the clerk of the court a bond conditioned that if he shall not successfully prosecute the review, he will pay the award and the costs of the proceedings in the courts.
* * *
Every county, city, town, township, incorporated village, school district, body politic or municipal corporation against whom the Commission shall have rendered an award for the payment of money shall not be required to file a bond to secure the payment of the award and the costs of the proceedings in the court to authorize the court to issue such summons.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 48, par. 138.19(f)(2).

Claimant argues that he is not one “against whom the Commission shall have rendered an award for the payment of money.” In consequence, under the express terms of the statute, he argues an employee is not required to file a bond. Respondent counters that everyone who seeks review of a Commission order must file a bond, especially where, as here, respondent has paid monies to claimant in excess of its liability and would have a right to reimbursement.

Respondent relies on Firestone Tire & Rubber Co. v. Industrial Comm’n (1979), 74 Ill. 2d 269, 384 N.E.2d 1329. In that case, judgment was entered against an employer; but, the Commission order did not set an amount for the bond. Firestone attempted to petition for review but did not file a bond. The respondent did not argue that a bond should not attach. Rather, because the order entered contained no provision for a bond, the employer argued the Commission had, in effect, set the bond at zero. The supreme court disagreed stating that a bond had to be filed and described the procedure by which the employer could petition the Commission to set a bond so as to enable it to perfect review.

Respondent argues the only difference between this case and Firestone is that the positions of the parties are reversed. That fact, however, is precisely why Firestone is inapplicable.

Although no cases have been cited, the issue has been considered in prior cases and commentary. To the point is a former treatise on Illinois compensation law which states the following:

“In case judicial review by the circuit court is sought by a claimant [emphasis added] for compensation, no bond is needed as the bond is required only by one against whom has been ‘rendered an award for the payment of money,’ hence .the legislature has not required that bond be filed by every person seeking review of the action of the Industrial Commission.” (Emphasis in original unless otherwise noted.) (3 T. Angerstein, Illinois Workmen’s Compensation §2126, at 19 (1952).)

(See also 3 T. Angerstein, Illinois Workmen’s Compensation §2127, at 19-20 (1952).) In support of this conclusion the treatise quotes the supreme court in Nierman v. Industrial Comm’n (1928), 329 Ill. 623, 626, 161 N.E. 115,116-17, for the following proposition:

“ ‘The bond which the employer is required to give before he is permitted to prosecute a writ of certiorari from the circuit court to review an award makes unnecessary the rendition by the circuit court of a judgment for the payment of money in case the decision of the Industrial Commission is confirmed. (Otis Elevator Co. v. Industrial Com., 288 Ill. 396, 123 N.E. 600.) If every award of compensation confirmed by the circuit court upon review necessarily resulted in a judgment subjecting the employer’s property to a lien for the payment of the award, the number of such liens would not only be considerable but the liens might continue for many years, and the employer’s property, particularly his real estate, would be rendered unmarketable. The employer has the right, by giving the required bond, to avoid such a judgment and consequent lien. (Baum v. Industrial Com. 228 Ill. 516, 123 N.E. 625, 6 A.L.R. 1242; Otis Elevator Co. v. Industrial Com., supra.) The legislative intention is that the employee shall be protected by the bond. (Otis Elevator Co. v. Industrial Com., supra; Baum v. Industrial Com., supra; Giertz v. Snyder, 302 Ill. 618, 135 N.E. 57.) The bond may continue in effect for many years where the compensation payments are directed to be made periodically. In the instant case the bond recited the rendition of the award, payable in weekly installments, and the bond provided that it was to remain in effect if the plaintiffs in error should not prosecute the writ successfully and in that event fail to pay the award and costs.’ ” (Emphasis added.) 3 T. Angerstein, Illinois Workmen’s Compensation §2127, at 19-20 (1952).

By the express terms of the statute, an employee is not one against whom an award of money has been rendered. The fact that respondent has overpaid claimant is irrelevant. Restitution for overpayment of a Commission award is permitted by separate suit in the event the employee refuses to repay the excess amount. Liberty Mu tual Insurance Co. v. Zambole (1986), 141 Ill. App. 3d 803, 491 N.E.2d 132.

Moreover, examination of that portion of section 19(f)(2) which waives the filing of a bond for certain government employers lends support to our conclusion that an employee is not subject to the requirement that a bond must be filed before subject-matter jurisdiction is conferred upon the trial court.

The bond protects the employee from having to execute against an employer’s assets. It also protects an employer to the extent its assets are not encumbered by liens of potentially indefinite duration. The bond requirements clearly apply only to those employers against whom liability for payment of a compensation judgment may attach. Employees are not within that class. Accordingly, the circuit court erred in quashing the summons.

For the foregoing reasons, the judgment of the circuit court is reversed and the case is remanded for further proceedings.

Reversed and remanded.

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


author: JUSTICE SCARIANO

text:
    ELLIS M. ROSENFELD et al., Plaintiffs-Appellants, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    First District (2nd Division)
    No. 1—88—3033
    Opinion filed October 23, 1990.
    Rehearing denied November 26, 1990.

      Morris W. Ellis, of Ellis & Ellis, of Chicago, for appellants.
    Neil E Hartigan, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiffs Ellis Rosenfeld (Ellis) and Phyllis Rosenfeld (collectively, plaintiffs) sought to enjoin the Department of Revenue (the State) from continuing to garnish Ellis’ wages in order to satisfy two judgments against him for taxes due the State under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1989, ch. 120, par. 440 et seq.) (the Act). Plaintiffs claim that because their debts were discharged in bankruptcy under 11 U.S.C. section 727 (1981) after the State obtained its judgments, the judgments were also discharged, and the State can therefore be enjoined from continuing to garnish Ellis’ wages. The circuit court dismissed plaintiffs’ complaint on the ground that it failed to state a cause of action. Plaintiffs appeal.

Plaintiff Ellis Rosenfeld was involved in two businesses in Illinois from 1972 until June 15, 1976, as a result of which he incurred, pursuant to the Act, a tax liability which was due on or before July 15, 1976. Because he failed to file the returns required by section 3 of the Act (Ill. Rev. Stat. 1975, ch. 120, par. 442), or to pay the tax, the State instituted collection proceedings and obtained two judgments against him in August 1980, totaling $35,320.75.

Plaintiffs filed for bankruptcy protection on September 2, 1980, in which proceeding the bankruptcy court ordered them discharged from all “dischargeable debts” pursuant to 11 U.S.C. section 727 (1981), on January 7, 1981. After such discharge, the State caused three different notices of “Levy on Wages, Salary and Other Income of Ellis Rosenfeld” to be served on his employer in accordance with section 5f of the Act (Ill. Rev. Stat. 1985, ch. 120, par. 444f), requiring the employer to turn over to the State certain income earned by Ellis, in order to satisfy the judgments of tax liability.

Plaintiffs filed a complaint for mandatory injunction against the State on June 15, 1987, in the circuit court of Cook County, seeking to enjoin any further attempts by the State to satisfy the judgments on the ground that their liability had been discharged by the bankruptcy court.

The State moved to dismiss the complaint, maintaining that the tax liability was not discharged by the plaintiffs’ bankruptcy and that therefore they had failed to state a cause of action. The circuit court granted the State’s motion on September 9, 1988, stating that it agreed that Ellis’ tax liability had not been discharged by the plaintiffs’ bankruptcy. Plaintiffs filed their notice of appeal on October 7, 1988.

Plaintiffs cite 11 U.S.C. section 523(a)(1)(A) (1988), which provides:

“A discharge under section 727 *** of this title does not discharge an individual debtor from any debt — (1) for a tax *** (A) of the kind or for the periods specified in *** section 507(a)(7) of this title ***.”

They aver that although the retailers’ occupation tax is either one measured by gross receipts, or is an excise tax, and is therefore not generally dischargeable as one of the kinds of taxes specified in 11 U.S.C. section 507(a)(7) (1988), such taxes are dischargeable if they were due more than three years before the filing of the bankruptcy petition. (11 U.S.C. §§507(a)(7)(A)©, 507(a)(7)(E) (1988).) In other words, plaintiffs rely on the “staleness” of their tax obligation in seeking to enjoin collection.

Plaintiffs further assert that Ellis was not required to collect or withhold the retailers’ occupation tax; consequently, the tax was not one specified in section 507(a)(7)(C) as being nondischargeable by bankruptcy regardless of how long the tax was due before the plaintiffs filed for bankruptcy.

The State contends that regardless of whether Ellis’ debt to the State was exempted from discharge by section 523(a)(1)(A), it was exempted from discharge by section 523(a)(1)(B).

Section 523(a)(1)(B)© provides:

“A discharge under section 727 *** of this title *** does not discharge an individual debtor from any debt — (1) for a tax *** (B) with respect to which a return, if required — © was not filed ***.” (11 U.S.C. §523(a)(l)(B)(i) (1988).)

The State maintains that because Ellis’ debt is for unpaid taxes with respect to which he failed to file returns required by section 3 of the Act (Ill. Rev. Stat. 1989, ch. 120, par. 442), his obligation to the State was not discharged by plaintiffs’ bankruptcy.

We agree with the State; consequently, we reject plaintiffs’ claim that the circuit court erred in dismissing their case. 11 U.S.C. section 523(a)(l)(B)(i) makes irrelevant what kind of tax is owed by the debtor or how long before the bankruptcy filing the tax was due.

In re Haywood, (Bankr. N.D. Ill. 1986), 62 Bankr. 482, holds that a bankrupt’s failure to file amended State income tax returns due more than three years before the bankruptcy filing renders nondischargeable the tax debt incurred as a result of that failure. There the court stated:

“An individual’s debt arising as the result of a tax for which the debtor was required to file a return is nondischargeable if the debtor did not file that return.” 62 Bankr. at 485.

See also In re Pruitt (Bankr. D. Wyo. 1989), 107 Bankr. 764 (failure to file Federal income tax returns more than six years before bankruptcy filing made resulting debts nondischargeable).

Plaintiffs further claim that allowing the State to satisfy its judgments against Ellis by attaching his post-discharge earnings would frustrate the Federal Bankruptcy Act’s policy of giving bankrupt debtors a “fresh start.” However, plaintiffs overlook that 11 U.S.C. section 523(a)(l)(B)(i) makes an exception to this policy in order to further another policy. As noted in In re Haywood (62 Bankr. at 485):

“ ‘Certain prepetition tax liabilities *** survive as liabilities of the debtor after the case. This category includes (1) taxes for which the debtor had not filed a return as of the bankruptcy petition .... *** [T]he debtor should not be able to use bankruptcy to escape these kinds of taxes. Therefore, these taxes *** survive as continuing debts after the case.’ ” (Quoting S. Rep. No. 1106, 95th Cong., 2d Sess. 22 (1978).)

We hold that Ellis’ liability to the State for any unpaid taxes owed under the Act with respect to which he didz-not file the required return was not affected by the order of discharge in his bankruptcy proceeding. Therefore, the State asserts a valid affirmative defense to the plaintiffs’ complaint, and the judgment of the circuit court is accordingly affirmed.

Affirmed.

DiVITO, P.J., and BILANDIC, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD R. DAVIS II, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—0980
    Opinion filed October 23, 1990.

      Sidney H. Projansky, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, David R. Butzen, and Mercedes Luque-Rosales, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant appeals from an order of the circuit court which sustained the statutory summary suspension of his driving privileges. He maintains that the trial court’s judgment must be reversed because the State failed to establish that at the time of his arrest he was under the influence of alcohol and in “actual physical control” of his vehicle. We affirm.

The record indicates that in the early morning hours of February 14, 1989, Illinois State trooper Joseph Micci arrested defendant for, among other things, driving under the influence of alcohol. The reports filed by the officer reflected that defendant failed the field-sobriety tests which were given to him and that his blood-alcohol concentration was tested at 0.10. Since that amount exceeded the statutory limit, defendant was informed that his driving privileges would be suspended in 46 days, and this information was later confirmed in a letter to him from the Secretary of State.

On February 16, 1989, defendant filed a petition in circuit court seeking to rescind the projected suspension of his driving privileges. As grounds defendant alleged, in pertinent part, that he was not properly placed under arrest for an offense defined in section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11— 501) (Code), and that the arresting officer did not have reasonable grounds to believe that he was driving or in actual physical control of a vehicle while under the influence of alcohol.

At an expedited hearing on the motion, defendant testified that around midnight on February 14, 1989, he was alone in his vehicle, a Chevrolet Suburban, driving from downtown Chicago to Schaumburg. About an hour later, he realized that he was not feeling well, so he pulled his vehicle onto the shoulder of the expressway at Frontage Road and Illinois 72, locked the doors and turned off the engine, but left the keys in the ignition. He then climbed over the console between the two front bucket seats, zipped himself inside a sleeping bag and fell asleep on the back seat. He estimated that it was about 1:30 a.m. at this time, and testified that he did not recall anything further until he was awakened by a trooper and taken out of his vehicle. During cross-examination, defendant acknowledged that he had been drinking earlier that evening.

Trooper Micci testified that at about 4:24 a.m. on February 14, 1989, he investigated a car which was parked on the right shoulder of east Frontage Road near Illinois 72. When he looked inside this vehicle, he saw a key in the ignition, but noted that the engine was not running. He also saw a money clip with currency on the dashboard, and upon further investigation, he observed defendant lying on the back seat in a sleeping bag. Micci then tried to rouse defendant and enter the vehicle, but when his attempts were unsuccessful, he called for help. The combined efforts of the responding officers, which included honking their horns and sounding their sirens, also failed, however, and when the paramedics arrived on the scene, they broke a window, unlocked the door and talked with defendant inside. Next, they stood defendant outside of the vehicle while he was still in his sleeping bag, and after defendant unzipped the bag, he responded to certain questions which were posed to him. At the station, defendant told Micci that he had started driving home about “3 to 3:30 a.m.,” and had been sleeping for the last three hours. During cross-examination, Micci stated that he ascertained that the vehicle belonged to defendant, and that when defendant first emerged from it, Micci observed that his eyes were bloodshot, that there was a strong odor of alcohol coming from his breath and that his speech was slurred.

In his subsequent testimony for the State, Micci added that defendant appeared to be disoriented when he emerged from the vehicle, as if he could not perceive what was going on, and that defendant did not mention that he was not feeling well. In their subsequent conversation at the station, defendant told him that he had been drinking beer that evening, but he did not know how much.

When Micci testified that defendant failed the field-sobriety tests which were administered to him, defense counsel objected to any further questioning along those lines because it impinged upon the criminal charge. At that point, the court commented: “As I understood, he is only raising the issue as to whether he was in physical control of the automobile.” When defense counsel responded, “I think that’s the issue,” the court sustained the objection. In the arguments which followed, the parties focused on defendant’s control of the vehicle, and at their conclusion the court denied defendant’s motion for rescission. In doing so the court found that the trooper was a credible witness, while defendant was not, and that the evidence indicated that defendant was in physical control of the automobile.

On appeal, defendant takes issue with the court’s conclusion, arguing first that he was not properly placed under arrest for an offense defined in section 11 — 501 of the Illinois Vehicle Code. (111. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.) Specifically, defendant asserts that the State failed to establish that he was in actual physical control of his vehicle at the time of his arrest. As evidence, he points to the testimony which showed that he was asleep inside a zippered sleeping bag on the back seat of his car, and contends that this posture and position demonstrate that he was not in actual physical control of the vehicle and that he had no intention of driving it farther that morning. In addition, defendant claims that he was fostering highway safety by “sleeping it off,” which he feels should be looked upon with favor in determinating the issue of control.

The State responds to these arguments by referring to the evidence which showed that defendant was the sole occupant of the vehicle, that he had locked himself inside of it and had left the keys in the ignition, which gave him the capability of operating the vehicle. The State asserts that these factors demonstrate that defendant was in actual physical control of his vehicle and that defendant’s intent to drive is irrelevant because the State is not required to prove it. People v. Cummings (1988), 176 Ill. App. 3d 293, 530 N.E.2d 672.

As a preliminary matter, we observe that the Illinois Vehicle Code prohibits a person from driving or being in actual physical control of a vehicle within this State with a breath- or blood-alcohol concentration of 0.10 or more, or while under the influence of alcohol. (Ill. Rev. Stat. 1987, ch. 95½, pars. 11 — 501(a)(1), (a)(2).) Violation of this statute subjects the offending motorist to the summary suspension of his driving privileges for a designated period of time (Ill. Rev. Stat. 1987, ch. 95½, pars. 11 — 501.1, 6 — 208.1), and the propriety of this suspension may be tested in a judicial hearing (Ill. Rev. Stat. 1985, ch. 95½, par. 2 — 118). At such a hearing, the defendant-motorist has the initial burden of presenting a prima facie case for rescission, and the trial court’s finding will not be reversed on review unless it is against the manifest weight of the evidence. People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.

What constitutes “actual physical control” of a vehicle in drunk driving matters has been given considerable attention by our courts with varying results. In general, however, Illinois courts and those foreign jurisdictions which have similarly worded DUI statutes agree that a motorist need not be actually driving a vehicle in order to be in actual physical control of it (People v. Brown (1988), 175 Ill. App. 3d 676, 530 N.E.2d 74; Montana v. Taylor (1983), 203 Mont. 284, 661 P.2d 33; Commonwealth v. Kloch (1975), 230 Pa. Super. 563, 327 A.2d 375); and, as noted above, defendant’s intent to put the car in motion is irrelevant to that determination. People v. Cummings (1988), 176 Ill. App. 3d 293, 530 N.E.2d 672; State v. Duemke (Minn. App. 1984), 352 N.W.2d 427.

Apart from these factors, the issue of actual physical control is considered a question of fact to be decided on a case-by-case basis. (People v. Cummings, 176 Ill. App. 3d at 295.) Certain factors, such as whether the motorist is positioned in the driver’s seat of the vehicle in possession of the ignition key and has the physical capability of starting the engine and moving the vehicle, are repeatedly singled out as indications that the motorist is in actual physical control of the vehicle. (People v. Heimann (1986), 142 Ill. App. 3d 197, 491 N.E.2d 872; Gore v. Maryland (1988), 74 Md. App. 143, 536 A.2d 735; Garcia v. Schwendiman (Utah 1982), 645 P.2d 651.) Courts finding actual physical control have also noted defendant’s sole presence in the vehicle and that the vehicle doors were locked. See, e.g., State v. Hall (S.D. 1984), 353 N.W.2d 37; People v. Mattison (1986), 149 111. App. 3d 816, 500 N.E.2d 1103.

It is also well established that a finding of actual physical control will not be defeated by facts showing that defendant was asleep when he was discovered (People v. Brown, 175 Ill. App. 3d 676, 530 N.E.2d 74; Taylor v. McNeill (Mo. App. 1986), 714 S.W.2d 947), or unconscious (People v. Chamberlain (1972), 5 Ill. App. 3d 235, 282 N.E.2d 784), or in a vehicle which is off the road in a ditch. (State v. Thurmer (Minn. App. 1984), 348 N.W.2d 776; see also Garcia v. Schwendiman (Utah 1982), 645 P.2d 651 (physically obstructed from driving away).) Furthermore, reviewing courts have rejected suggestions that a contrary conclusion be drawn where defendant was slumped to the passenger side of the vehicle (State v. Williams (Mo. App. 1988), 752 S.W.2d 454; State v. Ryan (1987), 229 Mont. 73, 744 P.2d 1242), or had his head on the driver’s door with his legs extended across the front seat. Petersen v. Department of Public Safety (S.D. 1985), 373 N.W.2d 38.

We disagree with defendant’s contention that the only indication of his having control of the vehicle that day was that he had left the key in the ignition. Defendant overlooks that he was the sole occupant of the vehicle, that the doors were locked, and that he had the physical capability of starting the engine and moving the vehicle almost instantly. Moreover, no one else could have had control of the vehicle unless defendant had relinquished his. Peterson v. Department of Public Safety, 373 N.W.2d at 39.

Defendant, relying on the court’s language in People v. Heimann, maintains that a finding of actual physical control requires the driver’s presence in the front seat of the vehicle. The language of the Heimann court relied upon by defendant is as follows:

“Actual physical control of a vehicle requires only that one is behind the steering wheel in the driver’s seat with the ignition key and physically capable of starting the engine and moving the vehicle.” Heimann, 142 Ill. App. 3d at 199, citing City of Cincinnati v. Kelley (1976), 47 Ohio St. 2d 94, 351 N.E.2d 85.

Cummings, citing Heimann, affirms that, “Generally, proof that the defendant was in the driver’s seat, possessed the ignition key, and had the physical capability of starting the engine and driving or moving the vehicle establishes actual physical control.” (Cummings, 176 Ill. App. 3d at 295.) Indeed, as the Cummings court points out, this type of “evidence has repeatedly been held to indicate actual physical control.” (176 Ill. App. 3d at 295.) This is not the same as saying, however, that the defendant in these cases must, as a matter of law, always be found to occupy the driver’s seat in order to be held as being in actual physical control of a vehicle, for to so hold would contradict the admonitions of Heimann and Cummings that “actual physical control is a question of fact which must be decided on a case-by-case basis.” (Emphasis added.) Cummings, 176 Ill. App. 3d at 295, citing Heimann, 142 Ill. App. 3d 197, 491 N.E.2d 872.

In both Heimann and Cummings the defendant’s presence in the driver’s seat was a mere fortuity rather than an essential ingredient of the statutory requirement that he be in “actual physical control” of his vehicle. Our research does not disclose, nor have we been furnished with, any authority which holds that a defendant, as a sine qua non, occupy the driver’s seat of his vehicle in order to be in actual physical control of the vehicle in incidents of the type under consideration in this case. There are, however, exceedingly robust policy reasons, consonant with the provisions of our statute, for a holding to the contrary — reasons best expressed by the Minnesota Court of Appeals:

“[T]he actual physical control offense is a preventive measure intended to deter drunken drivers from getting into their vehicles, except as passengers. *** Cases dealing with the issue of ‘actual physical control’ therefore evaluate whether a finding in a particular case will support these recognized policy concerns.” State v. Thurmer, 348 N.W.2d at 778.

Thus, to preclude a finding of actual physical control because of a driver’s presence in the back seat of his vehicle would completely vitiate the purpose of our drunk-driving statute, i.e., keeping intoxicated drivers out of their vehicles. The driver’s location in the back seat in no way makes him harmless. Here, defendant could in an instant get back into the driver’s seat just as easily as he made it to the back seat: by straddling the console between the two bucket seats.

Juxtaposing the composite of factors present in this case against the decisions we have reviewed above, the reasoning set forth therein, and the purpose of the legislation, we conclude that the circuit court’s finding of actual physical control was not against the manifest weight of the evidence.

In reaching that conclusion we have also considered the public policy argument preferred by defendant that where the facts indicate that the motorist is “sleeping it off,” the trial court should be allowed to find that he was not in actual physical control of his vehicle. We observe that while statutory enactments have provided for such an exception (see, e.g., State v. Smelter (1984), 36 Wash. App. 439, 674 P.2d 690), in those States where the legislature has not spoken on the subject, reviewing courts have decided the issue both ways. Some have found a lack of control where the facts show that an impaired driver pulls his vehicle off the travelled portions of the roadway and either takes the key out of the ignition or turns off the engine. (See, e.g., State v. Zavala (1983), 136 Ariz. 356, 666 P.2d 456; State v. Bugger (1971), 25 Utah 2d 404, 483 P.2d 442.) Still others, however, while recognizing that pulling off the road might be preferable to driving under the influence, have criticized the adoption of a “sleeping it off” policy, opting instead to stress the preventive nature of the implied consent statutes. See, e.g., State v. Peterson (Mont. 1989), 769 P.2d 1221; State v. Thurmer, 348 N.W.2d 776; County of Milwaukee v. Proegler (1980), 95 Wis. 2d 614, 291 N.W.2d 608.

The latter position is consistent with the one set forth in People v. Guynn (1975), 33 Ill. App. 3d 736, 739, 338 N.E.2d 239, where the court stated:

“We do not see anything which would imply a legislative intent or public policy to permit an intoxicated person to ‘sleep it off behind a wheel of a parked car, although that might be preferable to having him drive a car while intoxicated. A person behind the wheel of a parked car can readily move into a position where he can endanger other persons, property or vehicles.”

The Cummings court, however, has since suggested that more flexibility be read into Guynn: “In those rare instances where the facts show that a defendant was furthering *** safer highways by voluntarily ‘sleeping it off in his vehicle, and that he had no intent of moving the vehicle, trial courts should be allowed to find that the defendant was not ‘in actual physical control’ of the vehicle.” (176 Ill. App. 3d at 297.) We do not deem the present case to be one of those rare instances. Here, the trial court found, in addition to the other indicia of control, that defendant had driven the vehicle for approximately one hour before stopping to “sleep it off.”

Finally, we briefly address two additional arguments raised in defendant’s brief: (1) that the State failed to establish that he was under the influence of alcohol while in actual physical control of a vehicle (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501(a)(1)); and (2) that the arresting officer lacked reasonable grounds to believe that he was in actual physical control of a vehicle while under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95½, par. 2 — 118.1(b)(2)). These issues, however, were not raised at trial, and it is axiomatic that issues not raised in the trial court are deemed waived and may not be raised for the first time on appeal. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872; Beacham v. Lake Zurich Property Owners Association (1988), 123 Ill. 2d 227, 526 N.E .2d 154.

In sum, what constitutes actual physical control is a question of fact to be decided by the trial court. Such decisions will not be overturned on appeal unless they are against the manifest weight of the evidence, and since the decision in the present case clearly does not fall within this category, we affirm.

Affirmed.

DiVITO, P.J., and HARTMAN, J., concur.


author: JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWIN WARD, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—0132
    Opinion filed October 24, 1990.
    Joseph J. Cavanaugh and Daniel P. Soso, both of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and David B. Franks, Assistant State’s Attorneys, of counsel, and Michael Brychel, Law Student), for the People.
   JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Edwin Ward, was charged by information with possession of a controlled substance, to wit, cocaine, with intent to deliver. (Ill. Rev. Stat. 1985, ch. 56½, par. 1402.) Defendant was convicted, sentenced to eight years’ imprisonment and fined $6,000 after a bench trial. Defendant appeals only the denial of his pretrial motion to suppress evidence and quash his arrest.

The conflicting evidence adduced at the suppression hearing revealed the following. On December 16, 1986, defendant was walking through Terminal 2 at O’Hare Airport after arriving from Tucson, Arizona, where he resided. Defendant’s travelling companion, Paula Gullick, went off in search of a writing instrument to write down the name of a hotel. Shortly thereafter, Paula was detained by two Chicago police officers in plainclothes, Prusank and Molitor, who, after observing her movements for some time and suspecting her of being a prostitute, either asked her if she needed any help or told her she was under arrest for prostitution. While the officers were speaking with Paula, defendant approached the three and either said, “What seems to be the problem?” or “What the f— are you doing with my girlfriend?” In response, the officers either identified themselves as such and explained that they were questioning Paula about her activities at the airport or said, “Who the hell are you?” or “Who the f— are you?” Thereafter, defendant either informed the officers that he was a friend of Paula and again requested some identification from them or became belligerent and argumentative and told the officers, “Leave her alone, she hasn’t done anything.” Thereafter, defendant either asked Paula if she was all right and was told by the officers, “What is to you, punk?” or was asked by the officers for some identification. Thereafter, defendant either was grabbed by the officers, knocked to the ground and handcuffed or put his hands in his pockets, apparently to retrieve some identification therefrom. Either as a result of a search of his person after he was being handcuffed or of his attempt to produce some identification, a closed, brown glass vial fell to the floor. The police officers opened the vial and found a white substance they suspected of being cocaine after either observing its contents from the outside or being unable to do so. At any rate, the officers then placed defendant under arrest.

After retrieving two locked pieces of luggage which defendant had been carrying, the police transported defendant to the airport police facility. According to defendant’s evidence, when he, Paula and the officers arrived at the facility, the officers slammed his head into a podium, causing a substantial cut on his right cheek. Eventually, the officers asked defendant for permission to open the locked luggage, which defendant either gave or did not give the officers. At any rate, after breaking the luggage open, the officers found a bag containing a white powder which was later discovered to be 461 grams of cocaine and a bag containing 235 white pills later discovered to be Valium.

I

On appeal, defendant first contends that the denial of the motion to suppress evidence and quash arrest was error because the State failed to demonstrate that the police request for identification from him was supported by reasonable and articulable suspicion that he was engaged in criminal activity.

We disagree. Rather than the case law cited by defendant, which by and large is the progeny of Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, we believe that the case law cited by the State, which stems from Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319, is controlling on this issue.

Royer held that no fourth amendment seizure of an airline passenger occurs where the police approach him in a public area, announce their office, ask if he is willing to answer some questions,- put some questions to him, and the person remains free to disregard the questions and walk away. Applying Royer and the objective test approved therein for determining whether a fourth amendment seizure of a person has occurred (see United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870), the court in People v. Forrest (1988), 172 Ill. App. 3d 385, 526 N.E.2d 616, held that there was no fourth amendment seizure of the defendant where the police had initially approached the defendant in a public area of Midway Airport, the defendant consented to the conversation, the police told him he was free to go, the defendant understood that he was free to leave and, in fact, did leave.

In the case sub judice, defendant approached the police in a public area of O’Hare Airport when he saw them speaking with Paula. While defendant claimed that the police failed to identify their office, they claimed that they had done so in response to an inquiry by defendant. Admittedly, in contrast to the situations in Royer and Forrest, the police neither asked defendant if he was willing to answer some questions before asking him for some identification nor informed him that he was free to go without answering any questions. Additionally, it is not apparent from the record whether defendant here, like the defendants in those cases, understood that he was free to go without answering the police officers’ questions. These dissimilarities with Royer and Forrest notwithstanding, we find the fact that the defendant approached the police to inquire about their business with Paula tantamount to the consent to the questioning by the police implicitly relied upon in Royer and explicitly relied upon in Forrest. In another context, it is well established that a defendant’s making volunteered statements to the police does not invoke his constitutional rights to remain silent and to have the assistance of counsel. (Miranda v. Arizona (1966), 384 U.S. 436, 478, 16 L. Ed. 2d 694, 726, 86 S. Ct. 1602, 1630.) We believe that the rationale underlying that rule, i.e., the lack of compulsion or coercion, applies with equal force to the facts of this case.

Moreover, the fact that defendant may not have known that the men speaking with Paula were police officers when he first approached them does not compel a contrary conclusion. Regardless of that fact, defendant knew, according to his own and the State’s evidence, that the men surrounding Paula were police officers, at the latest, before they asked him for some identification. As such and given the circumstances surrounding that request, we believe defendant’s acquiescence thereto was completely voluntary rather than coerced in some official way.

II

Defendant next contends that the warrantless search of the brown vial which fell out of his pocket when he attempted to produce the requested identification violated his fourth amendment rights because the police did not have probable cause to believe the vial contained narcotics.

We disagree. The only Illinois case upon which defendant relies, People v. Smith (1982), 103 Ill. App. 3d 430, 431 N.E.2d 699, has been reversed by our supreme court.

In Smith, a police officer stopped the defendant’s vehicle for failing to display a valid safety inspection sticker. Upon searching the vehicle, the officer found a box, which was undistinctive in appearance, commonly referred to as a “one hitter box” and which law enforcement officials apparently knew to be commonly used to carry marijuana. Upon removing it from the vehicle, the officer opened the box and found that it contained a quantity of marijuana. In holding that the warrantless search of the box violated the fourth amendment, the appellate court, after reviewing relevant U.S. Supreme Court cases, held that, “[i]f a container, otherwise undistinctive in appearance, is known to some segments of society to be used for certain purposes, its contents should remain fully protected by the fourth amendment, if it is closed and opaque, not subjecting its contents to public view.” (103 Ill. App. 3d at 433.) Additionally, the court found the apparent knowledge of law enforcement officials of the common use of the box to transport marijuana, while relevant, not conclusive. Instead, the court held that a container must be evaluated to determine whether society as a whole would recognize it as one commonly used to carry a controlled substance. The court reasoned that it could not be automatically concluded that marijuana was contained within that wooden box because “[i]ts shape did not imply its contents, nor was it in any way transparent or open, subjecting its contents to public view.” Smith, 103 Ill. App. 3d at 433.

The supreme court reversed the appellate court’s judgment in Smith on the basis of the automobile exception to the fourth amendment, which allows the warrantless search of both automobiles and containers found therein based on the existence of probable cause to search the vehicle. (People v. Smith (1983), 95 Ill. 2d 412, 447 N.E.2d 809.) Being so informed by the State, defendant, in his reply brief, attempts to distinguish Smith on the ground that the automobile exception to the fourth amendment is not involved or applicable in this case. In so doing, defendant ignores what the court stated, in part, with regard to the issue of probable cause to search defendant’s vehicle:

“In determining whether the officer had probable cause, his factual knowledge, based on law-enforcement experience, is relevant. [Citations.] Before entering the vehicle the officer observed the small wooden box with a sliding top. Based on his own knowledge and experience with such containers, the officer recognized it as a ‘one-hitter box’ commonly used to carry cannabis.” Smith, 95 Ill. 2d at 419-20.

The foregoing rationale is as applicable to a determination of probable cause to search a closed container inadvertently produced by a defendant in an airport as it is to a determination of probable cause to search a closed container observed in an automobile. As Smith notes, in determining whether the police officers here had probable cause to search the vial which defendant dropped from his pocket while producing the identification requested by them, their factual knowledge, based on law enforcement experience, is relevant. In this case, the testimony of Officer Prusank conclusively established that, based on his law enforcement experience, he knew that the type of vial defendant dropped from his pocket was commonly used to carry narcotics. Thus, the existence of probable cause to have searched, i.e., opened, the vial cannot be gainsaid.

Ill

Defendant next contends that the State failed to prove that he voluntarily consented to the search of his luggage after he was placed under arrest or that the search of his luggage was a valid inventory search and that, as such, the search of the luggage was an unreasonable search and seizure under the fourth amendment. We disagree.

With regard to the issue whether he consented to the search of his locked luggage, defendant ignores that its resolution rested entirely upon the trial court’s determination of the credibility of the State’s and defense witnesses. Defendant cites various facts, inconsistencies and shortcomings in that testimony supporting a conclusion that he did not consent to the search of his luggage. However, we do not believe that those facts, inconsistencies or shortcomings compel a conclusion that the trial court’s resolution of the consent issue was manifestly erroneous.

In addition to his denial of having consented to the search of his luggage and the police officers’ inability to recall which of them asked therefor and which opened the luggage, defendant also notes that he was subjected to physical punishment upon arriving at the police station, that the police did not obtain his written consent, that the police broke the locks on his luggage, that he was in custody for about 30 minutes before the police requested his consent, and that the police never advised him that he had the right to refuse his consent to their search.

With respect to the physical punishment allegedly inflicted upon defendant, the short answer to his reliance thereon is that the trial court disbelieved that assertion. The record does not so conclusively establish that that punishment was inflicted upon defendant that we can find the trial court’s resolution of this issue manifestly erroneous. Defendant cites the testimony of Officer Prusank that his arrest photograph, admitted into evidence but not contained in the record on appeal, revealed “a mark” on defendant’s face and that the trial court observed a scar on defendant’s face. However, tending equally, if not more heavily, to disprove the alleged physical violence was the evidence, to which defendant stipulated, that no injuries were found on him upon his admission to the Cook County Department of Corrections and his admission at trial that he did not complain of any injuries to his face to any Department of Corrections personnel.

With respect to the police failure to obtain written consent to the search and to advise defendant that he could refuse his consent, the short answer to defendant’s reliance thereon is that neither is required as a matter of law before a search may be held valid. The latter failure is a relevant factor in determining the voluntariness of consent to search. (People v. Smith (1984), 124 Ill. App. 3d 914, 464 N.E.2d 1206.) However, under the circumstances of this case, we cannot say that that failure, whether alone or together with the other facts, inconsistencies or shortcomings relied upon by defendant, reveals that the trial court’s finding that defendant consented to the search of his luggage was manifestly erroneous.

Additionally, in view of the police officers’ testimony that defendant stated that he did not have any keys to the luggage and that they asked him if they could break the locks, the fact that they did just that is also unavailing to defendant.

In view of our conclusion that the trial court’s determination that defendant had consented to the search of his luggage is not manifestly erroneous, we need not decide whether the search was justifiable as an administrative inventory procedure.

IV

For all the foregoing reasons, the trial court’s order denying defendant’s motion to quash arrest and suppress evidence is affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.

       The question of credibility on this issue, like all the issues upon which defendant’s and the State’s evidence conflicted, was properly for the trial court. We cannot substitute our judgment for the trial court’s judgment on that issue.


author: JUSTICE BARRY JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT TAYLOR, Defendant-Appellee.
    Third District
    No. 3—89—0666
    Opinion filed November 16, 1990.
    STOUDER, J., dissenting.
    Larry VanDerSnick, State’s Attorney, of Cambridge (Judith Z. Kelly and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Eugene L. Stockton, of Kewanee, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Robert Taylor was charged by information in Henry County, Illinois, with three counts of theft. Count I alleged the felony theft of a 460-cubic-inch Ford motor having a value in excess of $300. The circuit court of Henry County granted defendant’s motion to suppress the motor, which was seized in defendant’s garage during a search of the premises where he resided. The State has appealed from the order suppressing the evidence.

The record discloses that the search warrant issued by the circuit court of Henry County authorized Kewanee police officers to search “the premises of Robert Taylor and his vehicle located at 106 South State St., Annawan, Illinois, said vehicle being a yellow Chevrolet Celebrity station wagon.” The warrant also authorized seizure of a Panasonic video cassette recorder (VCR) with a specific serial number and Pioneer stereo speakers with specific serial numbers and initials scratched into them. Late in the afternoon of May 25, 1989, Kewanee police arrived at the home of defendant and presented the search warrant to defendant’s wife, Dianna.

Dianna Taylor told the police officers that the VCR was in the living room and that the speakers were in defendant’s car, which he had at work. Police officers entered the home, and Dianna told them to look “wherever they wanted.” A VCR was seized from the living room, but the serial number had been scratched off so the police could not positively identify it as the one named in the warrant. The police continued to search defendant’s home for the speakers and VCR. In the basement, officers located tools which they believed to be stolen, and in the unattached garage, officers saw in plain view a blue Ford motor which matched the description of a motor that had been reported stolen. The police seized the motor, tools, and some other items.

In defendant’s motion to suppress, he alleged that the Ford motor was not named in the search warrant and was seized from an unattached garage which also was not named in the the search warrant. Following a hearing on the motion, the trial court allowed defendant’s motion without giving any reason for the ruling. None of the other items seized are involved here.

The issue on appeal, as framed by the parties, is whether the trial court properly suppressed the evidence on the grounds that the search had taken on the characteristics of an illegal general search. Defendant argued in the trial court that the search of the garage exceeded the scope of the warrant and that the incriminating nature of the motor was not readily apparent.

The warrant in this case authorized a search for stereo speakers and a VCR in the automobile and premises belonging to defendant. The warrant was not limited to defendant’s home or residence, but specifically stated “premises,” a word which has been construed to include all buildings at the address listed (United States v. Williams (9th Cir. 1982), 687 F.2d 290), including a detached garage (United States v. Bonner (1st Cir. 1986), 808 F.2d 864). Thus, the extension of the search to defendant’s garage was within the location specified in the warrant. Furthermore, the garage was a reasonable place to look for automobile stereo speakers. Certainly the police officers were not required to accept as true the statement by defendant’s wife that the speakers were in his car at work.

The rule was succinctly stated in People v. Philyaw (1975), 34 Ill. App. 3d 616, 619, 339 N.E.2d 461, 464:

“Where a police officer has prior justification for a search in the course of which he inadvertently discovers items which are apparent to the officer as evidence of other crimes he may seize the inadvertently discovered evidence.”

Here the search was conducted pursuant to a valid search warrant, and the officers were justified in looking into the garage. The blue Ford motor was plainly visible in the garage and was inadvertently discovered. One officer recognized the motor as matching the description of a 460-cubic-inch blue Ford motor that had been stolen. The seizure of the motor was proper.

Defendant argues that the search through tool boxes in the basement and the seizure of tools, a lawn mower, and other items all served to invalidate the police search of his premises under the ruling of People v. Harmon (1980), 90 Ill. App. 3d 753, 413 N.E.2d 467. In the Harmon case, the search warrant authorized a search for certain large items of railroad property. The police found some shovels and forks in the defendant’s living room near the television. Upon moving the television set, the police saw cords dangling from the back of the set, and after removing the back, they discovered several CB radios inside. The court suppressed the evidence seized on the ground that the police searched every nook and cranny of the home upon the pretext of searching for some large items of railroad property which could not have been hidden in some of the places searched. The court stated that the scope and intensity of the search are determined by the warrant, and a search beyond the scope of the warrant is a general search which invalidates the seizure of evidence.

Harmon is easily distinguished from the case before us. There the police admitted that the items listed in the warrant were not small enough to fit in back of the television set. The court found that it was not readily apparent that the CB radios found in the television set were evidence of a crime since defendant was a junk dealer and used his home for storage of his inventory. In the case before us, to the contrary, the discovery of the motor did not involve looking in places where the VCR and stereo speakers could not have been hidden. While looking into the garage, the police saw a blue Ford motor in plain view which, upon closer examination, matched the description of a motor reported stolen in Kewanee. The discovery and seizure of the motor was not the result of an improper general search, and the evidence so seized should not have been suppressed.

We reverse the order of the circuit court of Henry County and remand this cause for further proceedings.

Reversed and remanded.

HEIPLE, P.J., concurs.

JUSTICE STOUDER,

dissenting:

In this case, the State contends the warrantless seizure of the engine was justified by the plain view doctrine. In view of the record in this case, I do not find the requirements for invoking the doctrine satisfied and therefore I dissent.

In Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, the United States Supreme Court stated that under certain circumstances the warrantless seizure of an item that comes within plain view during an otherwise lawful search of a private area may be reasonable under the fourth amendment. One such circumstance cited in Justice Stewart’s opinion in Coolidge is “the situation in which the police have a warrant to search a given area for specific objects, and in the course of the search come across some other article of incriminating character.” 403 U.S. at 465, 29 L. Ed. 2d at 582, 91 S. Ct. at 2037.

Recently, in Horton v. California (1990), 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301, the Court clarified the requirements for application of the plain view doctrine. In Horton, the police obtained a warrant which authorized them to search the defendant’s residence for the proceeds of an armed robbery. However, the affidavit for the search warrant referred to police reports that described the weapons used in the armed robbery as well as the proceeds. In conducting the search, the investigating officer discovered the weapons in plain view and seized them. In affirming the trial court’s denial of defendant’s motion to suppress, the Court held that inadvertent discovery of the evidence is not a necessary condition for a plain view seizure. In the course of its discussion, the majority stated: “It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view, its incriminating character must also be ‘immediately apparent.’ [Citations.] *** Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.” Horton v. California (1990), 496 U.S. 128, 136-37, 110 L. Ed. 2d 112, 123, 110 S. Ct. 2301, 2308.

In Arizona v. Hicks (1987), 480 U.S. 321, 94 L. Ed. 2d 347, 107 S. Ct. 1149, bullets were fired through an apartment floor. When the police arrived, they entered the apartment and seized three weapons. One officer noticed expensive stereo equipment, which he suspected was stolen. He moved some of the stereo components, including a turntable, in order to read and record the serial numbers on the equipment. The officer called his headquarters and was advised that the turntable had been reported stolen. He immediately seized the turntable. The State attempted to justify the officer’s actions under the plain view doctrine. The Supreme Court affirmed the trial court’s suppression of the evidence finding that moving and turning the equipment constituted a search requiring probable cause. The Court further held that probable cause is required to invoke the plain view doctrine. The Court stated, “A dwelling-place search, no less than a dwelling-place seizure, requires probable cause, and there is no reason in theory or practicality why application of the plain-view doctrine would supplant that requirement.” Arizona v. Hicks (1987), 480 U.S. 321, 328, 94 L. Ed. 2d 347, 356, 107 S. Ct. 1149, 1154.

In the instant case, the police had a warrant to search the defendant’s “premises” and automobile. They were authorized by the warrant to seize a Panasonic VCR bearing a specified serial number and Pioneer stereo speakers. They located a Panasonic VCR in the living room. However, the serial number on the VCR had been “scraped off.” The police continued the search for the speakers and for any additional Panasonic VCRs. During this search, Detective Rod Huber noticed the engine in the unattached garage. Officer Cervantez testified that when he first saw the engine, he could only determine that it was blue. He did not know the make or displacement of the engine. He testified that one of the other officers identified it as a Ford. The officers believed the engine was one which had been reported stolen. The police seized the engine along with other items.

There was nothing unique about this blue engine in and of itself which would make its incriminating character immediately apparent. In fact the record indicates the officers allowed a citizen to come to the house to look at the engine to determine if it was the same engine the citizen had reported stolen. This demonstrates that it was not immediately apparent to the officers that the engine was stolen. The majority’s opinion gives no analysis of whether the immediately apparent condition for invoking the plain view doctrine was satisfied. The majority simply states: “The blue Ford motor was plainly visible in the garage and was inadvertently discovered. One officer recognized the motor as matching the description of a 460-cubic-inch blue Ford motor that had been stolen. The seizure of the motor was proper.” 205 111. App. 3d at 448.

In addition, the record is unclear as to how the officers determined the displacement of the engine. The majority states that “the police saw a blue Ford motor which, upon closer examination, matched the description of a motor reported stolen ***.” (205 Ill. App. 3d at 449.) If they moved or turned the engine in making their “closer examination,” that constitutes a search under Hicks requiring probable cause. The State in its brief simply states that the officers “reasonably believed” the engine was stolen. However, probable cause is required in order to search or seize an item under the plain view doctrine.

I find the majority’s attempt to distinguish People v. Harmon (1980), 90 Ill. App. 3d 753, 413 N.E.2d 467, unpersuasive. The majority’s analysis confuses the issue of whether the officers were lawfully looking in a place large enough to hold the VCR or speakers with the issue of whether it was immediately apparent that the engine was contraband. The result in Harmon is consistent with Horton and Hicks. The majority in Harmon found that it was not apparent that the CB radio did not belong to the defendant. The rules pronounced in Horton and Hicks applied to the facts in Harmon would result in the same outcome. In fact, the result is consistent with Coolidge, which predates Harmon and upon which Horton and Hicks are based.

In sum, the seizure of the engine cannot be justified by reliance on the plain view doctrine and I would affirm.


author: PRESIDING JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WAYNE WASHINGTON et al., Defendants-Appellees.
    Third District
    No. 3—90—0079
    Opinion filed November 20, 1990.
    Edward Burmila, State’s Attorney, of Joliet (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Bruce Cowan, of Chicago, for appellee Wayne Washington.
    Harry J. Irby, of Murer & Nudo, of Joliet, for appellee Walter Robinson.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The defendants, Wayne Washington and Walter Robinson, were charged with armed violence and unlawful possession of more than 15 grams of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 2; ch. 56½, par. 1401(a)(1)). They subsequently filed a joint motion to quash their arrests and to suppress all evidence flowing from the arrests. Following a hearing, the trial court granted the motion. The State appeals. We reverse and remand.

At the suppression hearing, Officer Timothy Simenson of the Crest Hill police department testified that at 5:20 p.m. on June 30, 1988, he received a tip from a confidential source. Simenson noted that although he had never received information from this source which had resulted in a conviction, he was aware that information previously received from the source had led to an arrest in another officer’s case. The source informed Simenson of a cocaine dealer operating on Grover Street near Fifth Avenue in Joliet. The source proceeded to tell him that the dealer was staying at the second house north of Fifth Avenue on the west side of Grover, although no address for the house was given.

Simenson was also told that the cocaine was kept in the trunk of a late model silver/gray car that looked like a Honda Accord and was parked in front of the house. The source noted, however, that the person selling the drugs was not the owner of the car. The dealer was described as a six-foot, black male with a heavy build and a short-cropped Afro. The source further told Simenson that a person would knock on the door of the home and the dealer would come out and sell drugs from the trunk of the car. The source stated that he had been standing at the open trunk of the gray car the previous day and had seen money, a gun, and a substance the dealer said was cocaine inside the trunk. However, the source had not witnessed any narcotics transactions. The source further indicated that a second vehicle, a 1978 or 1979 gold Oldsmobile Delta 88 or 98 parked across the street from the house, was also involved and was used either in the delivery of the drugs or as a place to hide them.

Officer Simenson testified that upon receiving this information, he and several officers proceeded to the location and set up a surveillance. Simenson stated that when he arrived, he observed a house which fit the description given by the source. A gray 1985 Nissan was parked in front of the house, and a gold Oldsmobile was parked across the street. He also saw a man fitting the description of the drug dealer carry two grocery bags and a shoulder purse from the house to the open trunk of the Nissan. The man was later identified as defendant Robinson. Simenson stated that Robinson proceeded to put the bags in the trunk. Two other people were also near the trunk at the time. Robinson and one of those people then got into the Oldsmobile parked across the street and drove away. Simenson subsequently ran a check on the license plates and found that the Nissan was registered under a woman’s name, thereby corroborating the source’s information that the car did not belong to the dealer.

Simenson further testified that approximately 40 minutes later, Robinson returned in the Oldsmobile with defendant Washington and parked behind the Nissan. Washington walked to the rear of the Nissan, opened the trunk, and began doing something in it. Simenson stated that although he did not see Washington violate any laws, at that point based upon the information from his source and his own corroboration of that information, he felt it was necessary to investigate the matter further and speak with the defendants. He then gave the signal to the other officers to move in.

Simenson stated that he and another officer approached Robinson with their guns drawn and identified themselves as police officers. After making Robinson get out of the car, they began questioning him about its ownership. Robinson told the officers that he did not know whose car it was. Simenson then asked Robinson who owned the man’s purse that he saw inside the car. Robinson, again responded that he did not know.

Police officer Patrick Kerr testified that upon receiving the order to move in, he approached Washington at the trunk of the Nissan and stated, “Police officer, don’t move.” Kerr stated that he had his weapon drawn and pointed at Washington because he had been informed that a gun was in the trunk of the car. He also noted that he could not see Washington’s hands. For his own protection, Kerr proceeded to search Washington and found three concealed handguns on him. Washington was subsequently arrested for the possession of the weapons and for the possession of some cocaine also found on him.

Officer Kerr immediately informed Officer Simenson that he had found concealed weapons on Washington. Officer Simenson in turn began searching Robinson and the contents of the car. Although no guns or drugs were found on Robinson, the search uncovered a large quantity of cocaine inside the man’s purse. At that point, Robinson was handcuffed and placed under arrest.

Defendant Robinson testified that on the night in question he drove to Grover Street and Fifth Avenue and pulled up behind the Nissan. Shortly thereafter, police came- out from everywhere with their guns drawn and blocked his car. Two officers told him that he was under arrest and immediately handcuffed him. He stated that he did not recall telling the police that he did not know whose car it was. Robinson testified that he had borrowed the car the night before from a friend. He further stated that he had not been in the area prior to the time he arrived in the Oldsmobile.

Defendant Washington testified that he was an insurance salesman and that he went to the house because he had a contract for his brother to sign. He explained that a female friend had dropped him off around the corner from Fifth and Grover, and while he was walking, Robinson drove by and offered him a ride. Washington stated that he got out of the car and went to the trunk of the Nissan, which was owned by a friend of his, because he needed to remove the insurance contract for his brother. When he opened the trunk, police with guns pointed at him screamed, “Don’t move, you’re under arrest.” He was then searched and arrested.

Following the hearing, the trial court made the following findings. When the police officers approached the defendants, they did not have probable cause to arrest or to conduct a warrantless search. With respect to defendant Robinson, the court found that the approach made by the police was a proper Terry stop in that Officer Simenson furthered his investigation by questioning Robinson after asking him to exit the car. When the search of Washington uncovered weapons and contraband, the police gained probable cause to search the car and its contents.

With respect to the propriety of Washington’s arrest, the trial court initially noted that the basis for Robinson’s arrest hinged on whether Washington’s arrest was proper. The court found that Officer Kerr’s actions in approaching Washington with his gun drawn and then proceeding to immediately pat search him without asking any questions constituted an arrest without probable cause. It therefore quashed Washington’s arrest. Since Robinson’s arrest rested on the propriety of the search of Washington, it also quashed Robinson’s arrest and suppressed all of the evidence flowing from both arrests.

The State argues on appeal that the trial court erred in finding that the temporary detention and weapons search of Washington was an arrest. Rather, they argue that it was actually a valid Terry stop accompanied by a frisk for the officer’s protection.

A police officer may approach an individual for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) However, to justify the stop, the police officer must be able to point to specific, articulable facts which, when taken together with the rational inferences from those facts, reasonably warrant the intrusion. Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880.

In the course of an investigatory stop, the police officer may, in the interests of his own protection, conduct a reasonable search for weapons whenever he has reason to believe that he is dealing with a person who is armed and dangerous. (Terry, 392 U.S. at 24, 20 L. Ed. 2d at 908, 88 S. Ct. at 1881.) To justify a protective frisk, the officer need only show that it was more probable than not that the person possessed an instrumentality which could be used to commit bodily harm. (People v. Kantowski (1983), 98 Ill. 2d 75, 455 N.E.2d 1379.) A reviewing court will not disturb a trial court’s finding on a motion to suppress unless that finding is manifestly erroneous. People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.

In the instant case, the trial court found that the stop of Robinson was a proper Terry stop. However, it further found that the actions of Officer Kerr in approaching Washington with his gun drawn and immediately searching him constituted an arrest without probable cause. Therefore, since Robinson’s arrest rested on the propriety of the search of Washington, it quashed both of their arrests and suppressed all evidence from those arrests. We must therefore determine whether the stop made by the police of Washington constituted an arrest. We find that it did not.

The police were given a fairly detailed description of the dealer, the location of the drug activity, and the cars involved in storing and transporting the cocaine. This information was then corroborated by the police when they set up a surveillance of the house.

The police observed Robinson, who matched the description given by the informant, leave the house and place two grocery bags in the trunk of the gray Nissan, which also had been described by the informant. They subsequently watched him drive away in the Oldsmobile parked across the street, thus providing further corroboration of the information given by the informant. Robinson later returned with Washington and parked directly behind the Nissan in the driveway.

Washington proceeded to the rear of the Nissan and began doing something in it. At that point, the officers properly approached the defendants for questioning. The mere fact that their guns were drawn did not convert the stop into an arrest. (People v. Jackson (1986), 145 Ill. App. 3d 789, 495 N.E.2d 1359.) Moreover, we find that Officer Kerr’s search of Washington was proper given his knowledge that a gun was in the trunk of the car and Washington was standing near the open trunk. Based upon the above, we find that Officer Kerr’s search of Washington was reasonable and that the officer’s actions did not amount to an arrest.

Accordingly, the judgment of the circuit court of Will County is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

GORMAN and STOUDER, JJ., concur.