text:
    (No. 50360.
    THE BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 508, COUNTY OF COOK, Appellant, v. COOK COUNTY COLLEGE TEACHERS UNION, LOCAL 1600, AFT, AFL/CIO et al., Appellees.

      Opinion filed January 26, 1979.

      Lawrence T. Stanner, of Chicago, for appellant.
    Gilbert Feldman, of Cornfield and Feldman, of Chicago, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

This action, brought by the board of trustees of Community College District No. 508 (plaintiff) in the circuit court of Cook County, sought to declare void and unenforceable an arbitration award which was rendered pursuant to a collective bargaining agreement with the Cook County College Teachers Union, Local 1600, AFT, AFL/CIO (defendant). The effect of the arbitrator’s award, plaintiff alleged, was to give priority in the assignment of extra work to those faculty members who had participated in an illegal strike. The trial court issued a declaratory judgment and injunction in favor of plaintiff and ruled that the arbitrator’s award was null and void because it required plaintiff to perform “an act illegal and contrary to public policy.” The appellate court, in a majority decision, reversed. (55 Ill. App. 3d 435.) It held that the issue of extra-work assignments was arbitrable and that the arbitrator’s determination was, therefore, binding upon the parties to the collective bargaining agreement. We granted plaintiff leave to appeal.

Plaintiff operates the city colleges of Chicago, a system of seven junior colleges within the city of Chicago. Since 1967, defendant has been the bargaining representative of the full-time faculty members employed by plaintiff. During the summer and fall of 1975, the parties were engaged in collective bargaining negotiations over what ultimately became a two-year collective bargaining agreement, which agreement remained in effect until June 30, 1977. The fall semester of the 1975-76 school year was to have begun on August 19, 1975, but because the parties could not reach an agreement by that date, a strike ensued. Approximately 90% of plaintiff’s faculty refused to cross the picket line. The remaining 10% of the teaching personnel crossed the picket line and reported to work each day of the strike. On August 25, 1975, the circuit court of Cook County ordered that the strike be terminated on the grounds that such strikes by public employees were illegal and contrary to public policy. In contravention of the court’s injunction, 90% of the faculty continued to participate in the illegal strike. The strike endured for a total of three weeks.

Because of the strike, plaintiff extended the fall semester two weeks beyond the original termination date. The teachers who participated in the strike received no pay for the three-week strike period during which they did not work. The nonstriking teachers were paid their regular salaries for working the duration of the strike. Both the striking and nonstriking teachers received prorated salaries for the two-week period which extended beyond the originally scheduled semester. Consequently, the striking teachers received one week of pay less than their expected base salaries for the fall semester, and the nonstriking teachers received two weeks of pay in excess of their base salaries for the same period. This income disparity is at the source of the controversy between the parties.

In January 1976, shortly after the extended fall semester terminated, a dispute erupted between the parties as to the assignment of extra work to the faculty for the 1976 summer session. The parties, having recognized that such assignments entitled qualified faculty members to additional pay, incorporated into their collective bargaining agreement a rotational point system by which such assignments could be made in a manner that would equalize the extra-work opportunities for all qualified teachers. Rotation points were to be computed according to the following formula:

“[O] ne rotation point for each 1272% of extra pay above
a faculty member’s base rate of pay.”

The term “base rate of pay” was not defined in the agreement. The collective bargaining agreement also provided:

“The number of points based on the amount of extra work assigned in the past will determine the eligibility of the faculty member for extra work, with those who have the fewest number of points having priority.”

Pursuant to the collective bargaining agreement, plaintiff, in January 1976, prepared a salary list which was to be used in the computation of rotation points and which, in turn, would be used in the assignment of extra work for the 1976 summer session. The salary list was to include-“all pay earned by each faculty member” through the end of the preceding semester. The dispute ensued when plaintiff failed to include the pay earned by the nonstriking teachers during the three-week strike period. On January 21, 1976, defendant presented its grievance to plaintiff as provided for in the collective bargaining agreement. When plaintiff denied the grievance, defendant submitted the case to arbitration. The collective bargaining agreement provided that defendant was entitled to submit any unresolved grievance, which involved the application or interpretation of the agreement, to the single arbitrator appointed mutually by the parties.

Defendant argued before the arbitrator that the collective bargaining agreement expressly provided that the salary lists were to include all pay earned during the fall semester and that there was no basis upon which to exclude the pay earned during the three-week strike period. By defendant’s interpretation, the nonstriking teachers, in effect, would have earned two weeks of “extra pay” above their expected base pay for the semester, and, consequently, would be in an inferior position vis-a-vis striking teachers with regard to the assignment of extra work. Plaintiff maintained that the income earned by the nonstrikers during the strike period derived from their regular work assignments, not from extra work, which, it argued, was the only basis upon which eligibility for future extra work was to be determined. Plaintiff also contended that defendant’s construction, which would result in treatment preferential to illegal strikers, was contrary to law and therefore unenforceable. Following a hearing, expedited at the request of plaintiff, the arbitrator ruled in favor of defendant. In interpreting the provisions of the collective bargaining agreement, the arbitrator found that its terms clearly provided that rotation points be based on all income earned by faculty members in excess of their expected base pay, and that the terms admitted of no qualifications or exceptions for earnings during strike periods. The arbitrator also concluded that the construction adopted did not violate any law.

Because plaintiff has advocated numerous grounds for vacating the arbitrator’s decision and because we find only one of them persuasive, it is appropriate that we clarify at the outset the very limited scope of review reserved by courts when asked to vacate arbitration awards.

This court has long recognized the overriding interest in finality which inheres in the submission of disputes to arbitration, and, accordingly, has counseled against judicial review of the merits of arbitration awards. (White Star Mining Co. v. Hultberg (1906), 220 Ill. 578; Stone v. Baldwin (1907), 226 Ill. 338.) That this general standard, applicable to both labor and nonlabor arbitration, has been even more narrowly circumscribed in reviewing collective bargaining agreements is evident in the series of seminal Supreme Court decisions often referred to as the Steelworkers Trilogy. Therein, the court stated:

“In our role of developing a meaningful body of law to govern the interpretation and enforcement of collective bargaining agreements, we think special heed should be given to the context in which collective bargaining agreements are negotiated and the purpose which they are intended to serve. [Citation.] The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator.” (United Steelworkers of America v. American Manufacturing Co. (1960), 363 U.S. 564, 567-68, 4 L. Ed. 2d 1403, 1406-07, 80 S. Ct. 1343, 1346.)

The court declared that the arbitration of collective bargaining disputes was sui generis in that such arbitration was not only a substitute for litigation, but a necessary complement to negotiation and an expedient in averting economic strife between the parties. (United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 578, 4 L. Ed. 2d 1409, 1415, 80 S. Ct. 1347, 1351.) One year after the Steelworkers Trilogy cases, the Illinois legislature, in adopting the Uniform Arbitration Act (Ill. Rev. Stat. 1961, ch. 10, par. 101 et seq.), endorsed the policy of treating arbitration in collective bargaining cases as a unique agency. The Act specifies the grounds for vacating, modifying or correcting arbitration awards, but expressly exempts awards entered pursuant to collective bargaining arbitration. Ill. Rev. Stat. 1975, ch. 10, par. 112(e). Also see Ill. Ann. Stat., ch. 10, Introductory Note, at 401-02 (Smith-Hurd 1975), and Ill. Ann. Stat., ch. 10, par. 112, Historical and Practice Notes, at 441-42 (Smith-Hurd 1975).

Generally, the nature and extent of an arbitrator’s power will depend upon what the parties agree to submit to arbitration. (5 Am. Jur. 2d Arbitration and Award sec. 90 (1962).) An arbitrator exceeds the scope of his power when he decides matters which were not submitted for his resolution. In collective bargaining agreements, the parties typically provide that the arbitrator is to decide disputes involving the application and interpretation of the provisions of the agreement. Such a provision is both the source and the limit of the arbitrator’s power. The agreement involved in this case includes such a provision.

Both parties agree, though, that because plaintiff is a public body, the scope of an arbitrator’s power may be further limited. Even if a dispute between the parties involves the application and interpretation of provisions of the collective bargaining agreement, it is not arbitrable if it would constitute an impermissible delegation of discretionary public responsibility specifically reposed by law in plaintiff. (Board of Trustees v. Cook County College Teachers Union, Local 1600 (1976), 62 Ill. 2d 470 (matter of faculty promotion); Illinois Education Association v. Board of Education (1975), 62 Ill. 2d 127 (matters of faculty appointment and dismissal).) The parties incorporated this legal principle into the collective bargaining agreement by directing that:

“The arbitrator shall limit his decision strictly to the application and interpretation of the provisions of this Agreement and he shall be without power or authority to make any decision:
***
(2) Limiting or interfering in any way with the powers, duties, and responsibilities of the Board under applicable law.”

Neither the legal principle of nondelegability of public authority nor its contractual equivalent, however, applies to the instant dispute submitted to arbitration. Here, the dispute involved the rotational assignment of extra work among qualified teachers. This court, in Board of Trustees v. Cook County College Teachers Union (1976), 62 Ill. 2d 470, 480, reasoned that such disputes were arbitrable, provided that the school board retained the authority both to select the extra courses and to offer the extra work only to teachers it had determined to be qualified to do the assigned extra work. The same conclusion applies here. Consequently, the arbitrator’s power was circumscribed solely by the contractual mandate that he apply and interpret the provisions of the collective bargaining agreement.

Plaintiff maintains that the arbitrator’s interpretation of the relevant provisions of the agreement was so misguided that it must be vacated. We emphasize, as did the Supreme Court, that “the question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” (United Steelworkers of America v. Enterprise Wheel & Car Corp. (1960), 363 U.S. 593, 599, 4 L. Ed. 2d 1424, 1429, 80 S. Ct. 1358, 1362.) We inquire into the merits of the arbitrator’s interpretation in an effort to determine only if the arbitrator’s award drew its essence from the agreement so as to prevent a manifest disregard of the agreement between the parties. See Ludwig Honold Mfg. Co. v. Fletcher (3d Cir. 1969), 405 F.2d 1123, 1125-28, and Teamsters Local Union No. 394 v. Associated Grocers of Iowa Cooperative, Inc. (Iowa 1978), 263 N.W.2d 755, 757-58, for a lengthy discussion of the limited scope of review.

We begin by noting that each of the parties argues vigorously that the agreement is unambiguous in its respective favor. Plaintiff asserts that the obvious intention of the agreement was to assess rotation points only when a teacher received “extra work” beyond his regular work assignments. Defendant, on the other hand, argues that the agreement clearly refers to “extra pay” in the computation of rotation points. It is not surprising to find persuasive textual support for each interpretation because, in the typical situation, each interpretation would promote the same aims and produce identical results. Typically, a teacher who receives extra pay above his base rate of pay for a given semester (defendant’s approach) derives such pay from extra work beyond his regular assignments (plaintiff’s approach). Under either approach, the teacher who did not receive such extra work and the commensúrate extra pay during that semester would be given priority for future extra-work assignments.

Because the fall semester of the 1975-76 school year was extended for two weeks due to the illegal strike, however, the otherwise consonant terms “extra work” and “extra pay” took on divergent secondary meanings. (Although the parties knew of the two-week semester extension when the terms were incorporated into the collective bargaining agreement, they did nothing to clarify the ambiguity.) As a result of the extension, the two weeks’ “extra pay” which the nonstriking teacher received in excess of the expected semester pay derived not from an “extra work” assignment but from the fulfillment of his regular assignment. The striking teacher received one week’s pay below his expected semester pay. Had the semester not been extended, neither the striking nor the nonstriking teacher would have received any rotation points. Even though the nonstriker would still have earned three weeks’ salary to which the striker was not entitled, the pay of the nonstriker would not have risen above his base pay for that period.

Were we, for the moment, to construe the agreement in a context unrelated to the illegal strike, we would see that the arbitrator’s decision manifests a proper regard for the integrity of the agreement and for the intent of the parties. The agreement evinces an intention to base rotation points on the past amount of extra work assigned. The agreement also sets forth a workable formula, based upon extra pay, for the computation of rotation points. Plaintiff’s reasoned position is that if any “extra pay” derives from a source other than from assigned “extra work” it should be disregarded in the computation of rotation points. It is equally plausible, however, that the parties adopted the term “extra pay,” both as the ready mathematical equivalent of “extra work,” and also as the functional definition of what constitutes “extra work.” The term “extra work” (or the term “base rate of pay,” as we noted earlier) was not defined in the agreement, and, as this case attests, denotes no precise application. Accordingly, it was totally reasonable for the arbitrator to rely upon the formula and the term “extra pay” as the operative factor in the agreement.

A secondary consideration supports this conclusion. The agreement set forth a step-by-step procedure for the preparation of rotation lists. One step in the procedure required plaintiff to prepare a list which was to contain all the pay earned by each teacher during the semester. It was plaintiff’s refusal to include the pay earned by the nonstrikers which precipitated the grievance by defendant. There is no doubt that plaintiff’s action was contrary to the express language in the agreement. It is not clear, however, why plaintiff, consistent with its position, could not have included the pay earned by the nonstrikers, and then adjusted the base rate of pay for the semester to reflect their actual, rather than expected, gross pay for the semester. Such an approach would have attained plaintiff’s intended result; i.e., insuring that the pay of the non-strikers during the three-week strike period not be considered “extra pay.” Because plaintiff’s approach forced it to clearly violate a procedure agreed upon by the parties, plaintiff effectively undermined its own contention that the term “extra work” was to have any operative force in effectuating the intention of the parties.

It is not our intention to impute such an interpretation to the arbitrator. We need not even favor this interpretation to plaintiff’s. It suffices that we conclude, as we do, that the arbitrator’s award drew its essence from the collective bargaining agreement. If it were not for the involvement of an issue of overriding public policy, our inquiry would end here and we would not disturb the arbitrator’s award.

An arbitration award may not stand, however, if it results in the contravention of paramount considerations of public policy, (see Local 453, International Union of Electrical Workers v. Otis Elevator Co. (2d Cir. 1963), 314 F.2d 25, cert. denied (1963), 373 U.S. 949, 10 L. Ed. 2d 705, 83 S. Ct. 1680; Goodyear Tire & Rubber Co. v. Sanford (Tex. Civ. App. 1976), 540 S.W.2d 478; Blumrosen, Public Policy Considerations in Labor Arbitration Cases, 14 Rutgers L. Rev. 217 (1960); Comment, Judicial Review of Arbitration: The Role of Public Policy, 58 Nw. U.L. Rev. 545 (1963).) We recognize that any judicial decision to vacate an arbitrator’s award compromises both the parties’ interest in the finality of the arbitrator’s decision and the underlying public policy in favor of resolving collective bargaining disputes by arbitration. Nevertheless, just as we will not enforce a private agreement which is repugnant to established norms of public policy, we may not ignore the same public policy concerns when they are undermined through the process of arbitration. Even if the arbitrator considered issues of public policy in construing the agreement before him, we may not abdicate to him our responsibility to protect the public interest at stake. Though the parties do not dispute this, they differ markedly as to whether any issues of public policy are at stake.

Plaintiff requests that the court intervene in behalf of the following public policy concerns: (1) The arbitration award favors those who violate the law at the expense of those who comply with the law; (2) the award allows wrongdoers to benefit from their own wrongdoing; (3) the award condones and encourages illegal strikes and flagrant disobedience of court injunctions; and (4) the award undermines cardinal rules of contract construction. Defendant, on the other hand, dismisses the public policy concerns by asserting that because the rotation-point formula is neutral in character, the arbitrator’s award does not give priority in the assignment of extra work to the striking teachers. We avail ourselves of the extremes of the two positions in an attempt to pinpoint the actual impact of the arbitrator’s award on issues of public policy.

We do not regard the award to be neutral in its respective application to strikers and nonstrikers. The unavoidable effect of the award is to comprehensively realign the priority system for extra-work assignments to the advantage of the unlawfully striking teachers. It is not as if a disproportionate number of unlawful strikers coincidentally benefited, as might have been the case, if, for instance, the priority system were based on merit or seniority and the fortuitous consequence of an award favored them. Here, the intolerable unfairness is that the award necessarily benefited all unlawful strikers at the relative expense of all nonstrikers, and that the imbalance would not have occurred but for the illegal activity.

This court has often stated: “There is no precise definition of public policy, and consequently no absolute rule by which a contract can be measured or tested to determine whether or not it is contrary to public policy. Each case, as it arises, must be judged and determined according to its own peculiar circumstances.” (Zeigler v. Illinois Trust & Savings Bank (1910), 245 Ill. 180, 193, quoted with approval in First Trust & Savings Bank v. Powers (1946), 393 Ill. 97, 102, and in Groome v. Freyn Engineering Co. (1940), 374 Ill. 113, 124.) Illinois courts have repeatedly expressed a reluctance, long-established in the maxims of the common law, to aHow persons to profit from their intentionally committed wrongful acts. (State Farm Life Insurance Co. v. Smith (1977), 66 Ill. 2d 591, 595; Bailey v. Retirement Board of the Policemen’s Annuity & Benefit Fund (1977), 51 Ill. App. 3d 433, 437-38; Haralampopoulos v. Capital News Agency, Inc. (1966), 70 Ill. App. 2d 17, 24.) The injustice which results when persons gain advantage from their illegal acts is graphically Elustrated in this case. We need not belabor the point that the illegal activity involved here directly assailed the authority of the judicial system. What we do emphasize is that the benefit gained in the wake of the illegal activity is directly at the expense of those who refrained from engaging in the illegal activity. In light of the integral role of the courts in averting strikes of this nature, we cannot endorse a result which prejudices only the nonstriking teachers. Because the arbitration award dictates so unjust a result, it must be vacated as being repugnant to public policy.

Accordingly, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

Appellate court reversed; circuit court affirmed.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    (Nos. 50544, 50550 cons.
    STATE BANK OF EAST MOLINE, Appellee, v. GUS CIRIVELLO et al., Appellants.

      Opinion filed December 4, 1978.

      Joseph R. Rosborough, of Moline, for appellants Don Tundeen and W. Jay Hannan.
    Bozeman, Neighbour, Patton 8c Noe, of Moline (Wendel R. Swan and John W. Robertson, of counsel), for appellants Ernest Huís, George Cook and Edward McDonnell.
    Donald B. Hilliker and Edward W. Malstrom, of Isham, Lincoln 8c Beale, of Chicago (Lytton & Dalton, of East Moline, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The State Bank of East Moline (the bank) initiated this action in the circuit court of Rock Island County to enforce a guaranty agreement against 11 of 13 limited partners of Lakeview Estates Limited Partnership. Six limited partners defaulted. The remaining five (defendants) contested the action. Following a bench trial, the trial court ruled in favor of defendants and dismissed the action. The trial court’s order expressly found that the guaranty was conditioned upon the signatures of all 13 limited partners and concluded that failure to obtain all 13 signatures rendered the guaranty incomplete and unenforceable. Pursuant to the bank’s post-trial motion, the trial judge entered a supplemental order which found that the bank had imposed the condition and, therefore, further notice of the conditional nature of the guaranty was unnecessary. The appellate court, in a majority decision, reversed. (56 Ill. App. 3d 269.) It remanded the cause with directions to enter judgment against all defendants but one for the full amount of the judgment. As to the one defendant, the appellate court directed that judgment be entered for one-thirteenth of the total obligation. We granted the defendants leave to appeal.

Lakeview Estates was a limited partnership which had 13 limited partners: the 11 persons who were originally party to the action, one person who declared bankruptcy prior to the action, and James Patten. Lakeview Estates desired a loan of $329,000, so, on or about June 20, 1972, 12 of the 13 limited partners signed a document which authorized 3 of the limited partners to transact business with the bank. Each of the 12 signed in the space prepared for his name. The signature of James Patten was missing. Negotiations for this loan and all subsequent financial transactions relative to this case were conducted by Ben H. Ryan, Jr., who was president of the bank, and the three limited partners who were vested with authority to represent Lakeview Estates. The $329,000 loan was never consummated.

Subsequently, the parties negotiated a loan for $65,000 which was to cover the cost of certain work on a mobile home park being developed by Lakeview Estates. Prior to approving the loan, Ryan telephoned Dr. George A. Cook, one of the limited partners. Cook informed Ryan that the loan was needed to meet a cost overrun in the project. He also conveyed to Ryan that he did not want to be liable for more than his partnership share. Ryan told Cook that all 13 of the limited partners would have to sign a personal guaranty before the loan would be advanced. On or about July 12, Ryan met with the three representatives. He delivered to them printed guaranty forms commonly used by the bank and told them that the loan would not be made unless all 13 limited partners personally guaranteed repayment of the loan.

At meetings held that day or the following day, the representatives conveyed the bank’s condition to the other limited partners. Apparently, the representatives advised the others that each was guaranteeing one-thirteenth of the loan. Two identical guaranty forms were subsequently signed, one incorporating nine signatures and the other incorporating three. The guaranties, which, on their face, purport to be continuing, unconditional guaranties of the loan, would, if effective, make all who signed liable, jointly and severally, for the entire obligation. James Patten, the thirteenth limited partner, did not attend the meetings and did not execute a guaranty.

The representatives returned the guaranty forms to the bank, at which time they executed a 180-day promissory note for the $65,000 at 7% interest. Ryan made a notation that the personal guaranties of 12 limited partners were on file and that there was “one more to come.” At this time, Ryan also had in his possession the names and addresses of all 13 limited partners and the financial statements of each. James Patten’s financial statement indicated that he had a net worth of over $400,000. Despite his knowledge that the one personal guaranty was still outstanding, Ryan advanced the loan to Lakeview Estates. The bank never obtained the thirteenth signature and, prior to granting the loan, never informed the limited partners that James Patten had not guaranteed the obligation. The promissory note was renewed in January of 1973, at 714% interest, and, again, in July 1973, at m% interest. When the note became due in January 1974, the bank demanded payment. Upon the failure of Lakeview Estates to make any payments, the bank brought the instant action against 11 of the guarantors.

Disposition of this cause requires us to resolve the following two questions: (1) Was the guaranty agreement conditioned upon the signatures of all 13 limited partners? and (2) If the guaranty was conditional, could the bank waive the condition by advancing the loan?

We note at the outset that although this court has not had occasion in the last 35 years to consider a case involving guaranty contracts (J.R. Watkins Co. v. Salyers (1943), 384 Ill. 369; State Bank v. Benzing (1943), 383 Ill. 40; Barrett v. Shanks (1943), 382 Ill. 434), the law relative to guaranties is quite firmly established. The rules of construction applicable to contracts generally apply to contracts of guaranty. (38 Am. Jur. 2d Guaranty sec. 70 (1968); 20 Ill. L. & Prac. Guaranty sec. 31 (1956); Hardware Wholesalers, Inc. v. Heath (1973), 10 Ill. App. 3d 337, 341.) A contract of guaranty may be conditional. (Belleville Savings Bank v. Bornman (1888), 124 Ill. 200, 205; 38 Am. Jur. 2d Guaranty sec. 21 (1968).) Either the creditor or the guarantors may premise the guaranty upon a condition, though typicaUy the condition is imposed by the guarantors. In either case, the condition becomes a part of the guaranty if it is known and agreed upon by the parties. “A conditional guaranty contemplates, as a condition to liability on the part of the guarantor[s], the happening of some contingent event ***.” (38 Am. Jur. 2d Guaranty sec. 21 (1968).) A fairly common condition attending guaranties is precisely the one involved in this case: that certain guarantors deliver a signed guaranty subject to the condition that others wiU also guarantee the debt. (See Belleville Savings Bank v. Bornman (1888), 124 Ill. 200, 205; U.S. v. Everett Monte Cristo Hotel, Inc. (9th Cir. 1975), 524 F.2d 127, 130-32; 10 WiUiston, Contracts sec. 1244 (3d ed. 1967).) Such a conditional guaranty is unenforceable against those who sign unless the other guarantors sign. Restatement of Security sec. 101(1) (1941).

In the case at bar, there is no such condition upon the face of the signed guaranty forms. At trial, defendants sought to show that, contemporaneous to the execution of the written guaranty, the bank represented to the guarantors that the guaranty was conditioned upon the signatures of all 13 limited partners. The trial court properly ruled that the parol evidence rule did not bar the use of extrinsic evidence for the purpose of establishing that the signed guaranty, without the signatures of all the limited partners, was an incomplete instrument and never took effect. (Belleville Savings Bank v. Bornman (1888), 124 Ill. 200, 205; United States v. Everett Monte Cristo Hotel, Inc. (9th Cir. 1975), 524 F.2d 127, 130; 4 Williston, Contracts sec. 634 (3d ed. 1961).) Upon considering the evidence, the trial court made the factual determination that the guaranty was to become effective only upon the condition that all the limited partners sign it. We may not reverse its factual finding unless we conclude that it is contrary to the manifest weight of the evidence. John J. Calnan Co. v. Talsma Builders, Inc. (1977), 67 Ill. 2d 213, 218; Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 181; Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356.

The bank contends that there is no evidence whatsoever that defendants imposed a condition on the guaranty or that they communicated any condition to the bank. Our examination of the record discloses that this is true, but beside the point. The basis of the trial court’s finding was that the bank, through the representations of its president, premised the guaranty upon the condition that all 13 limited partners sign and that the defendants accepted these terms by signing the guaranty forms and delivering the forms to the bank. If there is sufficient factual support for the trial court to have drawn this conclusion, certainly the law does not require that the defendants reiterate the condition to the bank. The bank disputes that such a conclusion can be justifiably drawn from the facts. It points out that the loan and the guaranty are two separate contractual arrangements, and that Ryan represented only that the loan was conditioned upon the personal guaranties of all 13 limited partners. We find such distinction inconsequential under the facts of the case.

The guaranty, as an obligation collateral to the debt on the loan, would have no effect unless the loan was issued and the principal debt incurred. By representing that the loan would not be advanced without the personal guaranties of all the limited partners, Ryan was also representing that the guaranty would not become effective unless all 13 signed. There was every reason for all the parties involved to assume that the conditional nature of the. loan and the conditional nature of the guaranty were indivisible. At the time, the conditional loan and guaranty benefited each of the parties. The bank was attempting to obtain the maximum security acceptable to the defendants and did not intend to authorize the loan with fewer than 13 personal guaranties. The defendants, as limited partners, were hoping to secure a $65,000 loan, but, as individual guarantors, were unwilling to be bound unless all 13 limited partners shared the financial responsibility. The bank and the defendants knew of the considerable financial worth of James Patten. Consequently, we hold that the evidence supports the trial court’s finding that the bank premised the guaranty on the condition that all 13 limited partners sign and that the defendants accepted the bank’s terms. In so holding, we reject the bank’s novel theory that the submission of 12 guaranties constituted a counteroffer to the bank and was accepted when the bank issued the loan. There is no evidence that the limited partners who signed the guaranty forms or the three representatives who delivered the forms to the bank intended that Patten be excused from guaranteeing the loan. Moreover, Ryan’s notation that “one more [was] to come,” reveals that the bank did not construe the delivery as a counter offer of 12 guaranties.

Having affirmed the factual finding that the guaranty was conditional, we must address whether the bank could waive the condition by advancing the loan. We hold that it may not. As we have already stated, the condition, though initiated by the bank, contemplated that the guaranty would not become operative unless all 13 limited partners agreed to stand behind the loan. By issuing the loan, the bank materially increased the proportionate liability of those who had signed. In addition, failure to secure James Patten as a co-signed guarantor deprived the defendants of their equitable right of contribution against him. (See Weger v. Robinson Nash Motor Co. (1930), 340 Ill. 81, 94; 20 Ill. L. & Prac. Guaranty sec. 102 (1956).) When the bank’s demand that all 13 limited partners guarantee the loan became a condition to the liability of those who signed the guaranty, it could not be unilaterally waived by the bank.

Accordingly, we reverse the judgment of the appellate court and reinstate the trial court judgment.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE RYAN

text:
    (No. 50216.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GEORGE REHBEIN, Appellant.

      Opinion filed December 4, 1978.

      Ralph Ruebner and James Geis, Deputy Defenders, and Kathy M. Morris, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay, Assistant Attorney General, of Chicago, and Lee Hettinger, Iris E. Sholder, and Mary C. Shropshire, Assistant State’s Attorneys, of counsel), for the People.
   MR. JUSTICE RYAN

delivered the opinion of the court:

George Rehbein was convicted of the offenses of deviate sexual assault and unlawful restraint (Ill. Rev. Stat. 1977, ch. 38, pars. 11—3, 10—3) by a jury in Cook County in February 1976. The appellate court affirmed the conviction. (54 Ill. App. 3d 93.) That court held that the prosecution had erred in its cross-examination by commenting on the accused’s silence when he had been interrogated by the police but held that the error was harmless beyond a reasonable doubt. We do not reach the issue of harmless error. The issue we decide is whether a prosecutor’s alleged reference to pretrial silence during cross-examination, in the context of clearly proper impeachment by contradictory statements, was an impermissible comment on constitutionally protected silence. We hold that the cross-examination in this case was not a comment on constitutionally protected silence and affirm the appellate court.

At trial, the complainant testified she was sexually assaulted and kidnapped on a rainy morning in August of 1975. As she waited for a bus, a copper-colored car drove up and the driver, identified as the defendant, waved to her. Thinking the driver was her neighbor, the complainant entered the car; immediately realizing she was mistaken, she told the driver she did not need a ride. The driver disregarded this statement and drove to a secluded area under a viaduct. The complainant attempted escape but failed. She was then threatened, disrobed, and sexually assaulted. The driver had no weapon. After further threats, complainant told the driver that she lived alone and that he could do anything he wanted to her at her house if he did not hurt her; the driver accepted this offer and drove toward the woman’s house. At a red light she jumped from the car and screamed; the driver held her arm, hit her, and then threw her purse out of the car. She noted the car’s license plate.

A police officer testified regarding two conversations he had with the defendant on the morning of the assault. One conversation was by phone; the other, face to face. The officer phoned the defendant, identified himself, and explained that the license plate registered to defendant’s car had become the subject of an investigation. The officer asked the defendant about the license plates and the defendant said the plates were on a blue Buick that was in his garage, inoperable and undriven for some time. In response to another question the defendant said he had been home all night. The officer subsequently went to defendant’s house, explained his purpose again, and asked to see the car, since the defendant’s description of the car did not fit the complainant’s. The officer went to the garage with defendant’s wife, found that the car was not blue but copper-colored, that it was covered with raindrops, indicating that it was not inoperable but that it had been recently driven. He returned immediately to the house, told the defendant of the discrepancy, and informed him of his constitutional rights. At this point the defendant “denied any knowledge of being involved in any type of situation” and asked to call an attorney. Nothing further was said.

At the trial, the defendant’s testimony directly contradicted that of the complainant and the police officer. Defendant acknowledged that he had in fact picked up the complainant but only after she waved at him. After riding in the car for a few moments she initiated the sexual contact and then asked for money in exchange. Defendant proceeded to the complainant’s apartment at her suggestion. However, when he said that he was out of work and had no money she exclaimed that he would be sorry and left the car.

This appeal focuses on the cross-examination of the defendant. He flatly denied making the phone statements to the officer about his car, and his being home all night. In the midst of admittedly proper impeachment questions, and a lengthy cross-examination as to whether the defendant went out to the police car to talk to the complainant, the prosecutor explicitly asked the defendant several times whether the defendant had earlier told the police officer the story he was now telling at trial, namely, that the girl waved to him first and that she had solicited him. A major portion of this particular colloquy is quoted in the appellate opinion below. There was no objection by defense counsel at trial to any of these questions. Defendant does not contend on appeal that the prosecution erred in asking him about his allegedly contradictory statements; the issue is the references to what defendant did not say. The parties in this court have referred to the prosecutor’s conduct as a comment on silence. In the sense that reference was made to the fact that the defendant had not previously told the officers the story he told on the witness stand, it is a comment on silence, but to the extent his testimony conflicts with what he told the officer, the cross-examination did not amount to a comment on silence.

We note that the defendant’s failure to object at trial to the prosecutor’s remarks in this case might well have waived the issue for purposes of appeal. However, because of the importance of the substantive issue of law involved here and the great number of cases reaching the appellate courts on this issue we have elected to decide the question of the prosecutor’s remarks.

A brief historical background illustrates the development of the issue on appeal—comments on silence. In Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, the Supreme Court decided that certain warnings must be given to a person at the time of his arrest. One of those warnings, of course, was the right to remain silent. Footnote 37 of that opinion expressly said that the prosecution may not use at trial the fact that the defendant stood mute and claimed his privilege in the face of accusation. (384 U.S. 436, 468 n.37, 16 L. Ed. 2d 694, 720 n.37, 86 S. Ct. 1602, 1624-25 n.37.) Harris v. New York (1971), 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643, followed Miranda but allowed use of inadmissible evidence for impeachment purposes. According to Harris the defendant’s protected statements, inadmissible on direct, may be used for impeachment if they are directly contradictory to trial testimony and if they indicate that the defendant is perjuring himself. Use of post-arrest silence for impeachment was not discussed in Harris. Four years after Harris the court ruled in United States v. Hale (1975), 422 U.S. 71, 45 L. Ed. 2d 99, 95 S. Ct. 2133, that a defendant’s silence could not be used in the Federal courts even as impeachment. Hale invoked the court’s supervisory power, and did not rule on a matter of constitutional rights. The Hale court stated that an evidentiary balancing test was to be used; if there were alternative explanations for the defendant’s silence, that silence was not sufficiently probative to justify reference to it. One year later, Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, barred a State prosecutor’s reference to a defendant’s silence even for impeachment. Basing its reasoning on the fourteenth amendment’s due process guidelines, rather than merely on the fifth amendment’s privilege against self-incrimination, the court said that Miranda gives implicit assurance that silence will not be used against the defendant. Post-arrest silence is insolubly ambiguous. Doyle thus goes beyond the evidentiary test of Hale and establishes a per se constitutional bar to the use of silence. See generally Note, Impeaching a Defendant’s Testimony by Proof of Post-Arrest Silence: Doyle v. Ohio, 25 Clev. St. L. Rev. 261 (1976); Comment, Evidence—Doyle v. Ohio: Use of Defendant’s Silence for Impeachment at Trial, 8 Loy. Chi. L.J.438 (1977).

In Illinois, two somewhat contradictory lines of cases emerged from the pre-Miranda Illinois case of People v. Pfanschmidt (1914), 262 Ill. 411. One line allowed use of silence in the face of accusations as an “adoptive admission” (People v. Jones (1970), 47 Ill. 2d 135); the other severely restricted the use of silence (People v. Lewerenz (1962), 24 Ill. 2d 295). The adoptive admission cases have now been discredited by Miranda. 3 J. Wigmore, Evidence sec. 821, at 309 n.3 (Chadboum rev. ed. 1970).

People v. Oueen (1974), 56 Ill. 2d 560, is a post-Miranda case with facts somewhat similar to ours. Queen testified at his trial that his intention had been to interrupt a robbery in which he was participating by calling the police when he could momentarily escape detection by his fellow robber. No opportunity for this call presented itself. During cross-examination, and again briefly in closing arguments, the prosecutor referred to the defendant’s failure to actually call the police. This court held that reference to the defendant’s failure to call the police was not a comment on silence, but an impeachment of credibility by contradiction, since he had not remained silent after his arrest but had talked to the police officers.

In Doyle v. Ohio the Supreme Court, in a footnote, stated an exception to the strict ban on reference to silence, an exception which seems to be in accord with the holding in Queen and applicable to the case before us:

“It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest.” 426 U.S. 610, 619 n.11, 49 L. Ed. 2d 91, 98 n.11, 96 S. Ct. 2240, 2245 n.11.

In the case before us we have a prosecutor’s reference on cross-examination to the defendant’s pretrial silence in direct connection with that prosecutor’s admittedly proper impeachment of defendant’s trial testimony with inconsistent pretrial statements. We made no distinction between the defendant’s silence before or after Miranda warnings were given. In the context of the defendant’s silence, the entire conversation between the defendant and the police officer must be viewed as a whole. In the instant case the prosecutor laid a foundation for the impeachment by eliciting from the police officer the defendant’s pretrial statements. The prosecutor then asked the defendant if he had not, in fact, said to the police officer that the car was blue and inoperable, and that he had not been out all night. It was in the context of these questions that the prosecutor referred to the defendant’s failure to tell the police his now totally contradictory exculpatory story— the girl was a prostitute and waved to him first and solicited him.

In United States v. Mireles (5th Cir. 1978), 570 F.2d 1287, the defendant was convicted of possession of marijuana with intent to distribute. This case is factually similar to ours. At trial, the defendant said he did not know of the marijuana concealed behind the paneling in a van he was driving and that he was merely moving furniture for another. A border agent testified that before arrest the defendant said the furniture was his own and after arrest said that he had borrowed the truck from his uncle. The defendant apparently said nothing about moving furniture for another until the trial. The Míreles court reasoned that the defendant’s silence was not at issue when the prosecutor asked the defendant if he had told his exculpatory story to the agents. The prosecutor was concerned as to inconsistencies; failure to mention the other person, either before or after arrest, as against defendant’s trial testimony. The prosecutor’s questions and argument, according to the court, “were not an impeachment by silence, as in Doyle, but merely an effort to impeach by prior statements that were inconsistent with defendant’s testimony at trial.” (570 F.2d 1287, 1293.) We find the reasoning of Mireles helpful. Accord, Twyman v. Oklahoma (10th Cir. 1977), 560 F.2d 422 (comment on omission in purportedly complete statement made to police); United States v. Mitchell (8th Cir. 1977), 558 F.2d 1332 (when confronted with fact of false statement given to officers, defendant remained silent); United States v. Conlin (2d Cir. 1977), 551 F.2d 534 (evidence allowed to dispute defendant’s statement that he had told exculpatory story to officers); United States v. Davis (5th Cir. 1977), 546 F.2d 617, 622 n.4 (before arrest and Miranda warnings defendant ran and shouted to officers that they might as well shoot but made no exculpatory statement); United States v. Riggs (4th Cir. 1976), 537 F.2d 1219 (repeated comments about stolen money supported reference to accompanying silence).

Viewing the prosecutor’s comments here in light of Queen and the Doyle footnote, and supported by the authority and reasoning of several Federal cases, we conclude that the prosecutor’s references to George Rehbein’s pretrial silence in this case were not impermissible comments on silence. The prosecutor’s reference to silence in the context of proper impeachment by inconsistent statements was not a Doyle violation. We therefore affirm the appellate court.

Judgment affirmed.


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

text:
    (No. 50240.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RICHARD GREEN, Appellee.

      Opinion filed January 26, 1979.

      RYAN, J., specially concurring.
    William J. Scott, Attorney General, of Springfield, and Edward Petka, State’s Attorney, of Joliet (Donald B. Mackay, Melbourne A. Noel, Jr., and David Barkhausen, Assistant Attorneys General, of Chicago, and Robert P. Livas, Assistant State’s Attorney, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Mark W. Burkhalter, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a jury trial in the circuit court of Will County defendant, Richard Green, was convicted of burglary and sentenced to the penitentiary for a term of not less than 5 nor more than 15 years. The appellate court reversed and remanded (53 Ill. App. 3d 820), and we allowed the People’s petition for leave to appeal. In reversing, the appellate court held that under Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, the People’s cross-examination of defendant concerning his post-arrest silence and certain comments made by the assistant State’s Attorney during final argument deprived defendant of due process. The People contend that because defendant had failed to object either to the cross-examination or the allegedly improper argument, the .error, if any, was waived, and that plain error should not be recognized where, as here, the evidence of guilt was overwhelming and the error harmless beyond a reasonable doubt. The People contend, too, that the cross-examination was not error for the reason that the matter was first brought out in plaintiff’s direct testimony; that what occurred was not cross-examination concerning defendant’s post-arrest silence, but was in fact cross-examination concerning post-arrest statements inconsistent with defendant’s testimony at trial; and, finally, that the rule in Doyle v. Ohio should not be applied retroactively to a case tried 18 months prior to the date of the Doyle decision.

Defendant and Jessie Couch were indicted for the burglary of a house in Joliet. The owner had recently died and the house was unoccupied. A neighbor who saw two men pry open a window and enter the house phoned the police, who, upon arrival, found defendant hiding under a boat in the garage and Couch hiding in a bedroom closet. Two watches, a ring, a pocket knife and a screwdriver were found in the closet, near Couch. There was an open dresser drawer in the bedroom where Couch was found, and a jewelry box inside the drawer was also open. The executor of the deceased owner’s estate was unable to testify that anything was missing from the jewelry box since no inventory had been made of the property in the house.

Defendant and Couch were arrested and advised of their rights. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) Police officer Allan Horvath testified that he and his partner, Officer Fitzgerald, received a radio dispatch that there was a burglary in progress and that, upon arrival at the house, he entered the garage. He saw defendant lying underneath a boat. After advising defendant of his constitutional rights he asked him if there was anyone else inside the house, to which defendant replied that there was one other man. He then asked defendant “if there was a car involved,” to which defendant replied “No.” Defendant was asked if the other man had a gun and defendant replied “No.” Defendant said nothing further until reaching the police station, where he asked to see Sergeant Hernandez.

On direct examination defendant testified that he, his wife and children had been locked out of their motel and that, after being unable to locate another place to stay, he entered the house to explore the possibility that he and his family might spend the night there. On cross-examination the following occurred:

“Q. Mr. Green, when the police took you to the car, to the squad car, did you tell them from the time you left the house until the time you went to the squad car why you went into the house?
A. When I got down to the station they told me—
Q. That’s not the question I ask you, Sir — Did you tell the police?
A. Why I went into the house?
Q. Yes, Sir.
A. Tell like why I was there?
Q. Yes.
A. No Sir.
Q. Did you say anything to them in the squad car at all?
A. Just when he was reading me, reading my rights.
Q. You didn’t talk to them when you were in the squad car? Did you talk to the police officer?
A. When I was in the squad car the only thing I asked — they asked me if I understand my rights and I told him yes. That’s all I said in the squad car. That’s all he asked me and then he told me to shut up.
MR. LECHWAR: I have no further questions, your Honor.”
The transcript reflects the following during defendant’s redirect testimony:
“Q. Did you talk to the police at the police station?
A. Y es, I did.
Q. Did you tell them why you had broken into the house?
A. I had at the police — Sgt. Hernandez?
Q. Yes.
A. I asked if I could talk to Sgt. Hernandez and they told me I was and I didn’t see him down here, and I told them they never send him.
MR. MURER: I have no further questions.”
During re-cross-examination the following ensued:
“Q. When you were at the police station, Mr. Green, and you asked to see Sgt. Hernandez, did you tell anyone then that you had — this is the reasons — the reason why you went into the house, did you give anybody the reason why you went into the house?
A. No, that’s why I asked to see Sgt. Hernandez.
Q. But you didn’t tell anybody else, the police down there?
A. No, they didn’t ask me.
Q. You didn’t tell Sgt. Hernandez?
A. I never seen him, they never send him down to me.”

During final argument the assistant State’s Attorney said:

“And that brings up another interesting point, ladies and gentlemen. If they went in there as they said to find a place to live for someone, why didn’t they say anything?
Both of them answered some questions. Mr. Green was read his rights, and he answered the question that the police officers read him off the card and then he said we didn’t have a car, we didn’t have guns, and that the only other person with me was the guy in the house. He never said anything at all about why they went into the house.
They don’t try to defend themself [stc]. He rode to the station in their police car with the policeman there, they never said anything then.”

In Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, the Supreme Court, after pointing out that the warnings mandated by Miranda require that a person taken into custody be advised of his right to remain silent, that anything that he said might be used against him, and that he had a right to counsel before submitting to interrogation, said, “Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale [(1975), 422 U.S. 171, 177, 45 L. Ed. 2d 99, 105, 95 S. Ct. 2133, 2137]. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” (Doyle v. Ohio (1976), 426 U.S. 610, 617-18, 49 L. Ed. 2d 91, 97-98, 96 S. Ct. 2240, 2244-45.) In People v. Rehbein (1978), 74 Ill. 2d 435, this court, after discussing Miranda, United States v. Hale, and Doyle, stated that in Doyle the Supreme Court “barred a State prosecutor’s reference to a defendant’s silence even for impeachment. Basing its reasoning on the fourteenth amendment’s due process guidelines, rather than merely on the fifth amendment’s privilege against self-incrimination, the court said that Miranda gives implicit assurance that silence will not be used against the defendant. Post-arrest silence is insolubly ambiguous. Doyle thus goes beyond the evidentiary test of Hale and establishes a per se constitutional bar to the use of silence.” (74 Ill. 2d 435, 440.) In People v. Hamby (1965), 32 Ill. 2d 291, 294, the court, in considering waiver and plain error, said, “We consider the waiver principle a salutary one, conducive to the effective enforcement of the rules which society has established for its protection, but we have not hesitated to relax its application where fundamental fairness so requires.” (32 Ill. 2d 291, 294.) In our opinion fundamental fairness requires that the matters of which defendant complains be recognized as plain error.

We consider next the People’s contention that the assistant State’s Attorney did not err in cross-examining the defendant concerning his post-arrest conversation with the police or in thereafter commenting on it in closing argument. They argue that this was permissible because there was “a threshold inconsistency” between defendant’s post-arrest statements and his subsequent exculpatory testimony. They contend that his post-arrest denial that he had gone to the house where he was arrested in a car was inconsistent with his exculpatory story at trial that he had been driving around all day in search of a place for his family to stay. This, they argue, made it proper for the State’s Attorney to ask defendant if he had made other statements to the police. The record shows that Officer Horvath testified that in response to his questions as to “whether there was a car involved” defendant replied “No,” that co-defendant Couch’s wife testified that she waited in an automobile which was parked one-half block away from the house and defendant testified that he was asked by the police officer whether he had come by car, to which he replied in the affirmative. He stated that he was then asked by the police officer where the car was and replied that it was parked down the street. There was no cross-examination concerning this inconsistency or any attempt to offer impeaching testimony. There was nothing about the inconsistency which would permit the cross-examination of defendant concerning his alleged failure to advise the police of his exculpatory story and nothing in either the testimony or argument which would justify the further exacerbation of the error by the comment made by the assistant State’s Attorney during final argument. The situation here is clearly distinguishable from that in People v. Rehbein (1978), 74 Ill. 2d 435. In Rehbein the defendant testified to an exculpatory story and was impeached by testimony that he had made inconsistent statements to police officers concerning the description of his automobile and whether it was driven on the night of the occurrence. He also “denied any knowledge of being involved in any type of situation.” (74 Ill. 2d 435, 438.) Here, had the People proved the inconsistence by proper impeachment, it would not have served to impeach in any manner whatsoever the exculpatory testimony at trial.

We consider next the People’s contention that the rule of Doyle should not be applied retroactively. Decisions of this court have consistently held that evidence of silence upon advice of counsel was inadmissible. (People v. Pfanschmidt (1914), 262 Ill. 411, 448-50; People v. Blumenfeld (1928), 330 Ill. 474, 491-92; People v. Rothe (1934), 358 Ill. 52, 57; People v. Lewerenz (1962), 24 Ill. 2d 295, 299.) Although the Supreme Court has not decided the question whether Doyle is applicable to cases tried prior to the date of its decision, it has vacated a judgment and remanded the cause for further consideration in the light of Doyle. (See Lebowitz v. Florida (1976), 429 U.S. 808, 50 L. Ed. 2d 68, 97 S. Ct. 44.) We do not, however, find it necessary to decide the question here.

The People contend that the error, if any, was harmless. In People v. Knippenberg (1977), 66 Ill. 2d 276, 287, the court said:

“Before a Federal constitutional error can be held harmless, the court must be satisfied beyond a reasonable doubt that the error did not contribute to the defendant’s conviction. (Harrington v. California, 395 U.S. 250, 251, 23 L. Ed. 2d 284, 286, 89 S. Ct. 1726, 1727; Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828.) ‘ “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” ’ Chapman v. California, 386 U.S. 18, 23, 17 L. Ed. 2d 705, 710, 87 S. Ct. 824, 827; see also Schneble v. Florida, 405 U.S. 427, 432, 31 L. Ed. 2d 340, 345, 92 S. Ct. 1056, 1060.”

The testimony leaves no doubt that defendant and Couch “jimmied” the window and entered the house, where defendant was found hiding under a boat in the garage and Couch in a closet. The only defense to the charge of burglary was that defendant lacked the intent to commit a theft (Ill. Rev. Stat. 1973, ch. 38, par. 19—1); rather, defendant claims, he entered the house with the intent to find shelter for the members of his family, who had been locked out of their motel for failure to pay rent.

The manager of the motel where defendant and his family had been staying testified that defendant had not been locked out of the motel and had in fact paid his rent the morning of the break-in. She produced motel records as proof of this payment. The executor of the estate of the deceased owner of the house testified that he had checked every room in the house two days before the break-in and found everything in order and when he examined the bureau drawers in the bedroom after the break-in, they looked as though they had been “rifled through.” The officer who entered the bedroom noticed that the top bureau drawer was open and that a jewelry box in the drawer had been opened and appeared to have pry marks on it. When Couch was discovered hiding in the bedroom closet, the police found him in possession of 21 pennies, including an 1881 Indian head penny, in addition to the watches, ring, pocket knife and screwdriver mentioned earlier. The executor testified that the deceased owner of the house had been a coin collector.

We conclude that in view of the evidence of a theft in progress and the testimony of the motel manager, defendant’s exculpatory explanation of his conduct was so thoroughly discredited that any prosecutorial reference to his failure to give the explanation earlier was harmless beyond a reasonable doubt.

For the reasons stated, the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE RYAN,

specially concurring:

Although I concur in the result reached in this case, I do not agree with the reasoning of the opinion. I would hold that by failing to raise the alleged constitutional error in the trial court the right to raise it on review has been forfeited. For the reasons stated below, the error would not constitute plain error and any discussion of harmless error is unnecessary.

We are dealing here with error that has been waived by not properly calling it to the attention of the trial court and preserving it for review. Were it not for the plain error exception to the waiver rule, the unobjected-to trial error would not be before this court. Therefore, in considering whether the unobjected-to trial error falls within the exception to the waiver rule, it is not necessary to determine that the error was harmless beyond a reasonable doubt even though the error may have been of constitutional dimension. Although usually referred to as “waiver,” failure to object to trial errors more appropriately could be termed a procedural default. In any event, when the trial error has not been properly preserved, we do not evaluate it in the usual sense, but we determine whether the right to raise the error on review, constitutional error as well as other trial error (People v. Pickett (1973), 54 Ill. 2d 280), has been waived or forfeited. It is not necessary to apply the harmless-error or harmless-error-beyond-a-reasonable-doubt test.

There are two facets of plain error, both of which require a reviewing court to consider a trial error even in the absence of an attempt by the defendant to bring it to the attention of the trial court. First, a significant purpose of the plain error rule is to afford certain protections to the defendant. If a serious injustice has been done to a defendant, it should be corrected. To this end the strength or the weakness of the evidence against him is relevant. (3 C. Wright, Federal Practice and Procedure: Criminal sec. 856, at 374 (1969).) Thus this court has held that in a criminal case where the evidence is closely balanced a court of review may consider errors that have not been properly preserved for review. (People v. Pickett (1973), 54 Ill. 2d 280; People v. Bradley (1964), 30 Ill. 2d 597; People v. Nowak (1939), 372 Ill. 381.) When the evidence is closely balanced, there is the possibility that an innocent person may have been convicted because of some error which is obvious in the record, but which was not properly preserved for review. In order to prevent such a serious miscarriage of justice, a court of review may consider the error. However, in doing so the court will look at the record only to see if the evidence is “closely balanced.” If it is not, the reason for considering the error in the absence of its preservation is not present. There is no need to apply the harmless error test or, if the error involves a constitutional right (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824), the harmless-beyond-a-reasonable-doubt test.

The other facet of plain error concerns the protection and preservation of the integrity and reputation of the judicial process. (3 C. Wright, Federal Practice and Procedure: Criminal sec. 856, at 374 (1969).) In considering this aspect of plain error, it is questioned whether the harmless error doctrine has any relevance, even harmless error beyond a reasonable doubt. In Screws v. United States (1945), 325 U.S. 91, 89 L. Ed. 1495, 65 S. Ct. 1031, Mr. Justice Douglas stated:

“And where the error is so fundamental as not to submit to the jury the essential ingredients of the only offense on which the conviction could rest, we think it is necessary to take note of it on our own motion. Even those guilty of the most heinous offenses are entitled to a fair trial. Whatever the degree of guilt, those charged with a federal crime are entitled to be tried by the standards of guilt which Congress has prescribed.” (Emphasis added.) 325 U.S. 91, 107, 89 L. Ed. 1495, 1506, 65 S. Ct. 1031, 1038. Professor Wright states:
“It is not a miscarriage of justice to convict a guilty man, but if he is convicted in a way inconsistent with the fairness and integrity of judicial proceedings, then the courts should invoke the plain error rule in order to protect their own public reputation.” 3 C. Wright, Federal Practice and Procedure: Criminal sec. 856, at 374 (1969).

In considering this aspect of plain error, it has been held that the rule should be invoked only in exceptional circumstances to preserve the integrity and reputation of the judicial process. (United States v. Musquiz (5th Cir. 1971), 445 F.2d 963; United States v. Vaughan (2d Cir. 1971), 443 F.2d 92; Davis v. United States (9th Cir. 1970), 425 F.2d 673; Marshall v. United States (9th Cir. 1969), 409 F.2d 925.) It is in this context that we must view the previous statements of this court concerning plain error. In People v. Pickett (1973), 54 Ill. 2d 280, 283, this court quoted from People v. Burson (1957), 11 Ill. 2d 360, 370, stating:

“ ‘The court may *** take notice of errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved ***.’”

The case of People v. Burson, from which this language was taken, is illustrative of the nature of the error which should be considered under the plain error rule as “depriving the accused of substantial means of enjoying a fair and impartial trial.” In Burson this court found that the record raised serious doubts as to the defendant’s sanity and that the defendant’s counsel had suggested the defendant’s insanity at the time of trial. This court stated that the trial and sentencing of an individual charged with a criminal offense while insane is a violation of due process of law. Therefore, although the question had not been properly preserved and argued, the court did not permit the waiver rule to operate to deprive the accused of his constitutional right to due process. The court then stated the language quoted above. It is also in this light that we must interpret the language of our Rule 615(a) (58 Ill. 2d R. 615(a)), which provides that “[p] lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (Emphasis added.) Thus I believe that under this second aspect of the plain error rule, the errors that will be considered as not having been waived, although not properly preserved, are those that are so fundamental to the integrity of the judicial process that they cannot be waived or forfeited by the failure to raise them in the trial court. I also believe that, being so fundamental to the integrity of the judicial process, they must be considered by the court regardless of the guilt of the defendant and therefore the harmless error test, even harmless error beyond a reasonable doubt, is not relevant.

In this case, although the error complained of involves a constitutional right, it is not of such a fundamental nature that the plain error rule must be invoked to preserve the integrity and reputation of the judicial process. Also, as the majority opinion indicates by applying the harmless error rule, the evidence is not closely balanced. Therefore, it is not necessary for the error to be considered as plain error in order to prevent a miscarriage of justice. For these reasons I concur in the result reached by the majority; however, I consider the question of harmless error to be irrelevant.


text:
    (No. 50507.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GEORGE T. HAMILTON, Appellee.

      Opinion filed January 26, 1979.

      William J. Scott, Attorney General, of Springfield, and Thomas J. Difanis, State’s Attorney, of Champaign (Donald B. Mackay, Melbourne A. Noel, Jr., Thomas C. Crooks, and David Cassorla, Assistant Attorneys General, of Chicago, and James E. Hinterlong, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert B. McGee, of Chicago, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the ' court:

This case involves a motion to suppress evidence as being the fruit of an unreasonable search. The circuit court of Champaign County denied the motion to suppress, and the defendant was convicted at a bench trial of possession of heroin, in violation of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56½, par. 1402(a)). The appellate court, with one justice dissenting, reversed the conviction, holding that the evidence should have been suppressed (56 Ill. App. 3d 196). The issue before this court is whether the heroin, which was found in the defendant’s closed briefcase, should have been suppressed. We hold that the evidence was obtained in violation of the defendant’s fourth amendment rights and affirm the holding of the appellate court.

The defendant, George Hamilton, was injured when his motor vehicle (a van) left the highway late at night and rolled down an embankment. Hamilton received cuts and bruises but remained conscious. Officer Clark of the State Police arrived at the scene of the accident and summoned an ambulance. When the ambulance arrived, Hamilton was taken to the hospital; a briefcase that had been found on the front floor of the van was also taken to the hospital. Officer Clark then began an examination of the wrecked vehicle and its contents. During the course of his examination he found three .38-caliber bullets but found no gun. A wrecker subsequently towed the wrecked vehicle to a storage area at a gasoline station.

When Hamilton arrived at the hospital, his clothing was removed and placed in storage bags. Hospital procedure required that an inventory of the patient’s property be made, which was done in this instance. No police officer suggested or participated in this inventory. The nurse and orderly attending Hamilton found numerous keys, a watch, some rings, a wallet, $1,200 in cash, several bullets and, also, the locked briefcase. Curious because of the large amount of cash and the bullets, the orderly unlocked the briefcase with one of the keys found in Hamilton’s possession. He sifted through the papers in the briefcase and found a brown bag wrapped with a string or a rubber band. He opened the bag and, after briefly examining its contents, told the nurse that he thought it contained heroin. He then rewrapped the bag and put it back in the briefcase. Both he and the nurse testified that after doing so he again locked the briefcase. The keys, the valuables, and the wallet were put in a storage locker. The briefcase, apparently because it was too large for the locker, was left on a counter at the foot of the defendant’s bed or cot in the emergency room.

Later, Officer Clark arrived at the hospital to interview Hamilton and to complete his accident report. When he arrived, Hamilton was being X-rayed. The officer talked with the nurse outside of the emergency room and was told about the hospital procedure for safekeeping valuables. In response to a statement by Clark concerning bullets, the nurse told him that some bullets had been found in the defendant’s clothing. She also told him about the money and other valuables. Later, Clark spoke to the defendant in the emergency room in order to complete the accident report. He told the defendant that his briefcase would be returned to the van and that his property would be inventoried. Hamilton was not told that his briefcase would be opened. He made no response to the officer’s statement, nor did he consent to the opening of his briefcase. The wallet and other valuables which had been brought to the emergency room from the locker were to remain at the hospital. At one point the nurse stated to the officer, “You better check the briefcase,” but said nothing specific about its contents. Also, she did not tell the officer that the briefcase had been opened. The officer testified that shortly before leaving the emergency room, he opened the briefcase, noticed a small plastic envelope containing what he thought was marijuana, and then examined the contents of the brown bag in the briefcase. He said nothing to the defendant about his suspicions but left the room with the briefcase, went to the gasoline station where the wrecked van had been taken, completed the inventory of the van, and later gave the brown bag to a detective who confirmed that the substance it contained was heroin.

The testimony at the hearing on the motion to suppress sharply conflicted as to whether the briefcase was locked or unlocked when the officer opened it. The officer stated that he merely opened the unlocked case in order to sweep the keys off of the counter into it. Both the nurse and the orderly testified that the orderly used one of the keys found on the defendant to unlock the briefcase before inspecting it, and that the orderly again locked the briefcase. The nurse testified that the officer unlocked the briefcase before he opened it. Officer Clark’s testimony also varied as to the circumstances surrounding the opening of the briefcase. Although at one point he stated that he opened the unlocked case to sweep the keys off of the counter into it, at another time he stated, “After talking to Mr. Hamilton and finishing my business there, I picked up the case, opened it and noticed the contents of the case.” At other times, he referred to “looking into the briefcase.” When he was being questioned as to whether discovering the bullets caused him to look for a gun in the case when he opened it, he replied, “Oh yes, I looked for a gun in there.” When the question was again stated, “You did look for a gun?” The officer answered, “Yes, sir, I looked for anything.”

In this court the State contends that (1) the heroin was legally seized during an inventory of defendant’s possessions following a traffic accident, or (2) alternatively, the heroin was discovered during a private search to which the requirements of the fourth amendment do not apply.

There are several exceptions to the warrant requirement of the fourth amendment: these include the discovery of evidence as a result of a search by a private person (People v. Heflin (1978), 71 Ill. 2d 525), and evidence seized which was in “plain view” (People v. Berg (1977), 67 Ill. 2d 65). Another exception to the warrant requirement involves the discovery of evidence as a result of an inventory, a procedure which has not been conclusively established by the courts to constitute a search (People v. Clark (1976), 65 Ill. 2d 169). See generally Sikma, Collateral Search: A Survey of Exceptions to the Warrant Requirement, 21 S.D. L. Rev. 254 (1976).

In considering the first contention which the State urges in this court, that the heroin was found pursuant to an “inventory,” we need not determine whether the officer had probable cause to believe that a crime had been committed, or that the briefcase contained evidence of a crime, because an inventory is not the same as an “automobile exception” search. An established exception to the warrant requirement permits the search of an automobile under circumstances which would not render permissible the warrantless search of a home. It has been established that the expectation of privacy in an automobile is significantly less than the traditional expectations of privacy existing at the home. However, under the automobile exception, a warrantless search is not justified unless the officer has probable cause to believe that the vehicle contains articles which the officer is entitled to seize. (Chambers v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975; United States v. Martinez-Fuerte (1976), 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074.) Also, under proper circumstances, an automobile may be searched without a warrant as incident to a lawful arrest. See Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022.

Unlike the “automobile exception,” an inventory of a person’s automobile need not be based on any belief of probable cause by the officer, nor is it necessary that it be made in conjunction with a lawful arrest. An inventory does not in the true sense constitute a search for evidence, but is a mere listing of items of property which have come into the possession of the officer.

In South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092, the court upheld the seizure of evidence discovered in a motor vehicle during an inventory of its contents after it had been impounded. The court noted, first, that the State courts have overwhelmingly concluded that, whether or not an inventory is characterized as a search, the intrusion is constitutionally permissible by applying the fourth amendment standard of reasonableness, and, second, that the majority of the Federal courts of appeal have likewise sustained inventory procedures as reasonable police intrusions. (428 U.S. 364, 370-72, 49 L. Ed. 2d 1000, 1005-07, 96 S. Ct. 3092, 3097-99.) In People v. Clark (1976), 65 Ill. 2d 169, relying on Opperman, this court held that evidence was properly seized following its discovery during a routine inventory of a vehicle that had been towed from the street. The justification for such a warrantless intrusion into the automobile was stated in Opperman and in Clark to be threefold: protection of police officers from potential danger; protection of the owner’s property while his car is in police custody; and protection against claims that the property has been lost or stolen.

The State urges that the evidence in our case was discovered as a result of an inventory of the briefcase or shortly prior thereto, and was therefore properly seized. We first note that in Clark this court found that inventory searches were, as a matter of procedure adopted by the police department in that case, routinely made in all cases where it was necessary to tow the car away, “and there [was] no hint whatever of any improper motive *** on the part of the arresting officer.” (65 Ill. 2d 169, 175.) The facts of this case do not so clearly establish such an innocent intrusion into the defendant’s property as was apparent in Clark. As noted above, the officer in this case made various statements, not entirely consistent, as to why he opened the briefcase. He also stated that it was unlocked, whereas other testimony, by the orderly and by the nurse, indicated that it had been locked and that the orderly locked it again after he had searched it. The nurse testified that the officer unlocked it before he opened it. The officer also stated that as he opened it he immediately saw a plastic bag containing what he believed to be marijuana, thus causing the further investigation; neither the nurse, nor the orderly who had gone through the briefcase, mentioned anything about seeing the plastic bag of marijuana or any other questionable material except that contained in the brown paper package (heroin). It should be noted that the orderly, whose curiosity had been aroused by the finding of bullets and a large amount of cash on the defendant’s person, made a rather thorough inspection of the interior of the briefcase. All of these facts cast serious doubt on the contention that the discovery by the officer was in any way related to an inventory or preparatory thereto. The initial opening of the briefcase, even by the officer’s own testimony, was not for the purpose of inventorying its contents, and it was at this initial opening of the briefcase that he saw the suspicious material which led to the further inspection. However, having seen the suspicious contents, he did not then inventory the briefcase but took it with him to the service station to which the defendant’s van had been towed, where he placed the briefcase on a counter and did not further inspect it until after the van had been inspected and inventoried. Only then did he reopen the briefcase and give the substance which he thought was heroin to another officer who was present for the purpose of testing. The purpose of opening the briefcase at this time was not to make an inventory of its contents but was to search for contraband which he believed to be contained in the briefcase because of the original discovery at the hospital.

Though discussing the State’s contention that this was a seizure of evidence during an inventory, we do not imply by that discussion that such inventories may be made of the contents of any and all containers which may come into the custody of the police. In fact, just the opposite is true. The inventory exception to the search warrant requirement has primarily been applied to motor vehicles (Opperman; Clark). The inventory exception is of rather recent origin and is supported by reasons entirely different from those which support the warrantless search of an automobile under the “automobile exception,” where there must be a showing of probable cause. The reasons for an inventory search also differ from the reasons which support the search of an automobile as incident to a lawful arrest. (Sikma, Collateral Search: A Survey of Exceptions to the Warrant Requirement, 21 S.D. L. Rev. 254 (1976).) The question remains open in the Supreme Court. That court has recently granted certiorari in Arkansas v. Sanders (1978), 439 U.S. 891, 58 L. Ed. 2d 236, 99 S. Ct. 247, wherein the question is whether a warrantless search of an unlocked suitcase based on probable cause was authorized. Also, the Supreme Court has not decided that an inventory exception applies to evidence seized as a result of an inventory of luggage or other containers taken from an automobile in the course of an inventory of the vehicle. In fact, in Mr. Justice Powell’s concurring opinion in Opperman, it is stated:

“Upholding searches of this type provides no general license for the police to examine all the contents of such automobiles.” (428 U.S. 364, 380, 49 L. Ed. 2d 1000, 1011-12, 96 S. Ct. 3092, 3102.)

And in footnote 7 in support of this statement, it is stated:

“There is, however, no evidence in the record that in carrying out their established inventory duties the Vermillion police do other than search for and remove for storage such property without examining its contents.” (428 U.S. 364, 380 n.7, 49 L. Ed. 2d 1000, 1012 n.7, 96 S. Ct. 3092, 3102 n.7.)

In United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476, the Supreme Court decided that a double-locked footlocker seized on a probable cause basis could not be searched under the automobile exception and stated that “a person’s expectations of privacy in personal luggage are substantially greater than in an automobile.” (433 U.S. 1, 13, 53 L. Ed. 2d 538, 549, 97 S. Ct. 2476, 2484.) While the Supreme Court in Chadwick did not deal with an inventory search of personal luggage, that question was decided by the court of appeals when it decided Chadwick, and review of its decision on that point was not sought. 433 U.S. 1, 5 n.1, 53 L. Ed. 2d 538, 544 n.1, 97 S. Ct. 2476, 2480 n.1.

The Court of Appeals for the First Circuit, when considering the inventory search of two locked suitcases in Chadwick stated:

“We see an inventory as occupying a middle ground between a criminal investigatory search, which must comply strictly with warrant and probable cause standards, and those actions which fall totally outside the fourth amendment. *** [A] n inventory may be initiated and carried on upon a less formal basis than a criminal search and will be upheld so long as it serves a proper governmental purpose and does not amount to an excessive intrusion. *** We intimate no judgment as to the propriety of inventorying unlocked suitcases, nor even locked ones given sufficient reasons, such as suspicion that there may be explosives inside. But breaking open the two locked suitcases here was an unreasonable intrusion that exceeded any proper governmental interest shown to exist. *** [T]o protect the agents from later claims, the suitcases could have been sealed with tape which the agents could have initialled, or placed in a locked storeroom with the keys kept in an envelope along with other personal property of defendants. Forcing the locks served no apparent purpose other than to satisfy the agent’s curiosity.” United States v. Chadwick (1st Cir. 1976), 532 F.2d 773, 783-84.

Considering the validity of the alleged inventory of the defendant’s briefcase, we note, as did the court of appeals in Chadwick, that we intimate no judgment as to the propriety of inventorying personal luggage given sufficient reasons, such as suspicion that there might be explosives inside. However, under the facts presented here, testing the reason for the inventory by the threefold test of Opperman and Clark, there exists no justification for the intrusion into the defendant’s briefcase. The Supreme Court in Chadwick, as noted above, stated that a person’s expectation of privacy is substantially greater in personal luggage than in an automobile. It is apparent in this case that the defendant had an expectation of privacy in the contents of his briefcase, and to the best of his ability he sought to safeguard this privacy. The briefcase was locked and the key was kept on his person. Although he was injured in the accident, he took the briefcase with him to the hospital, and it was kept near his bed^ in the emergency room. The briefcase posed no threat to the police; it could have been protected from loss or theft while in police custody by placing it in a locked locker or storage room, and the officer himself could have been protected against a later claim of theft by locking the briefcase and leaving the key at the hospital along with the defendant’s other personal belongings and by sealing the briefcase with tape and initialing it or by sealing it in some other suitable manner in the presence of the nurse. We can find no proper governmental purpose served by and no reasonable justification for the warrantless intrusion into the defendant’s briefcase in which he obviously had a substantial expectation of privacy.

The State alternately contends in this court that the evidence was discovered as a result of a search by a private person. In People v. Heflin (1978), 71 Ill. 2d 525, 539, this court recently stated that the “constitutional proscription against unreasonable searches and seizures does not apply to searches or seizures conducted by private individuals.” Numerous courts in other jurisdictions have also concluded that individual conduct, devoid of any governmental involvement, does not fall within the protection provided by the fourth amendment and is thus beyond the scope of the exclusionary rule. 1 C. Torcia, Wharton’s Criminal Procedure, sec. 183 (1974 and Supp. 1978); Moylan, The Fourth Amendment Inapplicable v. The Fourth Amendment Satisfied: The Neglected Threshold of “So What?”, 1977 S.I.U. L.J. 75; Annot., 36 A.L.R.3d 553 (1971 and Supp. 1978).

It appears that the overwhelming majority of private-search cases involve a private individual either directly giving the privately found evidence to the officer, or explicitly telling the officer of the illegal article found. The officer does not, himself, conduct a search for evidence but merely confirms information presented to him by a person not constrained by fourth amendment limitations. United States v. Winbush (6th Cir. 1970), 428 F.2d 357, is illustrative. In that case a hospital aide searched the defendant’s clothing pursuant to hospital policy and discovered a number of stolen items. The aide ran after the departing officers and showed them the items she had discovered. The court admitted the evidence under the private-search exception. Thus in Winbush, unlike in the instant case, the private person placed evidence which she had discovered within the plain view of the law-enforcement officers. The officers in Winbush conducted no second search.

In our case, the evidence was not placed before the officer but was discovered by him as a result of a second search. Not only was the evidence not placed in the officer’s plain view by the nurse, but the officer was not even explicitly told by either the nurse or the orderly of its existence. We think that the nurse’s words “you better check the briefcase,” without more, do not constitute a sufficiently explicit announcement of privately found illegal articles to justify the officer’s actions. We therefore cannot accept the State’s alternate contention that the evidence was seized as a result of a private search.

One final point has not been argued in this court. However, the trial court, although finding that the evidence was discovered as a result of a private search, also stated that the plain view doctrine applied, inasmuch as the officer noticed the marijuana in the plastic bag as he was in the process of sweeping the keys off the counter into the opened briefcase. We do not agree that the plain view doctrine is applicable in this case. That exception dispenses with the need for a warrant because the process of finding an item in plain view has involved no search and no prying into hidden places for that which is concealed. When an officer in the performance of his duty lawfully discovers evidence within his view, the taking of such evidence does not constitute an unreasonable seizure (People v. Bombacino (1972), 51 Ill. 2d 17; People v. Berg (1977), 67 Ill. 2d 65). In our case the officer had no authority to open this briefcase in which the defendant had an expectation of privacy. Had the briefcase been sitting open on the counter, with its contents in view, then the plain view exception would have applied. Here, however, the officer could only discover the evidence after opening the briefcase. There was no need to open the briefcase to put the keys inside. In fact, there was no need for the officer to take the keys with him. They could have been safely kept by the hospital. The plain view exception is not applicable under the facts of this case.

For the reasons above stated, we conclude that the fourth amendment reasonableness test of warrantless intrusions has not been met and the evidence discovered cannot be admitted into evidence. The decision of the appellate court is affirmed.

Judgment affirmed.