text:
    VIRGINIA ANN DOOLEY, Plaintiff-Appellee, v. JAMES A. DOOLEY ASSOCIATES EMPLOYEES RETIREMENT PLAN et al., Defendants-Appellants.
    First District (5th Division)
    No. 80-1642
    Opinion filed September 11,1981.
    Myron M. Cherry and Peter Flynn, both of Cherry & Flynn, and William J. Harte, of William J. Harte, Ltd., both of Chicago, for appellants Mary Connelly, Michael Connelly, John D. Connelly, and Lorraine J. Grau.
    Clare J. Murphy and Sidney Z. Karasik, both of Chicago, for appellant Herbert Jackson.

      Barnabas F. Sears and Wayland B. Cedarquist, both of Chicago (Boodell, Sears, Sugrue, Giambalvo & Crowley, of counsel), for appellee.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff, decedent’s daughter, sought declaratory and injunctive relief to declare an alleged 1978 beneficiary designation of decedent’s interest under a private retirement plan invalid and legally ineffective to revoke decedent’s prior beneficiary designation of plaintiff. At a bench trial the court found for plaintiff. Mary Connelly, Michael Connelly, John D. Connelly, Lorraine Grau, and Herbert Jackson, as special administrator of the estate of Hope Jackson, deceased (collectively referred to herein as defendants), all claimants under the alleged 1978 designation, appeal. The James A. Dooley Associates Employees Retirement Plan and Joseph Reynolds, and Virginia P. Dooley, as trustees of the James A. Dooley Associates Employees Retirement Trust, also named as defendants in the trial court, do not appeal.

The issue raised on appeal is whether the trial court’s finding that decedent did not effect a beneficiary change in 1978 was against the manifest weight of the evidence.

In 1962, the late James A. Dooley organized his law firm into a professional association, James A. Dooley Associates (JADA). He was assisted by Joseph Reynolds of St. Louis, a CPA and close personal friend. Reynolds counselled decedent with regard to JADA’s organization. Additionally, at decedent’s request, Reynolds designed the original 1962 JADA retirement plan, known as James A. Dooley Associates Employees Retirement Plan and the James A. Dooley Associates Employees Retirement Trust. The original retirement plan was adopted in August 1963, effective retroactively to October 1, 1962. JADA paid money into the fund each year on behalf of its participants. Each participant’s account was separately maintained. The retirement plan provided that each participant could retire at age 65 and receive benefits. If the participant died, his interest in the fund would go to either a beneficiary of his designation or, if no beneficiary was designated, to the participant’s spouse, if living, or to the participant’s estate.

In 1973, decedent made a beneficiary designation of his interest under the JADA Retirement Plan. Decedent’s 1973 designation named plaintiff, his only child, the beneficiary of his interest in the JADA trust, revoked any prior designation, but did not name a contingent or successive beneficiary nor make any provision for the timing of payments. There were two slightly different versions of this 1973 designation. One was handwritten and the other was typewritten and both bore decedent’s signature. The authenticity and validity of these designations, however, are not disputed.

In 1976, upon becoming a supreme court justice, decedent moved his office files and his secretary to a small space in the offices of another attorney located at 111 West Washington Street for the purpose of winding up JADA affairs. A locked steel cabinet was also maintained in this office.

In April 1977, decedent requested that Reynolds meet with him regarding a number of matters. Reynolds, who at that time did not know of the 1973 designation, asked decedent if he had done anything with respect to the beneficiary designation of his JADA trust interest. In response, decedent asked for pen and paper and wrote out a distribution of his trust estate to plaintiff and defendants. Decedent changed the amounts of these specific bequests before arriving at a final distribution which he then gave to Reynolds. Reynolds objected because the bequests were made in specific dollar amounts. Decedent charged Reynolds to work on it further and get back to him. Subsequently Reynolds and decedent discussed the matter over several telephone conversations. Decedent told Reynolds to put all of it in writing.

One month after their April 1977 luncheon meeting, Reynolds wrote decedent a four-page letter explaining the various possibilities of this “proposed distribution” and its tax consequences. Page 1 of the letter stated: “Your beneficiary designation would appear along the lines following based on the information you wished included * * Page 2 of the letter contained a proposed designation beginning “Upon my demise, any unpaid balance in my account shall be paid as follows:” and embodying the distribution decedent had specified at the luncheon meeting “convert[ing] the dollar amounts 0 0 0 into percentages °

Over the ensuing nine months Reynolds frequently spoke with decedent over the telephone and “would always ask him if he were ready to finalize this thing.” Reynolds also prepared an amended JADA retirement trust plan which was adopted on September 28, 1977, effective retroactively to October 1,1976. Under the amended plan decedent and Reynolds were the named trustees. The amended trust plan altered the method by which beneficiaries could be changed. The original plan stated, “The beneficiary ° * may be changed ° ° ° at the election of

the Participant, but only by his filing a new designation with the Company and by revoking all prior designations.” Under the 1977 amendment,

“A participant may designate the beneficiary of his choice to receive payments of amounts credited to his Company Contribution Account, his Employee Contribution Account, if any, and his Rollover Account, if any, at his death. The Beneficiary Designation must be in writing and filed with the Company and may include contingent or successive beneficiaries. A Participant’s Beneficiary Designation may be changed at any time or from time to time by the Participant’s filing a new Beneficiary Designation form with the Company. The revocation of a beneficiary’s designation shall not require the consent of any beneficiary.”

The amended plan does not explain what “filed with the Company” means, nor did anyone testifying have any knowledge of a specific “Beneficiary Designation form” which was to be used in making or altering the designation.

Approximately five months after the 1977 Trust Amendment and nine months after Reynolds’ letter to decedent proposing a percentage beneficiary distribution, decedent and Reynolds met on February 21, 1978, at decedent’s request to discuss a number of tax matters. During lunch decedent mentioned to Reynolds that he would like to do something for his sister and for charity, and that he felt that he should leave his nephews something. John Adams, decedent’s accountant, was waiting for the two men upon their return from lunch. In the presence of Adams and Reynolds, decedent on his own initiative brought out Reynolds’ May 1977 letter from his desk, studied it for a minute, turned to page 2 which contained the proposed percentage beneficiary distributions, and wrote in several changes. When finished he gave the letter to Reynolds. Reynolds read the notations, got up, went around the desk where decedent was sitting, and asked decedent several clarifying questions regarding the percentage to be distributed to plaintiff and whether certain payments were to be paid quarterly, monthly or annually. Finally, Reynolds noted at the bottom of page 2, “PER J.A.D. instructions on 2/21/78. JHR.”

At trial Adams, who was present during the course of these events, stated that he saw decedent make the notations, identified the handwriting on the letter as decedent’s, and witnessed the discussion of the changes between Reynolds and decedent. Adams also testified that he heard decedent say he wanted 10 percent to go to each of his nephews, eight percent to his sister and five percent each to Lorraine Grau and Hope Jackson. Adams stated that there was no doubt in his mind that decedent had so stated to Reynolds in Adams’ presence. He also testified that decedent handed the document back to Reynolds and asked him to have it typed. Adams left the meeting some time before it ended.

Reynolds also testified to this meeting. The only discrepancy between his testimony and that of Adams was that Reynolds stated he offered to take the alleged designation back to the office and “put it in formal style for [decedent] to prepare it for his signature ” e to which decedent responded that there wasn’t any particular hurry because he was more interested in the other matters central to Reynolds’ visit than he was in “finishing this up.” Reynolds took the letter along with other papers back to St. Louis. (It is this letter which defendants contend to be decedent’s 1978 beneficiary designation change.)

John Cusack, the then president of JADA, an attorney and close intimate of decedent, testified that on the following day, February 22, 1978, pursuant to decedent’s request, he met with decedent in his chambers. Decedent handed a copy of the letter to him and discussed it with Cusack in the latter’s capacity as president of JADA. Decedent stated, “Jack, I have made changes in the beneficiary provision of the retirement plan, and these are the changes that I have made.” Cusack read the document and asked if the information or a copy of the document had been given to Reynolds to which decedent affirmatively responded. Cusack then stated to decedent “that as far as I am concerned, as president of the company, this is a proper designation” and further suggested that decedent keep the document among the other JADA records that were in his possession.

Shortly thereafter, on March 5, 1978, decedent died. Following his death Reynolds looked through the beneficiary file folder kept in the locked steel cabinet in decedent’s Washington Street office. On the file folder was handprinted: “DOOLEY ASSOC. RETIREMENT TRUST (Beneficiary slips).” The file folder contained more than 70 documents, consisting of the beneficiary designations of those who had been employed by JADA. While perusing this file Reynolds discovered the handwritten and typed versions of decedent’s 1973 designation of plaintiff as his sole beneficiary of his interest in the JADA retirement trust. Although Reynolds had known of the existence of this file he had not known of the existence of this 1973 beneficiary designation.

Reynolds also testified that he met with Cusack on two occasions subsequent to decedent’s death. The first meeting was for lunch on the day of decedent’s funeral. The second meeting, at which defendants Michael Connelly, John D. Connelly and Lorraine Grau as well as Reynolds were in attendance, occurred two months later at Cusack’s office. Reynolds testified that Cusak said nothing to him on either occasion about his February 22,1977, meeting with decedent.

On June 30,1978, James Proesel, as guardian of the estate of Virginia Ann Dooley, filed the complaint in this cause. Upon reaching her majority, Virginia Ann Dooley was substituted as plaintiff. The court rendered an oral finding in favor of plaintiff on May 30,1980, and entered judgment on June 3,1980. The judgment found and declared, in pertinent part, that the typed designation dated December 13, 1973, signed by decedent, naming plaintiff, Virginia Ann Dooley, his daughter, as his beneficiary, was valid and effective; and further that the letter dated May 27, 1977, with decedent’s handwritten notes thereon was not a valid change of beneficiary by decedent and did not revoke the prior designation. This appeal followed.

Opinion

Plaintiff and defendants readily concede that although this case involves the efficacy of a beneficiary designation under a retirement plan, the principles derived from life insurance beneficiary cases apply. Seipel v. State Employees’ Retirement System (1972), 8 Ill. App. 3d 182, 289 N.E.2d 288.

Generally when a policy of insurance states the method by which a change of beneficiary may be made, that method is exclusive (Logan v. State Farm Life Insurance Co. (1978), 61 Ill. App. 3d 770, 378 N.E.2d 395) and substantial compliance with it is required to effect a valid change. Tatelman v. Tatelman (1975), 25 Ill. App. 3d 678, 323 N.E.2d 821; Begley v. Miller (1907), 137 Ill. App. 278.

Therefore, whether or not decedent effectively changed his beneficiary designation in 1978, as defendants contend, can be resolved by determining whether decedent substantially complied with the stated requirements of the JADA Retirement Plan.

There is no dispute that the applicable JADA Retirement Plan set forth two requirements to effect a beneficiary designation change: the change had to be in writing, and it had to be filed with the company,

Defendants first assert that the alleged 1978 designation was sufficient to comply with the Plan’s first requirement that the beneficiary designation be in writing. That the typewritten page 2 of the alleged designation was unsigned by decedent and contained interlineations in his own handwriting poses no problem as there is no specific requirement in the Plan that the designation be signed, handwritten or typed. Furthermore, there is no dispute as to the authenticity of the handwritten interlineations on page 2 of the letter. Accordingly, under a different factual setting the alleged 1978 designation, bearing decedent’s handwriting and indicating proposed beneficiaries and the amounts they were to receive, could constitute a writing within the context of the JADA Retirement Plan. (See Cox v. Employers Life Insurance Co. (1975), 25 Ill. App. 3d 12, 322 N.E.2d 555.) However, in the instant case the evidence before the trial court was sufficient to indicate that the alleged 1978 designation had not been finalized by the decedent. The contested letter was taken by Reynolds to be retyped by him and returned to decedent. It was never retyped and no further action was ever taken. Thus, the trial court’s finding that an effective beneficiary designation had not been made in writing is not against the manifest weight of the evidence.

Even assuming arguendo that the instrument was a sufficient writing as required under the Plan, the second requirement to effect a change, that it be filed with the company, has not been met.

Defendants contend that the 1978 beneficiary designation was “filed” by decedent as required by the Plan when decedent either gave the letter to Reynolds or when he later handed a copy of it to Cusack. With this contention we disagree.

Although the JADA Retirement Plan does not define the term “filed with the company,” other resources are helpful in this regard. The word “file” has been defined as meaning “to deliver ° * * after complying with any condition precedent (as the payment of a fee) to the proper officer for keeping * * * among the records of his office * 0 * especially] by formally receiving, endorsing, and entering” (Webster’s Third New International Dictionary at 849 (1966)). Those cases which have considered the actions necessary to constitute a proper filing of public documents are also instructive. It has been held that “[a] document is considered filed when it is deposited with and passes into the exclusive control and custody of the clerk, who understandingly receives the same in order that it may become a part of the permanent records of his office.” (Gietl v. Commissioners of Drainage District No. One (1943), 384 Ill. 499, 501-502, 51 N.E.2d 512-513; Hamilton v. Beardslee (1869), 51 Ill. 478.) With these definitions as guides, we consider whether the contested document was “filed” with either Reynolds or Cusack.

Reynolds was a party with whom such a designation could be properly “filed,” as the evidence adduced at trial revealed that he and decedent’s secretary handled the beneficiary designations made under the JADA Retirement Plan. However, the mere fact that the contested letter came into his possession does not mean it had been “filed” as we have seen that term commonly defined.

The record reveals that Reynolds understood that the contested document was to be returned by him to the decedent for “finishing up.” Thus, the evidence clearly shows that it never passed into Reynolds’ exclusive custody and control and certainly was not given to him with the understanding that it become part of any permanent record. In a true sense, control and authority over this disputed document was never relinquished by decedent. Thus, Reynolds’ naked possession of the document would not constitute a filing as defendants contend.

Defendants further assert, however, that the contested document was also filed when decedent handed it to Cusack, the then president of JADA, who immediately returned it to decedent’s possession. However, only Cusack testified to his meeting and conversation with decedent, and the weight to be accorded his testimony is a matter of credibility. The credibility of witnesses in a bench trial is a matter within the province of the trial court which saw and heard them, and its findings will not be disturbed unless against the manifest weight of the evidence. (Mortell v. Beckman (1959), 16 Ill. 2d 209, 157 N.E.2d 63; Logan v. State Farm Life Insurance Co. (1978), 61 Ill. App. 3d 770, 378 N.E.2d 395.) In light of Reynolds’ testimony in rebuttal to Cusack that the latter never mentioned this meeting and attendant conversation to Reynolds although the two had met on two occasions subsequent to decedent’s death, we cannot say that the court erred in finding Cusack’s testimony unpersuasive. Neither can we say that the finding that the contested letter was not filed as required by the plan is against the manifest weight of the evidence.

Accordingly, the trial court did not err in concluding that decedent did not effect a beneficiary change in 1978 and that therefore the 1973 beneficiary designation is valid and effective.

For the reasons cited herein, the judgment of the trial court is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN ANDREAS, Defendant-Appellee.
    First District (2nd Division)
    No. 80-1963
    Opinion filed September 15,1981.

      Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Adrienne Noble Nacev, and Alexander Vroustouris, Assistant State’s Attorneys, of counsel), for the People.
    Patrick G. Reardon and Lawrence J. Suffredin, Jr., both of Chicago, for appellee.
   Mr. PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was charged with two counts of possession of controlled substances. (Ill. Rev. Stat. 1979, ch. 56%, pars. 704(e) and 705(e).) The State appeals the trial court’s ruling sustaining defendant’s motion to suppress evidence based on the opening of a container by the police in the absence of a search warrant and raises the issue of whether contraband found within the container as the result of the search was properly suppressed. We affirm for the following reasons.

A hearing was conducted on defendant’s motion to suppress on May 22, 1980, during which the following evidence was considered. United States Customs Inspector Ronald Drozek testified that on February 21, 1979, he was working at the Lufthansa cargo facility at O’Hare Field. He reviewed the airline documents of a particular piece of cargo which revealed that it was shipped from Calcutta, India, and consigned to defendant at an apartment on East Goethe Street in Chicago. The cargo consisted of a sheet metal container four feet square, 1/2 feet thick, and fastened by two locks. Drozek opened the container by using the keys attached to the airline documents and found within a “dark reddish or a brownish” wooden table approximately three feet in diameter and eight to ten inches thick. He drilled into the table, determined it was hollow, and, after further drilling, obtained a substance from the table which tested positively for marijuana. Drozek the contacted Federal Drug Enforcement Administration (hereinafter DEA) agents and informed them of his findings.

Kenneth J. Labek, DEA special agent, testified that on February 21, 1979, he was informed by Customs of their possession of a table, which had been removed from a container shipped from India, and which was found to contain marijuana. Later that day, Labek saw the table and tested the substance it contained. His test confirmed that it was marijuana. Labek next saw the metal container within which the table was allegedly repackaged at Customs on February 22, 1979. He was not present when the table was repackaged and he could not see into the resealed container. Labek placed the container in a government van and drove to the building on East Goethe, where defendant lived. There, he met Chicago Police Investigator Wayne Lipsek and Sergeant Phil Cline. Labek and Lipsek, posing as delivery men, entered the apartment building and advised security personnel that they had a package for defendant. Minutes later defendant appeared in the lobby and identified himself as John Andreas. Labek told defendant he had a package for him, and defendant replied, “Good. Where is it?” Labek told him it was in the van, and defendant offered to help carry it into the building.

At defendant’s request, the container was brought to the hallway outside his apartment door. Labek and Lipsek then walked to the end of the hall and stationed themselves around the corner. Labek observed defendant pull the container into his apartment out of Labek’s sight. Thirty or forty-five minutes elapsed between the delivery and defendant’s arrest. During that time Labek was either in the hallway or on another floor of the building. He did not keep defendant’s apartment under continuing surveillance. Lipsek left the building after delivery of the package to obtain a State search warrant. Five minutes after defendant pulled the package into the apartment, Labek observed defendant exit the apartment and walk to a window or doorway at the end of the hallway. He looked outside, in both directions and downward and then reentered his apartment. Labek next observed defendant in the hallway with the container, at which time he was placed under arrest and the container was seized. Labek testified the container next to defendant was the same as that delivered earlier. Labek and Lipsek placed the container into the van, and took it to the Chicago Police Department Headquarters at 11th and State Streets. Labek did not observe the contents of the container during this time and was not present when it was opened.

Lipsek testified that after he had left defendant’s residence to get a search warrant for the apartment and the container, he received a radio message advising him that defendant had been arrested and to disregard the warrant, which he did. He apparently returned to the apartment and assisted in taking defendant into custody and in the removal of the container to police headquarters. He could not see into the container when it was seized, as it was closed. He was present later that evening when, at police headquarters, the container was opened, the table within it was broken apart, and marijuana was found within. At that time defendant was in custody, but not present. No State or Federal warrant of any kind had been secured.

On June 3, 1980, the court granted defendant’s motion to suppress. The State appeals from that ruling.

I

Both parties agree that whether the warrantless search of the container at police headquarters offends the Fourth Amendment depends upon whether defendant had a legitimate expectation of privacy in the contents of the container. (Katz v. United States (1967), 389 U.S. 347, 351, 19 L. Ed. 2d 576, 582, 88 S. Ct. 507, 511; Rakas v. Illinois (1978), 439 U.S. 128, 143, 58 L. Ed. 2d 387, 401, 99 S. Ct. 421, 430.) Defendant submits, and we agree, that United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (hereinafter Chadwick), and Arkansas v. Sanders (1979), 442 U.S. 753, 61 L. Ed. 2d 235, 99 S. Ct. 2586 (hereinafter Sanders) are controlling in this regard. In Chadwick, agents had probable cause to believe that a footlocker which defendants had transported by train contained marijuana. When the defendants claimed the footlocker, the agents arrested them and seized the footlocker. It was searched without a warrant, while under the exclusive control of Federal agents, Ba hours after the arrests.

The Supreme Court in Chadwick held that the contents of the footlocker were clearly under the protection of the Fourth Amendment:

“By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination. No less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment Warrant Clause. There being no exigency, it was unreasonable for the Government to conduct this search without the safeguards a judicial warrant provides.” 433 U.S. 1,11, 53 L. Ed. 2d 538, 548, 97 S. Ct. 2476, 2483.

In Sanders, the Supreme Court, applying Chadwick, concluded that the warrantless search of an unlocked suitcase based upon probable cause was similarly unauthorized. Both cases thus hold that in such circumstances, probable cause alone does not eliminate the warrant requirement: “The mere reasonableness of a search, assessed in the light of the surrounding circumstances, is not a substitute for the judicial warrant required under the Fourth Amendment.” (Sanders, 442 U.S. 753, 758, 61 L. Ed. 2d 235, 241, 99 S. Ct. 2586, 2590.) (Accord, People v. Hamilton (1979) , 74 Ill. 2d 457, 386 N.E.2d 53; People v. Redmond (1979), 73 Ill. App. 3d 160, 390 N.E.2d 1364; People v. Vogel (1978), 58 Ill. App. 3d 910, 374 N.E.2d 1152; People v. Von Hatten (1977), 52 Ill. App. 3d 338, 367 N.E.2d 566.) Defendant at bar manifested the same “expectation that the contents would remain free from public examination” as did defendant in Chadwick. His expectation of privacy in a sealed package was at least as viable as one’s expectation of privacy in an unlocked suitcase. (See Sanders, 442 U.S. 753, 762 n.9, 61 L. Ed. 2d 235, 244, n.9, 99 S. Ct. 2586, 2592 n.9.) The fact that Customs agents may have had the right to inspect the package does not diminish all legitimate expectations of privacy from governmental intrusion into packages that have been shipped. See e.g., United States v. Kelly (8th Cir. 1976), 529 F.2d 1365.

The State contends that Chadwick and Sanders are not controlling in the case at bar because once Customs officials lawfully opened the container and searched it, finding contraband, defendant no longer had a reasonable expectation of privacy in the container, relying upon United States v. Emery (1st Cir. 1976), 541 F.2d 887, 889-90, overruled on other, . grounds by United States v. Miller (1st Cir. 1980), 636 F.2d 850, 854, United States v. Washington (7th Cir. 1978), 586 F.2d 1147, 1154, and United States v. Garcia (7th Cir. 1979), 605 F.2d 349, 354, cert, denied (1980) , 446 U.S. 984, 64 L. Ed. 2d 261, 100 St. Ct. 1835. In both Emery and Washington, the courts found proper the insertion of electronic tracking devices into packages which were found, after lawful, searches by Customs agents, to contain contraband. After the devices were inserted, the packages were delivered to each defendant, and were subsequently' seized by officials. The courts did indeed find that the insertion of such devices did not violate defendants’ justifiable expectation of privacy in the contraband goods. In neither case, however, was the fact that the, package contained contraband said to justify the subsequent search occurring after the contraband was seized from defendants; the searches at issue in those cases were those which occurred when the beeper devices were inserted. To be noted also, in Emery, officials secured a search warrant prior to entering the apartment in which defendants (and the contraband) were quartered and, in Washington, a court order had been secured authorizing the placement of the electronic beacon in the package prior to its insertion therein. Garcia is similarly inapposite in this context since it concerns a warrantless search of easily movable hand luggage incident to and contemporaneous with a lawful arrest. The State’s reliance upon other Federal and State cases considering this issue which predate Chadwick and Sanders is misplaced in light of the law now established by the latter cases.

The State nevertheless maintains that, given the legitimacy of the original search by Customs agents, the subsequent search of the container at the police station was lawful since the container was the object of a “controlled delivery.” Where there is a prior legal search of property, a valid seizure by police officers predicated upon that search, and a delivery to the addressee made under the direction and control of police, a subsequent search which occurs at the termination point of the delivery may be conducted without a warrant as it constitutes a reassertion of possession and is deemed part of the first search and seizure. (United States v. Bulgier (7th Cir. 1980), 618 F.2d 472, cert, denied (1980), 449 U.S. 843, 66 L. Ed. 2d 51, 101 S. Ct. 125; United States v. Andrews (10th Cir. 1980), 618 F.2d 646, cert, denied (1980), 449 U.S. 824, 66 L. Ed. 2d 26, 101 S. Ct. 84; United States v. Ford (10th Cir. 1975), 525 F.2d 1308; United States v. DeBerry (2d Cir. 1973), 487 F.2d 448.) In each of the foregoing cases the facts are similar: a lawful or private search disclosed the presence of contraband in a package about to be shipped to a receiving defendant; State police or Federal agents were called in, who notified police or agents at the package’s point of destination; the contents of the package were marked or identified, except in Bulgier and Andrews; the package was delivered under close surveillance; defendant was arrested shortly after he or she retrieved the package; and the package was thereafter seized and searched. Both Bulgier and Andrews hold that Sanders and Chadwick are not applicable in a “controlled delivery” situation, since in neither case was there an initial legitimate search “beyond the commands of the Fourth Amendment.” United States v. Andrews (10th Cir. 1980), 618 F.2d 646, 651.

The State argues that since the initial airport search in the present case by Customs agents was the functional equivalent of a border search which did not require a warrant or probable cause (United States v. Ramsey (1977), 431 U.S. 606, 52 L. Ed. 2d 617, 97 S. Ct. 1972; United States v. Odland (7th Cir. 1974), 502 F.2d 148, cert, denied (1974), 419 U.S. 1088, 42 L. Ed. 2d 680, 95 S. Ct. 679; United States v. Washington), the seizure of the contraband by agent Labek at the Customs depot was also legitimate. Consequently, the State insists, when defendant was arrested, the police merely reasserted control over the container and were not required to secure a warrant before opening the container at the police station. Assuming the initial search by Customs agents was legitimate, the circumstances of the instant case disclose factual departures from the cases cited by the State. In those cases, except in Bulgier and Andrews, the contraband was marked, a procedure not followed here. Labek was not present when the table was replaced in the container and the latter was resealed. Further, neither defendant nor his apartment was kept under continuous or close surveillance. Instead of remaining in sight of police prior to his arrest, defendant here had taken the container into his apartment, out of view of authorities. During that same time, neither Labek nor Lipsek remained in the hallway. Instead of retaining dominion and control of the package, as in the “controlled delivery” cases, the authorities here relinquished such control.

Contrary to the State’s contention, law enforcement officials were not “absolutely sure” of the contents of the container: Labek could not be absolutely sure of its contents when he delivered it as he was not present when the table was replaced and the container was resealed; he had not marked or otherwise identified it in any way; Lipsek only knew of the container’s contents through hearsay; and there is no certainty that the contents of the package were the same before and after the package was brought into defendant’s apartment. Given these circumstances, it cannot be said that the officials retained the requisite dominion and control over the container and its contents, which are the essential elements of a controlled delivery. The retrieval of the container in defendant’s hallway therefore must be deemed to have constituted a new seizure distinct from the original seizure on February 21. (See United States v. Edwards (1st Cir. 1979), 602 F.2d 458, 467, n.9.) The officials may have had probable cause to suspect what was in the container; however, as the United States Supreme Court has held, probable cause alone does not justify its search. United States v. Chadwick; Arkansas v. Sanders.

II

The State next argues that the search at issue was valid as a search of the person and the area within his immediate control incident to a lawful arrest, relying upon Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034, and that such a search, which could have been made at the time of arrest, may also be conducted later when the accused arrives at his place of detention. (United States v. Edwards (1974), 415 U.S. 800, 803, 39 L. Ed. 2d 771, 775-76, 94 S. Ct. 1234, 1237 (hereinafter Edwards); People v. Campbell (1977), 67 Ill. 2d 308, 367 N.E.2d 949.) In Edwards, which involved the search of clothes worn by the arrestee while in detention, the Supreme Court held that personal effects in the defendant’s possession at the place of detention are subject to search without a warrant because of his reduced expectancy of privacy, due to the arrest, as to such items. In Campbell, a search was conducted of two of the defendants’ nine pieces of luggage as they were placed under arrest, and all nine were searched later at police headquarters. The Illinois Supreme Court upheld the search, noting “searches and seizures that could be made * * * at the time of arrest may legally be conducted later when the accused arrives at the place of detention.” (Campbell, at 319.) The court also observed that the ultimate test is the reasonableness of the search.

The government in Chadwick raised a similar argument, that the search of the defendants’ footlocker which took place in the Federal building after defendants were taken into custody was justified as a search incident to an arrest. The Supreme Court rejected that argument, stating that where a search is remote in time or place from the arrest, no exigency exists. When law enforcement officers have reduced the item seized to their exclusive control, thereby eliminating the danger that an arrestee might seize a weapon or destroy evidence, a search of that property is no longer incident to an arrest. (433 U.S. 1, 15, 53 L. Ed. 2d 538, 551, 97 S. Ct. 2476, 2485.) Here also it must be concluded that the officers’ search of defendant’s container in the police station was no longer incident to his arrest. Having taken control of the container and table upon defendant’s arrest, there was no further risk that any evidence or contraband within the container would be destroyed or removed by defendant and no exigent circumstances existed which justified a warrant-less search thereof hours later at police headquarters. In footnote 10 of Chadwick, the court states, “[ujnlike searches of the person, 0 0 0 United States v. Edwards, 415 U.S. 800 (1974), searches of possessions within an arrestee’s immediate control cannot be justified by any reduced expectations of privacy” * (433 U.S. 1,16 n.10,53 L. Ed. 2d 538, 551 n.10,97 S. Ct. 2476, 2486 n.10.) The distinction between the situation described in Edwards and that in Chadwick was also discussed in United States v. Berry (7th Cir. 1977), 560 F.2d 861, vacated on other grounds (7th Cir. 1978), 571 F.2d 2, in which the warrantless search of an attache case occurring after the arrest was held improper, following Chadwick. The Berry court found that by its Chadwick decision, the Supreme Court had limited Edwards to its own facts. Clearly Edwards only applies to personal effects, such as clothing on the person of the accused, and is not controlling here. To be noted is that People v. Campbell was decided before the Supreme Court opinions in Chadwick and Sanders were rendered. The trial court properly suppressed the evidence seized from the container and table in the case sub judice.

Ill

Finally, the State argues that defendant cannot invoke the protection of the Fourth Amendment since the container was abandoned in the hallway. The State contends that Agent Labek had a right to be in the hallway, first, because defendant had invited him there to deliver the package, and second, because the common hallway of a building is not a constitutionally protected area, citing People v. Carroll (1973), 12 Ill. App. 3d 869,876, 299 N.E.2d 134, cert, denied (1974), 417 U.S. 972, 41 L. Ed. 2d 1144, 94 S. Ct. 3180. Neither a search nor a seizure was conducted in a common hallway in Carroll under circumstances even vaguely analogous to those existing in the present case. It is the privacy interest in the contents of the container, not the privacy interest in the hallway, which is at issue here. As to the former interest, “that expectation of privacy is not diminished simply because the owner’s arrest occurs in a public place.” Sanders, 442 U.S. 753, 766-67, 61 L. Ed. 2d 235, 247, 99 S. Ct. 2586, 2594.

The State also contends that defendant abandoned the container in that he did not take minimal precautions to preserve his privacy rights, citing People v. Blake (1981), 93 Ill. App. 3d 538,417 N.E.2d 682. In Blake, the police were found to, be justified in searching a bag filled with contraband which was kept in the basement laundry room in an apartment building. The Blake court declined to find a reasonable expectation of privacy in that case since the landlord had given permission for the search, the laundry room was not immediately adjacent to the apartment, and the defendant, in storing the contraband in an ordinary paper bag, hgd failed to make a reasonable attempt to preserve his privacy. The instant case involves a search of a sealed container taken from defendant in a hallway adjacent to his apartment. Blake is clearly inapposite. Further, nowhere in the record is it suggested that defendant abandoned the container. To the contrary, Labek described defendant, prior to his arrest, as standing “in the hallway with the container.” (Emphasis added.) Also, during the State’s cross-examination of Labek, counsel referred to the container as being with defendant at the time of his arrest, and was not corrected by Labek.

For the foregoing reasons, the trial court’s ruling must be affirmed.

Affirmed.

DOWNING and PERLIN, JJ„ concur.

       In Bulgier, where marking did not occur, the court stated that such identification was not necessary where the container in which the contraband was repackaged was never out of the agent's sight and where it was observed that the defendant had not opened the package up to the moment of arrest. 618 F.2d 472, 474, 478.


author: Mr. PRESIDING JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENISE CURRY, a/k/a Denise Jackson, Defendant-Appellant.
    First District (1st Division)
    No. 80-994
    Opinion filed September 21,1981.

      Patrick A. Tuite, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Mark E. Thompson, and Peter J. Vilkelis, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

After a bench trial, defendant Denise Curry was convicted of possession of 30 grams or more of a controlled substance, to wit: heroin (Ill. Rev. Stat. 1975, ch. 56/2, par. 1402(a)(1)) and sentenced to four years. The sole issue on appeal is whether the trial court erred in denying defendant’s motion to quash her arrest and to suppress evidence seized from her purse after her arrest.

For the reasons stated herein we affirm.

The record reveals that on November 23,1977, a warrant was issued to search for heroin and narcotic paraphernalia in room 308 of the 50th on the Lake Travel Lodge (hereinafter travel lodge) and on the person of a Denise Curry, also known as Debbie, described as a black female, 5'1", 105 pounds, medium brown complexion between the ages of 25 and 30 years old. The complaint for the search warrant signed by Officer Bernard O’Reilly indicated that the request for the warrant was based on information supplied by a police informant who had provided O’Reilly with information 13 times during the past 2J¿ years, which resulted in seven pleas of guilty. Narcotics were recovered in each of the 13 instances. The informant stated that he purchased a brown substance that he later determined to be heroin for $20 at room 308 of the travel lodge on the evening of November 23, 1977, from a female that the informant knew as Denise Curry. He noted that two males and one other female also were present in room 308 at the time of his purchase.

The only State witness at the hearing to quash the arrest and suppress evidence was Officer Edward A. Wielosinski, who worked in his off duty hours as a security guard at the travel lodge. He testified that at 10:30 p.m. on November 26, 1977, he met Officer O’Reilly who came to the travel lodge to execute a search warrant which named room 308 and Denise Curry as the subjects of the search. Wielosinski accompanied O’Reilly and other police officers to room 308. Because no one was in the room at this time, Wielosinski used a pass key to gain entrance and remained in the room during the search. During the search which lasted about 30 minutes, the police discovered a .357 magnum revolver. While still in the room, O’Reilly called to determine whether the gun was registered or stolen. While it was not reported stolen, it also was not registered. After the search was completed, the officers removed the gun from the room. No heroin, heroin paraphernalia, or other contraband was discovered. After leaving room 308, the police waited at the premises for Denise Curry until 2 a.m. at which time they left. At this time, Wielosinski was told to call the district station when Denise Curry returned. Wielosinski had the desk clerk plug the door lock of room 308 for nonpayment of rent so that the door could only be opened with a pass key.

Wielosinski further testified that at 3:45 a.m. a woman came to the desk and paid the rent for room 308. She was a pregnant black woman, between 5'7" and 5'9" and weighing in excess of 130 pounds. The desk clerk summoned Wielosinski and informed him that the rent on room 308 had been paid. The record is unclear as to whether the clerk informed him that Miss Curry or Denise Curry had paid the rent. Wielosinski accompanied the woman to room 308 to open the door. He then returned to the lobby and called the district station to report that the person named in a search warrant was now at the travel lodge. Shortly thereafter, the occupant of room 308 telephoned the desk clerk to report that a revolver had been taken from the room. Wielosinski spoke to the defendant and told her that he would come to her room. By this time, the police had arrived pursuant to his call and they accompanied him to defendant’s room. Different officers responded to this call than those who earlier had executed the warrant. Defendant began to tell the officers about the gun but was interrupted by Wielosinski who informed her that he was a police officer and that the gun which she had called about was at the 21st Police District. Wielosinski then arrested her for failure to register a firearm within 10 days of its purchase (Chicago Municipal Code 1976, §11.1 — 7) and failure to have a City of Chicago firearms registration permit (Chicago Municipal Code 1976, §11.1 — 8). Upon being arrested, defendant lunged for her purse and, after a brief struggle, Wielosinski gained control of the purse. Upon searching the purse, he discovered a quantity of heroin in excess of 30 grams.

The record further reveals that defendant was charged with possession of a controlled substance (Ill. Rev. Stat. 1975, ch. 56M, par. 1402(a)(1)) and failure to register a firearm with the City of Chicago (Chicago Municipal Code 1976, §11.1 — 7). Following the denial of her motion to quash the arrest and suppress the evidence, defendant pled guilty to possession of less than 30 grams of a controlled substance (Ill. Rev. Stat. 1975, ch. 56/á, par. 1402(b)), a lesser offense. However, upon retaining new counsel, she withdrew this plea and the charge for possession of greater than 30 grams of a controlled substance was reinstated. A bench trial was held at which time defendant stipulated to her possession of a substance analyzed as heroin. She was sentenced to a statutory minimum of four years. This appeal follows.

Defendant contends that the trial court erred in denying her motion to quash her arrest and to suppress the evidence seized during the subsequent search. Defendant argues that the heroin seized from her £urse during the search following her warrantless arrest for possession of an unregistered firearm should be suppressed because her arrest was without probable cause and was, therefore, unreasonable. See People v. Roebuck (1962), 25 Ill. 2d 108, 183 N.E.2d 166; People v. Harshbarger (1974), 24 Ill. App. 3d 335, 321 N.E.2d 138.

Defendant urges that her warrantless arrest for possession of an unregistered firearm was unlawful because Officer Wielosinski lacked “reasonable grounds to believe that [defendant] is committing or has committed an offense.” (Ill. Rev. Stat. 1975, ch. 38, par. 107 — 2(c).) In order for a police officer to make a valid warrantless arrest, there must be, first, probable cause to believe that an offense was committed and, second, probable cause to believe that the person arrested committed the offense. (People v. Robinson (1976), 62 Ill. 2d 273, 276, 342 N.E.2d 356, 358; People v. McKnight (1977), 55 Ill. App. 3d 1052, 1055, 371 N.E.2d 946, 948.) Defendant contends that neither of these two elements was present.

Addressing the first of these two elements, defendant argues that if Officer Wielosinski had sought an arrest warrant for defendant based upon the information which he possessed at the time of her arrest concerning defendant, the premises and the firearm, a magistrate would not have found probable cause that an offense was committed. Defendant places her reliance on the fact that Officer Wielosinski did not have any information concerning when the firearm was purchased, who had a possessory interest in the weapon, who had acquired the weapon, and whether a registration application had been filed with the city. Absent this information, defendant urges that Officer Wielosinski had a mere suspicion that a violation of sections 11.1 — 7 and 11.1 — 8 of the Chicago Municipal Code had occurred.

The State contends that the test for probable cause does not require the arresting officer to have the detailed knowledge concerning the firearm as defendant urges. The State argues that a prima facie case that the ordinance has been violated is established by showing that the firearm was not registered. (City of Chicago v. Dowdell (1970), 126 Ill. App. 2d 58, 65, 261 N.E.2d 499, 502.) The State urges that the information possessed by Officer Wielosinski was sufficient to establish a prima facie case and, therefore, was sufficient to give him probable cause that a violation of the ordinance had been committed.

We agree with the State. In Dowdell, this court examined the ordinance at issue in the present case and concluded that evidence which is sufficient to show that a firearm is not registered is sufficient to establish a prima facie case that the ordinance was violated. (126 Ill. App. 2d 58, 65, 261 N.E.2d 499,502.) Based upon the testimony adduced at the hearing on defendant’s motion to suppress, we believe that the evidence was sufficient to establish a prima facie case and, therefore, there was probable cause to believe that a violation of the ordinance had occurred. Spinelli v. United States (1969), 393 U.S. 410, 419, 21L. Ed. 2d 637, 645, 89 S. Ct. 584, 590; People v. Robinson (1976), 62 Ill. 2d 273, 276, 342 N.E.2d at 358; People v. McKnight (1977), 55 Ill. App. 3d 1052,1055, 372 N.E.2d 946, 948.

Defendant next argues that there was no probable cause to believe that defendant committed the offense of possession of an unregistered firearm. Defendant contends that her arrest was unlawful because the height, weight and pregnancy of defendant did not comport with the description of the “Denise Curry” named in the search warrant. In support of her position, defendant relies upon People v. Staes (1968), 92 Ill. App. 2d 156,235 N.E.2d 882, for the proposition that the description of the person to be searched pursuant to a search warrant must be sufficiently particular so that there is no doubt and no discretion left to the executing officer. Defendant further argues that particularized identification is necessary to avoid any unreasonable or unauthorized invasion of another’s privacy and to insure that a warrant does not become an illegal general warrant. (92 Ill. App. 2d 156, 159-60, 235 N.E.2d 882, 884-85.) As additional support for her position, defendant cites Ybarra v. Illinois (1979), 444 U.S. 85, 62 L. Ed. 238, 100 S. Ct. 338; People v. Creach (1980), 79 Ill. 2d 96, 402 N.E.2d 228, cert, denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564; People v. Gabbard (1979), 78 Ill. 2d 88, 398 N.E.2d 574; and United States v. Jones (5th Cir. 1980), 619 F.2d 494.

Defendant also claims that the State failed to establish her connection with the firearm removed from the room at the travel lodge. She asserts that she never acknowledged possession or ownership of the gun; that she was never seen in the room with the weapon; and that there was no evidence which established that the room was registered to her. Defendant claims that her reporting of the weapon’s disappearance to the desk is no different than a house guest reporting the disappearance of an appliance to the owner. Defendant argues that the State has shown, at most, that she had mere knowledge of the gun’s existence. Defendant urges that her mere presence in the travel lodge room was not sufficient to permit the court to infer that she owned or possessed a firearm. See Ybarra v. Illinois; United States v. Romano (1965), 382 U.S. 136,15 L. Ed. 2d 210, 86 S. Ct. 279.

The State disputes the importance that defendant places upon the description of “Denise Curry” in the search warrant. Rather, the State contends that there were sufficient similarities in the description and lpcation of defendant to sustain the trial court’s finding that there was probable cause to arrest defendant for possession of an unregistered firearm. The State urges that the action of Officer Wielosinski in arresting defendant must be examined in light of the existing facts and circumstances. The State argues that the trial court found that it was reasonable for Wielosinski to assume that defendant was the person named in the warrant and, therefore, probable cause existed to arrest her. The State contends that the finding of probable cause was not “manifestly erroneous” and should not be disturbed. People v. Williams (1974), 57 Ill. 2d 239, 246, 311 N.E.2d 681, 685, cert, denied (1974), 419 U.S. 1026, 42 L. Ed. 2d 302, 95 S. Ct. 506.

We agree with defendant that the description of the person to be searched must be described with sufficient particularity to avoid leaving the executing officer with any doubt or discretion. (People v. Staes (1968), 92 Ill. App. 2d 156, 235 N.E.2d 882.) However, we do not believe that the description of “Denise Curry” in the search warrant violated this principle. The warrant described “Denise Curry” with sufficient particularity to provide Officer Wielosinski with probable cause to arrest defendant for violation of the City of Chicago ordinance. Although there were some discrepancies between the height, weight and pregnancy of defendant and the “Denise Curry” named in the warrant, there were sufficient similarities, especially the name and address of “Denise Curry” and defendant, to sustain the finding of the trial judge that there was probable cause to arrest defendant based upon her description in the search warrant.

Those cases which defendant cites in support of her contention are distinguishable from the present case. In Ybarra v. Illinois (1979), 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338, and People v. Creach (1980), 79 Ill. 2d 96, 402 N.E.2d 228, cert, denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564, defendant’s conviction was overturned because the State made use of evidence obtained through unlawful means. In Ybarra, officers executing a search warrant in a tavern searched defendant who was a patron in the tavern. Ybarra was not the subject of the warrant and did nothing to provide the executing officers with any reason to believe that he had committed a crime. In the present case, defendant was the subject of the search warrant and her actions led Officer Wielosinski to believe that she had committed the offense of possession of an unregistered weapon. In Creach, the conviction of co-defendant Ruppert was reversed because of the State’s use of evidence which was obtained after an unlawful arrest. Aside from Ruppert’s association with Creach, the officers who arrested Ruppert without a warrant did not possess any information which would establish that Ruppert had committed any crime. In the present case, defendant occupied the room which was the subject of a search; she was named in the search warrant; and she indicated to Officer Wielosinski that a gun was missing from her room. This information which Wielosinski possessed at the time he arrested defendant was sufficient to provide him with a reasonable basis to believe that defendant had committed the crime of possession of an unregistered firearm.

Defendant also relies upon People v. Gabbard (1979), 78 Ill. 2d 88, 402 N.E.2d 228, and United States v. Jones (5th Cir. 1980), 619 F.2d 494, to support her position. In Gabbard, defendant was walking along a highway when he was stopped by a State police officer for questioning as to defendant’s reason for being on the road. Six days prior to the stop of defendant, the officer saw a police bulletin which described an escapee from a Federal prison; however, the officer did not base his stop of defendant upon this description. During his questioning of defendant, the officer discovered a drivers license which belonged to someone other than defendant. Defendant was subsequently arrested and taken into custody. The Illinois Supreme Court held that the stop and arrest were unlawful because the officer did not have probable cause to arrest defendant based upon the general description of the escapee and upon the evasive answers given the officer during questioning. The supreme court did not believe that the officer had reasonable grounds to believe that an offense was being committed or had been committed by defendant. Similarly, in Jones, a general description of a person wanted in connection with a gas station robbery was broadcast over the police radio. The officer heard only a portion of the description and saw defendant who, the officer believed, matched the description. The officer called to defendant to stop and defendant began to flee. The officer caught defendant after the chase and arrested defendant. Subsequently, it was learned that defendant was wanted in connection with a savings and loan robbery, the crime for which he was convicted. The Fifth Circuit reversed defendant’s conviction and held that there was no probable cause to arrest defendant for the gas station robbery based upon the general description of the suspect. The foregoing cases are distinguishable from the instant case because the officers were seeking to question defendant for investigative purposes only. The officers did not have any articulable suspicions that the defendants were or had been engaged in criminal conduct. In the instant case, however, Officer Wielosinski had reasonable grounds to believe that defendant had committed the offense of possession of an unregistered firearm since defendant had the same name and address of the person named in the search warrant and an unregistered weapon had been found in defendant’s room.

Defendant’s final contention is that the State failed to establish that she had any possessory interest in the weapon. We do not believe that it is necessary for the State to establish actual physical possession of the weapon to sustain a conviction, rather proof of constructive possession of the gun by defendant is sufficient to uphold the trial court’s decision. (See People v. Nettles (1961), 23 Ill. 2d 306, 178 N.E.2d 361, cert, denied (1962), 369 U.S. 853, 8 L. Ed. 2d 12, 82 S. Ct. 939; People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072.) In Nettles, the supreme court stated that where narcotics are discovered on the premises over which defendant has control, it is permissible to infer that defendant had both possession and knowledge which is sufficient to sustain a conviction for unlawful possession of narcotics. (23 Ill. 2d 306, 308-09, 178 N.E.2d 361, 363.) Similarly, in the instant case, we believe that it is permissible for the trial court to infer that defendant possessed the weapon based upon her possession of the premises which were the subject of the search and her statement that a gun was missing from her room. The evidence presented at the hearing on the motion to suppress was sufficient for the trial judge to infer that defendant had knowledge of and possessed the weapon seized from her travel lodge room. See People v. Williams (1981), 98 Ill. App. 3d 844.

We believe that the trial judge’s finding that there was probable cause to arrest defendant was not “manifestly erroneous.” (People v. Williams (1974), 57 Ill. 2d 239, 246, 311 N.E.2d 681, 685, cert, denied (1974), 419 U.S. 1026, 42 L. Ed. 2d 302, 95 S. Ct. 506.) Since the arrest of defendant was lawful, Officer Wielosinski could lawfully search the purse of defendant after she lunged for the purse. (Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034; Ill. Rev. Stat. 1975, ch. 38, par. 108 — 1(a).) Accordingly, the decision of the trial court denying defendant’s motion to quash her arrest and to suppress evidence was proper. Therefore, defendant’s conviction is affirmed.

Judgment affirmed.

GOLDBERG and O’CONNOR, JJ„ concur.


author: Mr. JUSTICE UNVERZAGT

text:
    GENEVA RESIDENTIAL ASSOCIATION, LTD., et al., Plaintiffs-Appellants, v. THE CITY OF GENEVA et al., Defendants-Appellees.
    Second District
    No. 80-857
    Opinion filed September 8,1981.
    David V. Flynn, of Geneva, for appellants.
    Stephen M. Cooper and Charles A. Radovich, both of Geneva, for appellees.
   Mr. JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiffs appeal from the judgment of the circuit court of Kane County granting summary judgment in favor of the defendants in a case involving the validity of a city ordinance granting a special use permit for the operation of a restaurant.

In Geneva Residential Association, Ltd. v. City of Geneva (1979), 77 Ill. App. 3d 744, this court reversed the trial court’s order dismissing counts I and II of the complaint and remanded the cause to the trial court.

Count I alleged that the Geneva Plan Commission had failed to make the finding that the granting of the requested special use permit for the operation of a restaurant would not be injurious to surrounding properties. Count II alleged that the applicant James Pankow failed to adduce evidence in favor of the special use permit sufficient to warrant the plan commission granting such permit. At the original trial the city contended that since the plan commission was only an advisory body, its failure to make certain findings set forth in the city’s zoning ordinance pertaining to special permits was not material since the city council by passing the ordinance granting the special use had in effect “cured” the plan commission’s inadequate consideration of the question. In the original case this court did not agree with that contention, holding that the city was bound by its own ordinance to make certain findings before granting a special use permit. The pertinent part of the Geneva Zoning Ordinance reads as follows:

“31.2705. Standards.
No special use shall be recommended by the plan commission unless such commission shall find:
A. That the establishment, maintenance, or operation of the special use will not be detrimental to or endanger the public health, safety, or general welfare;
B. That the special use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted nor substantially diminish and impair property values within the neighborhood;
C. That the establishment of the special use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district;
D. That the exterior architectural appeal and functional plan of any proposed structure will not be so at variance with either the exterior architectural appeal and functional plan of the structures already constructed or in the course of construction in the immediate neighborhood or the character of the applicable district, as to cause a substantial depreciation in the property values within the neighborhood;
E. That adequate utilities, access roads, drainage and/or necessary facilities have been or are being provided;
F. That adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion in the public streets; and
G. That the special use shall, in all other respects, conform to the applicable regulations of the district in which it is located, except' as such regulations may, in each instances, be modified by the council pursuant to the recommendations of the plan commission.”

On January 10, 1977, the plan commission held a public hearing on the granting of a permit to operate a restaurant on the property owned by James Pankow. The minutes of that meeting reveal that at the beginning of the meeting all of the members of the plan commission were of the opinion, in varying degrees, that the granting of a permit to operate a restaurant at that location might infringe on at least paragraph B of section 31.2705 of the zoning ordinance and possibly would infringe on other paragraphs as well. After further discussion, however, the chairman stated that he felt that it would be appropriate for the commission to “propose anything to make this use more palatable for anyone at this time, whether the commission or otherwise.” Commissioner Ball then proposed certain restrictions on the use and presented them as a motion as follows:

(1) Screening of the building to a height of seven feet — no windows in the public dining room or kitchen area being exposed to abutting residential property.
(2) Securing of garbage area and garbage to be stored in covered containers.
(3) Exterior lighting to be of low intensity and low elevation.
(4) Kitchen exhaust fumes not to be vented toward adjoining residential properties and blower noises to be kept to a minimum.

After further discussion, the motion was amended to add a closing hour of 9:30 on weekdays and 3 p.m. on Sundays and a requirement that the entrance to the restaurant be only through the front door and the service bar door to be used only for emergencies. As amended, the motion was carried by a vote of five of the seven members of the plan commission. The chairman then noted at the conclusion of the meeting that “this is now a recommendation of the plan commission to the council.”

It is apparent from the foregoing that while the plan commission recommended to the city council that the special use be allowed, it did not make a finding consonant with paragraph B of section 31.2705 of the Geneva Zoning Ordinance, that the special use permit requested would “not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted * °

In the first appeal of this case, this court in reinstating two counts of the complaint and remanding for further evidence bearing on these counts said:

“For the reasons stated above, the order of the circuit court dismissing counts I and II of plaintiffs’ original complaint is reversed, and the cause is remanded with directions to reinstate these counts of the complaint. On remand, the trial court is directed to permit the introduction of evidence showing substantial, rather than exact, compliance with the procedures required by statute and ordinance. If the court determines that procedural defects exist which result in substantial noncompliance with the governing statutes and ordinances, thén the ordinance granting the special use should be declared void. We further point out that procedural errors occurring before the plan commission may be considered insubstantial if cured by the action of the city council; for instance, if the court determines that the plan commission failed to make a required finding, but the evidence shows that the city council reassessed the record and on its ow,n investigation made the required finding, then the ordinance granting the special use should be upheld.” 77 Ill. App. 3d 744, 759.

At the second trial, the city presented to the trial court two sets of affidavits, one by the plan commission, the other by the council members in support of the validity of their decision to grant the special use. The affidavits of the plan commissioners were all executed on September 28, 1977, before the appeal of the first case was heard. The affidavits were identically worded and stated in pertinent part that the members of the plan commission had initially been inclined, on the basis of the evidence presented to them, to question whether the standards set out in section 31.2705 of the zoning ordinance were being met. However, after certain conditions had been attached to the granting of the permit, the commissioners were of the opinion the standards of said section had been met and therefore had recommended approval of the petition for the special use to the city council. These affidavits were not used in the first trial.

The second set of affidavits were by members of the city council and were all executed in May 1980. They were couched in identical language and stated that they as aldermen had “conducted an independent investigation of the proposed special use and were aware, prior to voting for approval, that the proposed use would meet all building and zoning requirements, including the conditions set forth in the special use section of the ordinance, and believed that the proposed special use would not only not be injurious to existing values and uses in the area but that the proposed use would, in fact, increase property values in the area.”

It is apparent that the affidavits in question were in response to the language appearing in this court’s opinion in the first appeal, to-wit:

“We further point out that procedural errors occurring before the plan commission may be considered insubstantial if cured by the action of the city council; for instance, if the court determines that the plan commission failed to make a required finding, but the evidence shows that the city council reassessed the record and on its own investigation made the required finding, then the ordinance granting the special use should be upheld.” 77 Ill. App. 3d 744,759.

These affidavits were obviously designed to comply with the suggestion in this court’s first opinion that “insubstantial” defects in the procedure before the plan commission might be “cured” by the city council reassessing the record and making its own investigation and making the required findings. This the city council evidently felt it had done through the affidavits.

We do not find the affidavits of either the plan commission or the city council to amount to substantial compliance with the requirements of section 31.2705 of the Geneva Zoning Ordinance. These affidavits were made after the fact and do not represent “findings” made at the time the petition was pending. While the plan commission did end up by “recommending” to the city council that it grant the special use permit, the plan commission obviously did so in deference to the council and not as a result of its own specific findings. The plan commission, while voting to recommend granting the special use, never found that such use would not depreciate the value of properties in the immediate vicinity. While the trial court accepted the affidavits of the members of the city council and the commissioners as substantially complying with the special zoning requirements, we think they fall short of such compliance and are an attempt by the city council to evade the standards set out in the zoning ordinance.

We repeat here the language cited in the first appellate opinion, taken from Treadway v. City of Rockford (1962), 24 Ill. 2d 488, 496:

‘It is obvious that when a statute prescribes certain steps as conditions to the enactment of an ordinance these steps must be substantially complied with * ° (77 Ill. App. 3d 744, 755.)

The legislative history of special-use permits bears out the intention of the legislature to restrain the initially conceived lack of restraint on municipalities in this regard. Thus, as set out in the opinion of the first appeal of this case, following the concurring opinion of Justices Klingbeil and House in Ward v. Village of Skokie (1962), 26 Ill. 2d 415, the legislature amended the Illinois Municipal Code to reflect the views expressed by those justices as to the necessity of objective standards in granting special uses. Section 11 — 13—1.1 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 11 — 13—1.1) now provides in pertinent part as follows:

“A special use shall be permitted only after a public hearing before some commission or committee designated by the corporate authorities, with prior notice thereof given in the manner as provided in Sections 11 — 13—6 and 11 — 13—7. A special use shall be permitted only upon evidence that such use meets standards established for such classification in the ordinances, and the granting of permission therefor may be subject to conditions reasonably necessary to meet such standards.”

Nor are the individual wishes or opinions of the aldermen a satisfactory substitute for the required specific findings of the plan commission. Findings by the plan commission are required by the ordinance because presumably, due to the nature of their function and their experience and expertise, the members of the plan commission have a more objective and detached view of the effect of a proposed special use on the immediate neighborhood than is expected of council members, whose position is more general. We do not regard the language quoted above from this court’s opinion in the first appeal as importing that a satisfactory substitute for this more detached opinion is achieved by the councilmen reciting in unison their own personal opinions and desires on the question. Indeed, we note a paragraph of the affidavits indicates that the aldermen had in mind the wishes of the Third Street Merchants Association, who were promoting a restaurant in the area in question. While we in no way criticize the council for considering the wishes of legitimate businessmen in the area on this question, they do not take the place of the objective findings mandated by the zoning ordinance.

We do not regard the affidavits filed by the plan commission and the city council as having “cured” the substantial procedural deficiencies which preceded the granting of the special use in this case.

For the reasons stated, the judgment of the circuit court of Kane County is reversed.

Judgment reversed.

HOPF and VAN DEUSEN, JJ., concur.


author: Mr. JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRETT HOYER, Defendant-Appellant.
    Second District
    No. 80-847
    Opinion filed September 22,1981.

      David P. Schippers, of Schippers, O’Brien & Long, of Chicago, and Stuart L. Whitz, of Aurora, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Gene Armentrout, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE HOPF

delivered the opinion of the court:

Defendant pleaded guilty to armed robbery and was sentenced to 25 years in the Department of Corrections. He appeals, contending that the court should have permitted him to withdraw his plea and that the sentence imposed was excessive.

On the afternoon of March 5,1979, the 17-year-old defendant, having earlier ingested three “hits” of LSD and smoked hashish, beat Manutchehr Kaboli to death and robbed him of his wallet. Defendant was charged by indictment with three counts of murder, armed robbery, and armed violence.

After being admonished by the court as required by Supreme Court Rule 402 (Ill. Rev. Stat. 1979, ch. 110A, par. 402), defendant pleaded guilty to armed robbery in exchange for the State’s agreement to enter a nolle prosequi with regard to the remaining charges.

The first issue defendant raises is that his guilty plea was involuntarily and unknowingly entered. He bases this on the fact that in admonishing him before the entry of his plea the court did not advise him that he could be subject to an extended term pursuant to section 5 — 8—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2).

At the sentencing hearing the prosecuting attorney stated that due to the brutal nature of the crime the State could ask for an extended term. He added that the State was not asking for that but for 30 years, the maximum term for armed robbery, a Class X felony, when extended term is not involved. The trial judge told defendant at the time of sentencing that psychiatric reports relating the effects of LSD on defendant’s behavior were the reason it would not consider an extended term.

Section 5 — 8—2 of the Criminal Code provides for the imposition of an extended term of imprisonment for offenders when aggravating factors are involved. This section provides a safeguard to prevent the defendant pleading guilty from unwittingly exposing himself to such a sentence:

“If the conviction was by plea, it shall appear on the record that the plea was entered with the defendant’s knowledge that a sentence under this Section was a possibility. If it does not so appear on the record, the defendant shall not be subject to such a sentence unless he is first given an opportunity to withdraw his plea without prejudice.” Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(b).

Defendant argues that because he was not advised of the possibility of an extended term at the time he pleaded guilty the court should have later granted his motion to withdraw his plea. Defendant contends he was subject to, that is, exposed and vulnerable to, an extended term or in danger of receiving such a sentence.

Supreme Court Rule 402 (Ill. Rev. Stat. 1979, ch. 110A, par. 402) required that in a hearing on a plea of guilty a defendant must be admonished of the possible minimum and maximum penalties prescribed by law. The rule requires substantial compliance. (People v. Krantz (1974), 58 Ill. 2d 187, 317 N.E.2d 559.) However, even when the rule is not substantially complied with, a reviewing court will not vacate a guilty plea absent an allegation and proof of prejudice. (People v. Dudley (1974), 58 Ill. 2d 57, 316 N.E.2d 773; People v. Cohn (1980), 91 Ill. App. 3d 209, 414 N.E.2d 543.) It has been held, for example, that where consecutive terms are possible a failure to admonish defendant of such a possibility at the hearing on a guilty plea is not a ground for withdrawal of that plea where in fact no consecutive terms are imposed. (People v. Whitlow (1980), 86 Ill. App. 3d 858, 411 N.E.2d 1354; People v. Waud (1976), 43 Ill. App. 3d 85, 356 N.E.2d 628, affd on other grounds (1977), 69 Ill. 2d 588; People v. Mass (1975), 31 Ill. App. 3d 759, 334 N.E.2d 452; People v. Back (1974), 18 Ill. App. 3d 746, 310 N.E.2d 420.) Further, where the trial court understates the possible maximum penalty but sentences within the limits it had stated, no prejudice results, and defendant is not entitled to withdraw his guilty plea. People v. Hrebenar (1971), 131 Ill. App. 2d 877, 266 N.E.2d 733.

There is no authority directly addressing the question that arises when a trial court fails to apprise a defendant of the possibility of an extended sentence. Defendant argues that the above-cited cases do not support the State’s position that the fact he was not sentenced to an extended term negates any error by the court in failing to admonish defendant of the possibility. He argues that section 5 — 8—2 states not merely that a defendant not advised of the possibility of an extended term may not be so sentenced, but also that he shall not be “subject to” an extended term. Defendant contends that the court’s comment that it would not consider an extended term because “psychiatric reports have some significance” evidences the fact that he was “subject to” an extended term at that time. We disagree. We think that, regardless of the court’s comment, the failure to admonish defendant precluded the imposition of an extended term. It was incorrect for the court to assume it had the option of so sentencing defendant, but where a defendant by law may not be sentenced to an extended term and he is not so sentenced we do not think reversible error is committed.

Defendant also argues that the court should have permitted him to withdraw his plea because the prosecuting attorney induced him to plead guilty by advising his counsel that an extended penalty would not be sought. At the hearing on the guilty plea the prosecutor advised the court that the agreement consisted of defendant changing his plea to guilty on the armed robbery charge in exchange for the State dropping the charges on the remaining counts. The prosecutor added that “basically * * * there is no agreement with regard to sentencing.” Defendant and his attorney stated that the agreement was correctly stated by the prosecution. At the sentencing hearing the prosecutor commented that “[d]ue to the brutality of the case and the surrounding circumstances * * * we could ask for an extended term which would make it anywhere between 12 and 60 years. We are not asking for it in this case. What we are asking for is the maximum [penalty], that being 30 years.” At the hearing on defendant’s motion to withdraw his guilty plea defendant’s attorney informed the court that “I didn’t mention to [defendant] that there was a possibility of an enhanced sentence. I told him it should not be considered in his determination whether or not to enter a plea, because I think the State had informed me they had no intention of seeking an enhanced sentence.”

We think the prosecutor’s comment to the trial court that the State could seek an extended term was merely a comment meant to reflect the seriousness with which it viewed the crime. Judging by defendant’s understanding of the plea agreément, the State could not seek such a sentence for defendant. What the State sought, however, was not an extended term but the maximum penalty witbin the- usual range of sentences for armed robbery. According to defendant’s counsel, the State promised defendant it would not seek an extended term, and it did not. At most, its comment was an empty threat. Additionally, we think the State’s remark does not show that the State misrepresented to defendant the possible penalties.

Defendant’s final contention is that his 25-year sentence was excessive.

At the hearing in aggravation and mitigation, defendant testified that on March 5,1979, he had taken three “hits” of LSD and had smoked some hashish and marijuana. Defendant told two of his friends that he had a business dispute with Mr. Kaboli, a junk dealer. Defendant stated that he and his friends decided to go to the junkyard to see if they could get defendant’s money back. Once at the junkyard, defendant took a baseball bat from his car and hid it underneath his jacket. The three boys entered the yard and defendant hid while the other youths attempted to lure Kaboli towards him. The boys succeeded in luring Kaboli to defendant, but defendant “decided not to do anything.” He “couldn’t do it”; he “couldn’t hit him.” All three boys left the junkyard. Later, after the other boys had berated defendant for failing to hit Kaboli they returned to the junkyard and defendant again hid while the other boys attempted to lure Kaboli towards him. Kaboli was suspicious and ordered the other boys out of the junkyard. Defendant testified that he attempted to leave the junkyard but Kaboli saw him and asked him what he was doing there. Defendant stated that he took the bat from underneath his coat and hit Kaboli on the shoulder. Kaboli fell, rose from the ground and came after defendant. Defendant then hit Kaboli over the head repeatedly. Defendant further testified that during the incident he would sometimes know what he was doing, while at other times he would not know what he was doing because of the effects of the drug.

Defendant also offered into evidence three psychiatric reports. One report indicated that defendant was incapable of forming a requisite intent to commit murder because he was a novice with LSD usage. The second report indicated that if it were not for defendant’s use of the drug, defendant would not have committed the crime. The third report indicated that although defendant’s ability to appreciate the criminality of his act was diminished, defendant could have had the requisite mental state to commit murder despite his drug usage. Several other people testified on defendant’s behalf. They indicated that he did not have a violent disposition, that he was a good student and that he came from a closely knit family.

The presentence report indicated that defendant had one misdemeanor conviction, for acquisition of liquor by a minor. That offense occurred on May 3, 1980.

Defendant first asserts that the sentence of 25 years was more than three times the length of the average sentence imposed for armed robbery throughout the State. In support of this assertion defendant relied upon the “1979 Statistical Presentation” prepared by the Illinois Department of Corrections in compliance with section 5 — 5—4.3 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—4.3). The record reveals that defendant failed to present this survey to the trial court, however.

Defendant next asserts that the court did not give adequate attention to his age, remorse, rehabilitation potential, morals and general character background and history. The result, he contends, is a sentence greatly at variance with the purpose and spirit of the law and an abuse of discretion.

The trial court’s remarks at the close of the sentencing hearing reveal, however, a deep concern for the factors that defendant says it ignored. The court’s words also reflected, however, its recognition that defendant voluntarily ingested drugs and committed a terrible crime with tragic consequences for all concerned, not least of all for defendant. A trial court is in a better position than a court in review to consider the myriad of factors involved in imposing the proper sentence. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) A reviewing court may modify a sentence only upon a finding of an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet.) We must conclude that the trial court, having given full consideration to those matters which comprise the sentencing determination, did not abuse its discretion in sentencing defendant to 25 years in the Department of Corrections.

For the foregoing reasons we affirm the judgment and the sentence of the trial court.

Affirmed.

UNVERZAGT and REINHARD, JJ„ concur.