author: JUSTICE INGLIS

text:
    TIMOTHY J. CROWLEY, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY BOARD OF REVIEW et al., Defendants-Appellees.
    Second District
    No. 2—88—1168
    Opinion filed October 19, 1989.
    Rehearing denied December 12, 1989.

      Kenneth K. McNeil, of Hubbard & Mahmoud, Ltd., of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Diane Curry Grapsas, Assistant Attorney General, of Chicago, of counsel), for appellee Department of Employment Security.
    George J. Lynch and Joseph J. Stevens, both of Burke, Wilson & Mcllvaine, of Chicago, for appellee Transit Management of West Town Bus Company.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Timothy Crowley, appeals from a judgment of the circuit court affirming the decision of the Department of Employment Security Board of Review (Board) which had determined that plaintiff was disqualified from receiving unemployment benefits. Plaintiff raises one issue on appeal: whether the Board’s finding that he was discharged from his employment for misconduct is against the manifest weight of the evidence.

Plaintiff was a bus driver employed by Transit Management of West Town Bus Company (Transit). On May 13, 1985, plaintiff was discharged from his employment because he refused to follow a direct order. At the hearing before the referee, the following facts were adduced. Plaintiff worked for Transit since September 1976. On many occasions he had discussed customer complaints with a supervisor on his own time and was not paid to do so. On March 1, 1985, a supervisor, Mr. Beasley, asked to speak with plaintiff about passenger complaints filed against him. Plaintiff and his union steward went to Beasley’s office, but plaintiff refused to discuss the complaints unless he was paid. Beasley then suspended plaintiff for five days for refusing to discuss the complaints.

On March 13, 1985, Beasley again asked to speak to plaintiff about passenger complaints filed against him. Plaintiff and the union steward went to Beasley’s office, but plaintiff persisted in his refusal to discuss the complaints on his own time unless he was paid. As a consequence of plaintiff’s refusal to discuss the complaints, Beasley suspended plaintiff for 10 days. The steward had advised plaintiff to attend both meetings and that if plaintiff was not paid, they would file a grievance with the union.

On May 8, 1985, another supervisor, Mr. Robare, told plaintiff that he wanted to discuss passenger complaints filed against plaintiff. Plaintiff told Robare, “If you wish to discuss passenger complaints with me, either I want to be paid, or I’ll see you when I was [s-ic] on the clock.” Shortly after this exchange, Beasley attempted to talk to plaintiff about his refusal to discuss passenger complaints with Robare. Plaintiff advised Beasley that he was not “on the clock” and that if Beasley wished to discuss anything, Beasley should see plaintiff when he was “on the clock” or should pay him. After his shift started, plaintiff went to Robare’s office to discuss the complaints, but Robare told him, “I don’t want to discuss the passenger complaints with you anymore. It is out of my hands.” Plaintiff did not try to discuss the complaints with Beasley at that time because plaintiff had an obligation to drive a bus and stated that he “cannot be in two places at one time.”

On May 10, plaintiff received a letter from Transit by which plaintiff was ordered to meet with Beasley on May 13 to discuss the complaints. The letter stated that “failure to report and/or failure to respond to the complaints could result in severe discipline including possible suspension and/or discharge.”

On May 13, plaintiff, accompanied by the union steward and the first vice-president of the union, went to Beasley’s office. The first vice-president advised plaintiff to answer the questions. Upon learning that he would not be paid for the meeting, plaintiff walked out of the office. The union steward urged plaintiff to return to the meeting, but he refused. Transit then fired plaintiff.

On May 14, plaintiff filed a claim for unemployment compensation with the Department of Employment Security. “The claims adjudicator denied plaintiff’s claim, and plaintiff appealed. On appeal before the referee, plaintiff testified that the union did nothing regarding most of the grievances he filed. Plaintiff stated that he had also contacted the Federal Department of Labor Wage and Hour Division (Department of Labor), in an effort to get Transit to observe regulations with respect to the payment of wages; however, plaintiff admitted that the Department of Labor informed him that Transit had not violated any laws.

The division manager of Transit testified that plaintiff was terminated for failure to answer questions about passenger complaints. According to the division manager, the company had a long-standing policy of not paying drivers for such meetings because, at a maximum, the meetings lasted no longer than two or three minutes. When asked why the meetings could not take place during working hours, the division manager responded that “[w]e have to see [plaintiff] when he gets off work because when he’s working, he’s out driving a bus.” The division manager admitted, however, that in April 1986, Transit started paying its employees for the meetings pursuant to Garcia v. San Antonio Metropolitan Transit Authority (1985), 469 U.S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005.

The referee affirmed the determination of the claims adjudicator and held that plaintiff was disqualified for benefits under section 602(A) of the Illinois Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 432(A)). The Act disqualifies an individual from benefits if he has been discharged for misconduct connected with work. Plaintiff appealed to the Board. In its decision, the Board stated:

“In the instant case the claimant had twice before been suspended for refusing to discuss customer complaints when he was not on the clock. He was advised by the union representative to discuss the matter notwithstanding he was not on the clock. He could foresee that if he did not discuss the matter he would be discharged.
*** The claimant wilfully refused to discuss an important matter affecting him and the employer with the employer. This was a duty he owed the employer. His refusal was a deliberate act of insubordination for which he was discharged. He is not unemployed because of the lack of suitable work. He is unemployed because he wilfully elected to defy his employer.”

The Board found that plaintiff was disqualified from receiving benefits because he was discharged for misconduct. The circuit court affirmed the Board’s decision, and plaintiff timely filed this appeal seeking reversal of the decisions below.

When an employee appeals the denial of unemployment benefits, the court only reviews the decision of the Board (Loveland Management Corp. v. Board of Review (1988), 166 Ill. App. 3d 698, 701) to determine if it is against the manifest weight of the evidence (Jackson v. Board of Review (1985), 105 Ill. 2d 501, 513), that is, whether the opposite conclusion is clearly evident (City of Wood Dale v. Illinois State Labor Relations Board (1988), 165 Ill. App. 3d 640, 643). The Board has broad discretion, and its determinations will not be overturned merely because we might find them unwise or their policy inappropriate. Jackson v. Department of Labor (1988), 168 Ill. App. 3d 494, 500.

The issue raised in the case at bar involves the application of the Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 432(A)). Under the Act, an employee who has been discharged for misconduct connected with his work is ineligible for unemployment benefits. Although an employee’s conduct may provide ample cause for discharge, the employee is not barred from receiving benefits under the Act unless his conduct constitutes “misconduct.” (Jackson, 105 Ill. 2d at 507.) The supreme court has defined “misconduct” as:

“[C]onduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.” Jackson, 105 Ill. 2d at 511-12.

Plaintiff argues that the Board’s finding that he disregarded the employer’s interest in discussing customer complaints is against the manifest weight of the evidence because Transit had no legitimate interest in discussing complaints during plaintiff’s off-duty time without compensating him. Plaintiff claims that a finding of misconduct requires a preliminary finding that the employer had a legitimate interest not only in discussing the complaints with plaintiff but also in doing so only during plaintiff’s off-duty time during which he would not be paid.

We believe plaintiff’s argument accurately summarizes the holding in Jackson. While it is undisputed that an employee has the duty to discuss with his supervisor complaints regarding his job performance (Carroll v. Board of Review (1985), 132 Ill. App. 3d 686, 692), it is unclear whether it was reasonable for Transit to require plaintiff to discuss such complaints during plaintiff’s off-duty time without paying him. This apparently is a case of first impression in Illinois, as our research has revealed no Illinois cases, nor have the parties cited any, addressing the issue of whether the failure to remain at a mandatory meeting held during an employee’s off-hours for which he is not being compensated constitutes misconduct.

Plaintiff cites a Massachusetts case which stands for the proposition that an employee who refuses to perform work which the employer has no right under the law to expect has not engaged in willful misconduct. (Kinch v. Director of Division of Employment Security (1987), 24 Mass. App. 79, 82, 506 N.E. 2d 169, 171.) The plaintiff in Kinch was fired because his employer had scheduled him on a Sunday. The scheduled work would have resulted in the plaintiff having worked seven consecutive days, which would have arguably violated a Massachusetts law. The plaintiff was thereafter denied unemployment compensation. The Massachusetts court reversed the lower court’s holding and stated:

“A demand that an employee work in violation of the statute would be tantamount to insistence on ‘behavior which [the] employer has [no] right to expect’ ***. Depriving an employee of unemployment benefits solely for the reason that he refuses to yield to such a demand would be against public policy ***.” Kinch, 24 Mass. App. at 82, 506 N.E.2d at 171.

Plaintiff argues that Kinch is similar to the case at bar because Transit’s requests violated Federal law. Specifically, plaintiff claims that under the Fair Labor Standards Act of 1938 (Labor Act) (29 U.S.C.A. §201 et seq. (West 1978)), workers are entitled to be paid for any time demanded of them by their employer when that time is outside normal working hours and the employee’s attendance is involuntary. The Supreme Court’s decision in Garcia v. San Antonio Metro politan Transit Authority made the Labor Act applicable to mass-transit companies such as Transit. Garcia, 469 U.S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005.

In addition, plaintiff cites the following Federal regulation for the proposition that required attendance at meetings, as opposed to voluntary attendance, dictates that plaintiff should have been compensated, and, therefore, Transit did not have a right to expect otherwise:

“Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met:
(a) Attendance is outside of the employee’s regular working hours;
(b) Attendance is in fact voluntary;
(c) The course, lecture, or meeting is not directly related to the employee’s job; and
(d) The employee does not perform my productive work during such attendance.” (29 C.F.R. §785.27 (1987).)

Plaintiff argues that portions (b) and (c) of the above regulation were clearly violated because his attendance at the meetings was mandatory and directly related to, and affected, his job.

In response, Transit argues that Kinch and the Federal regulation cited by plaintiff are inapplicable because the meetings in the case at bar lasted only “two or three minutes” and, therefore, did not constitute compensable working time. We disagree.

The length of time required of an employee is not determinative of whether compensation is due. (See Aiardo v. Village of Libertyville (1989), 184 Ill. App. 3d 653, 658-59.) While Transit presented testimony that the meetings generally lasted only two or three minutes, the division manager acknowledged that even if plaintiff had spent two hours meeting with his supervisors on May 13, that two hours would not have been counted as time worked and, presumably, would not have been compensated.

The record indicates that the management of Transit did not believe that the Labor Act applied to them until April 1986. However, it is unclear from the record what the basis for this belief was given that Garcia was decided in February 1985. Nonetheless, Transit’s mistaken belief of the law does not make its demand of plaintiff reasonable.

We can find no reason, nor has any been presented to us, why Transit was not bound by the Labor Act in 1985. As such, Transit had no right to expect plaintiff to meet in violation of the statute, and its demand of plaintiff to do so was unreasonable. Therefore, plaintiffs refusal to comply with Transit’s unreasonable demand was not “misconduct.”

Moreover, even if plaintiff was incorrect in believing that he had the right to be paid for his time spent at the meetings, his actions on May 13, 1985, would not constitute misconduct if he reasonably believed in good faith that he was justified in leaving the meeting. (Winklmeier v. Board of Review (1983), 115 Ill. App. 3d 154, 156.) According to plaintiff, he was not simply ignoring his obligation to answer questions regarding his job performance; rather, he refused to attend the meetings on his own time because he “stood up for [his] rights” and “asked to be paid.” Plaintiff asserts that his tactics were justified because his efforts in working through the Department of Labor and the union grievance procedure in trying to get Transit to comply with the law were ineffective.

Although Transit does not directly address plaintiff’s good-faith argument, it contends that plaintiff’s action on May 13 constituted a “wilful and wanton disregard to [his] employer’s interest” and, therefore, apparently takes the position that such action could not have been in good faith. Transit argues that plaintiff’s willfulness is demonstrated by the fact that plaintiff left the meeting even though he was aware of Transit’s policy of not paying its employees for time spent discussing customer complaints; plaintiff had been suspended twice before for similar acts; plaintiff was advised by his union to attend the meetings and to answer the questions; and plaintiff knew that if he did leave the May 13 meeting he would be subject to discharge.

While plaintiff may have knowingly disobeyed his employer’s orders, we find that he did so in a justified, good-faith belief that his employer was violating the Labor Act by requiring employees involuntarily to attend meetings on their off-duty time without pay. Because good-faith errors in judgment do not constitute misconduct, we find that plaintiff was not disqualified from receiving unemployment benefits.

For the above-stated reasons, the judgment of the circuit court is reversed, and the cause is remanded to the Board for a determination of the amount of unemployment compensation plaintiff is due.

Reversed and remanded.

REINHARD and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
      In re APPLICATION FOR JUDGMENT FOR DELINQUENT TAXES FOR THE YEAR 1981 (The People of the State of Illinois ex rel. Bernard Oaks, County Treasurer and ex officio Collector of Taxes of Fulton County, Plaintiff-Appellee, v. Central Illinois Light Company, Defendant-Appellant (Canton Union School District No. 66, Intervenor-Appellee)).
    Third District
    No. 3—88—0658
    Opinion filed October 27, 1989.
    Rehearing denied December 11, 1989.

      Louis E. Miller, of Bagley, Atherton, Clark & Miller, of Pekin (Thomas M. Atherton, of counsel), for appellant.
    John Izzo, of Scariano, Kula, Ellch & Himes, Chartered, of Chicago Heights (Robert H. Ellch, of counsel), for appellee Canton Union School District No. 66.
   JUSTICE STOUDER

delivered the opinion of the court:

Central Illinois Light Company (CILCO) appeals from the judgment of the circuit court of Fulton County, denying its objections to taxes levied for the years 1981 through 1985 by the school board of Canton Union School District No. 66 (the district). The first of CILCO’s objections contends that the district, in abolishing and recreating its working cash fund, exceeded tax rate limitations of the School Code (the Code) (Ill. Rev. Stat. 1981, ch. 122, par. 1 — 1 et seq.). The second of its objections contends that the district exceeded taxing limitations by its adoption of a supplemental debt-service levy. We will address CILCO’s objections serially.

On April 10, 1981, the district’s school board adopted a resolution abolishing the district’s working cash fund effective at the close of the school year and transferring any money remaining in that fund to the education fund. Then, at the same meeting, the board adopted a resolution creating a new working cash fund to be funded by the issuance of new working cash fund bonds in the amount of $1,890,000. The board further resolved that the principal and interest for such bonds be paid through the appropriate tax levy. In accordance with the resolutions, working cash fund bonds were issued on September 1, 1981, and additional working cash fund bond taxes were levied against the district’s taxpayers, including CILCO.

In November of 1982, the board again passed a resolution abolishing the working cash fund. While this action was not accompanied by a simultaneous bond issue and re-creation of the fund, the fund was eventually re-created with the first tax levy following the abolishment of the fund.

For the years 1981 to 1985, CILCO paid its taxes under protest. When the collector applied for a judgment each year, CILCO objected to both the working cash fund bond taxes and to the working cash fund taxes. The district was permitted each year to intervene in the proceedings, wherein the parties filed cross-motions for summary judgment. After the circuit court granted the district’s motion and denied CILCO’s motion for summary judgment, CILCO brought this appeal, arguing that the district used the procedure of abolishing and re-creating the working cash fund as an illegal means to supplement its education fund, and that the circuit court should, therefore, have entered judgment in its favor. We affirm as to this objection.

It is true that section 17 — 2 of the Code specifies a maximum rate at which a school district may levy a tax for educational purposes. (Ill. Rev. Stat. 1981, ch. 122, par. 17 — 2.) We note, however, that the section does not specify a maximum amount that an educational fund may contain. We note, moreover, that because a district’s educational fund is the statutorily designated recipient of the balance of a district’s working cash fund upon its abolishment (Ill. Rev. Stat. 1981, ch. 122, par. 20 — 8), it is inevitable that upon a district’s abolishment of its working cash fund its educational fund may contain more than the amount that it received through the section 17 — 2 levy. Thus, it is not surprising that in this case the district aggrandized its educational fund when it abolished the working cash fund. The district acted within the statutory framework. Its action cannot, therefore, be considered illegal.

We also disagree with CILCO’s suggestion that the district exceeded working cash fund limitations. Article 20 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 1 — 1 et seq.) authorizes school boards of districts having a population of less than 500,000 to create, abolish and re-create a working cash fund. (Ill. Rev. Stat. 1981, ch. 122, par. 20 — 1 et seq.) In re Application of Walgenbach (1988), 166 Ill. App. 3d 629, 631, 520 N.E.2d 78, 79.) The working cash fund is created and maintained in part by incurring a debt through bond issues. (Ill. Rev. Stat. 1981, ch. 122, par. 20 — 2; In re Application of Walgenbach (1984), 104 Ill. 2d 121, 123-24, 470 N.E.2d 1015, 1017.) There is a limit, however, to the amount of indebtedness that a district may incur. Section 20 — 2 of the Code provides that a

“district may incur an indebtedness and issue bonds as evidence thereof in an amount or amounts not exceeding *** 75% of the taxes permitted to be levied for educational purposes for the then current year *** plus 75% of the last known entitlement of such district to taxes *** lost *** as a result of the abolition of ad valorem personal property taxes.” (Ill. Rev. Stat. 1981, ch. 122, par. 20 — 2.)

This indebtedness limitation includes any unpaid balance on previous bond issues such that the abolishment of the working cash fund does not extinguish a working cash fund obligation. Ill. Rev. Stat. 1981, ch. 122, par. 20 — 2.

In this case, at the time of the September 1, 1981, working cash fund bond issue of $1,890,000, the district had a working cash fund bond indebtedness of only $335,000 outstanding from a 1978 issue. Thus, the aggregate working cash fund bond indebtedness of the district after the September 1, 1981, issue was $2,225,000. The maximum indebtedness that the district could have incurred under section 20 — 2, however, is $2,442,727.02 ($1,371,253, which is 75% of the taxes permitted to be levied for educational purposes ($114,271,083 (the last — 1981—assessed value of the taxable property of the district) x 1.60% (the maximum applicable tax rate pursuant to section 17-2(3) of the Code (Ill. Rev. Stat. 1981, ch. 122, par. 17-2(3)))) plus $1,071,474.02, which is 75% of the district’s 1981 entitlement to personal property replacement taxes ($1,428,632.03).) Thus, the district did not exceed the section 20 — 2 debt limitation by its September 1,1981, working cash fund bond issue.

The working cash fund is also maintained through working cash fund tax levies (Ill. Rev. Stat. 1981, ch. 122, par. 20 — 3; Schwartz, Illinois School Finance — A Primer, 56 Chi.-Kent L. Rev. 831, 856 (1980)). Section 20 — 3 of the School Code limits the annual levy for working cash funds to a maximum of .05% of the assessed value of property within the school district and provides that no tax shall be levied if the district is at its maximum debt limit or if the levy would generate funds sufficient to exceed the limit provided in section 20— 2. (Ill. Rev. Stat. 1981, ch. 122, par. 20 — 3.) Because we have already concluded that the district had not reached its maximum indebtedness limit, we need only decide if the working cash fund levy would generate funds, which, added to existing funds, would exceed the limitation of section 20 — 2.

As we noted above, the last applicable assessed valuation for property in the district is $114,271,083. This amount multiplied by the working cash fund tax rate of .05% equals $57,135.54. This amount added to the total amount of the working cash fund of $2,225,000 ($335,000 (the amount remaining from the 1978 bond issue) plus $1,890,000 (the amount of the 1981 bond issue)) equals $2,282,135.54. Because this amount is less than the section 20 — 2 limitation amount of $2,442,727.02, the district did not exceed the section 20 — 3 tax rate limitation in levying a working cash fund tax.

In sum, the district, in abolishing and re-creating the working cash fund, acted within the statutory framework in financing its educational and working cash funds. The circuit court was correct, therefore, in rejecting the first of CILCO’s objections.

We next address CILCO’s objection to the district’s adoption of a supplemental debt-service levy. In Central Illinois Light Co. v. Johnson (1981), 84 Ill. 2d 275, 418 N.E.2d 696, the supreme court of Illinois held that certain property of CILCO which had been taxed as real property should have been classified as personal property and, therefore, not taxable. The result of that decision was to significantly decrease the assessed valuation of the property of CILCO located within the district after the county clerk had already calculated the necessary debt-service extensions for tax years 1979, 1980 and 1981. The circuit court of Fulton County, implementing the supreme court’s decision, on August 25, 1981, ordered refunds to CILCO out of revenues that would have been distributed to the taxing bodies of Fulton County, including the school district.

In an effort to obtain funds sufficient to accommodate both the needs of the district and the order of the circuit court, the school board, on March 15, 1982, unanimously adopted a resolution authorizing a supplemental debt-service levy. The resolution recited the deficiency in the bond and interest tax levy owing to the Central Illinois Light Co. v. Johnson decision and calculated the supplemental levy necessary to correct that deficiency — $130,092. A certified copy of the resolution was filed with the county clerk on March 23, 1982. The clerk extended the levy with the 1981 taxes. CILCO paid the taxes under protest and objected to the collector’s application for judgment, contending that there is no statutory authority for the issuance of a supplemental debt-service tax, and that, if there were such authority, the levy was not timely made. We reverse as to this objection.

Section 19 — 7 of the Code provides that taxes to pay principal and interest on bonds are to be computed, extended and collected “in the same manner as is *** provided for the computation, extension and collection of taxes for general corporate purposes for the issuing district.” (Ill. Rev. Stat. 1981, ch. 122, par. 19 — 7.) The process of initiating the collection of taxes for general corporate purposes is provided for in section 17 — 11 of the Code, which requires the filing of a certificate of tax levy with the county clerk “on or before the last Tuesday in December, annually.” (Ill. Rev. Stat. 1981, ch. 122, par. 17 — 11.) The supreme court of Illinois has held that an additional or amended levy, the certificate for which is filed after the section 17 — 11 deadline, will be effective only where “its purpose is to correct errors in an earlier certificate which did not accurately reflect the action of the” board. (Board of Education of Community Unit School District No. 16 v. Barrett (1977), 67 Ill. 2d 11, 13, 364 N.E.2d 89, 91.) Failing to meet the deadline renders the levy void. People ex rel. Joseph v. Pennsylvania R.R. Co. (1959), 18 Ill. 2d 61, 63, 162 N.E.2d 350, 351.

In this case the district failed to meet the section 17 — 11 deadline for filing the certificate. The purpose of the additional levy was not to correct errors in an earlier certificate which failed to accurately reflect the action of the board. Thus, the supplemental debt-service levy was of no effect. The circuit court erred, therefore, in denying CILCO’s objection to the supplemental debt-service levy.

For these reasons, the part of the judgment of the circuit court of Fulton County denying CILCO’s objection to the working cash fund bond levy and working cash fund tax levy is affirmed, and the part of its judgment denying CILCO’s objection to the supplemental debt-service levy is reversed.

Affirmed in part; reversed in part.

BARRY and HEIPLE, JJ., concur.


author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT EUGENE WADDELL, Defendant-Appellee.
    Fourth District
    No. 4—89—0044
    Opinion filed October 31, 1989.
    Rehearing denied December 15, 1989.

      Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Louis P. Johnson and Lawrence J. O’Neill, both of Johnson & Johnson, of Metropolis, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by the State from an order of the circuit court of Livingston County granting the motion of defendant Robert Eugene Waddell to quash the warrantless arrest of defendant. Defendant had been charged by information with the unlawful possession of less than 15 grams of a controlled substance. Ill. Rev. Stat. 1987, ch. 56V2, par. 1402(b).

After being charged by information, defendant filed several motions, including a motion to quash his arrest. The basis for the motion to quash the warrantless arrest was alleged to be that the arresting officers possessed no reasonable belief nor any reasonable grounds to believe defendant was committing an offense at the time defendant’s vehicle was stopped approximately two miles north of Route 116 on Interstate 55 in Livingston County. The motion stated probable cause was allegedly supplied to the arresting officer by an informant, but “the identity, credibility, and reliability of said informant is so lacking and insufficient as to render the arrest illegal and unconstitutional for want of probable cause.”

On January 9, 1989, a hearing was held on the various defense motions, including the motion to quash. Initially, the State presented the testimony of witnesses relating to defendant’s motion to suppress all confessions, statements, or admissions. After the motion to suppress was denied, the State was allowed to examine Jean Stover, an employee of the Illinois State Police at the Morton laboratory. Stover was introduced as a witness in the State’s case on the complaint for forfeiture of defendant’s vehicle. Although the issue of forfeiture was not litigated on January 9, the parties agreed to allow Stover to testify at that hearing. Of significance to the case at bar was Stover’s testimony that a powdery substance on a mirror found in the trunk of defendant’s automobile was not shown to be a scheduled substance.

The only witness called to testify on defendant’s motion to quash the arrest was Gary King, a sergeant with the Department of Criminal Investigation of the Illinois State Police. King testified that on August 18, 1988, a confidential source who had provided reliable information to King in the past advised him a person named Johnson telephoned the source earlier that day and asked to borrow the source’s car for purposes of driving it to Chicago, where Johnson intended to purchase one-half ounce of cocaine. The informant called King to ask for advice. King advised his informant to offer to accompany Johnson to Chicago, but not to let them use the confidential source’s vehicle. King did not know why Johnson did not drive his own car to Chicago.

Before the informant could propose this alternate plan, Johnson called back to say that defendant was going to drive him from Bloomington to Chicago and back again in defendant’s automobile. Johnson said that a person named Harris would also be accompanying them. Johnson requested the informant to telephone the appropriate connection in Chicago to arrange for the pick up of one-half ounce of cocaine. The informant told Johnson to notify him when they began the return trip. Nothing in the informant’s conversation with King indicated defendant was going to be involved in the purchase or had any knowledge of the purpose for driving to Chicago. This informant had not mentioned defendant’s name previously in connection with drug transactions in Illinois, but King assumed the confidential source knew defendant personally, as he did Johnson and Harris, because the source knew the color, make, and license-plate number of defendant’s car. King admitted, however, the source’s knowledge of the make and model of defendant’s car could have been provided by Johnson.

The informant, after recounting the substance of the second conversation with Johnson, advised King that Waddell owned a 1979 gold Toronado Oldsmobile with “Dollar 4” on the license plates. The informant also advised King that Johnson would be carrying the cocaine in the crotch of his pants.

At approximately 6 p.m., the confidential source telephoned Johnson’s connection in Chicago and learned that the sale had been completed and that Johnson and the others had just left for Bloomington. The informant telephoned King to advise him of these facts. King and the source estimated that the trio would arrive in Bloomington in about two hours. King testified the police had independently confirmed the fact that Johnson, Waddell, and Harris had driven to Chicago.

On the basis of this information, King and six other police officers stopped defendant’s car at approximately 8 p.m. on Interstate 55 in Livingston County, near Bloomington. Defendant was driving the car, which was the color and make the confidential source had described and bore “Dollar 4” license plates.

According to the testimony given at the hearing on the motion to suppress by Officer Kirk Lonbom, police officer for the city of Clinton, by Trooper Paul Steidinger of the Illinois State Police, and by Michael Bernardini, special agent with the Illinois State Police Division of Criminal Investigation, the defendant, Johnson, and Harris exited the vehicle and were frisked for weapons. A packet, which subsequent chemical analysis revealed contained 13.9 grams of a white powdery substance containing cocaine, was found in the crotch of Johnson’s pants. Defendant, Johnson, and Harris were placed in handcuffs upon exiting the vehicle. Defendant gave the police permission to search his car. The vehicle was searched by an officer using a dog. Among the things found in the trunk of the car was a mirror which was covered with a white powdery residue. As noted earlier, the subsequent chemical analysis of the white powdery residue from the mirror failed to reveal the presence of a controlled substance. The record does not indicate whether defendant was handcuffed before or after consenting to the search of the vehicle, but it is clear defendant was handcuffed prior to the search. This detainment lasted 15 to 20 minutes.

Following Sergeant King’s testimony, defense counsel asked the court to rule on the motion to quash. The State’s Attorney objected to a summary ruling at that point on the ground he had not been given an opportunity to present his own evidence and he wanted to call the confidential source, who had not been subpoenaed for the hearing, but who could possibly provide relevant testimony on the issue of probable cause to arrest if the court would grant a short continuance. The State’s Attorney did not advise the court when the witness would be available to testify, even though asked to do so, and merely informed the court that the need for the witness was not anticipated for this hearing. Defense counsel stated the State’s request might be justified had King equivocated as to what was said about defendant, but he was opposed to a continuance where King did not express uncertainty about the substance of the information the confidential source related to him. The State’s Attorney countered with the argument that the confidential source would testify that on August 18 he related more information to Sergeant King regarding the drug transaction than King recalled and recounted in his testimony at this hearing five months after the event. The court denied the motion for a continuance on the ground King did not indicate he had forgotten any of the information revealed to him by the confidential source. The trial court indicated the production of the source as a witness would probably be futile in this case.

The court then granted the motion to quash, finding there was no probable cause for the police to believe Waddell purchased drugs or possessed drugs as no information to that effect had been given to police. Instead, all the information available to the police was that another party was purchasing the drugs and would be concealing and transporting the drugs. Without further information available to officers at the time of arrest to attribute knowledge of a drug’s presence, the trial court decided defendant cannot be charged on an accountability theory with possession of drugs concealed upon the body of the passenger.

The first issue we will consider is whether the State was denied a fair hearing by the trial court’s denial of a request for a short continuance in order to produce an additional witness. A motion for continuance is addressed to the sound discretion of the trial court, and the trial court’s ruling on such a motion will not be disturbed on appeal in the absence of a showing of an abuse of discretion. (People v. Peterson (1979), 70 Ill. App. 3d 205, 387 N.E.2d 951.) Factors to be considered in determining whether an abuse of discretion has occurred include: (1) whether the moving party has acted diligently to obtain the evidence; (2) whether the evidence is material and might affect the outcome; and (3) the related prejudice to the parties which would result from the trial court’s ruling. (See People v. Timms (1978), 59 Ill. App. 3d 129, 375 N.E.2d 1321.) Certainly, the trial court has the discretion to deny a continuance to a defendant who is merely attempting to thwart the efforts of the trial court to move the court calendar or to the State where the request for a continuance improperly obstructs the defendant’s right to a speedy trial. (People v. Edwards (1981), 97 Ill. App. 3d 407, 422 N.E.2d 1117.) Whether an abuse of discretion occurred depends on the facts of the case, and the reviewing court’s evaluation of the trial court’s decision must be made in light of the circumstances existing at the time of the request. People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.

The State argues it is fundamental to the adversarial system that the State be given the opportunity to present witnesses. The State cites People v. Elliott (1987), 162 Ill. App. 3d 542, 515 N.E.2d 1302, in which the court did conclude the State had a right to present evidence and to cross-examine defendant’s witnesses at a hearing on a motion to suppress where the trial court had refused to allow the State to cross-examine the arresting officer who had been called as a witness by defendant. Under section 114 — 4(c)(2) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 114— 4(c)(2)):

“A written motion for continuance made by the State more than 30 days after arraignment may be granted when:
* * *
(2) A material witness is unavailable and the prosecution will be prejudiced by the absence of his testimony; however this shall not be a ground for continuance if the defendant will stipulate that the testimony of the witness would be as alleged.”

Section 114 — 4(e) of the Code states that “[a]ll motions for continuanee are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant.” Ill. Rev. Stat. 1987, ch. 38, par. 114 — 4(e).

The State relies on People v. Grimm (1979), 74 Ill. App. 3d 514, 392 N.E.2d 1138, and People v. Edwards (1981), 97 Ill. App. 3d 407, 422 N.E.2d 1117. In Edwards, the court’s refusal to grant the State a continuance resulted in an acquittal which the appellate court reversed and remanded. The State had requested a continuance to March 24, 1980. The trial court had granted a five-day continuance to March 24, 1980, for two other defendants in the case. Since the State had indicated an intent to try the defendants together and no motion for severance had been filed, the appellate court felt it was an abuse of discretion for the trial court to deny the State’s motion for a continuance as to Edwards. In Grimm, the State asked for a continuance because the State’s sole witness had become ill the evening before the bench trial was to begin and was unable to appear to testify. Since no prior continuance had been sought and no other delay had been occasioned by the State, it was an abuse of discretion to deny the continuance. The Grimm opinion relies on the rationale used in People v. Deems (1979), 74 Ill. App. 3d 543, 392 N.E.2d 1118. Deems, and therefore Grimm, relies heavily on the fact that the defendant’s right to a speedy trial (Ill. Rev. Stat. 1987, ch. 38, par. 103—5) has not been impaired by the State’s motion for a continuance. And this is primarily the State’s argument in the case at bar as well.

However, impairment to the right to a speedy trial is not the only prejudice which may occur to a defendant under the facts of the present case. It seems fundamentally unfair to require defendant to present his evidence on the motion to quash and then, when the burden of going forward shifts to the State, to allow the State a continuance to prepare the evidence to be presented. The confidential source was not unavailable as a witness. The State simply had not asked the source to appear in court. Through a lack of diligence, the State was not prepared to proceed. In People v. Timms (1978), 59 Ill. App. 3d 129, 375 N.E.2d 1321, and in People v. Tillman (1980), 82 Ill. App. 3d 430, 402 N.E.2d 825, motions for a continuance to obtain evidence were determined to be properly denied where the only reason the witness was unable to appear was because the witness was not subpoenaed. In fact, there was no showing here that the source was employed or was otherwise difficult to secure as a witness such that a subpoena would even be required. The State’s Attorney admitted he simply had not anticipated the need for that witness.

Most importantly, however, the trial court is correct in saying that it was not what the confidential source knew or told King which was important, but it was what King, and the other officers, understood to be the facts which could form the basis of a reasonable belief that defendant was committing or had committed an offense at the time of his arrest. In short, the confidential source, as a witness, could add nothing to the hearing on the motion to quash since King had testified to the facts which formed the basis for the belief that defendant had committed or was committing a criminal offense. For all of these reasons, the trial court did not commit an abuse of discretion in denying the State’s motion for a continuance under the facts of this case.

The remaining issue to consider is whether the trial court erred in quashing defendant’s warrantless arrest on the ground the police did not have probable cause to believe that defendant, the driver of the car at the time of the arrest, had knowledgeable control of the contraband which a passenger in the car had concealed in the crotch of his pants.

The trial judge did not say there was no probable cause to stop the vehicle, but only that there was no probable cause to arrest defendant for what Johnson was carrying. The trial court was under the impression at the preliminary hearing that the charge against defendant stemmed from the residue discovered on the mirror in the trunk, which residue was later shown to contain no scheduled substance, and the judge was concerned the State was attempting to use statements defendant made to Lonbom after defendant was arrested to establish defendant’s knowledge of the cocaine Johnson possessed and therefore to establish probable cause to arrest defendant.

In People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147, the Illinois Supreme Court extensively discussed the rules for determining probable cause to arrest, with or without a warrant, probable cause to search, with or without a warrant, and the proper consideration to be given an informant’s tip. Whether probable cause exists to issue a warrant in a particular case turns on the totality of the circumstances and facts known to the officers and court. It is the probability of criminal activity, not proof of the crime beyond a reasonable doubt, which is the standard for determining whether probable cause is present. Whether the necessary probability exists is governed by commonsense considerations. Whenever a police officer has proceeded without a warrant to search, seize evidence, or arrest a person, the trial court’s probable cause determination applies standards as stringent as those utilized to decide whether to issue a warrant. Under the Code, a warrantless arrest is possible only when a peace officer “has reasonable grounds to believe that the person is committing or has committed an offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 107 — 2(l)(c).) “Reasonable grounds” has the same substantive meaning as “probable cause.” A warrantless arrest meets the reasonable grounds, probable cause requirement if the trial court decides a reasonable and prudent person, having the knowledge possessed by the officer at the time of the arrest, would believe the defendant committed the offense. The officer’s factual knowledge, including his prior law-enforcement experience, is to be considered. The police officer need not have personally observed the facts forming the basis for probable cause. The officer’s statements may be based on hearsay, such as an informant’s tip. If the facts supplied in the tip are essential to a finding of probable cause, the tip must be reliable. The Tisler court relied heavily on Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, wherein the Supreme Court held a magistrate should look to the totality of the circumstances when assessing an affidavit relying on an informant’s story. The trial court must make a practical, commonsense decision whether the circumstances, including the veracity and basis of knowledge of the informant, create a fair probability that contraband or evidence of a crime will be found in a particular place. Also emphasized was the value of independent police investigation that corroborates the details of the informant’s story. In other words, when a tip is proved accurate as to some details, the information is more likely correct about other details, including the alleged illegal activity. This corroboration reduces the risk the informant’s tip stems from rumor or fabrication. Before reviewing all the circumstances presented to the trial court in order to determine whether the arrest was unlawful, we note that a reviewing court will not disturb a trial court’s finding on a motion to suppress, unless that finding is manifestly erroneous. People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766, 769; People v. Haskell (1968), 41 Ill. 2d 25, 30, 241 N.E.2d 430, 433.

At the time the vehicle was stopped, the police knew defendant was driving Johnson from Bloomington to Chicago and back and that Johnson’s reason for the trip was to purchase cocaine. While it is possible defendant had no knowledge or involvement with the purchase of the cocaine, it is more probable than not, from a commonsense point of view, that defendant was aware of the purpose of the trip, if not when they left Bloomington, then at least after they left Chicago. The trial court’s stated concern that an entire bus load of people could be arrested on the basis of what one passenger possessed has no validity. Nevertheless, the State’s direct assault on the reasoning of the trial court does not necessarily demonstrate that the ruling was manifestly erroneous. Instead, a step-by-step analysis must be utilized.

First, the trial court specifically found there was probable cause to stop the vehicle. Second, the trial court refused to suppress any statements made by defendant. We do not know exactly what defendant’s statements were. When Lonbom was testifying, he was asked to relate what defendant had told him. However, defendant’s counsel objected to going into the specifics of the statement at the suppression hearing. The objection was sustained. Nevertheless, the trial court found something was lacking at some point between the time the vehicle was stopped and the time the statements were made.

What transpired during this time? The police detained and frisked defendant, obtained defendant’s consent to search the vehicle, searched the vehicle and found what appeared to be evidence of an additional crime, placed the defendant under arrest, and transported defendant to the station. All of this was done without advance judicial approval by way of obtaining a warrant.

Even though a police officer does not possess probable cause to make an arrest, a police officer may approach persons to investigate possible criminal activity and to frisk the individuals to ascertain the presence of weapons in order to protect the police officer and prospective victims of violence. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) In Illinois, these rules have been embodied in the Code. Section 107 — 14 provides:

“A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense as defined in Section 102 — 15 of this Code, and may demand the name and address of the person and an explanation of his actions. Such detention and temporary questioning will be conducted in the vicinity of where the person was stopped.” (Ill. Rev. Stat. 1987, ch. 38, par. 107-14.)

Section 108 — 1.01 provides:

“When a peace officer has stopped a person for temporary questioning pursuant to Section 107 — 14 of this Code and reasonably suspects that he or another is in danger of attack, he may search the person for weapons. If the officer discovers a weapon, he may take it until the completion of the questioning, at which time he shall either return the weapon, if lawfully possessed, or arrest the person so questioned.” (Ill. Rev. Stat. 1987, ch. 38, par. 108-1.01.)

Under the facts of this case, it was certainly reasonable for the police to detain defendant for the purpose of investigating a crime and, in the process, frisk defendant for weapons.

While being detained, defendant consented to a search of the vehicle. No issue is raised in this appeal concerning the voluntariness of the consent.

This search produced from the trunk of defendant’s car a mirror with a white powdery substance on it. It was this mirror with the powder on it which the trial court understood at the preliminary hearing to form the basis of the charge against defendant. This statement by the judge gives the impression that had the substance on the mirror been shown to be a scheduled substance, then the arrest would not have been quashed. But, as is pointed out in Tisler, the test of a valid arrest is not whether the defendant can be proved guilty beyond a reasonable doubt, but whether a reasonable and prudent person, knowing what the police officer knew at the time of the arrest, would believe defendant committed an offense.

If defendant could properly be arrested based on the evidence obtained from the trunk, then the arrest should not have been quashed. If after the arrest the defendant made statements which inculpated him in the Johnson transaction and which statements could support the accountability charge, the charge relating to the mirror could be dropped at the discretion of the State’s Attorney for insufficient evidence. Neither logic nor common sense would require the State’s Attorney to proceed on both charges after subsequently learning that the case on the initial charge could not be proved beyond a reasonable doubt.

We agree with the trial court that probable cause to arrest defendant cannot be established because the officers reasonably believed defendant had constructive control of the contraband. The basis for the doctrine of constructive possession is that under the circumstances of the case it may be fairly inferred the defendant knew of the presence of the contraband. There is no evidence from which the police officers at the time of the arrest could reasonably believe the defendant, owner and operator of the transporting vehicle, knew Johnson was carrying cocaine while Johnson was a passenger in the car or knew of the purpose of the trip and was voluntarily participating in this criminal activity. While the informant probably need not expressly supply such information and the officers certainly can look to the circumstances, applying their experience and common sense, the very limited information available to the officers concerning defendant’s activities does not lend a great deal of support to the accountability argument. However, this alone does not deprive the officers of probable cause to arrest defendant based on the mirror in the trunk.

At this stage, the sole problem which must be resolved is whether the fact the defendant was handcuffed as soon as he stepped out of the vehicle constituted an arrest, as opposed to a stop. If the handcuffing constituted an arrest, then the subsequently discovered powdery residue on the mirror could not provide probable cause for the arrest.

As is stated in his treatise entitled Search and Seizure, Wayne R. LaFave states:

“A stopping for investigation is not a lesser intrusion, as compared to arrest, because the restriction on movement is incomplete, but rather because it is brief when compared with arrest, which (as emphasized in Terry) is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial or conviction ultimately follows.” 3 W. La-Fave, Search and Seizure §9.2(d), at 363 (2d ed. 1987).

In the case at bar, the police functions of crime detention and crime prevention seem to be intermingled. In Terry, the officer was investigating the suspects on the basis of his reasonable belief a daylight robbery was about to be attempted. Crime prevention was the purpose of that stop, as opposed to crime detection, which is the investigation of a suspect’s involvement in a crime which has already been committed. Here, the officers did not know the extent of defendant’s involvement in the criminal activity. Surely, they could investigate. The testimony was that the officers wanted not only to detect a crime which was already being committed, but also to prevent cocaine from reaching the street.

The question remains whether handcuffing defendant transformed the stop into an arrest under the facts of this case. Handcuffing, alone, may not transform an investigative stop into an arrest, depending upon the circumstances. In United States v. Glenna (7th Cir. 1989), 878 F.2d 967, an officer handcuffing a suspect during an investigative stop did not transform the stop into an arrest where the suspect was handcuffed after the officer found ammunition in one of the suspect’s pockets. In Howard v. State (Alaska App. 1983), 664 P.2d 603, the court discussed the line between arrest and investigative stop and decided that drawn guns and handcuffing do not necessarily turn a stop into an arrest as long as the force employed is proportionate to the risk reasonably foreseen by the officers at the time of the stop. In State v. Belieu (1989), 112 Wash. 2d 587, 773 P.2d 46, the court recognized that merely pointing a gun at a suspect does not automatically change an investigative stop into an arrest, but the investigative method must be the least intrusive means reasonably available and the force used should bear some reasonably proportionate relationship to the threat apprehended. For example, in United States v. Thompson (9th Cir. 1979), 597 F.2d 187, investigative officers were justified in handcuffing defendant where defendant ignored repeated warnings not to reach inside his pockets during a pat-down search for weapons.

No Illinois case has been found which has held that handcuffing does not transform a stop into an arrest. In People v. Rodriquez (1987), 153 Ill. App. 3d 652, 505 N.E.2d 1314, defendant was handcuffed, placed in the back of a squad car and read the Miranda rights even though defendant had not resisted officers or acted so as to justify the restraint employed. The court concluded that was an arrest. In People v. Gabbard (1979), 78 Ill. 2d 88, 398 N.E.2d 574, the Illinois Supreme Court noted that the State admitted the handcuffing constituted an arrest and the court agreed. However, the facts in Gabbard clearly show more than mere handcuffing in reasonable response to a perceived threat. Defendant was picked up after being observed walking along a highway 30 miles north of Springfield at about 7 a.m. When asked where he was going, defendant said Springfield. When asked where he was coming from, defendant said Springfield. The officer asked for identification, defendant produced a checkbook. Even though the officer observed what appeared to be a driver’s license in the checkbook, defendant denied having any further identification. Thereafter, the officer ordered defendant to put his head forward on the dashboard of the squad car and to put his hands behind him, drew a weapon, and handcuffed defendant.

In the case at bar, approximately seven officers participated in the stop of the subject vehicle. The suspects were asked to exit the vehicle, they did and were handcuffed. Pat-down searches were conducted, and defendant consented to the search of the vehicle. Defendant was then placed in a squad car while a police dog was used in the search of the vehicle. This detention lasted 15 to 20 minutes. After the search, defendant was taken to the station. Before driving defendant to the station, an officer read the Miranda rights to defendant.

From a commonsense point of view, there is nothing unreasonable about police officers being apprehensive concerning the risks inherent in interdicting drug traffic. Similarly, merely because the suspect being apprehended may not be in possession of a firearm, does not mean the police officer is out of danger. (See People v. Salazar (1988), 126 Ill. 2d 424, 535 N.E.2d 766.) Here the handcuffing of defendant did not transform the Terry stop of defendant into an arrest. Therefore, the evidence found in the trunk of a vehicle owned and operated by defendant and which appeared to be cocaine, where the officers were investigating the offense of possession of cocaine based on an extremely reliable tip from an informant, could provide the probable cause for arresting defendant. The motion to quash the arrest should have been denied.

Accordingly, the order of the circuit court of Livingston County quashing the arrest of defendant is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

KNECHT and GREEN, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL S. PEHRSON, Defendant-Appellant.
    Second District
    No. 2—88—0326
    Opinion filed November 14, 1989.

      G. Joseph Weller and Barbara R. Paschen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

Following a stipulated bench trial, defendant, Daniel Pehrson, was found guilty of delivering less than one gram of cocaine (Ill. Rev. Stat. 1987, ch. 5672, par. 1401(c)) and possessing with intent to deliver more than one but less than 15 grams of cocaine (Ill. Rev. Stat. 1987, ch. 5672, par. 1401(b)(2)). He was sentenced to 24 months’ probation with 90 days of periodic imprisonment and was fined $1,000 for each offense. On appeal, defendant contends that section 401(b)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 5672, par. 1401(b)(2)) is unconstitutional and that the fines assessed were not authorized and excessive.

At trial, defendant waived his right to a jury and stipulated to the facts presented by the prosecutor, who recited that, if witnesses were called to testify, their evidence would show that on August 29, 1987, defendant was arrested at a party at the Knolls Clubhouse in Willowbrook, Illinois. There, two men who had been found using cocaine identified defendant as the person who had sold them the drug. A short time later, three Willowbrook police officers approached defendant at the party and took him outside for questioning, where he voluntarily emptied his pockets, producing a package containing a green leafy substance and, following further questioning, produced a container which held two packets of a white powdery substance. Testing by the Illinois State Police Forensic Lab revealed that the substances consisted of more than one but less than 15 grams of cocaine and 0.1 grams of cannabis. Defendant was found guilty of both offenses.

At the sentencing hearing, defendant’s motion attacking the constitutionality of the sentencing statute was denied, and the State and defendant stipulated that the street value of 1.8 grams of cocaine was $180. Following argument by the attorneys and a statement by defendant, the court sentenced him to 24 months’ probation, including 90 days’ periodic imprisonment, and fined him $1,000 for each offense. The prosecutor requested that the fine be designated as a street value fine, to which defense counsel acquiesced, and the trial court incorporated that designation in its order.

Defendant contends first that the section of the Controlled Substances Act which makes the delivery of more than one but less than 15 grams of cocaine a Class 1 felony (Ill. Rev. Stat. 1987, ch. SG1/^, par. 1401(b)(2)) is unconstitutional because it establishes a sentencing scheme which violates due process as it provides that the delivery of more than one gram of cocaine constitutes a Class 1 felony, while delivery of the same amount of heroin, and up to 10 grams, is only a Class 2 felony. Defendant argues that the legislature acknowledged the differences between various types of controlled; substances and, to provide for different degrees of control over each of the various types, such substances were classified into different schedules which identified them in terms of their relative danger to the public, and their potential for legitimate use. (Ill. Rev. Stat. 1987, ch. 56V2, par. 1100.) The legislature classified heroin as more dangerous than cocaine by making heroin a schedule I substance and cocaine a schedule II substance. (Ill. Rev. Stat. 1987, ch. 56V2, pars. 1204(c)(12), 1206(b)(4).) However, delivery of more than one gram of cocaine, a schedule II substance, constitutes a Class 1 felony while delivery of the same amount or up to 10 grams of heroin, a schedule I substance, is only a Class 2 felony. (Ill. Rev. Stat. 1987, ch. SGhk, pars. 1401(b)(2), (c).) Defendant asserts that this provision is unconstitutional because the scheduling of these controlled substances precludes the legislature from punishing the delivery of cocaine more severely than the delivery of heroin.

In support of his argument, defendant cites People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029, and People v. Wagner (1982), 89 Ill. 2d 308, 433 N.E.2d 267. In each of these cases, our supreme court held that the applicable sections of the Controlled Substances Act were violative of due process because they were not designed to remedy the evils which the legislature had determined to be a threat to the public health, safety and general welfare. In Bradley, the court found that a statute which provided for a greater penalty for possession of a substance than for its delivery violated the defendant’s due-process rights as it contravened an express legislative intent to punish traffickers or profiteers of controlled substances with the same or greater severity than the unlawful user or occasional petty distributor. (Ill. Rev. Stat. 1987, ch. 56V2, par. 1100; Bradley, 79 Ill. 2d at 418, 403 N.E.2d at 1032.) In Wagner, the court held that the statute fixing the penalty for distribution of a “look-alike” controlled substance higher than the maximum provided for distributing a bona fide controlled substance was unconstitutional because it contravened legislative intent by punishing the defendant who delivers a noncontrolled substance more severely than one who delivers a controlled substance. Ill. Rev. Stat. 1987, ch. SG1^, par. 1100; Wagner, 89 Ill. 2d at 313, 433 N.E.2d at 270.

However, section 401(b)(2) of the Controlled Substances Act was specifically enacted to punish the delivery of cocaine more severely than that of other drugs and reflected the legislative concern about the epidemic of crack usage, the unique availability of the drug, and that ingestion of only a small amount could lead to either addiction or serious disablement. (House Floor Debate, SB 1565, Pub. Act 84 — 1475, December 5, 1985, at 10-11.) In imposing penalties for drug offenses, the legislature should be able to take all considerations into account rather than being forced to rely simply on the scheduling scheme for that drug.

In People v. Upton (1986), 114 Ill. 2d 362, 500 N.E.2d 943, our supreme court upheld a statute which provided a greater penalty for distribution of “look-alike” substances than that provided for bona fide controlled substances where, unlike the situation before it in Wagner and Bradley, the legislature declared that it was its legislative intent to have this disparity in penalties and sought to justify its reasoning. The court distinguished Bradley and Wagner because, in those cases, the penalty provisions had directly contradicted the declared legislative intent. Upton (1986), 114 Ill. 2d at 373, 500 N.E.2d at 945-46.

In the present case, the declared legislative intent in enacting section 401(b)(2) was to fix a higher penalty for a small amount of cocaine which the legislature felt was needed to protect society against the problems resulting from cocaine. Legislation will survive a substantive due-process challenge so long as it is reasonably designed to remedy the evils the legislature has determined to be a threat to the public health, safety, and general welfare. (Upton, 114 Ill. 2d at 373, 500 N.E.2d at 948.) The legislature has broad discretion in classifying offenses and providing penalties for them (People v. Mathey (1983), 99 Ill. 2d 292, 298, 458 N.E.2d 499), and we find no due-process violation in section 401(b)(2) of the Controlled Substances Act.

Next, defendant argues that under the provisions of section 5— 9 — 1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 9—1.1) excessive fines were imposed.

At the sentencing hearing, the prosecutor offered her statement as an officer of the court that the street value of the cocaine seized from defendant was approximately $100, and this estimate was noted by defense counsel to mean that the 1.8 grams seized from defendant with a value of $100 per gram resulted in a total street value of $180. The trial court assessed a fine of $1,000 for each offense, and, when the prosecutor asked that the fine be assessed under the mandatory street value statute, defense counsel agreed.

Defendant now argues that the assessment of street value fines pursuant to section 5 — 9—1.1 establishes that the actual street value of substances involved in criminal convictions is the only measure of the fine under this statute, and the assessment of any fine in a greater amount must be made pursuant to section 411.1 of the Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56^2, par. 1411.1), which applies to discretionary fines and is based upon factors other than the street value of the drug itself.

Section 5 — 9—1.1 provides for a mandatory fine in drug-related offenses, as follows:

“When a person has been adjudged guilty of a drug related offense involving *** possession or delivery of a controlled substance *** a fine shall be levied by the court at not less than the full street value of the *** controlled substances seized.
‘Street value’ shall be determined by the court on the basis of testimony of law enforcement personnel and the defendant as to the amount seized and such testimony as may be required by the court as to the current street value of the *** controlled substance seized.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 1005-9-1.1.

Section 411.1 of the Controlled Substances Act provides:

“Whenever any person pleads guilty to, is found guilty of *** an offense under this Article, a fine may be levied in addition to any other penalty imposed by the court.” Ill. Rev. Stat. 1987, ch. 56V2, par. 1411.1(a).

Where the courts have chosen to assess fines under the mandatory street value section only, the measure of the fine has generally been the value of the substance involved. (See People v. Ruff (1983), 115 Ill. App. 3d 691, 450 N.E.2d 1369 (where on appeal, the reviewing court increased the street value fine imposed to reflect the actual street value of the drugs seized); People v. Beavers (1986), 141 Ill. App. 3d 790, 491 N.E.2d 438 (here, on appeal, the court reduced the street value fine to reflect the actual street value of the drugs seized); People v. Pilcher (1986), 147 Ill. App. 3d 193, 497 N.E.2d 1360 (where the court allowed a fine which exceeded the going street value of $100 per gram for cocaine because it contained a higher concentration of pure cocaine than did the cocaine usually found on the street so that the actual street value of the substance seized was much higher).) However, section 5 — 9—1.1 states that a mandatory minimum amount must be assessed “at not less” than the street-level value of the substance and does not limit the potential to increase that amount. In any case, the trial court had the authority to assess the fine imposed pursuant to section 411.1 of the Controlled Substances Act (Ill. Rev. Stat. 1987, ch. BGVa, par. 1411.1). It is well settled that the controlling determination before a reviewing court is the correctness of the trial court’s conclusion, and not the validity- of its rationale. (People v. Jones (1981), 98 Ill. App. 3d 489, 492, 424 N.E.2d 683.) We conclude that the trial court was authorized to assess the fines in this case.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT, P.J., and REINHARD, J., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SALVATORE DeCESARE, Defendant-Appellant.
    Second District
    No. 2—88—1114
    Opinion filed November 17, 1989.

      Terry Sullivan and Nancy J. Nicol, both of Law Offices of Terry Sullivan, Ltd., of Rolling Meadows, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan, and Eleesha Pastor O’Neill, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Salvatore DeCesare, was convicted of unlawful delivery of 15 or more grams of a substance containing cocaine (Ill. Rev. Stat. 1987, ch. SGVa, par. 1401(a)(2)) and sentenced to a 10-year term of imprisonment. Defendant contends on appeal that the trial court made the following errors: (1) admitting into evidence three guns found in his bedroom during a search of his home; (2) admitting into evidence several plastic bags found in his laundry room during the same search; (3) denying defendant’s motion for a new trial; and (4) denying defendant’s motion to dismiss the indictment as a result of false testimony by a police officer before the grand jury. We affirm.

The charges against defendant in this case arose from an alleged cocaine sale by defendant to Jay Parker on January 30, 1988. Parker testified that he had been charged with a Class X felony prior to that date. The State’s Attorney agreed to reduce this charge if Parker disclosed the name of his cocaine supplier. Although no deal was made concerning the sentence Parker would receive on the reduced charge, he was sentenced to a probationary term.

Parker testified that on the morning of January 30, 1988, he met with Steven Semenek, a detective with the Lake County sheriff’s police, and several agents of the Lake County Metropolitan Enforcement Group (LCMEG) in Ivanhoe. Semenek searched Parker and his car. Parker placed a telephone call to defendant’s car phone. Parker asked if they could meet at defendant’s house in Barrington so that Parker could purchase an ounce of cocaine. Defendant agreed. Parker then drove to the house, but defendant was not home.

After leaving the house, Parker met Semenek at a grocery store parking lot in Wauconda. Parker placed another phone call to defendant, who was home. He then returned to defendant’s house and entered the garage. Parker gave defendant $900 and defendant gave him a bag which contained a white powdery substance. Parker then returned to the grocery store parking lot and turned the bag over to Semenek. Some other law enforcement agents were also present, although Parker did not know who they were. Defendant subsequently stipulated that the bag turned over by Parker contained 25.3 grams of a substance containing cocaine. Semenek searched Parker and his car at the parking lot but did not find anything.

Parker stated that, as far as he knew, the law enforcement agents remained at the grocery store parking lot in Wauconda while he went to defendant’s house to purchase the cocaine. The parking lot was five to seven miles from defendant’s home. Parker testified that he did not look to see if the agents were following him and that it was possible they were.

Parker denied having sometimes entered defendant’s home or garage when defendant was not present. He admitted that defendant loaned him $1,793 to pay for car repairs but stated that he repaid this sum two weeks after he borrowed it.

Detective Steven Semenek of the Lake County sheriff’s police testified that he and several LCMEG agents met Parker in Libertyville at a sheriff’s police substation at about 2 p.m. on the afternoon of January 30, 1988. Semenek searched Parker at this time and found no controlled substances. According to Semenek, Parker was directed to undo and drop his pants prior to the search. Semenek also searched the front seat, passenger’s seat, glove compartment, and trunk of Parker’s car. He found no controlled substances or money during this search. The agents then gave Parker $900 in prerecorded currency.

Parker then began driving toward Barrington. Semenek and LC-MEG Agent Nugent followed him in one vehicle while LCMEG Agents Hunter and Heidecke followed him in another vehicle. Parker stopped near the intersection of routes 60 and 83 in Ivanhoe in order to use a pay telephone. He then continued driving to Barrington. Semenek saw him turn onto Border Lane in Barrington, the street where defendant resided. Semenek and Nugent then took up a surveillance position at a school on Route 59 about a quarter of a mile from defendant’s residence. They could not see defendant’s residence from this position. Parker was out of their sight for about 2 or 21k minutes.

Semenek then saw Parker exit the area in his car and drive to a grocery store parking lot in Wauconda. The agents followed him to the parking lot, and Parker informed them that defendant was not home.

Semenek testified that Parker then made another telephone call. The agents once again followed him to the Border Lane area and took up surveillance positions. Parker was out of Semenek’s sight for about five minutes. Semenek then saw Parker’s car leave the area. Parker went back to the grocery store parking lot, and the agents followed him there. Parker turned over a white envelope with a plastic bag inside that contained a white powdery substance. Semenek then searched Parker and his car. Semenek did not find any money or controlled substances in this search.

Officer Syndy Nugent corroborated much of Semenek’s testimony concerning the events of January 30, 1988. Nugent stated that she had been a police officer with the City of Zion for eight years and had been assigned to LCMEG for the past 21k years. She had participated in 20 to 30 drug investigations as an undercover agent and had conducted surveillance in over 100 drug cases. Nugent testified that LCMEG is a drug-enforcement group.

As a result of the information supplied by Parker, the LCMEG agents received a search warrant for defendant’s residence. Nugent was one of the agents who executed the warrant on February 10, 1988. While searching a downstairs room, Nugent found an Ohaus triple-beam scale which was admitted into evidence without objection. Nugent also testified that she found three plastic bags, one of which had been wrapped with yellow tape, on a shelf in the laundry room. She stated that in three other cases, she had seen similar items used for the packaging of cocaine. Nugent testified that she had seen similar packaging materials in cases involving half a pound of cocaine or more and that she had seen similar yellow tape used to wrap bags containing over a pound of cocaine. The plastic bags were admitted into evidence over defendant’s objection.

Nugent also found three handguns while searching the bedroom shared by defendant and his wife. She found two revolvers on the top shelf of a closet which contained men’s clothing. She found a .22 caliber handgun in a drawer containing men’s underwear in another closet. The drawer also contained an ammunition clip with five projectiles that fit into the gun. The handguns were admitted into evidence over defendant’s objection.

On cross-examination, Nugent testified that the plastic bags she found could have a number of uses, as could the scale. She stated that the scale was found in a closet of a room which contained a tanning bed and tanning bulbs.

Defendant’s housekeeper, Ronnie DeAngelo, testified that she had worked in his home for eight years. According to DeAngelo, the two entrances to defendant’s garage were never locked. She testified that Jay Parker was in defendant’s house just about every day, often when defendant was not around. Most of the time Parker was intoxicated.

DeAngelo testified further that the triple-beam scale in the house was used for weighing gold jewelry. She stated that Mrs. DeCesare sold jewelry during the Christmas season in her tanning- salon. DeAngelo had not seen the plastic bags that were admitted into evidence but stated she had used similar bags for canning.

Defendant’s wife, Cheri DeCesare, corroborated DeAngelo’s testimony concerning the use of the triple-beam scale. She also testified that the garage was never locked and she had seen Jay Parker in the garage and the house at times when defendant was not home.

Mrs. DeCesare testified that she owned the three guns seized in the February 10, 1988, search. She bought the guns because she had previously been the victim of a burglary in her home. At one point, defendant owned a towing business and was often away at night. Mrs. DeCesare bought the guns because she was afraid of being home alone at night.

The jury found defendant guilty of the offense in question. Defendant subsequently filed an amended motion for a new trial based upon newly discovered evidence. Attached to the motion was an affidavit from Jay Parker in which he stated that he spoke to two of defendant’s attorneys on September 20, 1988.

The affidavit states that during the above conversation, Parker told the attorneys that he did not have to remove any of his clothing before the officers searched him on January 30, 1988, and the officers merely performed a pat-down search. The affidavit further states that one of the officers merely looked inside and under the front seat of his car on that date and that the officers did not perform a complete search of the car at any time.

According to the affidavit, Parker told the attorneys that he was never followed by any marked or unmarked police cars when he drove to defendant’s home on the above date. The agents stayed in a grocery store parking lot and were always there when Parker returned to that location. The agents told Parker he would get 15 years in prison if he did not testify and that they would keep him in prison until he testified.

The trial court denied the amended motion for a new trial and also denied a post-trial motion to dismiss the indictment based upon allegedly false testimony by Agent Syndy Nugent before the grand jury. Nugent had testified that on January 30, 1988, she saw Parker park his car by defendant’s residence and walk toward the residence. Defendant argued that from Nugent’s surveillance position, it would have been impossible for her to see Parker park the car on Border Lane and walk toward defendant’s home.

Defendant initially argues that the trial court erred by admitting into evidence the guns and plastic bags found in his residence 10 days after the offense allegedly took place. With regard to the guns, defendant cites the general rule that guns should not be admitted into evidence if they were not used in the commission of the offense or if they were not sufficiently connected to the offense. (People v. Yelliott (1987), 156 Ill. App. 3d 601, 603; People v. McQueen (1983), 115 Ill. App. 3d 833, 838; People v. Wade (1977), 51 Ill. App. 3d 721, 729.) Reviewing courts have recognized that substantial prejudice can result from the admission of guns which were not connected to the alleged offense. See People v. Jackson (1987), 154 Ill. App. 3d 241, 246; Wade, 51 Ill. App. 3d at 729.

Additionally, evidence suggestive of prior misconduct or commission of another crime by the accused is inadmissible unless it is relevant to establishing factors such as identity, intent, knowledge, motive, a common scheme, or a fact material to the trial issues. (People v. Jones (1977), 55 Ill. App. 3d 446, 452.) Even if the evidence has some probative value relating to one of the above factors, it should not be admitted if its prejudicial effect outweighs its probative value. People v. Daniels (1987), 164 Ill. App. 3d 1055, 1078.

The State argues that the guns and the plastic bags were relevant evidence of defendant’s intent to distribute cocaine. In People v. Wright (1986), 140 Ill. App. 3d 576, the court held that guns seized from defendant’s apartment were relevant evidence in his trial for possession of a controlled substance with intent to deliver when approximately 300 grams of cocaine were also seized in the search. The court stated:

“Knowing control of the 300 grams of cocaine found in his apartment was a material fact in issue, the State arguing that the cache of weapons indicated defendant was protecting his illicit drug trade and defendant asserting that he did not know the cocaine was in his apartment. Thus, the evidence was relevant and its admission was proper.” (Wright, 140 Ill. App. 3d at 580.)

In People v. Schaefer (1985), 133 Ill. App. 3d 697, the court affirmed defendant’s conviction of possession of a controlled substance with intent to deliver, rejecting defendant’s contention that the evidence was insufficient to establish that he intended to deliver the substance. Among the factors cited by the court in rejecting this contention were the presence of drug paraphernalia and the presence of weapons in defendant’s home at the time the cocaine was seized. Schaefer, 133 Ill. App. 3d at 703.

Courts have held in a number of Federal cases that firearms seized from the residence of an accused charged with possession of controlled substances with intent to deliver are admissible evidence of intent where the firearms and the drugs were seized in the same search. (See, e.g., United States v. Savinovich (9th Cir. 1988), 845 F.2d 834, 837; United States v. Randle (8th Cir. 1987), 815 F.2d 505, 508; United States v. Payne (D.C. Cir. 1986), 805 F.2d 1062, 1065.) These holdings are based upon the recognition that firearms “are as much tools of the trade as more commonly recognized drug paraphernalia” (Payne, 805 F.2d at 1065) and that it is reasonable to infer that an armed individual who possesses drugs intends something more than mere personal use (Savinovich, 845 F.2d at 837). Similarly, common packaging materials such as plastic baggies and ziplock bags which are seized along with drugs have been held admissible, relevant evidence of defendant’s intent to distribute where defendant was charged with possession of a controlled substance with intent to deliver. See Payne, 805 F.2d at 1065; United States v. Ushakow (9th Cir. 1973), 474 F.2d 1244, 1246.

When the State alleges unlawful delivery of a controlled substance, it is required to prove defendant knowingly delivered the substance. (People v. Chicon (1977), 55 Ill. App. 3d 100, 105.) Knowledge is seldom susceptible of direct proof, and it may be established instead by evidence of defendant’s acts, statements, or conduct from which an inference of knowledge may fairly be drawn. (Chicon, 55 Ill. App. 3d at 105.) The presence of tools of the narcotics trafficking trade such as the firearms, the scale, and the plastic bags could fairly lead to an inference that defendant was a narcotics dealer and a further inference that he knew the substance in the plastic bag given to Jay Parker contained cocaine. Accordingly, the guns and plastic bags were relevant evidence concerning an element of the charged offense.

The admission of the guns and plastic bags into evidence undoubtedly resulted in some prejudice to defendants. Relevant evidence need not be excluded solely because it prejudices the accused; however, the relevance and probative value of the evidence must be weighed against its prejudicial effect. (People v. Daniels (1987), 164 Ill. App. 3d 1055, 1078.) The trial court’s determination in this regard will not be reversed absent an abuse of discretion. (Daniels, 164 Ill. App. 3d at 1078.) In light of the strong probative value of the guns and plastic bags on the issue of defendant’s knowledge, an element of the charged offense, the trial court’s conclusion that the relevance and probative value of this evidence outweighed its prejudicial effect on defendant was not an abuse of discretion.

Defendant argues additionally that the guns should not have been admitted because there was undisputed evidence that his wife owned them, as indicated by the court’s order after the trial directing their return to Mrs. DeCesare. According to Syndy Nugent’s testimony, the three guns were found in the bedroom shared by defendant and his wife. Two of the guns were found on the top shelf of a closet which contained men’s clothing; the other was found in a drawer containing men’s underwear. This drawer also contained an ammunition clip with five projectiles.

The fact that Mrs. DeCesare owned the weapons would hardly negate the possibility that they were kept in the residence because of her husband’s involvement in drug trafficking, especially since they were found among his belongings. None of the cases we have cited concerning admissibility of guns as evidence of defendant’s intent to distribute narcotics makes admission contingent upon proof that defendant actually owned the guns. Instead, in United States v. Savinovich (9th Cir. 1988), 845 F.2d 834, the court stated that “guns seized from a defendant’s residence are admissible in a trial for possession of a controlled substance with intent to distribute.” (Emphasis added.) (845 F.2d at 837.) The fact that Mrs. DeCesare owned the guns does not change our view that they were relevant, admissible evidence.

Defendant also contends that Agent Nugent’s testimony concerning the plastic bags should have been stricken by the trial court because she did not qualify as an expert, having seen similar bags used for the packaging of cocaine on only three occasions. This argument is without merit. A person will be allowed to testify as an expert if her experience and qualifications provide her knowledge which is not common to lay persons and where her testimony will assist the trier of fact in reaching a conclusion. (People v. Jordan (1984), 103 Ill. 2d 192, 208.) It is within the discretion of the trial court to determine whether the witness has been properly qualified as an expert. Jordan, 103 Ill. 2d at 208.

Nugent testified that she had been an agent for LCMEG, a drug enforcement group, for 2V2 years, and a police officer for the City of Zion for eight years. She had participated in 20 to 30 drug investigations as an undercover agent and conducted surveillance in over 100 others. In light of these qualifications, the trial court did not abuse its discretion by considering her an expert in the area of drug paraphernalia. Nugent’s testimony that she had seen plastic bags such as.those seized from defendant’s residence used to package cocaine on only three other occasions would not diminish her expertise regarding drug paraphernalia in any manner. Instead, it might only affect the weight to be accorded the plastic bags by the jury as evidence that defendant knowingly delivered cocaine to Parker.

Defendant next contends he was entitled to a new trial, or to an evidentiary hearing on his motion for a new trial, as a result of the allegations made in the affidavit of Jay Parker. Defendant characterizes the averments made in the affidavit as newly discovered evidence.

A defendant should receive a new trial based upon newly discovered evidence only if the following requisites are met: (1) the evidence must be of such a conclusive character that it will probably change the result upon retrial; (2) the evidence must be material to the issue and not merely cumulative; and (3) the evidence must have been discovered after the trial and not have been discoverable before trial through the exercise of due diligence. (People v. Johnson (1986), 148 Ill. App. 3d 163, 171-72.) Such motions are" not favored and will be subjected to the closest scrutiny. (Johnson, 148 Ill. App. 3d at 171.) The trial court denied the motion on the basis of defendant’s failure to show the evidence was not discoverable before trial through the exercise of due diligence.

We agree with the trial court’s conclusion. Defendant presented no facts in his motion for a new trial or during argument on the motion tending to establish that he exercised diligence in obtaining the so-called new evidence from Parker, who was disclosed as a potential witness more than four months before trial. There was no evidence that defendant’s attorneys even attempted to interview Parker prior to trial. Defendant argues that he was improperly denied an evidentiary hearing concerning the allegations in Parker’s affidavit. It was not error for the trial judge to refuse to hear evidence concerning these factual allegations once it became apparent that defendant could not establish that the evidence was not discoverable before trial.

Furthermore, much of the so-called new evidence appears to be cumulative. Defendant cites the statements in the affidavit to the effect that the police told Parker he would be imprisoned for 15 years if he did not testify and he would be kept in jail until he testified as evidence that Parker’s trial testimony resulted from coercion. At trial, however, the jury was made aware that Parker faced a Class X felony charge with a mandatory minimum prison term of six years and that this charge was reduced in exchange for his testimony. Thus, the jury knew that Parker was threatened with imprisonment if he did not testify.

Parker also testified at trial that as far as he knew, the agents remained in a grocery store parking lot five to seven miles away while he drove to defendant’s home. The statements in his affidavit to the effect that the agents did not follow him to defendant’s home cannot therefore be considered new evidence. While the statements in Parker’s affidavit concerning the scope of the search of his person and car conducted by the agents do constitute new evidence, we have previously indicated that no showing was made that this evidence could not have been discovered prior to trial. The trial court properly denied defendant’s motion for a new trial.

Finally, defendant contends that the indictment should have been dismissed because of allegedly false testimony by Syndy Nugent before the grand jury. An indictment based upon perjured testimony may be dismissed if a due process violation is established with certainty. (People v. Wolfe (1983), 114 Ill. App. 3d 841, 845.) We agree with the trial court that defendant failed to establish a due process violation.

Nugent testified before the grand jury that, when Parker drove toward defendant’s house on the day in question, the agents saw him park his car nearby and walk toward defendant’s house. The evidence at trial indicates that the agents could not have seen either of these things from their surveillance position. Ordinarily, an indictment will not be dismissed because of false testimony before the grand jury unless all witnesses or testimony upon which the indictment is based are incompetent. (People v. Schulz (1987), 154 Ill. App. 3d 358, 367.) Nugent was the only grand jury witness. Her misstatements regarding whether she saw defendant park his car and walk toward defendant’s home were minimized by her admission that she could not actually see Parker enter defendant’s residence. Furthermore, she testified that Parker turned over a plastic bag which contained cocaine and told her that he received the bag from defendant. It would appear that the indictment resulted from this testimony. An indictment based largely or solely upon hearsay testimony is constitutionally permissible. (Wolfe, 114 Ill. App. 3d at 845.) Since there was ample evidence to support the indictment without Nugent’s misstatements, we conclude there was no due process violation.

For the reasons stated herein, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

INGLIS and NASH, JJ., concur.