text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN M. SELLERS, Defendant-Appellant.
    Third District
    No. 3-91-0341
    Opinion filed November 13, 1992.

      Michael T. Van Der Veen and Stephen M. Komie, both of Komie & Associates, of Chicago, for appellant.
    William Herzog, State’s Attorney, of Kankakee (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant, Stephen M. Sellers, was convicted of unlawful manufacture of cannabis, unlawful possession of cannabis, and unlawful possession of a Cannabis sativa plant (Ill. Rev. Stat. 1991, ch. 56½, pars. 705(e), 704(e), 708(d)). The trial court sentenced him to 36 months’ probation and fined him $3,059. He appeals, contending that the trial court erred in denying his motion to quash the search warrants and suppress the evidence seized pursuant thereto.

On July 25, 1988, the defendant’s nephew, Dustin Lawrence, broke into the defendant’s house and took cash and personal checks. As Lawrence fled the crime scene, he was identified by the defendant’s girlfriend. Later, the defendant reported the crime to the police. Police officers Ray Fairfield and Pamela Regas interviewed the defendant about the crime at his home in the kitchen and dining room. The officers then inspected the basement windows, which were suspected as the point of entry for the burglary.

Sometime between July 28, 1988, and August 11, 1988, Lawrence forged the defendant’s signature on one of the stolen checks and then cashed it for $250 in Indiana. On August 11, 1988, Kankakee County Sheriff’s Deputy Charles Wilson questioned Lawrence about the incident. At that time, Lawrence confessed that he had burglarized the defendant’s home, stolen a check, forged the defendant’s signature on the check, and then cashed it. Lawrence further stated that while he was in the process of burglarizing the defendant’s home, he observed cannabis.

Based on the above information, Deputy Wilson prepared a complaint for a search warrant which stated that while Lawrence was inside the defendant’s residence, he observed, in the defendant’s bedroom, cannabis, cannabis seeds, “Magic Mushrooms” (Pslocybin), and a scale. According to the complaint, Lawrence stated that he had removed the scale from the bedroom but later returned it to the defendant. The complaint further stated that Lawrence told the deputy that he knew the defendant had been selling drugs at his residence for the last six years. Lawrence also told the deputy that he had bought “Magic Mushrooms” from the defendant.

After reviewing the complaint for search warrant, the trial court issued a warrant to search the defendant’s residence. The police executed the search warrant on August 11, 1988, and seized marijuana from the defendant’s house and backyard. A second warrant was also issued and executed on the following day. The complaint for the second warrant consisted of the same allegations as the first complaint, except that it included a list of items seized during the August 11 search.

Prior to trial and during trial, the defendant filed motions to quash the search warrants and to suppress the evidence seized pursuant thereto. The trial court denied the motions. Following a bench trial, the defendant was convicted of unlawful manufacture of cannabis, unlawful possession of cannabis, and unlawful production of a Cannabis sativa plant.

On appeal, the defendant argues that the trial court erred in denying the defendant’s motion to quash the search warrants and suppress all the evidence seized pursuant to the warrants. The defendant initially suggests that the two-pronged Aguilar-Spinelli test was not satisfied here. He further contends that the informant was unreliable and that the complaint for the search warrant failed to establish that drugs would likely be found at the defendant’s residence.

In Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584, the Supreme Court established a two-prong test in which information provided by an informant was required to include facts establishing the reliability of the informant and his basis of knowledge before probable cause to issue a warrant could be found. The Supreme Court, however, rejected the Aguilar-Spinelli two-pronged test in Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317. (Massachusetts v. Upton (1984), 466 U.S. 727, 80 L. Ed. 2d 721, 104 S. Ct. 2085.) The Supreme Court in Upton clarified its position regarding probable cause determinations based on an informant’s tip:

“We did not [in Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 721, 104 S. Ct. 2317,] merely refine or qualify the ‘two-pronged test.’ We rejected it as hypertechnical and divorced from the ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ [Citation.] Our statement on that score was explicit. ‘[W]e conclude that it is wiser to abandon the “two-pronged test” established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations.’ [Citation.]” (Massachusetts v. Upton (1984), 466 U.S. 727, 732, 80 L. Ed. 2d 721, 726-27,104 S. Ct. 2085, 2087.)

Thus, the sufficiency of a complaint rests on whether the complaint, considered as a whole, adequately establishes that there was “a fair probability that *** evidence of a crime would be found in a particular place.” (Illinois v. Gates (1983), 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332; People v. Jones (1985), 105 Ill. 2342, 357, 475 N.E.2d 832, 839.) A reviewing court should not conduct a de novo review, but rather should give great deference to the initial determination of probable cause. People v. Seats (1984), 121 Ill. App. 3d 637, 460 N.E.2d 110.

Here, the complaint alleged that Lawrence personally observed marijuana in the defendant’s residence. The defendant’s own girlfriend confirmed that Lawrence had been in the defendant’s house. Lawrence also stated that the defendant had sold drugs at the house for the last six years and that he had bought illegal drugs from the defendant. Lawrence’s statements that he had personally bought illegal drugs from the defendant, that he had burglarized the defendant’s home, and that he had illegally forged and negotiated a check were declarations against penal interest and support a finding that his statements as an eyewitness were reliable. (See United States v. Harris (1971), 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075.) Under the circumstances, we conclude that there were sufficient facts to establish that there was a fair probability that evidence of a crime would be found at the defendant’s residence. Accordingly, we find that the warrant was properly issued.

The defendant further argues that the delay from the time that Lawrence observed the cannabis until the time that the warrant was issued and executed negated the existence of probable cause.

We disagree. There is no hard and fast rule concerning the time within which a search warrant should be made, except that it should not be too remote. (People v. Montgomery (1963), 27 Ill. 2d 404, 189 N.E.2d 327.) Moreover, if the defendant is engaged in a continuing course of conduct, it is a factor supporting the validity of the warrant. People v. Rehkopf(1987), 153 Ill. App. 3d 819, 506 N.E.2d 435.

Here, the informant alleged that the defendant had been selling drugs for the past six years. It was reasonable to assume that this was an ongoing process and that the items mentioned by Lawrence would still be located at the defendant’s residence. The 15-day delay from the time that the contraband was first observed was not unreasonable.

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

Affirmed.

GORMAN and McCUSKEY, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McCULLOUGH

license: Public Domain

text:
    CONSOLIDATED FREIGHTWAYS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Richard Yeruski, Appellee).
    Third District (Industrial Commission Division)
    No. 3—90—0772WC
    Opinion filed November 3, 1992.

      Michael E. Rusin, of Stevenson, Rusin & Friedman, Ltd., of Chicago, for appellant.
    Kenneth R. Given, of Krol, Bongiorno & Given, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant suffered a compensable back injury and was awarded permanent partial disability by the Industrial Commission (Commission) to the extent of 20% under the “man as the whole” provision of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(d)(2)). In addition, the Commission refused to grant respondent Consolidated Freightways a credit against the award for a 15% “man as the whole” settlement claimant received for a prior back injury he suffered to the same disc location. On appeal, respondent contends the Commission’s failure to take into account or grant it a credit for the prior injury, as well as the Commission’s determination of the extent of claimant’s permanent disability, is in error. Taken with the case is a motion by claimant to dismiss the appeal and to quash summons in the circuit court for lack of subject-matter jurisdiction.

The evidence reveals that claimant, a dock hand, was employed by respondent on March 17, 1987, when he injured his lower back moving a heavy box. These injuries resulted in a laminectomy performed by Dr. Elwood, who released claimant to return to work at the end of August 1987.

Claimant acknowledged that in 1984 he suffered an employment-related back injury to the same region of his spine and was treated by chymopapain injection. After seven months of recuperation, claimant returned to work and continued as a dock hand for the next three years without further back problems or medical treatment prior to his current injury.

Following his most recent surgery, claimant testified he has been advised not to engage in running or swimming and still has problems with his lower back, although he worked for respondent as a dock hand for approximately one year prior to arbitration. Claimant stated that weather, including extreme heat or cold, causes his back to hurt and he is exposed to such changes in the elements because he works out of doors. Although exercise was suggested, claimant stated he could not perform the routines because of pain. In addition, claimant has problems sleeping for more than an hour or two and uses a special bed.

Medical reports of various treating and examining physicians were admitted. With respect to claimant’s 1984 injury, this evidence tended to show that prior to the spinal injection, claimant demonstrated symptoms of a bulging disc and had straight-leg positive reactions, principally on the left side, at 75 degrees. Little or no defect was shown on claimant’s right side. Subsequent to the injection, a post-operative release report suggested claimant was 75% improved and his forward flexion at that time was 60 degrees with tightness appearing in the straight-leg raise at the 80-degree level on the left side only.

Claimant entered a workers’ compensation settlement agreement with respondent for his 1984 injury for which he received, in part, 15% permanent disability for loss under the “man as a whole” provision of section 8(d)(2) of the Act.

Concerning claimant’s 1987 injury, Dr. Elwood’s medical reports were admitted into evidence. Following surgery, Elwood found claimant was able to flex forward to the 80-degree mark and had slight restrictive lumbar flexion at the 70-degree level. Claimant also complained of some leg discomfort but, in Elwood’s opinion, had recovered excellently from the laminectomy and was able to return to work.

Approximately one month prior to arbitration, claimant was examined independently by Dr. Dupre and Dr. Ludwig who were, respectively, respondent’s and claimant’s examining physicians.

Dr. Dupre found claimant had forward flexion to a full 90 degrees without complaint of pain. Claimant also performed the straight-leg raise, again to 90 degrees, without complaint. In a supine position, claimant was able to complete the straight-leg raise on the left side to 80 degrees without difficulty. Based on his tests, Dupre found no sciatic condition and no objective signs of any impairment.

In contrast, Dr. Ludwig examined claimant and reviewed X rays. According to Ludwig, the X rays revealed bone spurs and a general flattening of the disc space at the L5-S1 level, both of which were consistent with the prior laminectomy. Ludwig found claimant had difficulty in performing heel-to-toe movements and was able to flex forward only to 45 degrees without discomfort. Claimant also exhibited backward flexion of only 5 degrees (with normal being 35 degrees) and lateral flexion on both sides of only 15 degrees (with normal being 40 degrees). Finally, Ludwig noted a significant discrepancy in straight-leg-raise test results with claimant exhibiting pain at 35 degrees on the right side and 25 degrees on the left side. Ludwig concluded claimant suffered from marked sciatic nerve damage.

In reviewing the evidence, the arbitrator acknowledged that although the initial chemonucleolysis had successfully resolved claimant’s back condition following his 1984 accident, the myelogram performed subsequent to the second injury revealed a herniated disc at the L5-S1 level with amputation of both the left S-l and right S-2 nerve roots. These conditions were substantiated during the course of surgery. In light of the significant surgical findings, the arbitrator found that Dr. Dupre’s conclusion that there was no objective evidence of current disability was not credible and awarded claimant 20% “man as the whole” permanent disability, based on Dr. Ludwig’s opinions. The arbitrator expressly denied respondent a credit toward its current liability for the prior 1984 settlement award. The Commission affirmed the arbitrator and the circuit court confirmed the Commission on further review by respondent.

Initially, we address claimant’s motion to dismiss for lack of subject-matter jurisdiction because respondent’s attorney executed the statutory bond filed in the circuit court. (See Illinois Armored Car Corp. v. Industrial Comm’n (1990), 205 Ill. App. 3d 993, 563 N.E.2d 951.) Although the supreme court agreed with our ruling in Deichmueller Construction Co. v. Industrial Comm’n (1992), 151 Ill. 2d 413, it nevertheless made the decision prospective only. Therefore, the motion to dismiss is denied.

Respondent next argues that the Commission erred in refusing to consider or credit it with the 15% “man as a whole” settlement award made to claimant for his previous back injury. Relying upon Killian v. Industrial Comm’n (1986), 148 Ill. App. 3d 975, 500 N.E.2d 450, the Commission denied respondent’s request.

In Killian, this court denied an employer credit under section 8(e)(17) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(e)(17)) for previous payments made to claimant for a prior back injury. Claimant had been hospitalized on three separate occasions for work-related injuries to his lower back. A settlement for the first injury included 7½% loss of the use of each leg. An arbitrator subsequently found claimant had sustained 20% partial disability under the “man as a whole” provisions of section 8(d)(2) for the second and third back injuries. The employer sought a reduction in the subsequent section 8(d)(2) award for the second and third injuries in the amount paid for the scheduled injury to claimant for the first accident. This court held that under section 8(e)(17) of the Act an employer can receive a credit for previously paid benefits only when an employee has reinjured a body part or member listed in section 8(e). Because the “back” is not listed as a “member” under section 8(e), the employer’s request for credit was properly denied.

Respondent seeks to distinguish our holding in Killian on its facts. There, respondent points out, benefits were originally awarded for a leg, a scheduled “member” under section 8(e), whereas the second award was for “man as a whole” injuries. In this case, respondent argues that because the injury in both accidents was to precisely the same body part, a credit, or at least consideration, should be given by the Commission for the prior award in determining benefits for the current injury. Respondent relies upon the rationale articulated in General Motors Corp. v. Industrial Comm’n (1975), 62 Ill. 2d 106, 338 N.E.2d 561, in which it was stated that a permanent total or partial loss of use for which compensation has been paid shall be credited in any award for a subsequent injury to the same member. We are not persuaded.

Our holding in Killian was predicated upon the fact that a “back” is not a listed body part or member under section 8(e) of the Act. It is, therefore, immaterial whether the same area of claimant’s back was injured in both accidents. Moreover, in Killian this court expressly stated it was adhering to the admonishment in Freeman United Coal Mining Co. v. Industrial Comm’n (1984), 99 Ill. 2d 487, 459 N.E.2d 1368, that the statutory provisions for credit should be interpreted narrowly and should not be extended by implication. We concluded:

“ ‘ “Whether or not the legislature is correct in awarding more compensation for one type of injury rather than another is not for the court to say. As was said in Sampson v. Industrial Com., 33 Ill. 2d 301, the legislature ‘has wide discretion in the exercise of the police power and absolute uniformity of treatment for injuries is impossible.’ ” ’ Weast Construction Co. v. Industrial Com. (1984), 102 Ill. 2d 337, 341, quoting Koesterer v. Industrial Com. (1970), 45 Ill. 2d 383, 385-86.” (Killian, 148 Ill. App. 3d at 979, 500 N.E.2d at 453.)

Thus, the distinction that respondent attempts to draw between the facts of this case and Killian is without substance. Since a “back” is not an enumerated “member” under section 8(e), no credit is due respondent because of a prior injury, irrespective of whether the current injury is to the exact same area of the back.

Respondent also contends that our decision produces an absurd result because the failure to consider prior injuries, whatever their nature, and to grant credit for benefits paid might amount to awarding cumulative percentages which exceed 100% of the statutory maximum of 500 weeks permitted for “man as the whole” benefits. This argument is without merit.

Under section 8(d)(2) of the Act, an employee may receive compensation for that percentage of 500 weeks that the partial disability resulting from the injuries bears to the total disability. (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(d)(2).) Claimant argues that if no credit is available to an employer, an employee who suffers successive back injuries may be awarded compensation in excess of the total permitted by statute.

We perceive several difficulties with respondent’s theory. In the first instance, since the cumulative award for both injuries in this case does not exceed 100% of 500 weeks, respondent’s argument is, at best, hypothetical. Moreover, this exact argument was rejected by this court in Killian when, assuming arguendo the result was absurd, we concluded that the legislature could distinguish between the compensation awarded for different types of injuries and it was not for this court to determine whether the legislature was correct in doing so.

Finally, we are not persuaded that the hypothetical situation respondent describes would necessarily produce an absurd result. We note that Professor Larson has observed:

“The capacities of a human being cannot be arbitrarily and finally divided and written off by percentages. The fact that a man has once received compensation as for 50 percent of total disability does not mean that ever after he is in the eyes of compensation law but half a man, so that he can never again receive a compensation award going beyond the other 50 percent of total. After having received his prior payments, he may, in future years, be able to resume gainful employment. In the words of the Colorado court, he may have resumed employment as a ‘working unit.’ If so, there is no reason why a disability which would bring anyone else total permanent disability benefits should yield him only half as much. A similar principle may be applied to an individual member that has been restored in whole or in part.” (2 A. Larson, Workmen’s Compensation Law §59—42(g)(3), at 10-594 through 10-599 (1992).)

Contrary to the view held by respondent, i.e., that it would be absurd to permit successive injuries to cumulatively exceed more than 500 weeks of benefits, is the argument that it might be unreasonable not to allow such accumulation. On this record and based on the precedent of Killian, the Commission did not err in determining respondent was not entitled to the benefit of or credit for the prior settlement award.

Respondent’s final argument is that the Commission’s determination that claimant suffers from a current 20% disability is against the manifest weight of the evidence. In respondent’s view, claimant’s current physical condition has improved over that which existed after his first accident and, therefore, it is contended he has not demonstrated an increase in disability.

In support, respondent relies upon selectively chosen bits of medical evidence, initially pointing to a discharge report from the surgeon who treated claimant’s 1984 injury and found, at the time of claimant’s release, that he had forward flexion to about 60 degrees with a straight-leg raise positive on the left side at 80 degrees and negative on the right side. Jumping forward, respondent points to Dr. Elwood’s final report prepared upon claimant’s release to return to work after his laminectomy, at which time Elwood found forward flexion to be 80 degrees with lumbar flexion to 70 degrees. Finally, respondent concludes by citing the report of its examining physician, Dr. Dupre, who concluded plaintiff suffered from no objective signs of impairment based on normal forward flexion and straight-leg-raise test results.

In opposition, claimant points to the fact that whatever the extent of his injury in 1984, it apparently resolved itself following treatment as claimant was able to return to work without further disability or medical treatment for three years prior to his second injury. Claimant does not dispute the findings of Dr. Elwood following the laminectomy, but offers the report of his examining physician, Dr. Ludwig, who found substantial discrepancies in claimant’s physical abilities one year after Elwood released him to return to work. In addition to these abnormal examination findings by Ludwig were his impressions of the X rays which revealed bone spurs and compression of the affected disc area consistent with the results of the laminectomy which repaired the herniated disc and amputated nerve roots. It is also undisputed that claimant’s current injury affects both his left and right side while his original injury was confined principally to the left side. Finally, claimant testified to continuing pain, including an inability to exercise, run or swim, and a problem sleeping for which he uses a special bed.

It is the province of the Commission to determine the nature and extent of an employee’s disability, particularly where conflicting medical evidence is presented. (Peavey Co. Flour Mills v. Industrial Comm’n (1976), 64 Ill. 2d 252, 356 N.E.2d 36; Wallace v. Industrial Comm’n (1983), 98 Ill. 2d 33, 455 N.E.2d 92.) The Commission’s determination on this issue will be disturbed only if it is against the manifest weight of the evidence. Bishop v. Industrial Comm’n (1980), 78 Ill. 2d 315, 399 N.E.2d 1326.

Dr. Ludwig’s findings are neither inherently inconsistent nor so grossly at variance with the other medical evidence presented to the Commission that his findings must be rejected. Claimant’s 1984 back condition had, by all accounts, resolved itself and was not a factor three years later when he suffered his current injury. Moreover, the fact that Dr. Elwood found claimant to be in a substantially improved condition following surgery for the second accident does not necessarily entail that claimant enjoyed that same condition one year later when he was examined by Dr. Ludwig. In fact, Dr. Elwood’s description of claimant’s improved condition was tempered by his additional finding that claimant continued to experience discomfort in his legs and had not returned to full range of motion even upon his release to return to work. This evidence is consistent with claimant’s direct testimony that his back problems continued following his laminectomy despite his ability to work.

The extent of claimant’s disability was, therefore, a question of fact for the Commission to determine and its decision to accept the findings and opinions of Dr. Ludwig to the exclusion of those of Dr. Dupre is not against the manifest weight of the evidence.

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

Affirmed.

RAKOWSKI, WOODWARD, STOUDER and LEWIS, JJ., concur.


author: PRESIDING JUSTICE BARRY JUSTICE SLATER,

text:
      In re FORFEITURE OF ONE 1991 HARLEY DAVIDSON MOTORCYCLE, VIN No. 1HD1BML17MY030919 (The People of the State of Illinois, Petitioner-Appellant, v. Robert E. Siddens, Respondent-Appellee).
    Third District
    No. 3—92—0020
    Opinion filed November 5, 1992.

      SLATER, J., dissenting.
    Gary L. Spencer, State’s Attorney, of Morrison (John X. Breslin and James L. Overholt, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The State filed a petition seeking forfeiture of respondent Robert E. Siddens’ 1991 Harley Davidson motorcycle (Ill. Rev. Stat. 1991, ch. 56½, par. 1676). The trial court denied the petition. The State appeals.

Initially, we note that Siddens has not submitted an appellee’s brief. Nevertheless, since the record is simple and we can easily decide the disputed errors without an appellee’s brief, we shall decide the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

At .the hearing on the State’s petition, Illinois State Police Investigator J. Gary Cooper testified that on July 26, 1991, he observed Steven Wessells driving the motorcycle in question. Cooper stopped and arrested Wessells because his driver’s license had been revoked. During the subsequent search of Wessells’ person, Cooper found 1.7 grams of cocaine. Later, the title to the motorcycle was found in a safe in the motel room that Wessells used as his residence. The title was in Robert E. Siddens’ name. Cooper subsequently learned that Siddens had purchased the motorcycle for cash on June 13, 1991.

Sergeant Nathan Tillman Fry of the Fulton police department testified that he questioned Wessells on July 26, 1991, after Wessells was given his Miranda warnings. Wessells told Fry that he was holding Siddens’ motorcycle as collateral for a cocaine debt Siddens owed him. According to Wessells, Siddens had purchased cocaine from him on July 25 and 26, 1991.

Fry further testified that while he interviewed Siddens, he told Siddens that Wessells had already told him why he had the motorcycle and about the cocaine debt. Siddens admitted that Wessells was holding his motorcycle for two “eight balls” of cocaine worth $320. Sid-dens also admitted that Wessells had once left Siddens’ residence on Siddens’ motorcycle to get an additional eight ball of cocaine for him. Fry further testified that Siddens first told him that Wessells returned on Siddens’ motorcycle with a third quantity of cocaine, but later told Fry that Wessells had returned on another motorcycle to deliver the cocaine. Siddens stated that his total debt for the cocaine was $420.

At the hearing, Siddens testified that he gave Wessells the motorcycle as collateral for the cocaine debt. He stated that he was cooperative with Fry because Fry told him that he would try to help him keep his motorcycle. Siddens also admitted that he was serving a period of home confinement at the time that he made the cocaine purchases, but refused to admit that he was violating his confinement by being out of his home.

The trial judge subsequently dismissed the forfeiture petition, finding that the motorcycle was exempt from forfeiture under section 8 of the Drug Asset Forfeiture Procedure Act (Forfeiture Act) (Ill. Rev. Stat. 1991, ch. 56½, par. 1678(A)(i)). In his memorandum opinion the trial judge noted that Siddens himself had violated the law by possessing cocaine. However, the trial judge concluded that Siddens was not legally accountable for Wessells’ conduct of possessing cocaine while committing a traffic offense. We note that the trial judge did not address the charge in this case which was based on Siddens’ admission that he had allowed Wessells to hold the motorcycle as collateral for Siddens’ $470 cocaine debt. The State appeals the trial judge’s ruling.

The purpose of the Forfeiture Act is to provide for the attachment of property which is used or intended to be used in, or is attributable to, or facilitates the manufacture, sale, transportation, distribution, possession, or use of a substance in violation of the Controlled Substances Acts, in order to deter the abuse and trafficking of such substances. (Ill. Rev. Stat. 1991, ch. 56½, par. 1672.) The relevant portion of section 8 of the Forfeiture Act provides that personal property is exempt from forfeiture if its owner establishes by a preponderance of the evidence that he is not legally accountable for the conduct giving rise to the forfeiture, did not acquiesce in it, and did not know and could not reasonably have known of the conduct or that the conduct was likely to occur. (Ill. Rev. Stat. 1991, ch. 56½, par. 1678(A)(i).) On review, an appellate court will not reverse a trial court’s order regarding forfeiture unless the ruling is against the manifest weight of the evidence. People v. Strong (1986), 151 Ill. App. 3d 28, 502 N.E.2d 744.

In the instant case, we find that the trial judge’s order was against the manifest weight of the evidence. The evidence at trial established that Siddens first gave his motorcycle to Wessells as collateral for his cocaine purchase. Siddens admitted that Wessells used the motorcycle to get cocaine for him, and perhaps deliver the cocaine to him as well. Moreover, Wessells told Fry that he had sold cocaine to Siddens on both the day before and the day of the arrest. Obviously, Siddens knew that Wessells was a drug dealer. Therefore, Siddens knew, or would have reasonably known, that Wessells would be likely to transport drugs while using Siddens’ motorcycle and therefore acquiesced in and facilitated drug trafficking. Consequently, Siddens did not prove by a preponderance of the evidence that the motorcycle was exempt from forfeiture under the terms of the Forfeiture Act. Accordingly, we find that Siddens’ motorcycle was subject to forfeiture and reverse the trial judge’s order.

For the foregoing reasons, the judgment of the circuit court of Whiteside County denying the forfeiture petition is reversed.

Reversed.

HAASE, J., concurs.

JUSTICE SLATER,

dissenting:

I respectfully dissent.

The majority finding that the trial judge’s ruling is against the manifest weight is unwarranted. While Siddens gave the motorcycle to Wessels as collateral for a cocaine debt on July 25, that is not the basis for the forfeiture. The forfeiture is premised on Wessels’ operation of the vehicle while in possession of 1.7 grams of cocaine on July 26. Wessells’ possession of cocaine at that time was not part of his deliveries to Siddens.

A reasonable conclusion from the evidence in the case at bar is that Siddens did not acquiesce in, did not know or could not have reasonably known that Wessels would transport or be likely to transport drugs using Siddens’ motorcycle. Siddens was, in my opinion, not legally accountable for Wessels’ conduct giving rise to the forfeiture.

Accordingly, I would affirm the judgment of the circuit court of Whiteside County denying the forfeiture petition.


author: JUSTICE McCUSKEY JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH REED, Defendant-Appellant.
    Third District
    No. 3—92—0128
    Opinion filed December 3, 1992.
    STOUDER, J., concurring in part and dissenting in part.
    James Hatcher, of Hatcher & Rose, of Peoria, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island, and Raymond L. Beck, of Chicago (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Kenneth Reed, pleaded guilty to unlawful possession of a controlled substance and was sentenced to two years’ probation (Ill. Rev. Stat. 1991, ch. 56½, par. 1402(b)). His probation was later revoked and he was sentenced to an extended term of five years’ imprisonment. Reed appeals his sentence.

The record reveals that in January of 1991, Reed pleaded guilty to theft in a separate case in Mercer County. In September of 1991, he pleaded guilty to the instant offense in Rock Island County and was sentenced to two years’ probation. In December of 1992, the State moved to have Reed’s probation revoked because he had violated various terms of his probation. Following a hearing, the trial court granted the State’s motion and ordered that Reed be sentenced to an extended term of five years’ imprisonment in the Department of Corrections. The trial court further ordered that this sentence was to be served consecutively to any time in custody imposed in the Mercer County theft case, which was numbered 90—CF—30. At the time the instant sentence was imposed, no sentence had been imposed in the Mercer County theft case.

On appeal, Reed contends that his Rock Island County sentence should be reversed and this cause remanded for resentencing or, alternatively, that his sentence be modified so that it would no longer be consecutive to his sentence in the Mercer County theft case.

In support of his request, Reed argues that sentences of imprisonment may not be made consecutive to other sentences not yet imposed,. We agree.

Reed bases his arguments on People v. Dennison (1948), 399 Ill. 484, 78 N.E.2d 232. In Dennison, the supreme court noted that a judgment order which fails to clearly define the limits of sentences intended to run consecutively should be remanded for the imposition of a proper sentence.

The State responds that sentences ordered to run consecutively to anticipated sentences for parole revocations have been upheld as sufficiently complete when the case number of the parole revocation is in the record. People v. Starnes (1980), 88 Ill. App. 3d 1141, 411 N.E.2d 125; People v. Covington (1981), 92 Ill. App. 3d 598, 416 N.E.2d 61; People v. Freeman (1981), 95 Ill. App. 3d 297, 420 N.E.2d 163; see People v. Akers (1985), 137 Ill. App. 3d 922, 484 N.E.2d 1160.

We initially note that the cases cited by the State all involve situations where sentences were imposed consecutively to parole violations. As was noted in Freeman, the essential basis for the holdings in those cases was that the defendants had been previously sentenced and those sentences had not been expunged or altered.

Here, no sentence had been entered in the Mercer County theft case. Therefore, the sentence in the instant appeal should not have been made consecutive to a sentence which had not yet been imposed in the Mercer County case. Accordingly, we remand this cause for resentencing.

The- sentencing order of the circuit court of Rock Island County is vacated, and the cause is remanded for further proceedings.

Vacated and remanded.

GORMAN, J., concurs.

JUSTICE STOUDER,

concurring in part and dissenting in part:

I agree with my colleagues the trial court erred in imposing a sentence to be served consecutively with another sentence when, in fact, no other sentence had been as yet imposed.

My disagreement is with the conclusion the case should be remanded for resentencing. I believe that consistent with our holding all that is required is to vacate that portion of the sentence and mittimus referring to another offense for which no sentence has been imposed. This would leave in effect a determinate sentence for the crime before the trial court, which is all that was warranted at the time of sentence. There is no legal support for the imposition of a sentence affecting or binding a trial court in imposing a penalty for a subsequent sentence.

To the extent that the majority of the court implies the trial court may now impose a sentence which it could not have done at the time of the original sentence, it conveys the wrong message. I see no reason for not taking that course of action which would result in the imposition of a sentence which the trial court could and should have imposed at the time of original sentencing. By vacating the improper portion of the sentence, the valid interest of all parties concerned would be amply justified.


author: JUSTICE SLATER

text:
    J M B PROPERTIES URBAN COMPANY, Plaintiff-Appellant, v. ALFRED L. PAOLUCCI, d/b/a Paolucci Jewelers, Defendant-Appellee and Counter-plaintiff and Counterdefendant-Appellee (Carlyle Real Estate Limited Partnership XIV, Counterdefendant and Counterplaintiff-Appellant).
    Third District
    No. 3—92—0101
    Opinion filed November 3, 1992.

      Fatten, Muchin & Zavis, of Chicago (James E. Hanlon, Jr., and Nemia B. Lebrilla, of counsel), for appellants.
    Charles E. Lab, of Shorewood, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiffs, J M B Properties Urban Company (JMB) and Carlyle Real Estate Limited Partnership XIV (Carlyle), sued defendant, Alfred Paolucci, for recovery of unpaid rent and other damages resulting from defendant’s breach of a commercial lease. The trial court found that defendant had been constructively evicted, and plaintiffs appeal. Because we find that defendant waived any claim of constructive eviction, we reverse and remand.

Defendant opened a jewelry store in the Louis Joliet Mall in Joliet, Illinois, in 1978. Barretts Audio and Video Store (Barretts) moved in next door to defendant in November of 1984. Defendant and Barretts, shared a common wall. In December of 1984, defendant began complaining to then-landlord Homart Development Company about the high level of noise emanating from Barretts. Defendant continued to lodge such complaints periodically until Barretts vacated the mall in February of 1990.

Carlyle purchased the mall in September of 1985 and took an assignment of all outstanding leases from Homart. Carlyle hired JMB to manage the mall, negotiate new leases and collect rent from mall tenants.

In August of 1986, defendant entered into a new six-year lease with Carlyle which required that defendant operate the jewelry store during the entire term of the lease and refrain from operating any similar business within a five-mile radius of the mall. Defendant failed to pay rent for July 1990 and vacated the premises in August 1990, two years prior to the end of the lease. Defendant moved to a new location within a five-mile radius of the mall.

Carlyle and JMB (collectively Carlyle) filed actions against defendant seeking recovery of past-due rent and penalties for violating the lease. Defendant filed a counterclaim seeking declaratory relief, alleging that he had been constructively evicted as a result of Carlyle’s failure to control the excessive noise generated by Barretts. Defendant also filed an affirmative defense alleging that Carlyle had failed to mitigate its damages.

A bench trial was held on October 18, November 22, and December 20, 1991. Several witnesses testified on behalf of defendant concerning the noise emanating from Barretts during their five-year tenancy. Defendant and his employees testified that when Barretts’ employees conducted demonstrations of their stereo equipment the walls of the jewelry store literally shook, causing pictures to rattle on the jewelry store walls. The vibrations caused merchandise in display cases to move or topple over so that the display cases had to be reset almost daily. Defendant testified that Barretts’ employees refused numerous requests to lower the volume. One of defendant’s employees testified that the noise was so loud that at one point she resorted to wearing ear plugs at work. Customers occasionally complained of the noise and at times were unwilling to conduct business in the jewelry store because of the nuisance.

At Carlyle’s direction, Barretts insulated the common wall in an attempt to soundproof it in 1985, but this failed to alleviate the problem. Evidence was presented to show that defendant lost at least some profits as a result of the noise because he was unable to perform intricate repair work on watches and jewelry. Defendant lodged approximately 500 complaints with the mall management during the course of Barretts’ 5x/2-year tenancy. Despite the defendant’s numerous complaints, and despite the fact that each call was responded to by Carlyle, the excessive noise problem continued throughout Barretts’ tenancy.

Robert Allen, the mall manager, testified on behalf of Carlyle. He stated that he personally responded to approximately 50 of the 500 complaints lodged by defendant. He stated that he never heard any excessive noise coming from Barretts. He stationed plainclothes security officers in front of Barretts during peak sales periods in 1988. No excessive noise was heard. No other stores ever complained about noise from Barretts. In Allen’s opinion, defendant’s complaints were unreasonable.

Tommy Cockrel, assistant security director at the mall, testified that he responded to approximately 11 of defendant’s complaints each week and never heard any significant noise.

After hearing the evidence and the arguments of counsel, the court held that defendant had been constructively evicted, and awarded back rent to Carlyle only for the two months during which defendant remained in possession of the premises without paying rent. The court also found that Carlyle failed to take reasonable measures to mitigate its damages.

On appeal, Carlyle contends that the trial court erred in finding that the noise emanating from Barretts was sufficient to amount to a constructive eviction. A constructive eviction results from a landlord’s failure to keep the premises in a tenantable condition. (R N R Realty, Inc. v. Burlington Coat Factory Warehouse of Cicero, Inc. (1988), 168 Ill. App. 3d 210, 522 N.E.2d 679.) Untenantability exists when the interference with occupancy is of such a nature that the property cannot be used for the purpose for which it was rented. R N R Realty, 168 Ill. App. 3d at 219, 522 N.E.2d at 685.

We need not address the question of whether the noise was sufficient to render the premises untenantable because we find that defendant waived any claim of constructive eviction by remaining on the premises for an unreasonable length of time after the rise of the untenantable condition. Constructive eviction cannot exist where the tenant does not surrender the property. (First National Bank v. Sousanes (1981), 96 Ill. App. 3d 1047, 422 N.E.2d 188.) Following a constructive eviction, the tenant is not required to vacate the premises immediately, but is entitled to a reasonable time to do so. (Dell’Armi Builders, Inc. v. Johnston (1988), 172 Ill. App. 3d 144, 526 N.E.2d 409.) The tenant bears the burden of proving that he did abandon the premises within a reasonable time after the untenantable condition occurred. (Automobile Supply Co. v. Scene-In-Action Corp. (1930), 340 Ill. 196, 172 N.E. 35.) If the tenant fails to vacate within a reasonable time, the tenant is considered to have waived the landlord’s breach of covenant. (Dell’Armi Builders, Inc., 172 Ill. App. 3d at 149, 526 N.E.2d at 412; Automobile Supply Co., 340 Ill. at 203.) The reasonableness of a delay is generally a question of fact. Automobile Supply Co., 340 Ill. at 204-05.

The untenantable condition in this case first arose in December of 1985. Defendant remained on the leasehold premises until August of 1990, nearly five years after the condition arose and six months after Barretts moved out of the mall. Defendant claims that he remained on the premises for six months after Barretts left because his new store was still under construction. We realize that one factor to be considered in determining the reasonableness of the delay is the time required to find a new location. (American National Bank & Trust Co. v. Sound City, U.S.A., Inc. (1979), 67 Ill. App. 3d 599, 385 N.E.2d 144.) Even if the last six months of defendant’s occupancy could be excused on this basis, defendant fails to explain why he tolerated the alleged untenantable condition for more than four years. Defendant cites no case, and our research reveals none, where a delay of this length was excused. The trial court relied on American National Bank & Trust Co. v. Sound City, U.S.A., Inc. (1979), 67 Ill. App. 3d 599, 385 N.E.2d 144, in finding the delay in this case to be reasonable. However, in that case the constructively evicted tenant remained in possession of the leased premises for only three months.

We also note that defendant entered into a new six-year lease with Carlyle in 1986, nearly two years after Barretts moved in and after defendant threatened to sue Barretts in March of 1985. While defendant claims that he received assurances from Carlyle before he signed the new lease that the noise problem would be taken care of, we believe the fact that defendant had an opportunity to leave the mall in 1986 but instead chose to remain and enter into a new six-year lease is a factor to be considered in our determination of the reasonableness of the delay in this case. In light of the above facts, we find the trial court’s determination that defendant did not waive his claim of constructive eviction to be against the manifest weight of the evidence.

We also find that the trial court’s determination that Carlyle failed to mitigate the damages caused by defendant’s default was against the manifest weight of the evidence. Section 9—213 of the Code of Civil Procedure provides:

“After January 1, 1984, a landlord or his or her agent shall take reasonable measures to mitigate the damages recoverable against a defaulting lessee.” (Ill. Rev. Stat. 1989, ch. 110, par. 9-213.1.)

The statute does not define “reasonable measures to mitigate.” The only case which has interpreted this section involved a situation where a landlord sought a higher rent after default and failed to relet the demised premises. (American National Bank & Trust Co. v. Hoyne Industries, Inc. (N.D. Ill. 1990), 738 F. Supp. 297.) The court in Hoyne Industries held that it is a fact question whether attempts to relet at higher rental rates constitute reasonable efforts to mitigate damages. Hoyne Industries, 738 F. Supp. at 302; see also MBC, Inc. v. Space Center Minnesota, Inc. (1988), 177 Ill. App. 3d 226, 532 N.E.2d 255 (finding efforts to mitigate unreasonable under facts similar to Hoyne Industries, although decided as a matter of common law and lease construction rather than under section 9—213.1).

The statute was enacted to require landlords to make reasonable efforts to relet premises vacated by defaulting tenants rather than allowing property to stand vacant and collecting rent in the form of damages. Carlyle not only made reasonable efforts to relet the premises vacated by defendant, but did in fact relet the premises to the first available tenant within seven months of defendant’s departure. In April of 1991, Carlyle relet the premises to Everything’s a Dollar discount store (Dollar). Carlyle relet this space prior to leasing other available spaces in the mall.

Defendant claims that reletting to Dollar was a failure to mitigate damages because Carlyle relet the premises for one-half the amount of rent which defendant paid. Reletting an abandoned space for a rent less than that paid by the defaulting tenant does not constitute a per se failure to mitigate damages. Carlyle points out that it could not charge Dollar as much as it had charged defendant because a discount store generates sales at a much lower rate per square foot than a jewelry store. If Carlyle had not relet to Dollar, the premises may have remained vacant, resulting in no mitigation of damages at all. This is not a case where a landlord simply opted to let abandoned property remain vacant and collect rent in the form of damages from a defaulting tenant. Carlyle actively sought and obtained a suitable replacement tenant to occupy the vacant space. This was certainly a reasonable attempt to mitigate the damages caused by defendant’s default.

Defendant also argues that reletting to Dollar was a failure to mitigate because, in light of Dollar’s lease provision which calls for percentage rent based on sales, the actual amount of rent Dollar will pay during defendant’s lease period is too speculative to calculate. Proof of damages is an issue separate and apart from the reasonableness of Carlyle’s efforts to mitigate. Moreover, we note that the amount by which Carlyle’s damages have been mitigated should be readily apparent on remand. By the time the issue of damages is decided, the amount of rent paid by Dollar through the duration of defendant’s lease agreement should largely be a matter of record.

In summary, we find that defendant waived any claim of constructive eviction by failing to vacate the demised premises within a reasonable time after the rise of the untenantable condition. Defendant therefore breached the lease by abandoning the premises, failing to pay rent and moving to another location within five miles of the mall. We also find that Carlyle took reasonable measures to mitigate its damages. This cause is remanded to the circuit court for a determination of the amount of damages to which Carlyle is entitled.

Reversed and remanded.

BARRY, P.J., and HAASE, J., concur.


author: JUSTICE HAASE

text:
    MARTIN R. WILLIAMS, Plaintiff-Appellant, v. PAUL J. KLINCAR, Chairman, Illinois Prisoner Review Board, Defendant-Appellee.
    Third District
    No. 3—91—0809
    Opinion filed November 13, 1992.

      Martin Williams, of Galesburg, appellant pro se.

    Roland W. Burris, Attorney General, of Springfield (Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Martin R. Williams, appeals from the trial court’s denial of his petition for writ of mandamus. We reverse the trial court’s decision and remand this cause for proceedings consistent with this opinion.

The record shows that the plaintiff asked the clinical services supervisor of the Hill Correctional Center for a copy of his parole progress report. This report contained information used by the Illinois Prisoner Review Board (Board) in determining the plaintiff’s eligibility for parole. The Board denied his request, finding that the information requested was exempt from disclosure. The plaintiff appealed this decision to the Chairman of the Board, defendant Paul J. Klincar.

Following Klincar’s denial of his appeal, the plaintiff filed a petition for writ of mandamus with the circuit court of Knox County requesting that the Board be ordered to release the information. He argued that he was entitled to the information under the Freedom of Information Act (Act) (Ill. Rev. Stat. 1991, ch. 116, par. 201). In addition, he noted that the Board’s rules and regulations stated that “[a] parole candidate shall have access to all documents which the Board considers in denying parole.” 20 Ill. Adm. Code §1610.40 (1985); see also Etten v. Lane (1985), 138 Ill. App. 3d 439, 485 N.E.2d 1177; Walker v. Prisoner Review Board (7th Cir. 1982), 694 F.2d 499.

In response, the defendant filed a motion to dismiss, arguing that the information the plaintiff sought was specifically exempt from disclosure under section 7(a) of the Act (Ill. Rev. Stat. 1991, ch. 116, par. 207(a)) and section 1610.30(b) of the Board’s rules and regulations (20 Ill. Adm. Code § 1610.30(b) (1991)).

At the hearing, it was determined that the rules and regulations were amended on October 10, 1985, and now provide:

“(b) Access to Records by the Inmate
1) The inmate shall have access to all evidence considered by the Board unless the evidence is specifically found to:
A) Include information which, if disclosed, would damage the therapeutic relationship between the inmate and a mental health professional;
B) Subject any person to the actual risk of physical harm.
C) Threaten the safety or security of the Department or an institution.” 20 Ill. Adm. Code §1610.30(b) (1991).

Relying on this change and an affidavit filed by the defendant, the trial court denied the plaintiff’s motion. The defendant’s affidavit stated in relevant part that “all documents considered by the Board in its parole consideration are provided to him at his file review, except for those found to be specifically exempted by section 1610.30(b) of Board Rules. Some documents in his file are considered to be exempt under the Rules.”

On appeal, the plaintiff first argues that the amendment to section 1610.30(b) constitutes an ex post facto law. He contends that the change deprives him of a substantial right that was previously afforded him.

The application of a new parole provision to an inmate constitutes ex post facto punishment only if the new law constricts the inmate’s opportunity to earn early release and thereby makes more onerous the punishment for crimes committed before its enactment. (Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576.) However, the ex post facto prohibition has no application to changes which are merely procedural and which do not disadvantage the inmate in a substantial right. Hanrahan v. Klincar (1988), 167 Ill. App. 3d 464, 521 N.E.2d 583.

In the case at hand, we note that the plaintiff was incarcerated prior to 1985. However, we find that the changes made to the section in question were merely procedural. As our resolution of the next issue makes clear, there are sufficient safeguards in the law which insure that the plaintiffs substantial rights are protected. Accordingly, we find no violation of the ex post facto prohibition.

We now consider the issue of whether the court erred in failing to require the State to prove that the material in question was actually exempt from disclosure. The plaintiff, pursuant to section 7(a) of the Act, sought disclosure of “any and all progress reports submitted to the Board via Clinical services, objection letters from the victim’s relatives or friends, and any and all objection letters submitted to the Board by the State which conclusively beyond any reasonable doubt contain erroneous information.”

Section 7(a) of the Act provides that any information specifically prohibited from disclosure by Federal or State law or rules and regulations shall be exempt from inspection or copying. (Ill. Rev. Stat. 1991, ch. 116, par. 207(a).) As previously mentioned, section 1610.30(b) of the Board’s rules and regulations specifically prohibits the disclosure of certain information. Based on these statutes, the trial court denied the plaintiff’s petition. Because of the facts of this case, however, we find this decision to be erroneous.

Under the Act, in any action considered by the court, the court shall consider the matter de novo, and shall conduct such in camera examination of the requested records as it finds appropriate to determine if such records or any part thereof may be withheld under any provision of the Act. The burden shall be on the public body to establish that its refusal to permit public inspection or copying is in accordance with the provisions of the Act. (Ill. Rev. Stat. 1991, ch. 116, par. 211(f).) To meet this burden and to assist the court in making its determination, the agency must provide a detailed justification for its claim of exemption, addressing the requested documents specifically and in a manner allowing for adequate adversary testing. (Antonelli v. Drug Enforcement Administration (7th Cir. 1984), 739 F.2d 302.) When an agency meets its burden by means of affidavits, in camera review is not necessary. However, the affidavits will not suffice if the agency’s claims are conclusory, merely recite statutory standards, or are too vague or sweeping. Baudin v. City of Crystal Lake (1989), 192 Ill. App. 3d 530, 548 N.E.2d 1110.

In the case at hand, the defendant submitted an affidavit which we find to have been merely conclusory. The defendant did not provide a detailed justification for his claim of exemption. Instead, he just stated that the material was exempt under section 1610.30(b) of the Board’s rules and regulations. He did not even detail which section of 1610.30(b) he considered the material to be exempt under. In short, the defendant stated that the material was exempt because he said it was exempt.

We find that the affidavit was completely inadequate to sustain the defendant’s burden of proof. As such, we remand this case to the trial court and direct the court to conduct an in camera inspection to determine if the material fits within one of the statutory exemptions.

Finally, we address the defendant’s contention that the plaintiff is precluded from the relief he seeks. The defendant argues that the plaintiff improperly filed a petition for writ of mandamus instead of a petition for injunctive or declaratory relief as required by section 11(a) of the Act. See Ill. Rev. Stat. 1991, ch. 116, par. 211(a).

We find the defendant’s argument to be waived since he failed to raise it below. Furthermore, we note that mandamus is a proper remedy in this case. (See Hanrahan v. Klincar (1988), 167 Ill. App. 3d 464, 521 N.E.2d 583.) Accordingly, the plaintiff is not precluded from relief because of the form of his petition.

The decision of the circuit court of Knox County is reversed and the cause remanded for proceedings consistent with this decision.

Reversed and remanded.

GORMAN and STOUDER, JJ., concur.


author: JUSTICE GORMAN

text:
      In re ESTATE OF GILBERT ROSS, Deceased (James L. Ross et al., Petitioners-Appellants, v. Arthur Kane, Ex’r, et al., Respondents-Appellees).
    Third District
    No. 3—92—0141
    Opinion filed November 13, 1992.
    Massie & Steele, of Galva (Michael E. Massie, of counsel), for appellants.
    Stansell, Critser, Whitman & Hultgren, of Monmouth (Richard L. Whitman, Sr., of counsel), for appellees.
   JUSTICE GORMAN

delivered the opinion of the court:

In this will construction case, plaintiffs, nieces and nephews of testator Gilbert Ross, sought a finding that their uncle’s will was ambiguous and that his intent, as shown by extrinsic evidence, was for his property to pass to his siblings or their descendants. The trial court entered summary judgment for defendants, testator’s surviving siblings, who claimed that the will and the applicable law provide that the entire residuary estate passes only to them in equal parts. We affirm.

On March 5, 1981, Gilbert Ross executed a will, which was drafted with the assistance of an attorney. The will was divided into four articles. In article II, testator bequeathed varying sums of money to each one of his eight siblings. Testator provided that “in the event my sister Cleo Thomas or my brother Robert Vernon Ross are deceased, I direct that the share of said Cleo Thomas shall be distributed to [her named children] *** [and] [i]n the event my brother Robert Vernon Ross is deceased, I direct that the share of said Robert Vernon Ross shall be distributed to [his named children].” Testator’s brother Robert had been dead since 1965 and his sister Cleo had been dead since January 1981. Testator had attended Robert’s funeral and Cleo’s visitation. In article III, testator provided that the residue of his estate be divided in equal shares among his eight individually named siblings.

In 1981, testator’s brother Edgar Ross died; in 1986, his sister Olive Roark died; and in 1987, his sister Hazel Rosenbalm died. In July 1987, testator allegedly handwrote and signed a “Supplement to Last Will and Testament” in which he directed that his savings bonds be

divided as follows:

“Vernon Ross family to get 1 bond $1000
Cleo Thomas family to get 1 bond $1000
Olive Roark family to get 2 bonds $1000 [sic]
Hazel Rosenbalm family to get 2 bonds $2000
Marie Hawk family to get 2 bonds $2000
Norma Hollenberg family to get 1 bond $1000
Marjorie Markley family to get 1 bond $1000
Michel Ross to get 1 bond $1000.”

After testator died, plaintiffs petitioned the court to construe their uncle’s will. The witnesses to the will certified that testator was of sound mind and memory when he signed his will. Marie Hawk and Norma Hollenberg testified that testator was of sound mind and memory when he executed the will. In her deposition, Marie stated that she and Hazel, along with their families, helped testator with his laundry, housework, feeding the livestock, gardening, yard work, and during his several illnesses. Marie, Norma, and Marjorie Markley stated when deposed that those siblings other than Marie and Hazel and their families had little or no contact with testator during the last 10 years of his life. Defendants also stated in deposition that testator had no ill feelings toward the families of his deceased siblings. The deposition testimony showed that testator had taken an interest in all of his nieces and nephews and had on occasion financially helped certain of them.

The trial judge granted summary judgment for defendants. He stated that, subject to the gifts over to Cleo’s and Robert’s children and subject to certain other bequests, the residuary estate passed to decedent’s surviving siblings because the State’s anti-lapse statute applied.

The issue for review is whether the will is ambiguous. Plaintiffs argue that testator’s will is ambiguous because of the inconsistencies in the document; and, furthermore, that since it is ambiguous, extrinsic evidence should be admitted to show testator’s intent. Specifically, plaintiffs assert that it was incongruous for testator to set forth special instructions in article II in the event of Cleo’s and Robert’s deaths as to their respective “shares” and give no directions in the event of the death of any of the other siblings. Plaintiffs state that because testator distributed “shares” to Cleo’s and Robert’s children in article II and. the only other place that “shares” are distributed to any of the will beneficiaries is in article III disposing of the residue, this indicates that article II applies generally to the entire will. Plaintiffs also argue that the will is ambiguous because of the prewill deaths of Cleo and Robert and the post-will deaths of Edgar, Olive, and Hazel. Finally, plaintiffs argue that the anti-lapse statute does not apply because testator’s will, when read as a whole, does provide for who will take a legatee’s share on his or her death.

Defendants argue that the will is unambiguous and that the void gift rule and the anti-lapse statute apply. Defendants state that, applying these rules, the proper result is that the gifts of part of the residue to Cleo and Robert are void and the bequests to Edgar, Olive, and Hazel lapse and fall into the residue, which is to be shared by the surviving siblings only.

We agree with defendants. In Liebrandt v. Adler (1961), 30 Ill. App. 2d 257, 174 N.E.2d 228, another will construction case, it was held that where testatrix bequeathed a certain sum of money to the children of her dead husband’s nephew and named only six of the seven children as legatees, this did not present a latent ambiguity which would justify the admission of extrinsic evidence tending to show that testatrix wanted to benefit the whole group of children. The court noted there that the plaintiff was seeking to add a complete bequest and that this was more than a latent ambiguity could accomplish. The court also reiterated the longstanding rule that the intention of the testator, when clearly expressed, must be given effect in preference to any speculation that he did not mean what he said or intended what he said to mean something else. Liebrandt (1961), 30 Ill. App. 2d at 262, 174 N.E.2d 228.

More recently, in Steinke v. Novak (1982), 109 Ill. App. 3d 1034, 441 N.E.2d 883, we held that where a testator gave preferential treatment to only one of his children by allowing him the right of first refusal on a farm at a given price, this unequal treatment did not raise an ambiguity as to the testator’s intentions.

On the facts in this record, we cannot say that testator’s will is ambiguous. Testator provided for certain of his nieces and nephews to take their parents’ shares and did not so provide for others. His treatment of his nieces and nephews is unequal. However, this does not raise an ambiguity and therefore does not allow the admission of extrinsic evidence.

Furthermore, testator’s provision in article II for a “gift over” to Cleo’s and Robert’s children cannot be read as a general provision which applies to the entire will. In Dawson v. Yucus (1968), 97 Ill. App. 2d 101, 239 N.E.2d 305, it was held that where a testatrix created a survivorship gift of the residue of her estate in one clause of her will, this indicated that she knew how to manifest an intent to create a class or survivorship gift. Thus, where the language of another clause was phrased differently, the court held that the latter clause was intended to create a different kind of gift.

Similarly in the instant case, testator clearly manifested his intent in article II to provide a gift over only to Cleo’s children and Robert’s children. He made no such provision for any of his other nieces and nephews. Because testator demonstrated that he knew how to provide explicitly for a gift over, his will cannot now be read to implicitly make a gift over to those nieces and nephews to whom one was not made.

Plaintiffs’ reliance on Krog v. Hajka (1952), 413 Ill. 290, 109 N.E.2d 213, is misplaced. In that case, testatrix left all of her estate except a small legacy to a husband and wife who had been her caretakers. The court there held that extrinsic evidence was admissible to show that testatrix intended the gift to be a class gift even though she had designated the couple by their individual names. That case is distinguishable from the instant case because, as that court noted, the draftsman of the will there was unskilled, partial intestacy would follow if the gift was distributive, and testatrix’s wishes that her heirs at law not share in her estate were well known.

Plaintiffs argue that the rule regarding void gifts does not apply in this case. That rule provides that where a beneficiary is dead at the making of the will, a devise to him or her is void from its inception. (Carter v. Lewis (1936), 364 Ill. 434, 4 N.E.2d 853.) The rule is clearly applicable here. Therefore, the gifts of the residue to Cleo Thomas and Robert Vernon Ross were never legally valid and thus could not be said to have lapsed. Rather, those gifts were void ab initio.

Finally, plaintiffs argue that subsection (c) of the anti-lapse statute does not apply here. This section provides as follows:

“(c) except as above provided in (a) and (b), if a legacy lapses by reason of the death of the legatee before the testator, the estate so bequeathed shall be included in and pass as part of the residue under the will, and if the legacy is or becomes part of the residue, the estate so bequeathed shall pass to and be taken by the legatees or those remaining, if any, of the residue in proportions and upon estates corresponding to their respective interests in the residue.” (Ill. Rev. Stat. 1991, ch. 110½, par. 4—11(c).)

Testator did not manifest an intent that this statute not apply; therefore, as the trial court noted, it does apply here. Furthermore, Illinois law presumes that a testator knows the law in force at the time the will is drafted and it presumes that testator made his will in conformity with the law. In re Estate of Hughlett (1983), 113 Ill. App. 3d 910, 446 N.E.2d 887.

Applying the terms of the statute, legatees Olive, Hazel, and Edgar predeceased testator. Since they are not descendants of testator and since the gift to testator’s siblings was not a class gift, their respective legacies fall into the residuary estate. The surviving residuary legatees take the deceased legatees’ shares of the residuary estate in proportion to their own interests in the residue. The residue is to be shared by the residuary legatees who survived testator, i.e., defendants Marie Hawk, Marjorie Markley, and Norma Hollenberg.

For all the foregoing reasons, the judgment of the trial court of Warren County is affirmed.

Affirmed.

STOUDER and McCUSKEY, JJ., concur.


text:
    WALTER J. COLGAN, Ex’r of the Estate of Blanche L. Colgan, Plaintiff-Appellant, v. SISTERS OF ST. JOSEPH OF CARONDELET, Defendant-Appellee.
    Third District
    No. 3-92-0100
    Opinion filed November 13, 1992.

      Bartley & Bartley, P.C., of Peoria (Joseph F. Bartley III, of counsel), for appellant.
    David J. Walvoord and Stephen C. Ferlmann, both of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria (David J. Dubicki, of counsel), and Edward M. Goldenhersh and Lawrence S. Denk, both of Greensfelder, Hemker & Gale, of St. Louis, Missouri, for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant, the Sisters of St. Joseph of Carondelet (the Sisters), filed a motion in probate court to compel distribution of $217,417.85 as its distributive share under the will of the decedent, Blanche L. Colgan. Walter J. Colgan, the executor of the decedent’s estate, filed a petition for directions, requesting that the court determine the disposition of the balance of the estate. The trial court granted the Sisters’ motion to compel distribution and dismissed the executor’s petition for directions. The executor appeals.

The record shows that on December 18, 1979, the decedent executed a will. Section 13(c) of that will provided for the following bequest:

“Undivided one-fourth (%&) to the SISTERS OF ST. JOSEPH OF CARONDELET to provide scholarships for those who attended the Academy of Our Lady of Peoria, Illinois.”

On May 19, 1983, the decedent executed a codicil to the 1979 will to correct the legal description of property devised in section 12. The testatrix did not amend the 1979 will in any other way. On June 10, 1987, she died.

At the beginning of the 1974-75 school year, the Academy of Our Lady, an all-girls Catholic high school, merged with Spalding Institute to form a coed Catholic high school named Academy of Our Lady/Spalding Institute. At the time of the decedent’s death, the school was operated by the Sisters. The Sisters continued to operate the school until June 1, 1988, at which time the school merged with Bergan High School to form Peoria Notre Dame High School.

On December 19, 1988, the executor made a partial distribution of $37,500 to the Sisters under section 13(c) of the will. On January 12, 1990, the executor filed an interim report showing the $37,500 distribution to the Sisters. The executor gave notice of a hearing on the report to all beneficiaries under the will, which included the Bishop of the Roman Catholic Diocese of Peoria. No objections were filed to that report and an order was subsequently entered approving it.

On January 9, 1990, the executor made a second partial distribution under the will to the Sisters for $25,000. On June 29, 1990, the executor filed a final report listing the second distribution to the Sisters. The report requested that the balance of the section 13(c) bequest be paid to the Sisters, that the final report be approved, and that the executor be discharged. The notice of the final report was sent to all interested parties, including the Bishop. On July 17, 1990, the executor, at the request of the Catholic Diocese of Peoria (Diocese), filed a petition for directions requesting that the court determine the appropriate disposition of the final balance of the section 13(c) bequest. In his petition, the executor stated that the Diocese contended that the Sisters should not receive the bequest since they no longer operated a school in Peoria.

In response to the petition, the Sisters filed a motion to dismiss and a motion to compel the distribution of the balance of the bequest. Thereafter, a hearing was held on the Sisters’ motions. The executor took a neutral position at the hearing. The Diocese, however, argued that the section 13(c) bequest should not be distributed to the Sisters, but rather, to the Diocese to fund scholarships at Peoria Notre Dame High School. The Sisters countered by arguing that the bequest had vested at the time of the decedent’s death, and since it was operating Academy of Our Lady/Spalding Institute at that time, it was entitled to the bequest.

The probate court entered an order dismissing the executor’s petition and granting the Sisters’ motion to compel distribution. The executor filed a notice of appeal from that decision.

At the outset, the Sisters argue that an executor has no authority to appeal from an order of distribution.

We disagree. The Illinois cases cited by the Sisters in support of their position actually hold that an executor has no right to appeal from an order granting or denying a partial distribution. (See In re Estate of Burke (1990), 203 Ill. App. 3d 319, 561 N.E.2d 220; In re Estate of Tingos (1979), 72 Ill. App. 3d 703, 390 N.E.2d 1349.) Here, partial distributions had been made of $25,000 and $37,000. The distribution involved in this appeal was a distribution of the balance of the bequest and was therefore a final distribution. Accordingly, we find that the executor had standing to bring the appeal.

Turning to the merits, we note that the executor argues on appeal that the language in the will stating, “to the Sisters *** to provide scholarships for those who attended the Academy of Our Lady, Peoria, Illinois,” created a condition subsequent. Therefore, he argues, title to the property passing under the will is subject to divestiture on failure to perform the condition.

In response, the Sisters argue that a condition subsequent was not created by section 13(c) of the will and that their interest under the will vested on the date of the testator’s death.

A condition subsequent in a deed gives the grantor or his estate, either by express words or necessary implication, the right to reenter and repossess the premises on violation of the condition and affects an estate already granted. (Dunne v. Minsor (1924), 312 Ill. 333, 143 N.E. 842.) A court’s primary goal in construing a will is to determine the testator’s intent. (Chicago Title & Trust Co. v. Schwartz (1983), 120 Ill. App. 3d 324, 458 N.E.2d 151.) Conditions subsequent defeating estates are not favored, and courts will not construe a condition subsequent so as to defeat the vesting of an estate under a will, contrary to a general intention of the testator, as may be determined from the instrument itself. (Wheeler v. Williams (1948), 400 Ill. 438, 81 N.E.2d 175.) A court is not at liberty under the guise of construing a will to create a wholly new gift where no provision was made for a contingency which has occurred or where in view of subsequent events it appears that a particular provision would probably have been made if the testator had thought of it. Chicago Title & Trust Co. v. Schwartz (1983), 120 Ill. App. 3d 324, 458 N.E.2d 151.

There are two factors generally recognized in Illinois cases as indicative of a testator’s intention to create a condition subsequent: first, whether the clause in the will contains words constituting a condition, such as “on condition,” “so that,” “provided, however,” “but if,” and the like (Wheeler v. Williams (1948), 400 Ill. 438, 81 N.E.2d 175); and second, whether the will contains a clause giving the grantor's heirs the right to reenter the premises or declare a forfeiture of the estate for breach of the condition (Maguire v. City of Macomb (1920), 293 Ill. 441, 127 N.E.2d 682; Dunne v. Minsor (1924), 312 Ill. 333, 143 N.E. 842). The fact that a clause in a will merely states the purpose for which a bequest is made or defines or explains the use to which it is to be applied is not ordinarily regarded as creating a condition subsequent subjecting the estate to divestiture in case of a breach of such condition. Wheeler v. Williams (1948), 400 Ill. 438, 81 N.E.2d 175; Dunne v. Minsor (1924), 312 Ill. 333, 143 N.E. 842.

Applying the above-mentioned principles, we do not find that a condition subsequent was created here. The testatrix gave an outright gift to the Sisters, and the language in the will stating “to provide scholarships for those who attend the Academy” was merely explanatory of the testatrix’s reason for bequeathing one-fourth of her residual estate to the Sisters. The clause bequeathing the estate to the Sisters does not contain any of the customary words of limitation and does not state any contingency in the event the Sisters failed to operate Academy of Our Lady School in Peoria, Illinois. Furthermore, the will does not provide for a forfeiture or reentry if the bequest was not used for scholarships.

The present case is similar to Wheeler v. Williams (1948), 400 Ill. 438, 81 N.E.2d 175. There, it was argued that a condition subsequent was created by a clause in a will. The will devised the testatrix’s residence to her daughter and her three sons “in consideration, that she will have the smaller farm, owned by her father, and myself, and her brother *** shall have the [homestead], with the forty acres adjoining.” (400 Ill. at 440.) The court construed the quoted language as merely explanatory as to the testatrix’s reason for devising the entire residence to the daughter, and not as a condition subsequent pursuant to which the daughter’s estate under the will could be divested. Given the absence of a divestiture clause or any other language indicating a condition subsequent, we find that the rationale set forth in Wheeler is controlling here.

We further note that generally, a will becomes effective on the date of the testator’s death. (Lloyd v. Treasurer of the State (1948), 401 Ill. 520.) The law favors the vesting of estates at the earliest opportunity. (Chicago Title & Trust Co. v. Shellaberger (1948), 399 Ill. 320, 77 N.E.2d 675; In re Estate of Knight (1989), 178 Ill. App. 3d 777, 533 N.E.2d 949.) Thus, estates will vest on the testator’s death unless a later time for their vesting is apparent from the express provisions of the will. In re Estate of Knight (1989), 178 Ill. App. 3d 777, 533 N.E.2d 949.

In the present case, the Sisters were operating a school in Peoria, Illinois, on the date of the testatrix’s death and continued to operate that school for approximately a year thereafter. Under these facts, we conclude that on the date of the testatrix’s death, the estate vested in the Sisters.

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

Affirmed.

GORMAN and STOUDER, JJ., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALDA DAVE ON CARDENAS, Defendant-Appellant.
    Third District
    No. 3-91-0777
    Opinion filed October 27, 1992.
    Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marc Bernabei, State’s Attorney, of Princeton (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Following a bench trial, the defendant, Walda Daveon Cardenas, was convicted of the unlawful possession with the intent to deliver more than 500 grams of cannabis (Ill. Rev. Stat. 1991, ch. 56½, par. 705(e)). The defendant was sentenced to a term of three years’ imprisonment in the Department of Corrections.

The defendant raises three issues on appeal: (1) whether defendant’s motion to suppress evidence should have been granted because she was illegally detained beyond the time it took to issue a warning citation for traveling four miles over the speed limit; (2) whether the State failed to meet its burden of establishing that defendant voluntarily consented to the search of her vehicle; and (3) whether cutting open the gas tanks on defendant’s vehicle exceeded the scope of her consent and was not supported by a showing of probable cause. We reverse because we find the State did not establish the defendant voluntarily consented to the search.

On March 10, 1991, the defendant was driving a pickup truck with Arizona license plates on Interstate 80 between the Princeton and Ladd exits when State Trooper James Lower pulled her vehicle over for speeding. Lower approached the truck and advised the defendant that she was traveling 69 miles per hour in a 65-mile-per-hour zone. Lower then requested her license. Lower testified he observed no other traffic violations. Lower said he observed a gas can in the back of the truck when he approached the vehicle. Lower ran a license check on the defendant’s Arizona driver’s license. He also ran a check for any outstanding warrants on the defendant’s male passenger. Lower learned the defendant had a valid driver’s license. He also learned her passenger had no record of conviction or outstanding warrants.

According to Lower, he then wrote a warning citation for speeding and also filled in a standard consent-to-search form for the defendant’s truck. Before Lower gave the defendant the warning citation, two other State Troopers arrived to assist him. Three State police vehicles were then parked near the defendant’s truck. Lower could not remember the exact location where the three vehicles were parked. However, the defendant testified that one of the police vehicles was parked in front of her truck and the other two were parked behind it.

All three State Troopers then walked to the defendant’s vehicle. Two troopers stood next to the driver’s side of the truck, and the other trooper stood by the passenger side. Lower then gave the defendant a warning citation and told her there was nothing more to the stop. However, Trooper Lower next proceeded to explain the problems the police had been experiencing on Interstate 80 with illegal drug transportation. Lower asked the defendant if she had any drugs or weapons in her vehicle. She said no. Lower then asked the defendant if she would mind if he looked. She paused, looked at her passenger and answered, “No, is that legal?” Lower told her that it was legal and that they did it all the time. Lower showed her the consent form and explained that it was a voluntary consent form. The defendant signed the form.

According to the defendant, Lower told her that it did not matter whether or not she signed the form because a call had been made to the “D.A.” and they would be taking her vehicle in either way. The defendant signed the form because she was frightened and felt she had no rights. The defendant did not think it mattered because she believed the truck would be searched whether she signed the form or not. At the time the defendant was asked to sign the form, she did not believe she was free to leave. The defendant testified that Lower did not raise his voice or threaten her.

After the consent form was signed, both the defendant and her passenger were subjected to a patdown search. After a police dog on the scene signalled the presence of a controlled substance, Lower asked the defendant to drive her truck to a service station down the highway. Lower advised her that if she did not do so, they would tow the truck in for further investigation.

At the service station, the pickup was raised on a car lift. The troopers then disconnected and cut apart the two gas tanks. Four separate aluminum containers holding 179 pounds of cannabis were discovered in the gas tanks.

Based on these facts, the trial court denied the defendant’s motion to suppress the evidence. The trial court found the defendant initially refused to consent to the search. However, the trial court found that a subsequent voluntary consent to the search was ultimately given. In its written order, however, the trial court stated:

“Trooper Lower’s answer ‘Yes, we do it all the time’ to the question ‘Is it legal?’ was a truthful answer if he implied the question to be ‘Is it legal to ask for consent to search?’ or ‘Is it legal to search with consent?’. The answer would be misleading and false if Trooper Lower understood the question to be ‘Is it legal to search without consent or a warrant?’
If Cardenas thought she was impliedly asking ‘Is it legal to search without consent or a warrant?’, the answer ‘Yes, we do it all the time’ would be misleading, false and perhaps coercive.” (Emphasis added.)

After a stipulated bench trial, the defendant was found guilty of possession with intent to deliver more than 500 grams of cannabis. She was sentenced to a term of three years’ imprisonment in the Department of Corrections and ordered to pay $20,000 in fines and costs.

The defendant argues on appeal that, based upon the totality of the circumstances surrounding the encounter in this case, the trial court’s finding that the consent was voluntary was manifestly erroneous. We agree. Therefore, we do not need to address the other arguments raised by the defendant.

A search which is conducted pursuant to voluntary consent is one of the specifically established exceptions to the constitutional requirements of both a warrant and probable cause. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 219, 36 L. Ed. 2d 854, 858, 93 S. Ct. 2041, 2043-44.) The search is permissible so long as the consent is voluntary. (People v. Powell (1991), 224 Ill. App. 3d 127, 135, 586 N.E.2d 589, 596.) The voluntariness of a consent to a police search depends upon the totality of the circumstances, and it is the State’s burden to show, by a preponderance of the evidence, that the consent was voluntarily given. (People v. Casazza (1991), 144 Ill. 2d 414, 417, 581 N.E.2d 651, 653.) For the consent to be voluntary, “the consentor must have been under no duress or coercion, actual or implied, and the consent must have been unequivocal, specific, and freely and intelligently given.” (People v. Purchase (1991), 214 Ill. App. 3d 152, 155, 573 N.E.2d 831, 833.) The determination of the trial court regarding the voluntariness of a consent will not be disturbed unless it is clearly unreasonable. Casazza, 144 Ill. 2d at 417-18, 581 N.E.2d at 653.

The State argues the consent in this case was clearly voluntary. It relies on the fact the consent form signed by the defendant stated:

“I understand that I have the right to refuse to consent to the search described above and to refuse to sign this form.
I further state that no promises have been made, nor have any threats, force, or physical or mental coercion of any kind whatsoever been used against me to cause me to consent to the search described above or to sign this form.”

The State also contends an initial refusal does not necessarily mean that the consent was not voluntarily given. In addition, it relies on our recent decision in People v. Sesmas (1992), 227 Ill. App. 3d 1040, 591 N.E.2d 918.

We recognize other jurisdictions have concluded a prior refusal does not necessarily cause a subsequent consent to be involuntary. (See United States v. Morrow (4th Cir. 1984), 731 F.2d 233, 236; State v. Green (1990), 133 N.H. 249, 575 A.2d 1308, 1315; 3 W. La-Fave, Search & Seizure §8.2(f), at 200-01 (2d ed. 1987).) Other jurisdictions have also found, however, that an initial refusal is a factor to consider in determining whether the subsequent consent is voluntary. (See United States v. Pulvano (5th Cir. 1980), 629 F.2d 1151, 1157; State v. Wilmart (1990), 234 Neb. 320, 324, 450 N.W.2d 703, 705-06.) We agree that an initial refusal is an important factor in assessing whether a subsequent consent is voluntary.

We also note that false or misleading information given by a police officer can vitiate the voluntariness of a consent to search. (See Casazza, 144 Ill. 2d at 424, 581 N.E.2d at 656; People v. Daugherty (1987), 161 Ill. App. 3d 394, 400, 514 N.E.2d 228, 232-33.) Consent is not voluntary when it is solely the product of acquiescence or submission to the assertion of lawful police authority. (People v. Flagg (1991), 217 Ill. App. 3d 655, 659, 577 N.E.2d 815, 818.) Also, the fact that a written consent form was signed is not dispositive when circumstances show that the signature was obtained by coercion. See Purchase, 214 Ill. App. 3d at 154-55, 573 N.E.2d at 832-33; People v. Koniecki (1985), 135 Ill. App. 3d 394, 402-03, 481 N.E.2d 973, 979-80.

Here, the defendant’s vehicle was surrounded by three State Troopers following a routine traffic stop. When Trooper Lower asked if she would mind if he looked in her vehicle, the defendant said “[n]o, is that legal?” The trial court specifically found that this response was a denial of the request for a consent to the search. The trial court also determined that a subsequent voluntary consent was ultimately given. We note that while the trial court found the defendant had voluntarily signed the consent form, it also found that Trooper Lower’s response to the defendant’s questions may have been “misleading, false and perhaps coercive.” It is apparent from the record that Trooper Lower's response did convey the false impression that it was legal to conduct a search, even without consent. Therefore, we conclude the defendant signed the consent form after being given the misleading information that it was legal to search and the officers did it all the time. Thus, she signed the consent form in acquiescence to an assertion of lawful police authority.

Based solely on Trooper Lower’s version of events, we conclude the State did not meet its burden of showing that the consent was voluntarily given. The totality of the circumstances described clearly shows that the consent was not freely given but was the result of a coercive situation. Because the trial court found the defendant initially refused consent and that Lower’s response to the defendant’s question “may have been misleading, false and perhaps coercive,” we therefore conclude the trial court’s determination that the consent was voluntary was clearly unreasonable.

We also conclude the State’s reliance on Sesmas is misplaced. We recognize the facts of Sesmas are strikingly similar to the facts of this case. The traffic stop in Sesmas occurred on February 4, 1991, just a little more than a month prior to the stop in this case. The Sesmas vehicle was on Interstate 80 near Princeton and also was stopped by Trooper Lower. The vehicle in Sesmas also had Arizona license plates and a gas can in the back. A consent form was signed, the vehicle was towed to a service station, and cocaine and heroin were found in the gas tank of the vehicle. The trial court in Sesmas also denied the defendants’ motion to suppress the evidence. We affirmed, finding, among other things, that the consent to the search was voluntary. Sesmas, 227 Ill. App. 3d at 1046-47, 591 N.E.2d at 922.

In Sesmas, however, when the driver was asked by Trooper Lower if she minded if he searched the car, she “had no objection, handed the keys to the officer and voluntarily exited the vehicle.” (Sesmas, 227 Ill. App. 3d at 1043, 591 N.E.2d at 922.) She then signed the consent form after Trooper Lower explained that it was voluntary. Sesmas, 227 Ill. App. 3d at 1043, 591 N.E.2d at 920.

The driver in Sesmas immediately consented to the search and was not given any misleading information by Trooper Lower. We finally note in Sesmas, there were only two State Troopers on the scene rather than three. Based upon all of these factual distinctions, we clearly find Sesmas distinguishable.

For the reasons indicated, the judgment of the circuit court of Bureau County is reversed.

Reversed.

HAASE and STOUDER, JJ., concur.