author: MR. JUSTICE KLUCZYNSKI MR. CHIEF JUSTICE GOLDENHERSH,

text:
    (No. 50636.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. WILLIAM ABNEY, Appellee.

      Opinion filed June 20, 1980.

      GOLDENHERSH, C.J., and CLARK, J., dissenting.
    William J. Scott, Attorney General, of Springfield, and Ronald C. Dozier, State’s Attorney, of Bloomington (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Robert C. Perry and Jane F. Bularzik, of the State’s Attorney’s Appellate Service Commission, of Springfield, of counsel), for the People.
    Gary G. Johnson, of Normal, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This is an interlocutory appeal from a suppression order of the circuit court of McLean County. (See 73 Ill. 2d R. 604(a)(1).) The appellate court affirmed (58 Ill. App. 3d 54), and we allowed the State’s petition for leave to appeal. We have held the case under advisement pending the United States Supreme Court’s decision in Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, holding that the warrantless, nonexigent entry of a private residence, for the purpose of effectuating a felony arrest, is unconstitutional. With the benefit of that ruling, we now reverse.

On February 20, 1977, a Normal police officer was dispatched to Brokaw Hospital in Normal to interview a beating victim, Willie Jones. Jones told the officer that he had been struck by the defendant, William Abney, with an iron bar and a .9-millimeter pistol near Abney’s home. Jones’ injuries were evident. He also gave the police the address of Abney and told the police that Abney had walked toward his home after the beating. Two officers proceeded to Abney’s residence. It was almost 6:30 p.m., and approximately IV2 hours had passed since the alleged beating. No warrant was obtained. The officers later testified that they knocked on the door of the defendant’s residence with their weapons drawn, that they announced their identity, that the door swung open, that they entered the premises, and that a .9-millimeter bullet was seen in plain view on a couch. Later that evening, defendant walked into the Normal police station, was arrested, and related his version of the beating.

On February 22, 1977, defendant was charged with aggravated battery. On June 22, 1977, he filed a motion to suppress any testimony concerning the officers’ viewing of the .9-millimeter bullet. The bullet is significant for two reasons. First, it matches the caliber of pistol allegedly used in the beating. Second, Jones later testified that Abney had threatened him shortly before the beating by saying that the bullet had Jones’ name on it. This threat allegedly was made in Abney’s home, and Jones testified that Abney threw the bullet on the couch after making the threat.

The State opposed Abney’s motion to suppress on the ground that the officers’ entry was reasonable and that the bullet was spotted in plain view. (See Coolidge v. New Hampshire (1971), 403 U.S. 443, 465, 29 L. Ed. 2d 564, 582, 91 S. Ct. 2022, 2037.) The court specifically found that Abney’s door was unlocked but ruled that the entry was unlawful and that the sighting of the bullet was therefore also improper. The court’s determination that the entry was unauthorized was based on People v. Wolgemuth (1976) , 43 Ill. App. 3d 335, rev’d on other grounds (1977) , 69 Ill. 2d 154, which held that a warrantless entry is not justified in the absence of exigent circumstances. The court, in granting Abney’s motion, found no such circumstances.

In the appeal, we are asked to determine the validity of the officers’ entry and the resultant viewing of the .9-millimeter bullet. Because the validity of the viewing is dependent on the validity of the entry (Coolidge v. New Hampshire (1971), 403 U.S. 443, 466, 29 L. Ed. 2d 564, 583, 91 S. Ct. 2022, 2038), we first address the issue of the officers’ authorization to enter Abney’s home.

The State has argued that the warrantless entry was justified because the officers had probable cause to believe that a crime had been committed and that Abney was home. This argument is foreclosed, however, by the Supreme Court’s recent ruling in Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371. Alternatively, the State argues that, if more than probable cause is required, exigent circumstances were present which justified the entry.

Prior to the United States Supreme Court’s recent decision in Payton, it had not resolved the issue of “whether and under what circumstances an officer may enter a suspect’s home to make a warrantless arrest” [United States v. Watson (1976), 423 U.S. 411, 418 n.6, 46 L. Ed. 2d 598, 605 n.6, 96 S. Ct. 820, 825 n.6; see People v. Wolgemuth (1977), 69 Ill. 2d 154, 159-60, and cases cited therein). Federal courts of appeal and various State courts had reached different conclusions on the question. Some had required exigent circumstances. The leading case reaching this result was Dorman v. United States (D.C. Cir. 1970) [en banc), 435 F.2d 385, which was followed by our appellate court in People v. Wolgemuth (1976) , 43 Ill. App. 3d 335, rev’d on other grounds (1977) , 69 Ill. 2d 154. Other courts had held that probable cause alone justified a warrantless entry into a suspect’s home. The most recent case holding that probable cause was sufficient was People v. Payton (1978), 45 N.Y.2d 300, 380 N.E.2d 224, 408 N.Y.S.2d 395, rev’d (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.

In reversing two judgments of the New York Court of Appeals, the United States Supreme Court in Payton declared unconstitutional a New York statute which authorized the warrantless entry of a private residence “to make a routine felony arrest.” [Payton v. New York (1980), 445 U.S. 573, 574, 578-79 n.9, 63 L. Ed. 2d 639, 643, 646 n.9, 100 S. Ct. 1371, 1374, 1376 n.9.) Illinois, the court noted, has a similar law. 445 U.S. 573, 598-99 n.46, 63 L. Ed. 2d 639, 658 n.46, 100 S. Ct. 1371, 1386 n.46; see Ill. Rev. Stat. 1977, ch. 38, par. 107 — 5(d).

Under review in Payton were the felony murder conviction of Theodore Payton and the narcotics conviction of Obie Riddick. Payton’s arrest on murder charges followed two days of intensive police work. The murder had occurred in the course of a service station robbery after which a man was seen fleeing with a rifle and wearing a ski mask. Payton’s arrest was made possible when two eyewitnesses identified him as the killer, and one of them provided Payton’s address. Although light and music emanated from within, the arresting officers were denied admittance when they proceeded to the address, without a warrant, and knocked on the metal door of the residence. The officers summoned assistance, and after 30 minutes the door was pried open with a crowbar. [Payton v. New York (1980), 445 U.S. 573, 576, 63 L. Ed. 2d 639, 645, 100 S. Ct. 1371, 1375.) Upon entering, Payton was not to be found, but a shell casing was found in plain view on a stereo. Following an extensive search of closets, drawers, and other parts of the residence, the officers discovered a shotgun, ammunition, a sales receipt for a Winchester rifle, and photographs of Payton with a ski mask. Payton surrendered the next day. People v. Payton (1978), 45 N.Y.2d 300, 305, 380 N.E.2d 224, 225-26, 408 N.Y.S.2d 395, 396-97.

In the case of Riddick, by contrast, the defendant was arrested more than two years after he allegedly committed two armed robberies in 1971. In June of 1973, Riddick was identified by the victims, and his address was learned in January of 1974. Without obtaining a warrant, police officers went to Riddick’s residence on March 14, 1974. Riddick’s three-year-old son opened the door in response to their knock, and Riddick could be seen sitting on a bed. The police entered, arrested Riddick, and searched in a drawer two feet from the bed. Narcotics and a hypodermic syringe were found therein, and Riddick was charged with narcotics violations. Payton v. New York (1980), 445 U.S. 573, 578, 63 L. Ed. 2d 639, 646, 100 S. Ct. 1371, 1376; People v. Payton (1978), 45 N.Y.2d 300, 307, 380 N.E.2d 224, 227, 408 N.Y.S.2d 395, 397-98.

In reversing the convictions of Payton and Riddick, the Supreme Court noted that the New York courts had made no attempt to justify the entries as based upon exigent circumstances, and the court therefore did not offer a definition of such circumstances, although it stated that Payton’s arrest could arguably be so justified. [Payton v. New York (1980), 445 U.S. 573, 582-83, 63 L. Ed. 2d 639, 648, 100 S. Ct. 1371, 1378.) The court limited itself to the question of whether probable cause is sufficient to justify the entries, holding that it is not. Starting with the premise that the physical entry of the home is the chief evil against which the fourth amendment is directed (citing United States v. United States District Court (1972), 407 U.S. 297, 313, 32 L. Ed. 2d 752, 764, 92 S. Ct. 2125, 2134), the court held that warrantless searches and seizures in the home are presumptively unreasonable (citing Coolidge v. New Hampshire (1971), 403 U.S. 443, 454-55, 29 L. Ed. 2d 564, 576, 91 S. Ct. 2022, 2032), that the fourth amendment applies equally to searches and seizures of persons and property, and that no constitutional difference exists between the intrusiveness of entries to search and entries to arrest. [Payton v. New York (1980), 445 U.S. 573, 585, 63 L. Ed. 2d 639, 650, 100 S. Ct. 1371, 1379-80.) In Coolidge, the court had ruled that warrantless searches are unconstitutional in the absence of exigent circumstances [Coolidge v. New Hampshire (1971), 403 U.S. 443, 454-55, 29 L. Ed. 2d 564, 576, 91 S. Ct. 2022, 2032), and four members of the court, in dicta, expressed the opinion that the same exigency requirement is applicable to warrantless entries to arrest (403 U.S. 443, 477-78, 29 L. Ed. 2d 564, 589-90, 91 S. Ct. 2022, 2044). In Payton, the court adopted the view of those four justices, holding that a warrant is required to support a nonexigent entry into a private residence for the purpose of effecting a felony arrest. Because no warrants supported the arrests of Payton and Riddick, the court reversed the judgments of the New York Court of Appeals and remanded to that court for further proceedings.

Upon first glance, the position adopted by the New York statute invalidated in Payton appears to be the position espoused by the applicable provisions of our arrest statute (Ill. Rev. Stat. 1977, ch. 38, pars. 107 — 1 through 107 — 14). Section 107 — 2(c) of the statute provides: “A peace officer may arrest a person when *** [h] e has reasonable grounds to believe that the person is committing or has committed an offense.” (Ill. Rev. Stat. 1977, ch. 38, par. 107 — 2(c).) Section 107 — 5(d) provides: “All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to make an authorized arrest.” (Ill. Rev. Stat. 1977, ch. 38, par. 107 — 5(d).) When read together, it would appear to be the intention of the legislature that entries to arrest may be made if “reasonable grounds” or probable cause are present.

Although the opinions of this court which have upheld warrantless entries seem merely to echo the words of the statute, a close examination of the cases reveals that factors in addition to probable cause were present in each which rendered the police activity reasonable under the circumstances within the meaning of constitutional provisions governing the arrest of persons (U.S. Const., amend. IV; Ill. Const. 1970, art. I, sec. 6; see People v. Morales (1971), 48 Ill. 2d 396 (police sighted stolen goods in a garage and obtained consent from the owner of the building before entering); People v. Johnson (1970), 45 Ill. 2d 283 (defendant was seen in his home by the police before their entry); People v. Sprovieri (1969), 43 Ill. 2d 223 (police learned before their entry of the defendant’s intention to flee the city); People v. Barbee (1966), 35 Ill. 2d 407 (police were in close pursuit of an armed suspect when entering)). Although this court in Johnson, Sprovieri and Barbee did not use the phrase “exigent circumstances” and even expressed some doubts about the exigent-circumstances requirement (see, e.g., People v. Johnson (1970), 45 Ill. 2d 283, 287-88), it appears that the principles of the exigent-circumstances rule were adopted in those cases and that the requirements of the rule, by virtue of constitutional restrictions, have been judicially engrafted upon the statute. The statute, as construed, is thus in compliance with the constitutional guidelines enunciated in Payton.

Because exigent circumstances must be present to justify a warrantless entry to arrest, we turn to the issue of whether such circumstances are present in the case now before us. We note initially that neither the facts nor the credibility of witnesses is questioned. The question of whether exigent circumstances are present is, therefore, a legal one (United States v. Robinson (D.C. Cir. 1976) (en banc), 533 F.2d 578, 580, cert, denied (1976), 424 U.S. 956, 47 L. Ed. 2d 362, 96 S. Ct. 1432), subject to consideration by this court de novo.

The circuit court, in a statement of its findings and conclusions, cited the appellate court opinion in People v. Wolgemuth (1976), 43 Ill. App. 3d 335, rev’d on other grounds (1977), 69 Ill. 2d 154, in support of its conclusion that exigent circumstances were not present. It did not, however, discuss what factors it determined to be relevant in deciding that exigent circumstances were not present. Nor did the United States Supreme Court in Payton attempt to define exigent circumstances, pointing out that the New York courts did not attempt to justify the entries there in question on that basis. (Payton v. New York (1980), 445 U.S. 573, 582-83, 63 L. Ed. 2d 639, 648, 100 S. Ct. 1371, 1378.) We, however, have reviewed prior decisions of this State and other jurisdictions, including those of the United States Supreme Court, and we now hold that the circuit court’s decision to invalidate the entry and the resultant viewing of the .9-millimeter bullet is in error. Exigent circumstances here present militated against delay and justified the officers’ decision to proceed without a warrant. Additional factors also indicated that the officers acted in a reasonable fashion. We first address the question of exigent circumstances.

We consider it especially significant to note at the outset of our analysis that the officers who entered defendant’s home were presented an unusual opportunity to quickly apprehend an armed suspect and thereby prevent his escape, avoid exhaustion of law-enforcement resources, and help ensure against further endangerment to the community. In this regard, certain factors are worthy of specific mention.

First, the officers’ decision to proceed to defendant’s residence without a warrant immediately followed receipt of the victim’s statement only 11/2 hours after the beating. The receipt of such information about a relatively recent offense could suggest to the officers a need for prompt action. (See, e.g., Dorman v. United States (D.C. Cir. 1970) (en banc), 435 F.2d 385, 393 (warrantless entry upheld where made four hours after the offense); People v. Barbee (1966), 35 Ill. 2d 407, 408-12 (warrantless entry upheld where made two hours after the offense). Compare Commonwealth v. Williams (1978), 483 Pa. 293, 300, 396 A.2d 1177, 1180, cert, denied (Apr. 21, 1980), 48 U.S.L.W. 3674 (warrantless entry disapproved where made three years after the offense).) The situation presented did not rise to the level of a hot pursuit of the suspect (United States v. Santana (1976), 427 U.S. 38, 42-43, 49 L. Ed. 2d 300, 305, 96 S. Ct. 2406, 2409-10) or an entry made with probable cause to believe that the suspect entered the premises a few minutes before (Warden, Maryland Penitentiary v. Hayden (1967), 387 U.S. 294, 298, 18 L. Ed. 2d 782, 787, 87 S. Gt. 1642, 1645-46), but it did fall “within the spirit *** of the ‘hot pursuit’ exception” (United States v. Robinson (D.C. Gir. 1976) (en banc), 533 F.2d 578, 583, cert, denied (1976), 424 U.S. 956, 47 L. Ed. 2d 362, 96 S. Ct. 1432). As the court said in Dorman v. United States (D.C. Cir. 1970) (en banc), 435 F.2d 385, 393, a case involving a warrantless entry of a suspect’s residence four hours after a robbery, “This was not a case of hot pursuit, unless that term is to be stretched beyond all reasonable meaning. But the ultimate underlying factors were similar to those involved in a case of hot pursuit.” As in a case of hot pursuit, “[D] elay to obtain a warrant would have impeded a promising police investigation and conceivably provided the added time needed *** to avoid capture altogether.” (United States v. Robinson (D.C. Cir. 1976) (en banc), 533 F.2d 578, 583, cert, denied (1976), 424 U.S. 956, 47 L. Ed. 2d 362, 96 S. Ct. 1432. Compare State v. Olson (1979), 287 Or. 157, 165, 598 P.2d 670, 674 (burglary suspect had no reason to believe that police knew of his participation in the offense and there therefore existed “no particular danger of his immediate flight”); Laasch v. State (1978), 84 Wis. 2d 587, 592, 267 N.W.2d 278, 282 (“any suggestion that the police feared the defendant would flee is dispelled by the fact that she had been released for approximately two weeks” following her initial arrest for the same offense).) The officers could reasonably believe that they were confronted with an emergency, and that belief was manifested in their quick response.

Second, and closely related to the fact that the officers acted promptly, there was no deliberate or unjustified delay by the officers during which time a warrant could have been obtained. (United States v. Houle (8th Cir. 1979), 603 F.2d 1297, 1300; People v. Ramey (1976), 16 Cal. 3d 263, 276, 545 P.2d 1333, 1341, 127 Cal. Rptr. 629, 637, cert, denied (1976), 429 U.S. 929, 50 L. Ed. 2d 299, 97 S. Ct. 335; Commonwealth v. Forde (1975), 367 Mass. 798, 807, 329 N.E.2d 717, 723.) Unlike the invalid warrantless search in Coolidge v. New Hampshire (1971), 403 U.S. 443, 478, 29 L. Ed. 2d 564, 590, 91 S. Ct. 2022, 2044, for example, the officers did not contemplate their course of conduct for an extended period of time.

Finally, the need for prompt action was further made apparent by the belief that the suspect was armed and exhibited some sign of a violent character. (United States v. Robinson (D.C. Cir. 1976) (en banc), 533 F.2d 578, 583, cert denied (1976), 424 U.S. 956, 47 L. Ed. 2d 362, 96 S. Ct. 1432; United States v. Shye (6th Cir. 1974), 492 F.2d 886, 892; Dorman v. United States (D.C. Cir. 1970) (en banc), 435 F.2d 385, 393; State v. Cook (1977), 115 Ariz. 188, 193, 564 P.2d 877, 882; People v. Barbee (1966), 35 Ill. 2d 407, 411. Compare United States v. Killebrew (6th Cir. 1977), 560 F.2d 729, 734 (occupant not known to be dangerous); State v. Olson (1979), 287 Or. 157, 165, 598 P.2d 670, 674 (burglary suspect not known to be armed); Commonwealth v. Williams (1978), 483 Pa. 293, 300, 396 A.2d 1177, 1180, cert, denied (Apr. 21, 1980), 48 U.S.L.W. 3674 (rifle used in homicide was in possession of police prior to entry); People v. Ramey (1976), 16 Cal. 3d 263, 276, 545 P.2d 1333, 1341, 127 Cal. Rptr. 629, 637, cert, denied (1976), 429 U.S. 929, 50 L. Ed. 2d 299, 97 S. Ct. 335 (information available to arresting officer indicated that suspect no longer possessed stolen firearm).) The desirability of apprehending such an individual is obvious, and an officer’s reaction should not be unduly criticized unless we are to encourage unreliable, time-consuming speculation as to whether more violence will occur while a warrant is sought.

In addition to the exigent circumstances set forth above, other factors were present which suggest that the officers acted reasonably. First, the officers were acting on “a clear showing of probable cause” (Dorman v. United States (D.C. Cir. 1970) (en banc), 435 F.2d 385, 392) based on the type of “reasonably trustworthy information” [Dunaway v. New York (1979), 442 U.S. 200, 208 n.9, 60 L. Ed. 2d 824, 833 n.9, 99 S. Ct. 2248, 2254 n.9; Beck v. Ohio (1964), 379 U.S. 89, 91, 13 L. Ed. 2d 142, 145, 85 S. Ct. 223, 225) necessary to justify warrant-less law enforcement activities. [United States v. Robinson (D.C. Cir. 1976) [en banc), 533 F.2d 578, 583, cert, denied (1976), 424 U.S. 956, 47 L. Ed. 2d 362, 96 S. Ct. 1432; United States v. Shye (6th Cir. 1974), 492 F.2d 886, 892.) The victim of the offense, with wounds apparent, explained the details of his beating to the officers in detail. Second, defendant was clearly identified as the assailant. [Dorman v. United States (D.C. Cir. 1970) [en banc), 435 F.2d 385, 393. Compare United States v. Killebrew (6th Cir. 1977), 560 F.2d 729, 733 (“uncertainty as to the identity of the occupant at the time of the entry”).) Third, the victim’s statement created strong reason to believe that defendant was in the premises entered. [Dorman v. United States (D.C. Cir. 1970) [en banc), 435 F.2d 385, 393. Compare State v. McNeal (W. Va. 1978), 251 S.E.2d 484, 488-89 (no reason for belief that the suspect was in the particular building entered); State v. Cook (1977), 115 Ariz. 188, 193, 564 P.2d 877, 882 (“the victim’s information as to the suspect’s whereabouts was insubstantial at best”).) The victim here had told police that defendant had walked toward his home after the beating. It was almost 6:30 p.m., and it was only 11/2 hours after the assault had occurred. The record is silent as to the length of the delay that would have been occasioned by obtaining a warrant at this hour. Finally, the entry here was peaceful. [United States v. Shye (6th Cir. 1974), 492 F.2d 886, 892; Dorman v. United States (D.C. Cir. 1970) [en banc), 435 F.2d 385, 394.) In fact, the circuit court specifically found that the door to defendant’s residence was unlocked. Also, the record shows that the premises were burglarized one month after the beating, and defendant then told police officers that the door lock was defective and had been that way for some time. This was not the type of forced entry that has led courts to disapprove war antless entries. Miller v. United States (1958), 357 U.S. 301, 2 L. Ed. 2d 1332, 78 S. Ct. 1190; State v. McNeal (W. Va. 1978), 251 S.E.2d 484,488-89.

In summary and in light of the many decisions recognizing “that a warrantless entry by criminal law enforcement officials may be legal when there is a compelling need for official action and no time to secure a warrant” (Michigan v. Tyler (1978), 436 U.S. 499, 509, 56 L. Ed. 2d 486, 498, 98 S. Ct. 1942, 1950, citing Warden, Maryland Penitentiary v. Hayden (1967), 387 U.S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642, and Ker v. California (1963), 374 U.S. 23, 10 L. Ed. 2d 726, 83 S. Ct. 1623), we see no cause to hold invalid the entry here in question and the resultant viewing of the .9-millimeter bullet. We caution that each case must be decided on the basis of the facts presented. (South Dakota v. Opperman (1976), 428 U.S. 364, 375, 49 L. Ed. 2d 1000, 1009, 96 S. Ct. 3092, 3100.) The guiding principle is reasonableness under constitutional provisions governing searches and seizures. (United States v. Chadwick (1977), 433 U.S. 1, 9, 53 L. Ed. 2d 538, 547, 97 S. Ct. 2476, 2482; Dorman v. United States (D.C. Cir. 1970) (en banc), 435 F.2d 385, 389.) In determining whether law-enforcement officials acted reasonably in a given case, courts should be careful to judge the circumstances as known to the officials at the time they acted. (People v. Clay (1973), 55 Ill. 2d 501, 504.) Unknown and subsequent unanticipated events, such as the suspect’s peaceful surrender in this case, should not be considered in assessing the propriety of the official’s initial reaction. (People v. Sprovieri (1969), 43 Ill. 2d 223, 227; People v. Barbee (1966), 35 Ill. 2d 407, 411.) Finally, lest officials be given free reign, it should be remembered that warrantless police action “must be ‘strictly cir cum-scribed by the exigencies which justify its initiation’ ” (Mincey v. Arizona (1978), 437 U.S. 385, 393, 57 L. Ed. 2d 290, 300, 98 S. Ct. 2408, 2414, quoting Terry v. Ohio (1968), 392 U.S. 1, 26, 20 L. Ed. 2d 889, 908, 88 S. Ct. 1868, 1882).

The judgments of the circuit and appellate courts are reversed, and the cause is remanded to the circuit court of McLean County for further proceedings.

Reversed and remanded.

MR. CHIEF JUSTICE GOLDENHERSH,

dissenting:

I dissent and would affirm the judgment of the appellate court. The majority recognizes “that warrantless searches and seizures in the home are presumptively unreasonable ***, that the fourth amendment applies equally to searches and seizures of persons and property, and that no constitutional difference exists between the intrusiveness of entries to search and entries to arrest.” (81 Ill. 2d at 166.) Despite the presumption, it attempts to justify the warrantless entry into defendant’s apartment on the ground that there were exigent circumstances. The record clearly demonstrates the contrary.

The testimony shows that at approximately 6:20 p.m. on the evening of the occurrence a police officer of the city of Normal was called to Brokaw Hospital. The officer interviewed a man who allegedly was beaten by defendant. The victim said that he knew defendant, that they had been friends, and that “the incident was revolving around a girl.” After the victim received treatment for his injury he was escorted to the police station, where a statement was taken. Following the taking of the statement the investigating officer, accompanied by another police officer, went to “check to see if he [defendant] is still at his apartment.” There was no effort to show how long it would have taken to appear before a judge and obtain a warrant for the defendant’s arrest. This court may take judicial notice of the fact that Normal is in McLean County in the Eleventh Judicial Circuit, which at that time had at least nine circuit judges and six associate circuit judges, and that five of the circuit judges and four of the associates resided in McLean County.

The record also shows that defendant was the tenant in the apartment in which the bullet was seen by the officers, and although the record does not show how long he had resided there prior to the occurrence, the testimony shows that he continued to reside there for a considerable period of time thereafter.

It is apparent that the police officers did not act on the belief that there were exigent circumstances which required prompt action. Had they believed that there was a need for prompt action, they or other members of the police department could have gone to defendant’s apartment immediately upon hearing of the matter. That they felt that there was no urgency in making the arrest is shown by the fact that they waited until after the alleged victim had been taken to the station and interviewed. It is obvious that their failure to seek a warrant resulted not from a need for prompt action but from their conclusion, clearly erroneous, that no warrant was required.

Nor does the record support the majority’s conclusion that there was “strong reason to believe” that defendant was present in the apartment (81 Ill. 2d at 172). The fact that he had been seen walking in the general direction of the apartment approximately 11/2 hours earlier is hardly sufficient to justify the warrantless entry on the theory that he might still be present in the premises.

The majority concludes that we should not “encourage unreliable, time-consuming speculation as to whether more violence will occur while a warrant is sought.” (81 Ill. 2d at 171.) It is much less desirable to encourage, with this type of decision, the violation of a defendant’s constitutional right to have the independent judgment of a judicial officer interposed between himself and the action of the arresting officer.

MR. JUSTICE CLARK joins in this dissent.


source: Caselaw Access Project

author: MR JUSTICE WARD

license: Public Domain

text:
    (No. 52292.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RICHARD COOK, Appellant.

      Opinion filed June 30, 1980.

      Robert Agostinelli, Deputy Defender, and Charles Hoffman, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and David Cassorla, Assistant Attorneys General, of Chicago, of counsel), for the People.
    William T. Barker and Alan M. Posner, of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, for amicus curiae Chicago Lawyers’ Committee for Civil Rights Under Law, Inc.
    Robert W. Johnson, Sr., James P. Manak, and Bernard Carey, State’s Attorney, of Cook County, of Chicago (Marcia B. Orr, and Rimas F. Cemius, Assistant State’s Attorneys, of counsel), for amicus curiae National District Attorneys Association.
    Steven Lubet, of the Northwestern University Legal Clinic, and David Goldberger, of the Roger Baldwin Foundation, of Chicago, for amicus curiae American Civil Liberties Union.
   MR JUSTICE WARD

delivered the opinion of the court:

On December 7, 1978, a complaint was filed in the circuit court of Warren County charging Richard Cook, the defendant, with the unlawful possession of cannabis in violation of the Cannabis Control Act (Ill. Rev. Stat. 1977, ch. 561/2, par. 704(c)). Bail was set at $1,000 and the defendant posted the required 10% with the clerk of the court to secure his release. (Ill. Rev. Stat. 1977, ch. 38, pars. 110 — 7(a), (b).) His later motion for the appointment of counsel was allowed when the court found him to be indigent. (Ill. Rev. Stat. 1977, ch. 38, par. 113 — 3(b).) The defendant’s motions to quash the search warrant and to suppress evidence were granted and the People appealed. While the appeal was pending, the defendant moved to recover his bail deposit under the provisions of Supreme Court Rule 604(c) (73 Ill. 2d R. 604(c)) and the People countered with a motion which sought reimbursement from the bail deposit for legal services provided the defendant by appointed counsel (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7(g)). The appellate court granted the People’s motion and directed the trial court to determine “the reasonable value of appointed counsel’s services,” ordering that “such sum is to be paid to Warren County from the defendant’s bail deposit of $100.” We granted Cook’s petition for leave to appeal under Supreme Court Rule 315 (73 Ill. 2d R. 315). The People’s appeal in the appellate court from the order suppressing evidence and quashing the warrant has not yet been decided.

The right of an accused to counsel under the sixth amendment cannot be dependent upon ability to pay for an attorney’s services. (See Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006; Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792; Griffin v. Illinois (1956), 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585.) There is statutory recognition of this right. As stated in section 113 — 3(b) of the Code of Criminal Procedure of 1963, “In all cases, except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender [or other appointed counsel] shall be appointed counsel.” Ill. Rev. Stat. 1979, ch. 38, par. 113 — 3(b).

Another statute, which is the one we must consider here, provides:

“Whenever a defendant who has been admitted to bail utilizes the services of a public defender or other appointed counsel, the amount deposited may be used to reimburse the county funding the legal services.” (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7(g).)

The defendant contends that this statute is violative of his rights to equal protection and due process under the United States and Illinois constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2) and that it is an unconstitutional impairment of his right to counsel (U.S. Const., amend. VI; Ill. Const. 1970, art. I, sec. 8).

We will first address the equal protection question of whether any distinction in treatment within the legislative classification, viz. indigent persons for whom counsel has been appointed, is rationally related to a legitimate State interest. See Fuller v. Oregon (1974), 417 U.S. 40, 40 L. Ed. 2d 642, 94 S. Ct. 2116. See also Haughton v. Haughton (1979), 76 Ill. 2d 439, and cases cited therein.

The People argue that they have a proper interest in the recovery of at least a part of the expense for counsel fees incurred for indigent defendants who have exhibited an ability to pay by posting bail and that section 110 — 7(g) bears a rational relationship to this effort at reimbursement. The Supreme Court of the United States has recognized there is a legitimate State interest in “replenishing a county treasury from the pockets of those who have directly benefited from county expenditures,” but it has done so only when it was demonstrated that the State’s actions have not been tainted by an invidious discrimination. Rinaldi v. Yeager (1966), 384 U.S. 305, 309, 16 L. Ed. 2d 577, 580, 86 S. Ct. 1497, 1500; see also Fuller v. Oregon (1974), 417 U.S. 40, 53-54, 40 L. Ed. 2d 642, 654-55, 94 S. Ct. 2116, 2124-25; James v. Strange (1972), 407 U.S. 128, 141, 32 L. Ed. 2d 600, 610-11, 92 S. Ct. 2027, 2034-35.

While the defendant acknowledges that the State may under certain circumstances seek reimbursement, he contends that the statute here, which singles out only those indigent defendants who have posted bail, has no fair and substantial relationship to the overall goal of recoupment. This is because it does not seek recovery from other defendants with appointed counsel who though indigent at the time of appointment may have become financially able to contribute to the cost of their legal defense.

The People’s response is not convincing. First, they say that while the statute does not specifically name those indigent defendants who have not posted bail, there is nothing in section 110 — 7(g) excluding them or prohibiting the People from seeking reimbursement. To include indigents who have been released on their own recognizance or who have been unable or unwilling to post bail would go beyond the language of the statute, which explicitly applies to those “admitted to bail.” Too, such indigent defendants would undoubtedly urge that including them would violate this court’s holdings specifically prohibiting the recovery of court costs unless provided for by statute. See, e.g., People v. Nicholls (1978), 71 Ill. 2d 166, citing Galpin v. City of Chicago (1911), 249 Ill. 554. Thus, all members of the class of indigent defendants represented by appointed counsel would not be similarly treated under the statute.

Second, we do not accept the People’s argument that the ability to post bail indicates the defendant’s financial ability to pay for the services of appointed counsel. This court has never adopted any presumption (which would be, in this case, an irrebuttable one) that the posting of bail, without more, was a sufficient indicium of ability to pay wholly or partially for legal counsel. Bail may be posted with borrowed funds or by relatives or friends. In cases where the defendant was denied either appointed counsel or a free transcript on appeal solely because he was able to post bail this court has held that such a denial was improper where the court had not first determined that the defendant was in fact indigent. See People v. Pankoff (1978), 70 Ill. 2d 69; People ex rel. Baker v. Power (1975), 60 Ill. 2d 151; People v. Eggers (1963), 27 Ill. 2d 85.

Since a finding that members in a class are not being treated alike does not of itself warrant the conclusion that the statute is unconstitutional, we now turn to the question of whether a rational relationship exists between the legitimate State interest and the statutory scheme set out in section 110 — 7(g). The Supreme Court in Rinaldi v. Yeager (1966), 384 U.S. 305, 308-09, 16 L. Ed. 2d 577, 580, 86 S. Ct. 1497, 1499-1500, stated:

“The Equal Protection Clause *** imposes a requirement of some rationality in the nature of the class singled out. To be sure, the constitutional demand is not a demand that a statute necessarily apply equally to all persons. ‘The Constitution does not require things which are different in fact *** to be treated in law as though they were the same.’ Tigner v. Texas, 310 U.S. 141, 147, [84 L. Ed. 1124, 1128, 60 S. Ct. 879, 882]. Hence legislation may impose special burdens upon defined classes in order to achieve permissible ends. But the Equal Protection Clause does require that, in defining a class subject to legislation, the distinctions that are drawn have ‘some relevance to the purpose for which the classification is made.’ [Citations.] ”

In Rinaldi the Supreme Court considered a constitutional challenge to a New Jersey statute which imposed a duty to pay for transcripts following an unsuccessful appeal only upon those defendants who had been ordered imprisoned. Those defendants losing their appeals who were given suspended sentences, probation or ordered to pay fines were exempted from this obligation to make payment. The court held the statute to be invidiously discriminatory in that a financial burden was imposed only upon an institutionalized defendant-appellant, even though all defendants-appellants have gotten the benefit of a transcript for appeal. The court stated:

“There is no defensible interest served by focusing on that distinction as a classifying feature in a reimbursement statute, since it bears no relationship whatever to the purpose of the repayment provision.” 384 U.S. 305, 309, 16 L. Ed. 2d 577, 580, 86 S. Ct. 1497,1500.

We judge the circumstances in Rinaldi are analogous to those here. Under section 110 — 7(g) only those defendants posting bail are obliged to reimburse the county for the services of their appointed counsel, even though those other defendants who are released on personal recognizances or who do not post bail have received the same benefit of appointed counsel. The resulting financial drain on public funds, which the county now seeks to replenish under section 110 — 7(g), is caused, however, by services provided to the entire class of indigent defendants with appointed counsel and not only those who have been released on bail. There is no rational relationship between the legislative purpose of reimbursement for the expense of appointed counsel and a statute which imposes an obligation only on one segment of this class of indigent defendants based upon the improper and seemingly conclusive presumption that the posting of bail demonstrates an ability to pay for those legal services.

The People err in contending that the Supreme Court’s decision in Fuller v. Oregon (1974), 417 U.S. 40, 40 L. Ed. 2d 642, 94 S. Ct. 2116, favors their position. In Fuller, the court upheld the constitutionality of an Oregon statute which imposed the obligation to reimburse for court costs, including legal counsel, upon all convicted defendants (Or. Rev. Stat. 1973, sec. 161.665). The statutory scheme considered in Fuller was significantly different from that of section 110 — 7(g). Subsections 3 and 4 of the Oregon statute provided:

“(3) The court shall not sentence a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.
(4) A defendant who has been sentenced to pay costs and who is not in contumacious default in the payment thereof may at any time petition the court which sentenced him for remission of the payment of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or his immediate family, the court may remit all or part of the amount due in costs, or modify the method of payment under ORS 161.675.” 417 U.S. 40, 43 n.5, 40 L. Ed. 2d 642, 649 n.5, 94 S. Ct. 2116, 2120 n.5.

The court, in rejecting the defendant’s argument that this provision discouraged the exercise of his right to counsel, observed: “The Oregon statute is carefully designed to insure that only those who actually become capable of repaying the State will ever be obliged to do so. Those who remain indigent or for whom repayment would work ‘manifest hardship’ are forever exempt from any obligation to repay.” 417 U.S. 40, 53, 40 L. Ed. 2d 642, 654, 94 S. Ct. 2116, 2124.

Other courts, in considering reimbursement statutes of this kind, have similarly focused upon the presence or absence of procedural safeguards requiring judicial examination into an indigent defendant’s present or future ability to reimburse as the hinge on which the question of the statute’s constitutionality turns. (See, e.g., State v. Barklind (1976), 87 Wash. 2d 814, 557 P.2d 314; Stroinski v. Public Defender (1975), 134 N.J. Super. 21, 338 A.2d 202; People v. Amor (1974), 12 Cal. 3d 20, 523 P.2d 1173, 114 Cal. Rptr. 765; Wicks v. City of Charlottesville (1974) , 215 Va. 274, 208 S.E.2d 752, appeal dismissed (1975) , 421 U.S. 901, 43 L. Ed. 2d 769, 95 S. Ct. 1548. See also Annot., 79 A.L.R.3d 1025 (1977).) Section 110 — 7(g) contains no provision for inquiry into the defendant’s ability to pay. Other similar reimbursement statutes we have examined require that a defendant’s present or future ability to pay for services of appointed counsel be considered before an order for reimbursement may be entered. (See, e.g., Fla. Stat. Ann. sec. 27.56 (West 1979); Kan. Stat. sec. 22-4513 (Supp. 1979); Minn. Stat. sec. 611.35 (Supp. 1980); N.J. Rev. Stat. secs. 2A; 158A — 16, 158A — 17 (1979); Pa. Stat. Ann. tit. 19, sec. 793 (Purdon 1979).) There are holdings, relying specifically upon Fuller, that go beyond this and require a further condition which would allow the court upon petition to order remission of any or all reimbursement payments due if it appears that undue hardship to the defendant or his family would result. See Olson v. James (10th Cir. 1979), 603 F.2d 150; Commonwealth v. Opara (1976) , 240 Pa. Super. 511, 362 A.2d 305.

The People cite People v. Estate of Scott (1977), 66 Ill. 2d 522, saying that the statute need not specifically provide for a hearing in order to guarantee procedural due process and that in any event the defendant had a hearing before the appellate court when it contested the People’s motion for reimbursement. In Scott, which was decided before section 110 — 7(g) became effective, this court held that a defendant who pleaded guilty to attempted robbery and received a five-year sentence of probation could be required to pay court costs from her bail deposit. (See Ill. Rev. Stat. 1979, ch. 38, pars. 110 — 7(a), (i), 180 — 3.) The defendant in Scott argued that the statutes were constitutionally defective because they failed to set out any requirement for notice and hearing before a judgment for costs could be entered, but this court held that due process was not violated since the trial court had in fact held such a hearing.

The record here, however, does not show that the defendant was given proper opportunity to present evidence as to his financial condition or that the appellate court considered his condition before entering its reimbursement order. Though the People argue that the court had before it the defendant’s affidavit as to assets and liabilities which had been used to support his claim of indigency, it appears from the record that this was not so, since the trial record was not received in the appellate court until after the order was entered. In any event, it does not appear possible that the same affidavit that led the trial court to hold, without objection, that the defendant was indigent could have led the appellate court reasonably to order him to reimburse for services afforded because of his indigency.

A summary decision which orders reimbursement without affording a hearing with opportunity to present evidence and be heard acts to violate an indigent defendant’s right to procedural due process. (See Fuentes v. Shevin (1972), 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983; Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652.) It also may serve to restrain such a defendant from exercising his right to the effective assistance of counsel. This is because if he knows that the money or other property posted for his bail will be subject to seizure to pay for legal services, regardless of his inability to pay he may choose not to exercise this constitutionally assured right. See, e.g., United States v. Jackson (1968), 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209; Commonwealth v. Opara (1976), 240 Pa. Super. 511, A.2d 305; Simmons v. James (D. Kan. 1979), 467 F. Supp. 1068, affd, Olson v. James (10th Cir. 1979), 603 F.2d 150. See also Comment, Charging Costs of Prosecution to the Defendant, 59 Geo. L.J. 991 (1971); Comment, Reimbursement of Defense Costs as a Condition of Probation for Indigents, 67 Mich. L. Rev. 1404 (1969).

Accordingly, we hold that section 110 — 7(g) is invalid as violative of the equal protection and due process clauses of the United States and Illinois constitutions and we reverse the order of the appellate court.

Order reversed.


author: MR. JUSTICE RYAN MR. JUSTICE MORAN,

text:
    No. 52742.
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner, v. JOHN S. TESCHNER, Judge, et al., Respondents.

      Opinion filed. June 20, 1980.

      MORAN and UNDERWOOD, JJ., dissenting.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Robert L. Thompson, Assistant State’s Attorney, of counsel), for the People.
    Frank Wesolowski, Jr., Public Defender, of Wheaton (Robert H. Heise, Chief Assistant Public Defender, of counsel), for respondent John C. Slowinski.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This case involves a petition for an original writ of mandamus filed in this court. Petitioner, the State, contends that respondent John Teschner, circuit court judge of Du Page County, was precluded from placing respond-dent John Slowinski, a defendant in a criminal case and an alleged drug addict, into a drug-rehabilitation program pursuant to the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1977, ch. 911/2, par. 120.1 et seq.), because of the provision in the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 5—3) stating that a defendant may not be sentenced to probation upon his conviction for a Class 2 felony or greater, if he had been convicted of a Class 2 felony or greater within 10 years. We granted leave to file a petition for writ of mandamus. 73 Ill. 2d R. 381(a).

There is little dispute over the facts in the case. Defendant, John C. Slowinski, was charged with the crime of burglary, which had been committed on July 18, 1978. Within the prior 10 years he had twice been convicted of burglary. About November 18, 1974, the defendant was admitted to probation on convictions on two counts of burglary, and on June 9, 1977, defendant was sentenced to two years’ probation for the crime of burglary, conditioned on his receiving treatment through the Gateway House, a drug-rehabilitation program. The defendant was indicted for the July 1978 burglary on September 8, 1978. Before trial, the defendant petitioned the court to elect to be treated as a narcotic addict under the Dangerous Drug Abuse Act and to be placed under the supervision of the Department of Mental Health for treatment. Judge Teschner ordered the Department of Mental Health to conduct an examination of the defendant to determine whether he was an addict and the likelihood of his being rehabilitated through treatment. Judge Teschner found defendant guilty of burglary and sentenced him to 36 months’ probation conditioned upon successful completion of the Gateway Program.

Because the defendant was convicted of three Class 2 felonies in less than 10 years, under the express terms of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 5—3) he was not eligible for a sentence of probation. Throughout the briefs the State treats the action of Judge Teschner as being a sentence under the Unified Code of Corrections and speaks of the judge having “sentenced” the defendant to probation. However, in the present case, the defendant elected to be treated under the Dangerous Drug Abuse Act instead of being prosecuted under the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 100 — 1 et seq.). Under the Act, “probation” is not a sentence but is a method devised by the legislature for treating those who qualify for treatment. Under the Act, the word “probation” carries a different connotation than it does under the Unified Code of Corrections.

Under the Dangerous Drug Abuse Act, an addict charged with or convicted of a crime may elect to apply for treatment if he meets the eligibility standards set out in section 8 (Ill. Rev. Stat. 1977, ch. 9114, par. 120.8). In relevant part, this section states that “[a]n addict charged with or convicted of a crime is eligible to elect treatment under the supervision of the Department [of Mental Health] instead of prosecution or probation, as the case may be ***.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 9114, par. 120.8.) From the express wording of the statute, it is apparent that the legislature intended treatment under the Dangerous Drug Abuse Act to be an alternative to the normal ambit of prosecution or sentencing under the Unified Code of Corrections. Thus, if a person is charged with a crime but not convicted, he may elect treatment under the Act instead of prosecution under the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 100 — 1 et seq.). If he has been convicted, he may elect treatment under the Act in lieu of a sentence to probation under the Unified Code of Corrections. Section 9 of the Act sets forth the procedure if the person has been charged with a crime but not convicted. (Ill. Rev. Stat. 1977, ch. 9114, par. 120.9.) Section 10 of the Act sets forth the procedure if the person who elects treatment has been convicted. Ill. Rev. Stat. 1977, ch. 911/2, par. 120.10.

This court, on several occasions, has reviewed the Dangerous Drug Abuse Act and noted the differences between it and the Unified Code of Corrections. As this court stated in People v. Phillips (1977), 66 Ill. 2d 412, 416, “The Act provides an alternative to the usual criminal justice procedures; it allows a criminal defendant with a drug abuse problem to avoid the criminal justice machinery ***.” The treatment under the Act, unlike a sentence, is not a consequence of defendant’s guilt. It is instead an alternative to a criminal conviction and the regular sentencing alternatives available under the Unified Code of Corrections. [People v. Warren (1977), 69 Ill. 2d 620; People v. Phillips (1977), 66 Ill. 2d 4:12; People v. McCoy (1976), 63 Ill. 2d 40.) Also, section 2 of the Act indicates a strong legislative policy favoring the prevention of drug abuse and encouragement for the treatment and rehabilitation of drug addicts. (Ill. Rev. Stat. 1977, ch. 9114, par. 120.2.) It is apparent that the legislature felt that the treatment for drug abuse requires more medical and social treatment than can be provided under the present criminal justice system through a sentence of probation with conditions imposed Concerning treatment of the drug problem.

Probation, as used in the Dangerous Drug Abuse Act, is merely descriptive of the status of the individual when and if he is accepted for treatment and is not used in the same context under the Unified Code of Corrections. Under the former provisions of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 117 — 1), probation was not a sentence but rather a suspension of sentence. (See People v. Ward (1975), 32 Ill. App. 3d 781; People v. Gentry (1972), 5 Ill. App. 3d 1088.) However, under the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 5—3(d)) it is specifically referred to as a sentence. (See People v. Brown (1975), 32 Ill. App. 3d 10;People v. Meyer (1975), 30 Ill. App. 3d 673.) Under the Dangerous Drug Abuse Act, probation is not considered a sentence. Under the language of the Act, one is not “sentenced” to probation as under the Unified Code of Corrections but rather “placed” on probation. (Ill. Rev. Stat. 1977, ch. 911/2, par. 120.10.) This is similar to the term “admitted to probation” used in the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 117 — 1 et seq.), prior to the effective date of the Unified Code of Corrections. In reviewing the record we note that the trial court used form orders, designed for use under the Unified Code of Corrections, that indicate the defendant was sentenced to probation. However, due to the trial judge’s clear intent to deal with the defendant under the Dangerous Drug Abuse Act, we will not permit the substance of the judge’s orders to be controlled by the form.

We have held on previous occasions that the term “probation” may have different meanings in different statutes. In People v. DuMontelle (1978), 71 Ill. 2d 157, interpreting the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 561/2, par. 710), we held that probation under that act did not amount to a sentence. In our case the trial court’s exercise of discretion in admitting a defendant to probation and requiring treatment under the Dangerous Drug Abuse Act is a disposition imposed as a rehabilitative treatment rather than a criminal sanction. Thus, we hold that the provisions of the Unified Code of Corrections are not controlling in this case and should not be superimposed upon the provisions of the Dangerous Drug Abuse Act to prohibit a disposition of probation authorized under that act.

During oral argument the State argued in the alternative that Judge Teschner did not comply with the provisions of the Dangerous Drug Abuse Act. As this court has previously stated, the burden rests on the petitioner to show that he has a clear legal right to the writ. (People ex ex rel. Latimer v. Board of Education (1946), 394 Ill. 228.) The petitioner for mandamus must set forth every material fact necessary to show that he is entitled to the writ. [Daniels v. Cavner (1949), 404 Ill. 372; People ex rel. Callahan v. Whealan (1934), 356 Ill. 328; People ex rel. City of Chicago v. Board of Review (1927), 326 Ill. 124.) After carefully reviewing the Act and the facts in the record, there is no indication that the trial court did not comply with the Act.

Lastly, we are cognizant of the recently enacted Public Act 81 — 851 (approved and effective September 20, 1979) that amended section 10 of the Dangerous Drug Abuse Act to specify that a court may place a person on probation for treatment, as provided under the Act, “if such a sentence is consistent with Section 5 — 6—1(a) of the Unified Code of Corrections ***” (Ill. Rev. Stat. 1979, ch. 911/2, par. 120.10). The effective date of September 20, 1979, of this amendment is subsequent to the date of sentencing of the defendant and is not applicable to this case.

For the reasons stated, we decline to issue the writ of mandamus directing Judge Teschner to vacate his dispositional order.

Writ denied.

MR. JUSTICE MORAN,

dissenting:

The opinion has distorted the plain, unambiguous language of the statutory provisions by which this case should be resolved.

A reading of the applicable provisions of the Unified Code of Corrections and the Dangerous Drug Abuse Act is sufficient to reveal that the majority has reached a result opposite that intended by the legislature. Both the Code and the Act plainly require that a person who, like defendant, has been convicted of a Class 2 felony on two previous occasions must be sentenced to a term of imprisonment and may not receive probation under the Code or treatment under the Act.

Section 5 — 5—3(c) (2) of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 5—3(c)(2), as amended by Public Act 80 — 1099, effective February 1, 1978) provides:

“A period of probation, a term of periodic imprisonment or conditional discharge shall not be imposed for the following offenses. The court shall sentence the offender to not less than the minimum term of imprisonment set forth in this Code for the following offenses, and may order a fine or restitution or both in conjunction with such term of imprisonment:
* * *
(G) A Class 2 or greater felony if the offender had been convicted of a Class 2 or greater felony within ten years of the date on which he committed the offense for which he is being sentenced.” (1977 Ill. Laws 3298.)

The requirement is thus alternatively stated in the negative and in the positive, i.e., the trial judge may not impose a period of probation and he must sentence the offender to a term of imprisonment.

Section 8 of the Act (Ill. Rev. Stat. 1977, ch. 911/2, par. 120.8) provides, in part, as follows:

“An addict charged with or convicted of a crime is eligible to elect treatment under the supervision of the Department instead of prosecution or probation, as the case may be, unless *** (e) the addict is on probation or parole and the appropriate parole or probation authority does not consent to that election, or (f) the addict elected and was admitted to a treatment program on two prior occasions within any consecutive two year period.”

The opinion has quoted part of section 8 without stating the limitation of its application, and has failed to acknowledge the clear and unmistakable import of the section: eligibility of a convicted defendant for treatment under the Act presupposes that he would otherwise qualify for probation under the Code. The majority recognizes that the express terms of the Code prohibit a sentence of probation for defendant. Thus, under the Code, defendant could not have been sentenced to probation conditioned upon treatment for drug addiction (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 6—3(b)(4)), a disposition which this court has previously recognized as being similar to treatment under the Act (People v. Phillips (1977), 66 Ill. 2d 412, 416).

Today’s decision has ignored the legislature’s intent and authorized probation for defendant on the basis of its own semantic distinctions. The opinion declares that, under the Act, one is not “sentenced” to probation as under the Code but, rather is “placed” on probation. (81 Ill. 2d at 193.) It further attempts to distinguish “probation” under the Act from “probation” under the Code. People v. DuMontelle (1978), 71 Ill. 2d 157, is cited as an example of a situation in which the term “probation” was held to have different meanings in different statutes. In that case, the defendant pleaded guilty to the charge of possession of cannabis, in violation of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 5614, par. 704(c)). He was placed on probation, as provided under the statute, and was fined and assessed court costs, which were not authorized under the statute. In concluding that the defendant could not be required to pay the fine and the costs, this court held that the sentencing provisions of section 5 — 5—3 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 5—3) were not applicable to a person placed on probation under the Cannabis Control Act. Central to the court’s holding was the fact that, under such enactment, probation was neither preceded nor accompanied by an adjudication of guilt. (71 Ill. 2d 157, 162.) Only if the offender failed to successfully complete probation was the court to adjudge him guilty and enter a judgment of conviction. DuMontelle is, therefore, readily distinguishable from the case at bar, in that, here, respondent did enter a judgment of guilt for the commission of an offense under the Criminal Code of 1961.

Treatment under section 10 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1977, ch. 911/2, par. 120.10), following an entry of a judgment of conviction, is not a pronouncement of sentence as in other cases but is inextricably related to the provisions of the Code. The term “probation” is nowhere defined within the Act; it is, however, defined within the Code. There is no indication that the legislature intended the term to be construed in any manner that would differ from that definition or from that term’s well-established and commonly understood meaning within the criminal justice system. The legislature’s intended construction of the term is, in fact, further evidenced by its “overruling” of DuMontelle three months after that case was decided. Public Act 80 — 1202, approved and effective June 30, 1978, amending section 10 of the Cannabis Control Act (Ill. Rev. Stat. 1977, ch. 561/2, par. 710).

The opinion cites the recent amendment to section 10 of the Act. As stated by the majority, section 10 now provides that a court may place a person on probation for treatment “if such a sentence is consistent with Section 5 — 6—1(a) of the Unified Code of Corrections ***.” (Pub. Act 81 — 851; Ill. Rev. Stat. 1979, ch. 911/2, par. 120.10.) Section 5 — 6—1(a) of the Code, in turn, provides for a sentence of probation “[e] xcept where specifically prohibited by other provisions of this Code.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—1(a).) Included in such “other provisions,” of course, is section 5 — 5—3(c)(2), quoted in part earlier, which expressly prohibits the imposition of a period of probation for a person with defendant’s prior criminal record. Again, this amendment was necessitated, as was the earlier discussed amendment to the Cannabis Control Act, because of the interpretation the appellate court had placed on the Act in People v. Robinson (1973), 12 Ill. App. 3d 291, 294, and in People v. Clinkscale (1973), 14 Ill. App. 3d 226, 230, which relied on Robinson. In those cases, the appellate court had held that a person need not show himself qualified for probation in order to be eligible for treatment under section 10 of the Dangerous Drug Abuse Act. Consistent with my opinion in this case, and for the same reasons, I believe that the appellate court erred in Robinson and Clinkscale by construing the Act in a way which was contrary to the legislature’s intent. I am convinced, therefore, that the recent amendment to the Act was meant to make more explicit to this court the legislature’s original intention and to correct the erroneous construction placed upon the Act by the appellate court.

The majority has overlooked what I consider to be a more important reason for allowing the writ of mandamus to issue in this case. In reaching this conclusion, additional facts need be stated. The record discloses that defendant had previously been placed on probation in Cook County on November 18, 1974, after being convicted for two counts of burglary, a Class 2 felony. Thereafter, on October 27, 1975, defendant entered a plea of guilty to burglary, this time in Du Page County. Approximately 20 months later, on June 9, 1977, he was sentenced on the latter conviction to two years’ probation with the condition that he “receive treatment by the Dept, of Mental Health through Gateway House instan ter.” Defendant thereafter became a resident of the Gateway House, a home for the rehabilitation of drug addicts, for nine months in 1977-78, but left of his own volition and against staff advice. On July 18, 1978, defendant was again charged with the offense of burglary, this offense being the basis for the instant action. As a result of this charge, on August 4, 1978, defendant was found to be in violation of probation, and the court extended his probation for three years with the condition that he “enroll in and successfully complete the Gateway program.” Defendant was readmitted to the Gateway House on August 5, 1978, prior to his September 8, 1978, indictment for the July burglary.

While awaiting trial on that indictment, defense and prosecution counsel entered into plea discussions. As later disclosed by a defense motion to enforce an alleged plea agreement, the defendant claimed it had been agreed that he would be given a deferred prosecution under section 9 of the Act (Ill. Rev. Stat. 1977, ch. 9114, par. 120.9) and placed in the Gateway House. In answer to this motion, however, the State claimed it would admit only that defendant was a drug addict and it would not require expert testimony to establish this fact. The State reserved the right to oppose defendant being placed in the Gateway House because of the pending charge and because of defendant’s past criminal record.

On November 2, 1978, defendant filed a petition to be treated as a drug addict under section 9. On November 30, a conference under Rule 402 (Pleas of Guilty) (73 Ill. 2d R. 402) was had, during which Judge Bowman, to whom the trial was assigned, stated:

“Let me tell you this: I have reviewed the pre-plea report. And if the 402 conference is anything other than penitentiary time, I won’t go along with it, but I will allow you to go to another Judge.”

The defendant did not request another judge, and an order was therefore entered denying the petition and setting the case for trial.

On January 23, 1979, defendant moved for and was granted a substitution of judge. The case was then assigned to Judge John S. Teschner (respondent). On June 13, 1979, defendant filed another petition for treatment under section 9 of the Act. On June 18, 1979, the respondent proceeded with a hearing on the petition for treatment as a drug addict. When informed by the State that Judge Bowman had already denied a like petition, the respondent mentioned that he was not an appellate court and was reluctant to overrule Judge Bowman’s order denying deferred prosecution under section 9. The court did not rule on the petition but defense counsel, sensing the attitude of the court, then requested that trial proceed on the merits of the charge. He stated that defendant would stipulate to the facts alleged in the case and that the court could enter a finding as it saw fit. The court found defendant guilty of the offense of burglary and entered judgment thereon.

A sentencing hearing commenced immediately. The hearing was conducted under section 10 of the Act (Ill. Rev. Stat. 1977, ch. 911/2, par. 120.10), although no petition for such relief had been filed. The court heard testimony of a witness from the Gateway House and the testimony of the defendant. The State, in rebuttal, insisted that, based upon the defendant’s past record, he should be sentenced to the penitentiary. Respondent concluded the hearing by placing defendant on 36 months’ probation with the condition that he successfully complete the Gateway House program. Thereafter, the State filed a motion to resentence the defendant on the grounds that the sentence imposed was precluded by statute and the defendant should be resentenced as provided under section 5 — 5—3 of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 5—3). Respondent denied the motion.

Section 8 of the Act, quoted above, limits those persons eligible for treatment. One limiting condition is that a petitioner on probation must obtain the consent of his probation officer. Another condition is that the petitioner must not have been admitted to the program on two prior occasions within any consecutive two-year period. The defendant herein fails to qualify under either section 8(e) or 8(f). As can be seen from the facts, at the time of the instant sentencing, defendant was still serving a three-year probation period which had commenced August 4, 1978, yet the record reveals no consent having been given by defendant’s probation officer as required by section 8(e). (See People v. Phillips (1977), 66 Ill. 2d 412, 416.) Further, defendant had elected and was admitted to the treatment program on June 9, 1977, and, again, on August 4, 1978, thereby rendering him ineligible, under section 8(f), to elect further treatment under the Act.

For these reasons, I would issue the writ of mandamus, directing the respondent to vacate all findings and orders entered on June 18, 1979. In fairness, I would also direct respondent to allow defendant to plead anew to the indictment filed September 8, 1978, which charged him with the offense of burglary.

MR. JUSTICE UNDERWOOD joins in this dissent.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 52548.
    JAMES D. ROGERS, Appellee, v. ROBSON, MASTERS, RYAN, BRUMUND AND BELOM, Appellants.

      Opinion filed, June 20, 1980.

      O’Brien & Garrison, Ltd., of Joliet (James E. Garrison and James R. Fabrizio, of counsel), for appellant.
    James D. Rogers, pro se.

    Howard H. Braverman, of Springfield, for amicus curiae Illinois State Bar Association.
    John E. Guy, of Abramson & Fox, of Chicago, for amicus curiae Illinois Defense Counsel.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, James D. Rogers, M.D., appealed from the judgment of the circuit court of Will County entered in favor of defendants, Robson, Masters, Ryan, Brumund and Belom, upon allowance of their motion for summary judgment. The appellate court reversed and remanded (74 Ill. App. 3d 467), and we allowed defendants’ petition for leave to appeal.

In plaintiff’s complaint, filed pro se, it is alleged that he had been named as a party defendant in an action alleging that a post-operative wound infection was due to the negligence and carelessness of the plaintiff and his co-defendants; that discovery depositions taken by defendants, the attorneys employed by plaintiff’s insurance company, showed that there was no negligence on the part of plaintiff; that despite that fact and contrary to plaintiff’s wishes and instructions conveyed to the defendants, a settlement was negotiated in the malpractice action. The complaint alleged damages suffered by plaintiff.

Defendants’ motion for summary judgment shows that at the time of the alleged negligent acts out of which the malpractice action arose plaintiff was insured by Employer’s Fire Insurance Company, and that defendants negotiated a settlement with the plaintiff in the malpractice action and, upon execution of a covenant not to sue, paid $1,250 and effected dismissal of the action as to plaintiff. The policy under which plaintiff was insured provided that the written consent of a former insured was not required before the insurer made any settlement of any claim or suit “even if such claim or suit was made, preferred or alleged while such former insured was an insured under this policy.”

In an affidavit filed in opposition to the motion for summary judgment plaintiff stated that during the pend-ency of the malpractice action he repeatedly informed one of the partners in the defendant law firm that he would not consent to the settlement of the action, that he was assured that the action would be defended, and that at no time was he advised that defendants intended to settle the malpractice suit.

The circuit court allowed defendants’ motion for summary judgment and plaintiff appealed. In reversing, the appellate court held that under the terms of the policy plaintiff’s insurer was authorized to settle the medical malpractice action without plaintiff’s consent. It held, however, that when defendants became aware that a settlement was imminent and that plaintiff did not wish the case settled, a conflict arose which prevented their continuing to represent both plaintiff and the insurer without a full and frank disclosure of the circumstances. The appellate court held that defendants, having continued to represent both plaintiff and the insurer without the requisite disclosure, breached their duty to plaintiff and would be liable to him for any loss caused by the lack of disclosure.

Defendants contend that they did not breach an independent duty owed to plaintiff; that because the insurer was authorized to settle the malpractice litigation without plaintiffs consent, no conflict of interest arose between the parties to the insurance contract; and that the alleged conflict upon which the majority opinion of the appellate court rests was not argued by plaintiff. They argue, too, that plaintiff suffered no damage as a proximate result of the alleged failure to advise him of the impending settlement. Amici curiae, the Illinois Defense Counsel and Illinois State Bar Association, argue that the appellate court erred in implying that proof of a violation of the canons or disciplinary rules of the American Bar Association Code of Professional Responsibility established a per se basis for imposing liability on an attorney in a malpractice action.

It is plaintiff’s position that the appellate court correctly reversed the circuit court judgment for the reason that there is presented a genuine issue of material fact. He argues that it was the duty of defendants to inform him of the intent to settle and that his consent to the settlement was required.

In Econo Lease, Inc. v. Noffsinger (1976), 63 Ill. 2d 390, 393, the court said:

“A motion for summary judgment will be granted if the pleadings, depositions, admissions and affidavits on file reveal that there is no genuine issue as to any material fact and that the movant is entitled to a judgment or decree as a matter of law. (Ill. Rev. Stat. 1975, ch. 110, par. 57(3); Carruthers v. B. C. Christopher & Co., 57 Ill. 2d 376.) A reviewing court must reverse an order granting summary judgment if it is determined that a material question of fact does exist.”

Defendants’ motion for summary judgment and the affidavit filed in support of the motion refer only to the insurer’s authority to settle the malpractice suit and do not deal with the matters stated in plaintiff’s affidavit.

Although defendants were employed by the insurer, plaintiff, as well as the insurer, was their client (Thornton v. Paul (1978), 74 Ill. 2d 132; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187) and was entitled to a full disclosure of the intent to settle the litigation without his consent and contrary to his express instructions. Defendants’ duty to make such disclosure stemmed from their attorney-client relationship with plaintiff and was not affected by the extent of the insurer’s authority to settle without plaintiff’s consent. We need not and therefore do not consider the question whether plaintiff’s insurance carrier was authorized to settle the malpractice action without his consent.

Further, since no disclosure was made and plaintiff was not given the opportunity to elect what course to pursue, we need not speculate what recourse, if any, plaintiff had under the terms of the insurance policy. Nor need we reach the question whether plaintiff can prove damages which are the proximate result of the breach of the duty to make a full disclosure of the conflict between defendants’ two clients. It cannot be determined from this record what damages, if any, plaintiff can prove. We decide only that this record does not preclude the possibility that some damage to plaintiff may have flowed from defendants’ alleged failure to make the requisite disclosure.

The record does not show that there is no genuine issue as to any material fact and the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE MORAN MR. JUSTICE RYAN,

text:
    (No. 52507.
    RONALD D. THOMAS, Appellee, v. KAISER AGRICULTURAL CHEMICALS et al. (OPW Corporation, Appellant; Kaiser Agricultural Chemicals, Appellee and Cross-Appellant; Certified Equipment and Manufacturing Company, Appellee).

      Opinion filed. June 20, 1980.

      RYAN, J., dissenting.
    W. J. Simhauser, of Heckenkamp & Simhauser, P.C., of Springfield, for appellant.
    Ray Moss, of Herrick, Rudasill & Moss, of Clinton, for appellee Ronald D. Thomas.
    William R. Brandt and Richard E. Stites, of Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington, for appellee Kaiser Agricultural Chemicals, Division of Kaiser Aluminum & Chemical Corp.
    Michael J. Kehart, of Welsh, Kehart & Shafter, P.C., of Decatur, for appellee Certified Equipment & Manufacturing Co.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The plaintiff, Ronald D. Thomas, brought this suit in the circuit court of De Witt County for personal injuries received when his face was sprayed with liquid-nitrogen fertilizer as he attempted to fill a fertilizer-applicator machine with the liquid. The complaint charged defendants with both negligence and strict products liability for defective design. Defendants are: Kaiser Agricultural Chemicals (Kaiser), seller of the fertilizer, who, in connection with that sale, supplied the applicator machine; and Certified Equipment and Manufacturing Company (Certified), the distributor of the allegedly defective component part that was incorporated into the applicator machine. Certified filed a third-party complaint for indemnity against OPW Corporation, a division of Dover Corporation (Dover), the manufacturer of the component part alleged to be defective. Kaiser counterclaimed, seeking indemnity from both Certified and Dover.

After a jury trial, the court entered judgments on the verdicts (1) in favor of plaintiff and against Kaiser for $50,000, (2) in favor of Certified and against plaintiff, (3) in favor of Certified and against Kaiser for indemnity, and (4) in favor of Kaiser and against Dover for indemnity. The appellate court affirmed the judgment of the circuit court relative to the jury verdicts but reversed the allowance of attorney’s fees, an issue not before us on appeal. (74 Ill. App. 3d 522.) We allowed Dover’s petition for leave to appeal, and Kaiser cross-appeals.

Kaiser claims (1) that the judgment for plaintiff should be reversed because, as a matter of law, the plaintiff assumed the risk of the allegedly defective component part, and (2) that because Certified is a wholesaler in the distributive chain of the allegedly defective product, Kaiser is entitled to indemnity from Certified as a matter of law. Dover contends (1) that, absent a functional failure of a component, the manufacturer of the component is not required to indemnify an assembler who selects and installs the component part in a finished product, and (2) that the trial court erred in its ruling which prevented Dover from introducing evidence to show that it made a companion part which, if used with the allegedly defective component in question, would have avoided the injury to plaintiff.

In April 1974, to fertilize their farms, plaintiff and his brother, Robert Thomas, purchased from Kaiser the stated fertilizer. In connection with this sale and without charge to plaintiff or his brother, Kaiser supplied a fertilizer applicator. The applicator, a 3 0 O-gallon-capacity tank mounted on wheels, is made to be attached to the rear of a tractor that pulls the applicator over the soil while a system of blades deposits the pressurized fertilizer from the tank into the churned ground.

An adaptor, located at the top of the applicator, is a cylindrical device, approximately three inches in length. It is threaded at one end, allowing it to be screwed into and fastened to the top of the applicator tank. At the outer circumference of the other end of the adaptor is a specially designed annular groove to which a supply hose attaches for filling the applicator. This adaptor is the entry point for the fertilizer, which is pumped into the applicator from a larger tank-storage unit called a “nurse tank.” The hose from the nurse tank is specially fitted with a coupler which clamps onto the upper end of the adaptor at the annular groove and is locked on with two attached arm clamps called “kamlocks.” Once the hose coupler is attached to the adaptor and clamped with the kamlocks to prevent any leakage, air pressure is applied to the nurse tank to force the fertilizer to flow into and fill the applicator tank.

The adaptor contains a check valve which blocks the threaded lower end of the adaptor to prevent the fertilizer from being expelled from the applicator. The check valve can be opened by depressing a stem attached to the check valve. This stem extends approximately one-eighth inch above the upper lip of the adaptor. The check valve also can be forced open by the pressurized flow of fertilizer from the nurse-tank hose.

In addition to the adaptor, an air-pressure-relief valve and an air-pressure gauge are located on the top of the tank alongside a decal listing instructions for the use of the applicator. One of the listed instructions directs the user, before attempting to fill the applicator, to bleed all the air from the applicator tank until the pressure gauge reads zero.

At trial, the plaintiff testified that, although he had been farming for 18 years, he had used the Kaiser applicator only once before — in 1966. Plaintiff stated that he had generally used anhydrous-ammonia fertilizer and was not, as a user, familiar with the harmful properties of liquid-nitrogen fertilizer. He stated that both he and his brother had read the decal instructions pertaining to the filling of the applicator before the April 24, 1974, accident occurred. On that date, plaintiff and his brother worked together in applying the fertilizer to their land. Plaintiff testified that, in preparation for refilling the applicator tank, he bled off the tank’s air pressure and heard the hissing sound of released air. He did not check the air-pressure gauge to see if it read zero. Plaintiff took the hose leading from the nurse tank and attempted to attach the hose coupler to the adaptor in preparation for filling. He testified that he did not know that the stem on the check valve protruded above the lip of the adaptor where the hose coupler was to be attached. Plaintiff stated:

“As I approached the adaptor with the coupler I didn’t get it on there correctly and in a second or less than that I got sprayed in the face with the liquid fertilizer. *** I apparently bumped the check valve.”

The testimony of plaintiff’s brother was substantially the same, except that he claimed to have bled the air pressure from the applicator immediately before the accident occurred.

Plaintiff’s expert witness, Professor Loren Body of the University of Illinois department of agricultural engineering, testified that, in his opinion, the injury occurred because a quantity of liquid-nitrogen fertilizer was trapped by the check valve and remained above it in the cup of the adaptor after the prior filling operation. When, in an attempt to attach the hose coupling, plaintiff accidentally bumped the protruding stem of the check valve, the check valve opened, allowing pressure to be released from the tank and ejecting the fertilizer trapped in the adaptor. In Professor Body’s opinion, the one-eighth inch protrusion of the valve-core stem created an unreasonably dangerous condition.

The evidence presented at trial revealed that the applicator was assembled by Kaiser. The parts, including the adaptor in question, were purchased by Kaiser from Certified, which was the distributor for the manufacturer, Dover. There was no evidence to show that Certified made any recommendation or advised Kaiser as to what component parts to purchase.

Dover’s manager of engineering testified that he was aware that some of Dover’s customers used liquid-nitrogen fertilizer and that the adaptor had been used in the fertilizer business for over 20 years.

We first address Kaiser’s contention that the plaintiff, as a matter of law, assumed the risk of the allegedly defective adaptor.

In Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, this court established the rule that a plaintiff’s contributory negligence is not a defense in a strict products liability tort action. If, however, the plaintiff’s action amounts to an assumption of the risk, recovery for any injury incurred will be barred. A plaintiff assumes the risk of a defective product only if he is actually aware of the defective nature of the product and appreciates its unreasonably dangerous character, but chooses voluntarily to act in disregard of such known danger. Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 426, 430; Court v. Grzelinski (1978), 72 Ill. 2d 141, 149; Restatement (Second) of Torts, sec. 496D (1965).

The test for assumption of risk, established in Williams, is a subjective one which allows the jury to consider the individual plaintiff’s knowledge, experience and background in determining whether he has assumed the risk of using a product known by him to be dangerous. This determination is normally a jury question. Kaiser claims that, since this plaintiff had been farming for 18 years and had used fertilizer machinery on his farm and on the farms of his neighbors, he should be held as a matter of law to have assumed the risk in this case.

Plaintiff testified, however, that he had used Kaiser’s machinery only once before, eight years prior to the instant accident. His previous experience had been with anhydrous-ammonia fertilizer which has properties markedly different from those of the liquid nitrogen that caused his injuries. He stated he was not aware that the stem of the adaptor’s check valve protruded or that it was dangerous. Moreover, the plaintiff thought he had released the air pressure within the applicator and that, consequently, it was safe to proceed to fill the applicator. Although the plaintiff may have been negligent in not checking the air-pressure gauge for a “zero reading,” his actions do not indicate a voluntary decision to face a known danger. Under the circumstances, the jury was free to find that plaintiff’s actions did not amount to an assumption of risk.

Kaiser also argues that it was entitled to a judgment for indemnity against Certified as a matter of law because Certified was the distributor who sold the allegedly defective adaptor to Kaiser.

It is true that in a products liability action, all persons in the distributive chain are liable for injuries resulting from a defective product. This includes suppliers, distributors and retailers. (Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 344. See Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 617.) However, in the present case, the following instruction, tendered by Kaiser, was submitted to the jury:

“If you find that Kaiser Agricultural Chemicals is entitled to reimbursement from one of Certified Equipment and Manufacturing and OPW Corp., A division of Dover Corp., but not both, then you should use the form of verdict which says:
‘We, the Jury, find for Kaiser Agricultural Chemicals and against the following defendant__________.
We further find for___________and against Kaiser Agricultural Chemicals. ”

Where, as here, the record shows that a defendant’s tendered instruction was given to the jury and that an option within that instruction provided the verdict form by which the jury could find for one of the defendants but against another, the tendering defendant has waived any error when the jury exercises that option. (Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 575.) Accordingly, Kaiser cannot now claim error because the jury used the verdict form supplied by Kaiser to find for Certified and against Kaiser on 'the issue of indemnification.

Dover argues that it should not be liable to Kaiser for indemnification as a matter of law. Dover’s theory is that the manufacturer of a component part, incorporated into a machine by an assembler, would not be liable to a user of that machine if the injury was not the result of a functional failure of that component part. Dover asserts that Kaiser was aware of the applicator’s design characteristics and that the component part chosen by Kaiser was unsuitable for the purpose used. Dover concludes that Kaiser should therefore bear the sole burden of liability.

Section 402A of the Restatement (Second) of Torts, comment q, states:

“It is no doubt to be expected that where there is no change in the component part itself, but it is merely incorporated into something larger, the strict liability will be found to carry through to the ultimate user or consumer.” (Restatement (Second) of Torts section 402A, comment q (1965).)

This position was adopted in this State in Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, wherein the court found that the manufacturer of a component part may be held liable where the assembler made no substantial change in the component part and the injury is directly attributable to a defect in such component part. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623.

Dover’s argument, that it should be relieved of liability, presumes that the adaptor in question was not defective at the time it left Dover. However, plaintiff’s expert, Professor Body, testified that in his opinion the adaptor itself created an unreasonably dangerous condition because of the ease with which the valve’s protruding stem could be bumped with a resultant expulsion of pressurized liquid. There was no evidence to show that any change was made to the adaptor by Kaiser. Kaiser simply attached the adaptor to the top of its tank. We therefore find no merit to Dover’s argument that Kaiser should bear the burden of liability for plaintiff’s injuries. The jury was entitled to find that the dangerous condition which led to plaintiff’s injuries existed at the time the adaptor was manufactured by Dover. We find no reason to make a distinction in regard to liability between component-part manufacturers whose project malfunctions and those manufacturers whose product is faulty because of a design defect.

Dover further argues that Kaiser’s use of the adaptor on its applicator amounted to misuse of the product. It claims that such adaptor was unsuitable for the use to which it was put and that Kaiser was aware of the design characteristics of the adaptor at the time Kaiser selected it. Generally, the misuse of a product by a supplier will defeat his right of indemnification from the manufacturer. However, if such misuse is reasonably foreseeable by the reasonably prudent manufacturer, it will not act to bar the liability of the manufacturer. (Kerns v. Engelke (1979), 76 Ill. 2d 154, 165; Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, 369; Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77, 83.) When there is conflicting testimony as to whether a particular use was reasonably foreseeable, it is a question for the jury. Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, 369.

In the present case, Dover’s manager of engineering stated that he was aware that some of Dover’s customers used liquid-nitrogen fertilizer and that the adaptor had been used in the fertilizer business for 20 years. Although Dover argues that it was not aware of Kaiser’s use of its adaptor, the testimony adduced at trial was sufficient to support the jury’s finding that the use of Dover’s adaptor in the manner described here was reasonably foreseeable.

Dover also argues that the trial court erred in excluding evidence that would show the adaptor could have been used in conjunction with another part manufactured by Dover. Dover claims that if Kaiser had selected a different hose coupler to use in conjunction with the adaptor, it would have prevented the accumulation of liquid fertilizer in the adapter cup and, thus, have avoided the instant accident.

Dover made an offer of proof which showed that the hose coupler actually used by the plaintiff and the coupler sought to be introduced by Dover were part of a line of products specially designed to be used interchangeably with Dover’s various models of adaptors, including the one in question here. Since the focus of the issue in this case is the design of the adaptor itself, evidence of other products which could have offset the defective design of the adaptor is irrelevant. Dover could be held to have foreseen that the adaptor would be used with the various types of couplers and it had a duty to design the adaptor so that it would function safely with each. Further, if this particular adaptor and coupler could not have been safely used together, a warning to that effect should have been provided. We, therefore, hold that the trial court did not err by excluding this evidence.

For the reasons stated above, the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE RYAN,

dissenting:

I disagree with my colleagues’ treatment of the defense of assumption of risk. The opinion fails to focus on what I consider to be the controlling issue in the case — the disregard of an express warning concerning the manner of using the fertilizer applicator.

It was plainly established by the evidence that the plaintiff and his brother were farmers experienced in the application of fertilizer and had, in fact, been in the fertilizer-application business from 1960 through 1972, during which time they had applied anhydrous ammonia using applicators similar to the one used on the day of the accident, and the plaintiff had used the same type of equipment as that involved in this accident once before. Also, because of his experience, we can conclude that plaintiff knew of the dangerous propensities of both anhydrous ammonia fertilizer and of liquid nitrogen.

The evidence is also undisputed that on top of the fertilizer-applicator tank involved in this case, near the alleged defective adapter, was an air-pressure-relief valve, an air-pressure gauge, and a decal on which was plainly printed instructions that the user should bleed off all air pressure from the tank by opening the valve until the pressure gauge reads zero. The plaintiff had read and understood these instructions.

Although plaintiff stated that he opened the valve to release the pressure, it is undisputed that he did not check the air pressure gauge to see if it read zero before he attempted to attach the coupler to the adapter. In fact, plaintiff’s brother testified that when he handed the coupler to the plaintiff, “there was possibly two or three pounds of pressure” showing on the gauge. A witness called by plaintiff testified that if all the air pressure were released, there could be no injury from any liquid in the adapter; however, it would not be safe to attempt to fill an applicator tank without bleeding off all the pressure.

The majority opinion excuses the plaintiff’s conduct by saying that he thought he had released the air pressure within the applicator. That excuse is about as valid as the proverbial “I didn’t know the gun was loaded.” It is no excuse at all, in view of the directions not only to release the air pressure but also to do so until the air pressure on the gauge reads zero. In complete disregard of these directions, the plaintiff did not look at the air gauge or ascertain that the air pressure on the gauge read zero before attempting to attach a coupler to the adapter. Plaintiff’s injury can only be attributed to his direct violation of the directions plainly printed on the decal and with which he was familiar.

Comment j of section 402A of the Restatement (Second) of Torts (1965) states in part:

“Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.”

The facts in this case are quite similar to those found in Walk v. J. I. Case Co. (1971), 36 App. Div. 2d 60, 318 N.Y.S.2d 598. In that case it was held that recovery was barred as a matter of law where the operator of a corn-picking machine was injured while removing com husks from the snapping rollers of the machine, contrary to the instructions printed on a warning plate placed on the machine cautioning against cleaning the machine while it was in operation. Another case in point is Kay v. Cessna Aircraft Co. (9th Cir. 1977), 548 F.2d 1370. In that case the court, applying California law, held the manufacturer of a push-pull twin-engine aircraft was not liable on the theory of strict liability for the death of the pilot resulting from a crash on takeoff caused by the failure of the rear engine, which was obscured from the pilot’s view. The court held that compliance with the pretakeoff procedures outlined in the owner’s manual would have alerted the pilot to the fact that the rear engine had failed and the accompanying danger. The court upheld the trial court’s order for judgment for the defendant notwithstanding the plaintiff’s verdict.

A similar result was reached in Stewart v. Von Solbrig Hospital, Inc. (1974), 24 Ill. App. 3d 599, where the appellate court affirmed the order of the trial court which entered judgment for the defendant notwithstanding the plaintiff’s verdict in a strict liability case. The evidence disclosed that a surgical pin failed when the plaintiff walked on his leg following removal of the cast. He had been instructed by the doctor not to put any weight on the leg after the cast was removed. See also 2 R. Hursh & H. Bailey, American Law of Products Liability sec. 8:25, at 212-13 (1974).

In Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, this court recognized that failure to heed the warnings in an instruction manual may constitute an affirmative defense of assumption of risk in a strict liability case. Under the facts of the case now before us I would hold, as a matter of law, that this affirmative defense bars recovery. Whether or not the plaintiff thought the air pressure had all been bled from the tank, the fact remains that he violated the specific instructions on the decal by attempting to attach the coupler to the adapter without ascertaining that the pressure gauge read zero. It was established by the evidence that if there would have been no air pressure in the tank, the fertilizer would not have been blown from the adapter into the plaintiff’s face. These warnings were placed on the equipment for the protection of those who use it. The law is well established that by failing to heed the warning the plaintiff assumed the risk of injury resulting therefrom. I must therefore dissent.