author: JUSTICE UNDERWOOD

text:
    (No. 56204.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DARNELL PAYNE et al., Appellants.

      Opinion filed October 21, 1983.

      James J. Doherty, Public Defender, of Chicago (Karen A. Popek, Assistant Public Defender, of counsel), for the appellants.
    Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael B. Weinstein, Assistant Attorney General, and Michael E. Shabat, Joan S. Cherry, and Marie Quinlivan, Assistant State’s Attorneys, of Chicago, of counsel), for the People.
    James D. Montgomery, Jerome A. Siegan, and Maureen Kelly Ivory, Corporation Counsel, for amicus curaie City of Chicago.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Following a joint jury trial in the circuit court of Cook County, defendants, Darnell Payne and Larry Bailey, were convicted of armed violence, armed robbery and burglary. Payne was sentenced to concurrent terms of 24 years’ imprisonment for the armed-violence and armed-robbery offenses, Bailey was sentenced to concurrent terms of 18 years’ imprisonment for those offenses, and both defendants were sentenced to concurrent terms of seven years’ imprisonment on their burglary convictions. The appellate court affirmed except as to Bailey’s armed-violence conviction, holding as to it that he had never been charged with that offense. (102 Ill. App. 3d 950.) We allowed defendants’ petition for leave to appeal.

The facts surrounding the crimes need only briefly be related here. Earlene Norman testified that defendants, armed with a sawed-off shotgun and a handgun, broke into the Normans’ apartment at approximately 9 a.m. on November 8, 1978, stealing some $2,000 in cash which Mrs. Norman’s husband, who was working at the time of the crimes, had apparently recently received in an insurance settlement. Defendants remained inside the apartment for approximately 20 minutes while holding a gun to Mrs. Norman’s head, threatening her life, and otherwise physically restraining and abusing her. They were seen fleeing the apartment by Claud Pearce, the janitor of the building, and by Sherry Friend, the adult daughter of one of the residents of the building.

The police interviewed the victim and other residents and potential witnesses and, later that afternoon, received information regarding the identity and addresses of the offenders from an individual previously unknown to the police. Defendants were thereafter arrested in Bailey’s apartment. After placing defendants under arrest, the officers searched the apartment and recovered, from the vegetable compartment of the refrigerator, a .32-caliber nickel-plated revolver and a loaded .25-caliber blue-steel automatic. Defendants were placed in a six-man lineup later that evening and identified by both Earlene Norman and Claud Pearce. Sherry Friend did not view the lineup.

Prior to trial, defendants moved to quash their arrests and suppress all evidence obtained as a result thereof on the ground that the police acted without probable cause and without a warrant. Following a hearing, the trial court found that there was “ample evidence of probable cause to arrest” but suppressed the weapons, holding that the search of the refrigerator was illegal because it exceeded the area within defendant’s immediate control.

Defendants were identified at trial by Mrs. Norman, Mr. Pearce and Sherry Friend. The blue-steel revolver was also admitted in evidence after a ruling by the court that defense counsel’s cross-examination of one of the police officers had “opened the door” to the suppressed weapon. Mrs. Norman was recalled and identified the weapon by its size and color as similar to the one held by defendant Bailey. Bailey testified in his own behalf. He denied all involvement in the crimes, stating that he was asleep at his girlfriend’s apartment during the relevant time period. The jury returned guilty verdicts on all charges.

While defendants first argue that the trial court committed reversible error in admitting the previously suppressed handgun and related testimony, we agree with the trial and appellate courts that defendants invited or “opened the door” to this evidence. Consequently, we need not consider the propriety of the search which revealed the gun. Defense counsel’s entire cross-examination of one of the arresting officers, which the trial court held “opened the door” to this evidence, consisted of the following:

“[DEFENSE COUNSEL]: Officer Munkvold, at the time of the arrest of Mr. Bailey and Mr. Payne, they were searched, were they not?
[ASSISTANT STATE’S ATTORNEY]: Objection.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Basis?
[ASSISTANT STATE’S ATTORNEY]: In fact, I'll withdraw the objection.
THE WITNESS: Yes, they were.
[DEFENSE COUNSEL]: Was the apartment QPill’PnPnV
[THE WITNESS]: Yes, it was.
[DEFENSE COUNSEL]: Thank you. That’s all.”

Although defendants argue that the general questions on cross-examination did not create the false implication that nothing connected with the robbery was recovered during the search, we see no reason to disturb the trial judge’s contrary finding that the purpose and effect of the cross-examination was to create the clear and unmistakable impression that nothing was recovered. The trial judge was in a better position than we to judge the purpose and effect of the cross-examination, and considering that defense counsel acknowledged that his purpose was to establish a foundation for later arguing that neither the shotgun nor the money was recovered during the search (a point which he did later establish on re-direct examination), we cannot say that the trial judge’s assessment was unreasonable. Nor do we think that the trial judge erred in allowing the State to rebut the false implication.

As the appellate court correctly noted, “[i]f a defendant procures, invites or acquiesces in the admission of evidence, even though it be improper, he cannot complain.” People v. Burage (1961), 23 Ill. 2d 280, 283, cert. denied (1962), 369 U.S. 808, 7 L. Ed. 2d 555, 82 S. Ct. 651; see also People v. George (1971), 49 Ill. 2d 372, 379; People v. Halteman (1956), 10 Ill. 2d 74, 82-83; cf. People v. Dixon (1982), 91 Ill. 2d 346, 350.

Defendants’ reliance on the Supreme Court’s decisions in United States v. Havens (1980), 446 U.S. 620, 64 L. Ed. 2d 559, 100 S. Ct. 1912, Harris v. New York (1971), 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643, and Walder v. United States (1954), 347 U.S. 62, 98 L. Ed. 503, 74 S. Ct. 354, is misplaced. Those decisions involved the use of originally suppressed evidence for later impeachment purposes after a defendant testifies falsely or makes inconsistent statements. The problem in this case arose not from false statements, made by defendants while testifying, but rather from cross-examination and potential argument by the defense which falsely implied the absence of physical evidence connecting defendants with the crimes. While we agree that defendants could argue the lack of corroboration of the identifications or point out that the State’s case depended almost entirely upon the reliability of the identification testimony, we do not believe that they could affirmatively misrepresent or falsely imply that the police found no physical evidence connected with the robbery during their search. See 3 LaFave, Search and Seizure sec. 11.6(b) (1978) (defense tactics which “open the door” to the admission of illegally seized evidence); People v. George (1971), 49 Ill. 2d 372 (even assuming the illegality of the seizure from defendant’s bedroom of a pillowcase and medals connected with a burglary, the prosecution’s references thereto were not error since defendant first brought out such testimony in cross-examination of a prosecution’s witness); Commonwealth v. Wright (1975), 234 Pa. Super. 83, 339 A.2d 103 (divulging suppressed evidence to the trial court consisting of nine packets of heroin in an effort to clear up the confusion created by defense counsel’s cross-examination of the chemist was not error); see also United States ex rel. Castillo v. Fay (2d Cir. 1965), 350 F.2d 400, cert. denied (1966), 382 U.S. 1019, 15 L. Ed. 2d 533, 86 S. Ct. 637 (prosecutor’s examination of police officer which revealed that instruments used in cutting narcotics were found in defendant’s apartment during an illegal search did not warrant Federal habeas corpus relief where defense counsel had previously established that no narcotics were found, despite the fact that the State arguably “opened the door” to the illegal search by implying that incriminating evidence was found).

“There is no gainsaying that arriving at the truth is a fundamental goal of our legal system” (United States v. Havens (1980), 446 U.S. 620, 626, 64 L. Ed. 2d 559, 565, 100 S. Ct. 1912, 1916), and we consider that allowing the defense or prosecution to misrepresent to the jury the actual facts of the case is neither consistent with the proper functioning and continued integrity of the judicial system nor with the policies of the exclusionary rules. (See Havens; Walder v. United States (1954), 347 U.S. 62, 98 L. Ed. 503, 74 S. Ct. 354.) That the jury was not instructed to consider this evidence for only a “limited” purpose is the result of defendants’ failure to offer or even suggest an appropriate limiting instruction. See Ill. Rev. Stat. 1979, ch. 110, par. 67(3).

Defendants suggest in a footnote that the lineup identifications were tainted as a result of the appellate court’s holding that the arrests were invalid, and that a new trial is therefore required. Even assuming that the arrests were invalid as the appellate court held, we agree with that court that the independent basis for the in-court identification obviates any need for a new trial. United States v. Crews (1980), 445 U.S. 463, 63 L. Ed. 2d 537, 100 S. Ct. 1244.

Defendant Payne next argues that his armed-violence conviction must be reversed because the third count of the information charging him with this offense did not set forth the elements of burglary — the predicate felony. While count II charged both defendants with committing the offense of burglary “in that they, without authority knowingly entered into a building, to-wit: the apartment of Earlene Norman with the intent to commit the offense of armed robbery, therein,” Payne argues here that he was not sufficiently apprised of the charge against him and was thereby precluded from preparing an adequate defense. The sufficiency of the information was neither challenged by a pretrial motion nor by a motion in arrest of judgment, and the State therefore suggests defendant must show actual prejudice as required by People v. Pujoue (1975), 61 Ill. 2d 335. Both the State and defendant also rely on our recent decision in People v. Hall (1982), 96 Ill. 2d 315.

In Hall defendant was charged in one count of an information with armed violence predicated upon a violation of section 5(e) of the Cannabis Control Act (Ill. Rev. Stat. 1977, ch. 56½, par, 705(e)). That section could be violated by any of four acts — the manufacture, delivery, possession with intent to deliver, or possession with intent to manufacture, cannabis. Although the preceding count of the information charged defendant Hall with possession with intent to deliver, he argued in the trial court and on appeal that the failure to state the elements of the predicate felony in the second count did not give him adequate notice of the specific crime with which he was charged. Given the facts in that case, we did not agree. We held:

“[W]hen one count of a multiple-count indictment states the purported predicate offense for another count with specificity, the latter count should not be held void unless the information itself or the prosecutor indicates affirmatively that some other offense is the predicate or there remains a realistic possibility of prejudicial uncertainty as to the predicate offense in light of facts agreed upon or placed in dispute.” (People v. Hall (1982), 96 Ill. 2d 315, 321.)

Payne submits that burglary encompasses the alternative acts of unlawfully entering or unlawfully remaining within a building with the intent to commit any of a number of offenses ranging from the intent to commit a misdemeanor theft to the intent to commit any felony. He further argues that given the facts presented by the State, including evidence that Mrs. Norman was struck in the face with the gun, and physically restrained and threatened, the burglaiy upon which the armed-violence count was predicated could have been based upon the criminal intent to commit aggravated battery, unlawful restraint or intimidation. The difficulty with Payne’s conclusion that there thus existed a realistic possibility of prejudicial uncertainty as to the predicate offense is that it ignores the “facts placed in dispute” in this case, which must, under the test set forth in Hall, be considered in assessing the possibility of prejudice.

The record is clear that the only issue in this case was whether defendants were the offenders. While the State’s burden necessarily required it to produce the evidence of the armed robbery and burglary, which included evidence of the circumstances surrounding those crimes, defense counsel made clear that the only issue was one of identification. Given the facts placed in dispute, the failure to repeat the elements of the burglary, which the State never intimated was based upon anything other than the elements set forth in the preceding count, falls far short of establishing either that actual prejudice or a realistic possibility of prejudicial uncertainty existed.

While we affirm Payne’s armed-violence conviction, we agree that, under the authority of our decisions in People v. Donaldson (1982), 91 Ill. 2d 164, People v. Mormon (1982), 92 Ill. 2d 268, and People v. Simmons (1982), 93 Ill. 2d 94, his conviction for burglary must be vacated. We once again decline the State’s request that we reconsider our holding in Donaldson that our armed-violence statute does not show a clear legislative intent to provide for the imposition of multiple convictions and sentences for both armed violence and the underlying felony where a single physical act is the basis for both charges. We do not believe, as the State suggests, that the Supreme Court’s recent decision in Missouri v. Hunter (1983), 459 U.S. 359, 74 L. Ed. 2d 535, 103 S. Ct. 673, is instructive in ascertaining whether our statute manifests a clear legislative expression to provide for the imposition of multiple convictions and sentences. In contrast to our holding in Donaldson and its progeny, the Missouri Supreme Court had specifically recognized that its legislature clearly intended to provide for the imposition of multiple convictions and cumulative punishments for both armed criminal action and the underlying felony. Despite that acknowledged intent, the Missouri Supreme Court had held that the double jeopardy clause prohibits the imposition of such sentences. The Supreme Court rejected that interpretation of the double jeopardy clause, holding that, where the court has determined that “a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under [Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180], a court’s task of statutory construction is at an end” and the imposition of such sentences in a single trial does not violate the Constitution. (Missouri v. Hunter (1983), 459 U.S. 359, 368-69, 74 L. Ed. 2d 535, 544, 103 S. Ct. 673, 679.) Considering that we have found no such “clear legislative expression” in our statute, Missouri v. Hunter does not warrant a reconsideration of our prior decisions. Payne’s conviction and sentence for burglary will accordingly be vacated. We do not believe, however, that, as a result, he is also entitled to a new sentencing hearing for his other convictions.

In Donaldson, we noted that the appellate court had misapprehended that the defendant had received a single nine-year term and remanded the cause for resentencing. In fact, defendant had received five concurrent nine-year terms, and we accordingly held that remandment was unnecessary. Payne also received separate concurrent sentences for each offense. There is simply no merit in the contention that our action in vacating Payne’s burglary conviction and sentence requires that he be given a new sentencing hearing for the more serious offenses of armed robbery and armed violence predicated upon burglary where separate sentences have been imposed. We find nothing in the record to indicate that the court took into account the conviction for burglary in determining the length of the sentence for armed violence. See People v. Bourke (1983), 96 Ill. 2d 327; People v. Reyes (1982), 108 Ill. App. 3d 911, 921; People v. Buford (1982), 110 Ill. App. 3d 46, 57 (holding that Donaldson requires a remand only when the trial court imposes a single sentence for both offenses).

The final argument raised is that defendant Bailey is entitled to a new trial or, alternatively, a new sentencing hearing because of the reversal of his armed-violence conviction. Although Bailey did not challenge the sufficiency of the information in the trial court, the appellate court considered the issue and held that, while the caption of the information named both defendants, count 3, charging armed violence, named only Payne and was therefore defective as to Bailey. Apparently the omission was an oversight by the State, and it does not seek review here of the appellate court's ruling. The State does argue, however, that Bailey’s failure to object to the armed-violence instruction and verdict forms constitutes a waiver of his argument that he was thereby prejudiced as to the other offenses charged, and that, under the facts in this case, fundamental fairness does not require that he be given a new trial. Defendant cites People v. Stanko (1949), 402 Ill. 558, for the proposition that prejudice is the natural result of instructing the jury on uncharged offenses.

Hi Stanko, the court held only that giving an instruction defining a crime not charged is not cured by the presence of an accurate one, because it cannot be shown whether the jury followed the correct or the erroneous instruction. (Cf. People v. Savaiano (1976), 66 Ill. 2d 7, 19; People v. Thompson (1950), 406 Ill. 323 (overly broad instructions did not result in substantial prejudice).) It is apparent here that all parties believed that both defendants were properly charged with armed violence, armed robbery and burglary. The jury was so instructed and received verdict forms for all offenses. Had Bailey challenged the sufficiency of the information or objected to the proposed instructions and verdict forms on that basis, the trial court could have corrected the error. His failure to do so should, preclude a reversal of his other convictions, where, as here, fundamental fairness does not require that he be given a new trial. (See People v. Huckstead (1982), 91 Ill. 2d 536; People v. Tannenbaum (1980), 82 Ill. 2d 177; People v. Roberts (1979), 75 Ill. 2d 1.) As we have indicated, the issue in this case was one of identification; we are unpersuaded that the jury was prejudicially influenced in its deliberations on this issue by the presence of an additional verdict form for the crime of armed violence or by the instructions.

Finally, considering that the trial judge sentenced Bailey separately for each offense, and the record does not indicate that the court was influenced by the armed-violence conviction in imposing sentences for the other offenses, a remand for resentencing is unnecessary. (See People v. Owens (1982), 109 Ill. App. 3d 1150, 1160; People v. Jones (1982) , 108 Ill. App. 3d 880, 891; cf. People v. Bourke (1983) , 96 Ill. 2d 327 (where it can be determined from the record that the weight placed on an improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment for resentencing is not required).) The court’s comments concerning the need to deter armed home invaders by imposing lengthy sentences were equally relevant, under the facts in this case, to the crimes of armed robbery (also a Class X offense (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2)) and burglary.

For the reasons stated, we reverse that portion of the appellate court’s judgment affirming Payne’s burglary conviction; the balance of the appellate court’s judgment is affirmed. The circuit court’s judgment as to Payne’s conviction for burglary is vacated; the court’s judgment as to Bailey’s conviction for armed violence is reversed, and the remaining convictions are affirmed.

Appellate court affirmed in part and reversed in part; circuit court affirmed in part and reversed in part and vacated in part.


source: Caselaw Access Project

author: JUSTICE CLARK

license: Public Domain

text:
    (No. 56505.
    GUST K. NEWBERG, INC., Appellant, v. THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Appellee.

      Opinion filed October 21, 1983.

      Carey, Filter, White & Boland, and Arnstein, Gluck & Lehr, of Chicago (Edward M. White, Edmund P. Boland, and Louis A. Lehr, Jr., of counsel), for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Richard E. Friedman and Randall E. Server, Special Assistant Attorneys General, of Chicago, of counsel), for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

In 1975, Newberg-Krug-Brighton (hereinafter New-berg), a joint venture consisting of three corporations, filed a two-count complaint in the circuit court of Du Page County against the Illinois State Toll Highway Authority (the Authority) seeking $9 million in damages for an alleged breach of contract in connection with the construction of two sections of the East-West Tollway extension.

After the complaint was filed, Richard Blakely, the Authority’s executive director, directed Assistant Attorney General John Lavery, chief of the legal department of the Authority, to enter into settlement negotiations with counsel for Newberg.

In July of 1976, counsel for Newberg somehow informed Lavery that Newberg would settle the pending litigation for $2.75 million. The record does not show the manner in which that offer was made. We do not find a written offer in the record. On July 12, 1976, Lavery wrote a letter to then Attorney General William J. Scott advising him of the offer that had been made and explaining that the offer would be communicated to the board of directors of the Authority at a board meeting the latter part of July, and notifying him that a resolution approving the settlement had been prepared and would be adopted if the board decided to settle the litigation. On July 30, 1976, Lavery did present a formal resolution, No. 9634, with the proposed terms of the settlement, to the board. The resolution, approving the settlement and authorizing and directing the Authority’s legal department to execute “any and all documents necessary to effectuate the settlement,” was unanimously adopted by the board at that meeting.

On August 4, 1976, Attorney General Scott advised the board by letter that the board’s adoption of the resolution was premature since discovery had not been taken in the case and therefore there was insufficient knowledge on the part of the Authority to determine whether settlement was in the Authority’s best interests. At that time Attorney General Scott also expressed the opinion that Newberg’s claim was without merit.

Again on August 25, 1976, Attorney General Scott sent a letter to the board disapproving the proposed settlement of the claims against the Authority and expressing the belief that not only was Newberg’s claim without merit, but also it was possible that the Authority had a substantial counterclaim against Newberg. He noted, too, that there might be other parties that would be required to contribute to any settlement of the matter. The Authority thereafter took no further action to effectuate the settlement; in fact, on October 1, 1976, the chairman of the Authority sent a letter to Attorney General Scott, informing him that the board would defer implementation of the resolution pending further advice from him and did in fact rescind the resolution in August 1977.

On November 18, 1976, Newberg amended its complaint to add a third count based upon breach of an alleged “settlement agreement,” resolution No. 9634. The Authority filed a motion to dismiss count III in the circuit court of Du Page County. The Authority alleged in its motion to dismiss that the resolution the board had adopted did not create a binding contract, and contended that count III failed to state a cause of action since it did not allege that the Attorney General had approved the settlement — an allegation, the Authority asserted, that was essential to stating a cause of action for breach of contract in count III. The circuit court granted the Authority’s motion to dismiss, and Newberg appealed the circuit court’s dismissal of count III to the appellate court. Newberg-Krug-Brighton v. Illinois State Toll Highway Authority (1978), 63 Ill. App. 3d 780, appeal denied (1979), 72 Ill. 2d 583.

In that appeal, the appellate court concluded that it was not essential that “Newberg affirmatively plead either the Attorney General’s approval of the settlement agreement or his acquiescence in the course of action sought to be taken by the Authority.” (63 Ill. App. 3d 780, 783.) The court determined that section 15 of the Toll Highway Act (Ill. Rev. Stat. 1975, ch. 121, par. 100 — 15) “authorizes and obliges the Attorney General in his representation of the Authority as its legal advisor to consider its contracts as to their form and constitutionality *** [but] does not confer upon the Attorney General an all-inclusive right to disapprove actions undertaken by the Authority pursuant to the powers granted to it by the General Assembly.” (63 Ill. App. 3d 780, 782.) The court held that the motion to dismiss did not suggest that the action taken by the Authority by its resolution suffered from either form or constitutional inadequacies so that there was no statutory basis to support dismissal of count III of the complaint.

The court also concluded that even though it did not agree with the Authority’s position that an allegation of the Attorney General’s approval was essential to the legal sufficiency of the cause of action, the Attorney General “ha[d] the authority to direct the legal affairs of the State.” (63 Ill. App. 3d 780, 783.) Therefore, the appellate court in that appeal remanded the cause to the circuit court, inviting the Authority or the Attorney General to assert any lawful basis which might exist by reason of which the settlement between the Authority and Newberg should not be carried out. The appellate court invited the Authority or Attorney General to assert reasons either relating to form or constitutionality of the alleged settlement contract under section 15 of the Toll Highway Act or any reason, such as fraud, which would require the Attorney General to exercise his authority as director of the State’s legal affairs.

The appellate court also held that the issue of whether the Authority’s resolution created a binding contract was an issue which was not to be determined by way of a motion to dismiss, but instead was an issue to be raised on remand, in the Authority’s response to count III in the circuit court. The appellate court further held that the Authority had not demonstrated “why it lacked the power to contract by adoption of a resolution by its board of directors” and held that, “[i]n the absence of an express statutory provision requiring a written contract or the signature of a particular person before such a resolution is binding upon the Authority, the general rule is that the acceptance of an offer by ordinance, resolution or motion creates a contract binding upon both parties.” (63 Ill. App. 3d 780, 784, citing to 10 McQuillin, Municipal Corporations sec. 29.03 (3d ed. 1966); 56 Am. Jur. 2d Municipal Corporations sec. 497 (1971); West Chicago Park Commissioners v. Carmody (1908), 139 Ill. App. 635.) The resolution in this case, the appellate court pointed out, had not required that any particular written document be prepared or act be done before a contract would come into existence.

On remand in the circuit court, the Authority answered count III of Newberg’s complaint, denying that it had authority to settle the claim against it and therefore asserting that the resolution had not been validly adopted by its board of directors. The Authority also raised a number of affirmative defenses, including- several relating to the form and constitutionality of the resr olutions. The Attorney General, the Authority contended, had not approved the resolution as to form and constitutionality and had not approved of the settlement.

After considering all the evidence, the circuit court of Du Page County found that the Authority and the Attorney General had failed to establish any defects in form or constitutionality which would prevent enforcement of the settlement resolution. It also found that the affirmative defenses raised by the Authority were without support in the evidence. The circuit court held that the settlement resolution was a binding contract between the Authority and Newberg and therefore held that the Authority was liable to Newberg in the sum of $2.75 million for breach of the purported settlement agreement. The circuit court thereafter dismissed counts I and II of Newberg’s complaint and provided that they could be reinstated in the event of a reversal by the appellate court in regards to count III.

The Authority appealed the circuit court’s judgment on remand, contending that the agreement was invalid and unenforceable because it was not approved by the Attorney General. Newberg cross-appealed, contending it was entitled to prejudgment interest. Gust K. Newberg, Inc. v. Illinois State Toll Highway Authority (1982), 103 Ill. App. 3d 557.

In this second appeal, a majority of the appellate court, one justice dissenting, reversed the circuit court’s judgment that awarded Newberg $2.75 million, reinstated counts I and II of the complaint, and again remanded the cause to the circuit court.

• The majority of the appellate court in this second appeal held that because the Attorney General set forth eminently reasonable grounds to disapprove of the dismissal of the pending litigation as proposed by the Authority, the Attorney General had acted well within the scope of his power to control the Authority’s litigation in the public interest and was not arbitrarily interfering with the power of the Authority to contract or carry out its statutory duties. The appellate court reasoned that the Attorney General, in disapproving the settlement, was carrying out his broader responsibilities to the State, that of conducting the Authority’s legal affairs. The court stated, “We conclude that in these circumstances the resolution by the Authority accepting New-berg’s offer of settlement, predicated on the dismissal of the pending litigation, was unenforceable absent approval of the Attorney General. Neither the Authority nor the parties who seek to contract with it may overlook the power and duty of the Attorney General to conduct the litigation of a State agency, and the settlement resolution of the Authority was insufficient to impose liability upon it.” 103 Ill. App. 3d 557, 562.

The appellate court also held that Newberg’s contention that the Attorney General did in fact approve the settlement through Assistant Attorney General Lavery was without merit because Attorney General Scott had promptly rejected the proposed settlement of the litigation after passage of the resolution, thus effectively negating any suggestion of approval implied by the actions of his assistant. 103 Ill. App. 3d 557, 562.

It is from this judgment, the second appeal in the appellate court, that Newberg appeals to this court. We granted Newberg’s petition for leave to appeal (87 Ill. 2d R. 315).

Preliminary to a determination of whether resolution No. 9634 was a binding contract, we must first decide whether Attorney General Scott’s approval, as chief legal officer of the State, was necessary before there could be a valid contract and whether that approval was given.

Under the Toll Highway Act (Ill. Rev. Stat. 1977, ch. 121, par. 100 — 1 et seq.) “[t]he Authority shall have the power *** [t]o enter into all contracts and agreements necessary or incidental to the performance of its powers under the Act.” Ill. Rev. Stat. 1977, ch. 121, par. 100— 8(b).

The Authority argues that , the resolution could not be a valid contract because the requisite approval of the Attorney General was not given.

The Authority maintains that section 15 of the Toll Highway Act (Ill. Rev. Stat. 1977, ch. 121, par. 100 — 15) makes approval of the Attorney General a condition precedent to an otherwise valid contract. Section 15 provides:

“The Attorney General of the State of Illinois, shall be ex officio attorney for the said Authority and he shall be its legal adviser and legal representative. In addition to the specific duties imposed upon the said Attorney General, under the provisions of this Act, it shall be. his further duty to act as attorney for the Authority in all of its transactions, and to represent the Authority in all of its litigation, and to examine and approve all contracts, leases, bonds or other undertakings or obligations entered into by the Authority, as to their form and constitutionality prior to their execution and delivery.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 121, par. 100 — 15.

The Authority contends that under the plain language of the statute the Attorney General’s approval “as to [the] form and constitutionality” of the resolution was required. In Denton Enterprises, Inc. v. Illinois State Toll Highway Authority (1979), 77 Ill. App. 3d 495, the identical issue was presented to the appellate court and it held: “The clear purpose of section 15 is to protect the public generally and those specifically who invested in revenue bonds issued by the Authority by giving the Attorney General the power to approve or disapprove contracts as to form and constitutionality. In our opinion, the Authority and those who contract with it may not ignore this statutory requirement. *** In our view, where a statute prescribes the method by which an officer or agent may bind an administrative agency of the State of Illinois such as the Authority [citation], that method must be followed. *** Accordingly, we find that a contract entered into by the Authority may not be enforced absent approval by the Attorney General of Illinois as to form and constitutionality.” (77 Ill. App. 3d 495, 501-02.) We agree with the Authority that approval of the Attorney General as to the form and constitutionality of resolution No. 9634 was necessary.

There is also no question that the Attorney General, in addition to being the attorney for the Authority by statute, is also the chief legal officer for the State and its departments and agencies. (Ill. Const. 1970, art. V, sec. 15; People v. Massarella (1978), 72 Ill. 2d 531, 534; Environmental Protection Agency v. Pollution Control Board (1977), 69 Ill. 2d 394, 398.) His duties are prescribed by law and also include those powers traditionally held by the Attorney General at common law. While the legislature may add to his powers, it cannot reduce the Attorney General’s common law authority in directing the legal affairs of the State. See People ex rel. Scott v. Briceland (1976), 65 Ill. 2d 485, 493; People ex rel. Scott v. Illinois Racing Board (1973), 54 Ill. 2d 569, 575-76; Stein v. Hewlett (1972), 52 Ill. 2d 570, 585; People v. Illinois Toll Highway Com. (1954), 3 Ill. 2d 218, 236; Fergus v. Russel (1915), 270 Ill. 304, 339.

The Attorney General had a valid basis on which to disapprove of the proposed settlement of the litigation. In his letter of August 4, 1976, only five days after adoption of the resolution, he advised the board of directors of the Authority that the resolution was premature because no discovery had been taken in the case. The Authority, he pointed out, lacked sufficient knowledge to determine whether the proposed settlement of the litigation was in the Authority’s or the State’s best interests.

On August 25, 1976, Attorney General Scott again informed the board that not only was Newberg’s claim without merit, but also there existed the possibility that there might be other parties that would be required to contribute to any settlement of the matter. He advised the board that there was not sufficient reason to accept Newberg’s proposed settlement and to do so would be a wrongful waste of public funds.

By his prompt objection setting forth eminently reasonable grounds to disapprove of the dismissal of the pending litigation as proposed by Newberg, the Attorney General acted well within the scope of his power to control the Authority’s litigation in the public interest.

We agree with the appellate court’s reasoning that because “Attorney General Scott promptly rejected the proposed settlement of the pending litigation after passage of the resolution,” he “effectively negat[ed] any suggestion of approval inferred by the actions of his deputy.” 103 Ill. App. 3d 557, 562.

The assistant Attorney General here was directed by the Authority to determine whether a settlement was possible and, upon being told it was, he was further directed to prepare a proposed resolution approving a settlement for the Authority to consider. The assistant Attorney General did so at the direction of the Authority, not the Attorney General, and upon communicating the facts to the Attorney General, the proposed settlement was promptly rejected by him, thereby effectively negating any suggestion of approval implied by the actions of his deputy. As the appellate court correctly noted, the Attorney Genéral was not seeking to arbitrarily interfere with the powers of the Authority to contract or otherwise carry out its statutory duties, but was reasonably carrying out his broader responsibilities in conducting the Authority’s and the State’s legal affairs. The resolution here, standing alone, was insufficient to impose liability upon the Authority.

The proposed resolution was prepared by Assistant Attorney General Lavery, he testified, allegedly only as an “informational item.” Notwithstanding the general approval of a settlement figure indicated by adoption of the resolution, the record does not indicate that the precise terms and conditions of the settlement were ever established or that any actual settlement document was ever drafted. Before the Attorney General can exercise his responsibility to approve a settlement agreement there must be such an agreement drafted. In this case the resolution contemplated that there would be additional documents which could, when drafted, be submitted to the Attorney General for approval as to form. In particular the resolution directed the preparation of “any and all documents necessary to effectuate the settlement.” The resolution adopted contemplated that there would be excepted from the settlement certain claims the toll road was asserting against Newberg, and this required drafting much more than a simple release document. Before any document to effectuate the settlement was submitted to the Attorney General for approval as to form, the Authority rescinded its approval of the resolution. Consequently, it never obtained the Attorney General’s approval as to form on any document required to effectuate the settlement. There is nothing in the record to indicate that counsel for Newberg ever read the proposed resolution prior to its presentation to the board or agreed that its terms were a true reflection of the alleged offer it had made to settle the litigation. If Newberg had read the resolution after the board’s unilateral action of adopting it and disagreed with its terms as written by Lavery, whether Newberg would have been bound by the terms of the resolution is questionable. We also question why there was no communication of this alleged acceptance to Newberg after the board had adopted its resolution.

Because we have determined that the Attorney General did not give his requisite approval to the proposed settlement agreement, we need not resolve those other issues that go to the existence or nonexistence of a contract between Newberg and the Authority.

While in most instances it is true that if the parties involved in pending litigation agree to settle their case a court will recognize their decision to settle, it is not true that in all cases or in a case like the instant one where we are dealing with a State agency and the disbursing of public funds that the court will automatically dismiss a case and approve a settlement because of an alleged agreement between the parties to settle.

Since we are affirming the appellate court we need not, as the appellate court did not, consider the issues of damages and Newberg’s cross-appeal for prejudgment interest since they are moot.

The judgment of the appellate court, reversing the circuit court judgment entered on count III of the complaint, reinstating counts I and II, and remanding the cause for further proceedings is affirmed.

Judgment affirmed.


text:
    (No. 56519.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MARK L. WATTS, Appellant.

      Opinion filed October 21, 1983.

      Robert Agostinelli, of Ottawa, and G. Joseph Weller, of Elgin, Deputy Defenders, of the Office of the State Appellate Defender, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and Gary L. Spencer, State’s Attorney, of Morrison (John X. Breslin and Rita Kennedy Mertel, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
   JUSTICE CLARK

delivered the opinion of the court:

On January 16, 1981, an information was filed in the circuit court of Whiteside County charging the defendant, Mark L. Watts, with two counts of burglary. The defendant was accused of having burglarized the Sullivan Eye Clinic in Sterling on two separate occasions, once on July 11, 1980, and again on August 31, 1980. Watts was found guilty of the July 11 burglary, count I, and not guilty of the August burglary, count II. The defendant had a history of1 prior criminal activity and was therefore sentenced to seven years of imprisonment under the extended-term provisions of section 5 — 8—2(a)(4) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a)(4)).

On appeal, the appellate court, in a Rule 23 order (87 Ill. 2d R. 23), affirmed the conviction and sentencing order entered in the circuit court and remanded for correction of the mittimus to indicate that the defendant was convicted of only one and not two counts of burglary (104 Ill. App. 3d 1212). A petition for rehearing was filed in the appellate court, and the original appellate court order was modified to address the defendant’s arguments on the grounds of waiver. However, the appellate court denied the relief requested. We granted the defendant leave to appeal.

The evidence consisted of the defendant’s fingerprints found on the bottom of a desk drawer at the scene of the crime and the defendant’s possession of stereo equipment similar to that taken during the July 11 burglary. However, the victim was unable to positively identify the stereo equipment as his own.

The question before us is whether the failure of the trial court to give the instruction conforming to Hlinois Pattern Jury Instruction (IPI), Criminal, No. 3.02 (2d ed. 1981), constituted reversible error. We affirm the appellate court in finding that it did not.

As a starting point, it is clear that the evidence in this case was entirely circumstantial. While the State argues that direct evidence of defendant’s guilt was introduced, there is no support for such an assertion in the record. The State asserts that stereo equipment found by the police at the defendant’s home was identified at trial as equipment taken from the Sullivan Eye Clinic. In fact, the equipment was not positively identified, and it is therefore circumstantial and not direct evidence.

The defendant tendered the following instruction, which substantially conformed to IPI Criminal No. 3.02:

"Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.
You should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.”

The prosecutor tendered an instruction which conformed with the first paragraph of IPI Criminal No. 3.02 but differed with the second paragraph in stating:

“You should not find the defendant guilty on the basis of entirely circumstantial evidence which may or may not connect the defendant to the commission of each crime charged, unless the facts and evidence exclude every reasonable doubt of innocence as to each crime charged.”

The court tendered the modified instruction after recalling the disapproval of the second paragraph of IPI Criminal No. 3.02 voiced by the appellate court in People v. Godsey (1978), 57 Ill. App. 3d 364, rev’d on other grounds (1978), 74 Ill. 2d 64.

The appellate court determined in the instant case that the IPI version of the instruction is misleading and at odds with what this State’s courts had previously said. We disagree. In People v. Evans (1981), 87 Ill. 2d 77, 83, this court, as part of its review, examined a trial court’s failure to include the second paragraph of IPI Criminal No. 3.02, and the court said that “[t]his paragraph should be given when the proof of guilt, as to each element of the offense, is circumstantial.” Because the conviction in the Evans case was based solely upon circumstantial evidence, the court concluded that paragraph two of IPI Criminal No. 3.02 “should have been given to the jury.” 87 Ill. 2d 77, 83.

We do not, however, agree with the defendant’s asser-. tion that the tendering of the modified version of the IPI requires a reversal because it misstates the law. The defendant contends that such an instruction requires the jury to determine whether or not the evidence was entirely circumstantial before applying the appropriate standard of proof. The second paragraph of the given instruction clearly indicated that the jury was considering entirely circumstantial evidence. The instruction tendered also properly cautioned the jury that in its deliberation such circumstantial evidence does not provide a sufficient basis for a guilty verdict unless every reasonable theory of the defendant’s innocence is excluded.

We are in agreement with the defendant that the instruction should have employed the expression “reasonable theory of innocence” as opposed to “reasonable doubt of innocence.”

The word “theory” is defined as “a speculative idea or plan as to how something might be done.” (Webster’s New World Dictionary of the American Language 1475 (1974).) The word “doubt” means “a wavering of opinion or belief, lack of conviction, uncertainty.” (Webster’s New World Dictionary of the American Language 721 (1974).) While we recognize a difference between the two terms and find the word “theory” in the context of the instruction to be preferable as a clearer, less likely to be misunderstood term, we feel that the differences in semantics between the two words did not prejudice the defendant.

In view of the circumstantial evidence of the defendant’s fingerprints found on the bottom of a desk drawer at the scene of the crime, we find that any error in using the term “doubt” was harmless. People v. Jones (1979), 81 Ill. 2d 1, 9; People v. Truelock (1966), 35 Ill. 2d 189, 192; see People v. Rhodes (1981), 85 Ill. 2d 241, 249.

In conclusion, because we have found any error in the instruction given to be harmless, we affirm the judgment of the appellate court, which affirmed the conviction and sentencing order entered in the circuit court of Whiteside County and remanded for correction of the mittimus.

Judgment affirmed.


author: JUSTICE WARD JUSTICE CLARK,

text:
    (No. 56761.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHN KANTOWSKI, Appellee.

      Opinion filed October 21, 1983.

      CLARK and SIMON, JJ., specially concurring.
    Neil F. Hartigan and Tyrone C. Fahner, Attorneys General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael B. Weinstein, Assistant Attorney General, and Michael E. Shabat, Joan S. Cherry, Marie Quinlivan, Anthony John Calabreese, and Joel A. Stein, Assistant State’s Attorneys, all of Chicago, of counsel), for the People.
    Ackerman and Egan, Ltd., of Chicago (Allan A. Ackerman, of counsel, and Paul Karasik, law student), for appellee.
   JUSTICE WARD

delivered the opinion of the court:

The defendant, John Kantowski, was charged by an information in two counts with the unlawful use of weapons. Both counts were based upon his possession of a revolver. The circuit court of Cook County allowed the defendant’s pretrial motion to suppress the introduction into evidence of the revolver, which was seized at the time he was arrested. The appellate court, in a Rule 23 order (73 Ill. 2d R. 23), affirmed the order of suppression (104 Ill. App. 3d 1204), and we granted the State’s petition for leave to appeal.

Officer John Efantis, a Chicago policeman for 12 years, was the only witness at the hearing on the motion to suppress. He testified that at about 9 a.m. on August 26, 1979, he observed the defendant drive his motorcycle at a high speed through a red traffic signal in Chicago. The stoplight was at an intersection the officer was approaching in his marked squad car. The speed of the motorcycle was so great that it left the ground at an incline at the intersection.

The officer turned on his siren and flashing lights and gave chase. When he began to overtake the defendant about four blocks later, the officer had reached a speed of approximately 75 miles per hour. The defendant ran another red light. He then made a right turn about two blocks beyond the signal and stopped. At some point during the chase, a police car driven by Officer Doherty joined in the chase.

The two officers approached the defendant, who remained sitting on his motorcycle, and asked to see his driver’s license. The defendant unzipped his leather jacket, apparently to get the license, and when he did so, Officer Efantis saw a knife in the defendant’s belt. The knife had a four-inch handle and a six-inch blade. The officer testified that at this point he feared for his safety. He was afraid that the defendant had another weapon. Officer Efantis took the knife from the defendant and ordered him to place his hands on the top of the car. Officer Doherty searched the defendant and found a revolver tucked in his belt near the small of his back. The precise extent of the search is not clear from the officer’s testimony, but the defendant has not challenged the State’s description of the search as a minimally intrusive search for weapons only.

As stated, the trial court suppressed the revolver which was the basis for the charges against the defendant. The court reasoned that the search was not incident to an arrest, because the officers had not yet placed the defendant under arrest at the time of the search. The State had argued that the search was, nevertheless, justified as a stop and frisk in view of Officer Efantis’ fear for his safety. The court rejected that argument, though, because it judged that Officer Efantis had not specified any reasons for his fear for his personal safety.

Before we can reach the search and seizure question, we must consider a procedural objection. The defendant, citing People v. Young (1980), 82 Ill. 2d 234, contends that the appeal should be dismissed because the State did not file a certificate to the effect that the suppression of the evidence had substantially impaired its ability to prosecute. This question was not raised by the defendant in the appellate court. The State, in turn, has filed a motion for leave to supplement the record and to file such a certificate of impairment to prosecute.

In Young, this court analyzed Rule 604(a)(1) (73 Ill. 2d R. 604(a)(1)), which authorizes appeal by the State in criminal cases from an order or judgment suppressing evidence. The court recognized the necessity to permit the interlocutory review of suppression orders but observed, too, that those appeals should not be allowed where they would unnecessarily prolong the trial process. Balancing the interests of the prosecution, the defendant, and the public, this court held:

“Rule 604(a)(1) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State’s ability to prosecute the case. Our intention in requiring this certification is not to formulate a standard by which courts may determine the appealability of a particular order. As this court noted in [People v. Van De Rostyne (1976), 63 Ill. 2d 364], that would indeed be a heavy burden, one which we do not believe justified by the marginal diminution in the number of appeals which we anticipate such a procedure would produce. Instead we rely solely upon the good-faith evaluation by the prosecutor of the impact of the suppression order on his case.” (82 Ill. 2d 234, 247.)

This court patterned its rule on the requirement in the Criminal Appeals Act (18 U.S.C. sec. 3731 (1976)), that the United States may appeal a pretrial order suppressing evidence if the United States Attorney certifies to the district court that the appeal is not being taken for delay and the evidence suppressed would be a substantial proof of a material fact in the prosecution.

We allow the State’s motion to supplement the record. The appellate court decisions relied upon, in which it was held that the filing of the certificate required by Young is not a jurisdictional requisite, are convincing. (People v. Jones (1981), 102 Ill. App. 3d 238; People v. Keath (1981), 101 Ill. App. 3d 652; People v. N&rris (1981), 101 Ill. App. 3d 664.) In those cases, the court pointed to holdings that the certificate required under Rule 604(d) (73 Ill. 2d R. 604(d)), that is, a certificate to be filed in the trial court by a defendant’s counsel upon a motion to withdraw a guilty plea to the effect that the lawyer has properly consulted with the defendant, may be filed in the reviewing court. (E.g., People v. Hummel (1977), 48 Ill. App. 3d 1002.) Too, it was observed that Federal courts have held that the certification under the Criminal Appeals Act referred to by this court in Young is not jurisdictional. (E.g., United States v. Fleming (8th Cir. 1977), 566 F.2d 623.) As was done in People v. Jones (1981), 102 Ill. App. 3d 238, the State is allowed to file the certificate as a supplement to the record.

The search of the defendant, the State asserts, was valid under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and Pennsylvania v. Mimms (1977), 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330.

In Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, the Supreme Court announced what has come to be known as the “stop and frisk” rule. Under Terry, a police officer may investigate possible criminal behavior by stopping a person where the facts available to the officer, in light of his experience, would reasonably warrant him to believe that a stop was appropriate. In the course of the investigatory stop, the officer may, in the interest of his own protection, conduct a reasonable search for weapons where he has reason to believe that he is dealing with a person who is armed and dangerous. The officer need not be certain that the person is armed. It is sufficient if a reasonably prudent man under the circumstances would be warranted in believing that his safety or the safety of others was in danger. Because the justification for the search is the protection of the officer, the scope of the search must be limited to an intrusion that is designed to discover instruments endangering the officer, such as guns, knives or clubs.

The Supreme Court applied its holding in Terry in the context of a traffic stop in Pennsylvania v. Mimms (1977), 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330. In Mimms, Philadelphia police officers stopped an automobile with the object of issuing a traffic summons to the driver because the vehicle had an expired license plate. One of the officers asked the driver to get out of the car and produce his owner’s card and operator’s license. As the driver did so, the officer noticed a large bulge under the driver’s jacket. The officer, fearing that the bulge might be caused by a weapon, frisked the driver and found a revolver in his waistband.

The Supreme Court held that the revolver was properly received in evidence in a prosecution of the driver for carrying a concealed weapon. The stop of the automobile, the court explained, was justified by the traffic violation. It rejected the notion of the State supreme court that the officer had to suspect criminal activity in order to take the precautionary measure of “seizing” the driver by having him step from the car.

The Supreme Court held that once the driver had alighted from the car, and the officer had noticed the bulge, the search of the driver was proper undér Terry. “The bulge in the jacket permitted the officer to conclude that [the driver] was armed and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of ‘reasonable caution’ would likely have conducted the ‘pat down.’ ” 434 U.S. 106, 112, 54 L. Ed. 2d 331, 338, 98 S. Ct. 330, 334.

The State is correct in its contention that the search was proper under the authority of Terry and Mimms. It is not disputed that the stop was warranted, in view of the defendant’s speeding through red traffic lights. After the high-speed chase, and after discovering that the defendant was armed with a large knife, the officers could reasonably have feared for their safety. Officer Efantis testified that he did fear for his safety.

To authorize a protective frisk, “[t]he officer need not show that it was more probable than not the detained person was armed. He need only show that there was a substantial possibility that the person possessed an instrumentality which could be used to commit bodily harm.” (W. Ringle, Searches & Seizures, Arrests and Confessions sec. 13.6(a), at 13 — 42.2 (2d ed. 1983).) And in determining validity “courts should not set the test of sufficient suspicion that the individual is ‘armed and presently dangerous’ too high when the protection of the investigating officer is at stake.” United States v. Riggs (2d Cir. 1973), 474 F.2d 699, 705, cert. denied (1973), 414 U.S. 820, 38 L. Ed. 2d 53, 94 S. Ct. 115.

The trial court’s belief that the officer did not sufficiently specify the reasons for his fear for his personal safety was erroneous. Apparently, this conclusion of the trial court was based upon its mistaken perception that Officer Efantis testified that he customarily searched all traffic offenders as he searched the defendant. That notion was repeated here by the defendant, who argued to us that the officer, in testifying candidly, admitted that he had searched the defendant not out of fear but “because he’s used to searching.” That, however, was not the officer’s testimony. What he did testify was that normally in traffic stops he does not fear for his safety as long as he can watch the driver’s hands. Here, though, the officer judged a search was in order for his protection after seeing the defendant’s knife. The relevant part of his testimony was:

“A. This is normally what I do in traffic stops. If I can see the hands, I don’t feel I’m in fear. I extend the courtesy of issuing the citation or whatever and let him go on his way. But under these circumstances I felt he should have been searched further.
Q. You felt?
A. We both.
Q. Did you discuss it with Officer Doherty?
A. Didn’t have to discuss it. It’s automatic.
Q. What is automatic, Officer?
A. We just-
MS. TURKINGTON: Objection, your Honor.
THE COURT: Overruled.
MR. WALSH: Q. What is automatic, sir?
A. That we would, you know, search a subject further if we felt that there was any kind of threat of another weapon or one weapon at all.
Q. So it’s your automatic, I think was the word, as soon as you see a weapon or knife or whatever, you automatically assume that an individual had another weapon on him?
A. He could very well, yes.
Q. And automatically then you make—
A. I would make a complete search of the individual, yes.”

It is clear, then, that the officer did not say that he automatically searched all traffic offenders. He searches traffic offenders whom he believes or knows are armed. Here, it would have been profoundly foolish for the officer not to be concerned that a man carrying a 10-inch knife on a city street may have other weapons.

People v. Navarro (1982), 137 Cal. App. 3d 373, 187 Cal. Rptr. 70, on which the defendant relies, involved a factual situation different from the one here. There the court held that a stop and frisk of a passenger in an auto that had been stopped for a traffic violation was not warranted simply because the man wore military garb and carried a knife. The court judged that the search was invalid because, unlike here, the officers had no ground to detain or arrest the subject. The court said that the driver’s violation did not provide a basis to detain or arrest the passenger.

A more pertinent decision than Navarro is Michigan v. Long (1983), 463 U.S___ 77 L. Ed. 2d 1201, 103 S. Ct. 3469, handed down after oral argument in this case. There police officers on night patrol in a rural area observed a car traveling erratically and at an excessive speed. They saw the car turn down a side road and swerve into a ditch. The officers stopped to investigate and were met at the rear of the auto by David Long, who was the only occupant of the car. The car was resting partly in the ditch and partly on the road. The door on the driver’s side was open.

Long did not respond to the officers’ first requests for his license and registration. One of the officers testified that the driver “appeared to be under the influence of something.” At a second request for his registration, Long turned from the officers and began walking toward the open door, apparently to get the registration. The officers followed him and observed a large hunting knife on the floorboard of the driver’s side. They then stopped Long and subjected him to a Terry pat-down, which disclosed no weapons. One of the officers inspected the interior of the vehicle for weapons and discovered a pouch containing marijuana. The defendant was then placed under arrest.

The Supreme Court held that the police had acted properly under Terry. The Long decision illustrates that the principles of Terry may authorize a search of the place in addition to the search of the person, and also that under Terry a search may be conducted after the discovery of a weapon. The latter point is relevant here. In that case and here, police were investigating a situation of a driver who was speeding and driving erratically. In each case, the driver was not searched until it was discovered that he possessed a knife. Too, it is important to note that the Supreme Court rejected the argument that there could not be a legitimate Terry search based upon the discovery of the hunting knife, because Long’s possession of the knife was legal. (That argument was relied upon by the appellate court here.) The Supreme Court stated: “Assuming arguendo that Long possessed the knife lawfully, we have expressly rejected the view that the validity of a Terry search depends on whether the weapon is possessed in accordance with state law. See Adams v. Williams [(1972), 407 U.S. 143, 146, 32 L. Ed. 2d 612, 617, 92 S. Ct. 1921, 1923].” 463 U.S____n.16, 77 L. Ed. 2d 1201, 1222 n.16,103 S. Ct. 3469, 3482 n.16.

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

Judgments reversed; cause remanded.

JUSTICE CLARK,

specially concurring:

I agree with my colleagues that in this particular case, under the circumstances which presented themselves to this police officer, there was sufficient probable cause to perform a Terry pat-down search of the defendant. However, I think it is imperative that it be noted that all the circumstances surrounding the stop are what justified the search and not solely the defendant’s legal possession of a knife with a six-inch blade. In People v. McGowan (1977), 69 Ill. 2d 73, this court held that it was reasonable for the police officer in that case to perform a limited weapons search, a patting down of the suspects. In that case, the police officer saw the defendants dressed in black, at 12:50 a.m., in a deserted commercial and industrial area which had been plagued by burglaries. There was only one establishment open in the area, and that was a tavern thát was due to close at 1 a.m., 10 minutes after the defendants were spotted. This court held:

“Thus, while it is possible that the defendant and his companion were merely on their way to Penn’s Tavern to have a fast drink before closing time, we agree that it was much more likely that persons dressed in black, walking in the dead of night through an otherwise deserted commercial and industrial area which had been plagued by burglaries, had just committed or were about to commit a burglary. Under these circumstances, the suspects easily might have eluded the officers had the officers attempted to observe the two suspects further rather than stopping them immediately. Hence, we agree that Officer Fulton’s inference of an imminent or recent burglary was reasonable, and that stopping the defendant therefore was reasonable under the circumstances.” (69 Ill. 73, 78-79.)

This court further held:

“ ‘Reasonable’ in this context also means that the facts . and circumstances must be specific and articulable. [Citation.] Viewed as a whole, they must lead to the conclusion that the situation confronting the police officer is so far removed from the ordinary that any competent police officer would be expected to act quickly to maintain the status quo, rather than to observe the situation further.” (69 Ill. 2d 73, 78.)

In McGowan, we held that it was reasonable for the police officer to assume that if the defendant was an armed burglar he would not submit peacefully to questioning so that it was reasonable for the officer to perform a limited weapons search to protect himself and his partner. In the instant case the fact that the defendant was driving his motorcycle at 75 miles an hour through red lights in an urban area while being chased by a police car with its siren sounding and lights flashing and then was found to possess a knife, I believe, gave rise to a sufficient degree of probable cause to do a pat-down search of the defendant for the officer’s own safety.

If, however, this defendant had been driving his motorcycle at an excessive speed down a rural road near Golconda, Illinois, in early November during the annual Golconda Deer Festival, and had been stopped and found to possess such a knife, then I believe a finding of probable cause would be questionable. In areas where hunting or fishing is a popular sport, the carrying of a knife is the rule rather than the exception. Hunters and fishermen must carry knives in order to clean and dress the game they harvest. In some instances, unless the game is cleaned shortly after being killed, it may spoil. If one were to visit a town such as Golconda and patronize the local diner during the annual deer festival, one would find that the carrying of a knife would be a commonplace occurrence.

Insofar as the majority opinion could be construed to hold that solely because the defendant possessed a legally carried knife there was sufficient probable cause to conduct a Terry search, I disagree.

I believe that it depends on the particular circumstances of a case whether the defendant can be legally searched without a warrant. The majority relies on Michigan v. Long (1983), 463 U.S___ 77 L. Ed. 2d 1201, 103 S. Ct. 3469, to bolster its position that there was probable cause to search the defendant in the instant case. In that case, although the stop and search took place in a rural area, the defendant had driven his car into a ditch and appeared to be “under the influence of something.” He also failed to respond to the police officer’s first requests for his license and registration. The search was conducted at nighttime, so we can assume it was dark. Besides the fact that most hunting and fishing is done during the daylight hours, it is more difficult to see and watch a person in the dark. But more importantly, the defendant was acting abnormally and in an uncooperative fashion, facts which could lead a police officer to believe he might be in danger of his life or bodily harm. I agree that under those circumstances there was sufficient probable cause to conduct a search.

In any event, each case presents a distinct set of circumstances under which probable cause must be established.

I concur in the result the majority reached in this case but disagree insofar as this case could be interpreted to justify a pat-down search anytime a person is found to legally possess a knife.

JUSTICE SIMON joins in this special concurrence.