author: Mr. JUSTICE WELCH

text:
    JOHN KINDHART, Petitioner-Appellant, v. LARRY MIZELL, Warden of Vienna Correctional Center, Respondent-Appellee.
    Fifth District
    No. 81-150
    Opinion filed October 21, 1981.
    — Rehearing denied November 18, 1981.
    Jan Susler, of Prison Legal Aid, of Carbondale, for appellant.
    Tyrone C. Fahner, Attorney General, of Chicago (Herbert Lee Caplan, Melbourne A. Noel, Jr., and Ronald Lee Bell, Assistant Attorneys General, of counsel), for appellee.
   Mr. JUSTICE WELCH

delivered the opinion of the court:

The petitioner, John Kindhart, appeals from the denial of his petition for writ of habeas corpus. We affirm that denial.

The facts are not disputed. In 1976, petitioner was convicted of involuntary manslaughter and sentenced to not less than three nor more than nine years’ imprisonment. (Ill. Rev. Stat. 1975, ch. 38, pars. 9 — 3(b) and 1005 — 8—1(b)(4).) Also a parole term of three years attached to petitioner’s sentence by operation of law. (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 8—1(e)(2).) Petitioner was subsequently released on parole on April 3, 1978. The parole period in addition to his term of imprisonment was reduced to one year to conform with the amended Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, pars. 1003 — 3—8 and 1005 — 8—1(d)). Petitioner testified at the hearing on his habeas corpus petition that he understood that he would be discharged from his sentence on April 3, 1979. Petitioner continued to report to his parole officer until August 1979, four months beyond the alleged expiration date. Petitioner was arrested on August 27,1979, on charges totally unrelated to his involuntary manslaughter conviction. Petitioner admitted he was on parole at the time of arrest. One of the offenses was committed on January 25, 1979. He was convicted and sentenced to imprisonment for three years on one conviction and two years on the other. The court ordered that the sentences be served concurrently; however, the court further ordered that the sentences be served consecutively to his involuntary manslaughter conviction. On September 8, 1979, petitioner was advised by Joseph Opey, parole officer, that he would be declared a parole violator. On March 27, 1980, the Prisoner Review Board declared petitioner a parole violator. An affidavit of John M. Taylor, record office supervisor of the Vienna Correctional Center, was attached to the warden’s answer to petition for writ of habeas corpus. The affidavit stated that petitioner’s original custody date was February 4, 1976; that the original parole date was April 3,1978; and that the discharge date was November 4, 1981. No one from the Prisoner Review Board or Department of Corrections testified at the hearing.

Section 3 — 3—9(a) of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1003 — 3—9(a)) states, in part:

“If prior to expiration or termination of the term of parole or mandatory supervised release, a person violates a condition set by the Prisoner Review Board to govern the term, the Board may:
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(3) revoke the parole or mandatory supervised release and re-confine the person for a term computed in the following manner:
(i) (A) For those sentenced under the law in effect prior to this amendatory Act of 1977, the recommitment shall be for any portion of the imposed maximum term of imprisonment or confinement which had not been served at the time of parole and the parole term, less the time lapsed between the parole of the person and the commission of the violation for which parole was revoked.”

From the date of his parole violation, petitioner is deemed to owe the State of Illinois service for the remainder of his maximum term of his sentence, giving credit only for time faithfully served in prison, good-time credits, and time on parole before violation. (People ex rel. Barrett v. Crowe (1944), 387 Ill. 53, 55 N.E.2d 84.) A person on parole remains subject to the sentence of commitment to the Department of Corrections for the period of time specified by the court. Parole alters only the method and degree of confinement during the period of commitment. (People v. Williams (1977), 66 Ill. 2d 179, 361 N.E.2d 1110.) In the case at bar, no order of discharge was issued by the Prisoner Review Board pursuant to section 3 — 3—8 of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1003 — 3—8), because the Prisoner Review Board had determined that petitioner’s discharge date was November 4, 1981. Petitioner argues that he was subject to the one-year parole provided for in section 5 — 8—1(d)(3) of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp. ch. 38, par. 1005 — 8—1(d)(3)). Although petitioner is correct, he ignores that this particular section provides that the parole term is in addition to the term of imprisonment. When petitioner was released on parole, he was subject to the court imposed sentence. Petitioner had not served even three years, the minimum court imposed sentence on his involuntary manslaughter conviction, at the time he violated parole, and had served approximately four years at the time he was declared a parole violator. That sentence had not expired and he had not been discharged from the sentence by the Prisoner Review Board.

Section 3 — 3—8(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1003 — 3—8(b)) provides:

“The Prisoner Review Board may enter an order releasing and discharging one from parole or mandatory supervised release, and his commitment to the Department [of Corrections], when he is likely to remain at liberty without committing another offense.”

Assuming that petitioner’s parole did expire in April 1979, he still had not been released from the jurisdiction of the Department of Corrections by the Prisoner Review Board. As petitioner’s total commitment of his sentence had not expired, his “parole” could properly be revoked.

Lastly, petitioner contends that his right to due process was violated due to the 14-month delay between commission of the January 25, 1979, offense and the March 27, 1980, declaration by the Prisoner Review Board. Petitioner was not arrested on the criminal charges underlying the revocation of parole until August 1979. The foregoing delay may have been the result of an ongoing undercover investigation. (See People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.) Petitioner acknowledged that in September 1979, the chief parole officer for Adams County, Illinois, told petitioner that he would be declared a parole violator. The mittimus for petitioner’s drug convictions is dated February 5, 1980. Less than two months later, petitioner was declared a parole violator. Upon the foregoing facts, petitioner was not deprived of his right to due process. Moody v. Daggett (1976), 429 U.S. 78, 50 L. Ed. 2d 236, 97 S. Ct. 274.

For the reasons presented above, we affirm the judgment of the Circuit Court of Johnson County.

Affirmed.

KARNS and HARRISON, JJ„ concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD R. WEGMAN, JR., Defendant-Appellant.
    Fifth District
    No. 80-222
    Opinion filed November 5, 1981.
    John H. Reid and Patrick M. Carmody, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles V. Romani, Jr., State’s Attorney, of Greenville (Martin N. Ashley, Gillum Ferguson, and Stephen E. Norris, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE WELCH

delivered the opinion of the court:

Edward Wegman, Jr., the defendant, was charged with reckless homicide and murder of his brother, Kenneth Wegman, and August F. Haislar, for the events of October 27,1979. The defendant moved before trial to suppress the fruits of a consent search of his car and his apartment. The motions were denied. One murder count and the two reckless homicide charges were dismissed by the State and the matter proceeded on two counts of murder. The defendant, his lawyer, and the State’s Attorney stipulated to the facts of the case in a bench trial, with the recommendation of a 25-year sentence in the event of conviction. He was found guilty on both counts and sentenced to 25 years on each, the sentences to run concurrently.

The only issue raised on appeal is the correctness of the denial of the motion to suppress the evidence seized in the search of the defendant’s car and apartment.

The facts are as follows: Kenneth Wegman and August F. Haislar were riding a motorcycle in Bond County, Illinois, on the night of October 27,1979. They were in a head-on collision with a 1971 Plymouth automobile. They were found dead at the scene with the abandoned car. The car was traced to Kenneth’s brother Edward. A warrant was issued for the arrest of Edward Wegman on a charge of reckless homicide. Edward Wegman lived in St. Charles, Missouri. At about 5:45 p.m., on November 2, 1979, St. Charles police officers Robert Eppes, Richard Tiemann, and Mark Schulte arrested Wegman at his home in response to a teletype message about the warrant. They told him the warrant was for reckless homicide, searched him, handcuffed him, and read him his Miranda warnings. They asked him if he knew what the warrant was all about and he said no. They took him to the St. Charles Police Department and turned him over to the booking officer to be “booked in.”

At about 7:15 p.m. that evening, agents Gary Leming and Jimmy Bivens of the Illinois Department of Law Enforcement, Division of Criminal Investigation, arrived at the St. Charles police station in an effort to interview Edward Wegman. Wegman was brought out to an interview room, where Leming advised him of his Miranda rights (Miranda v. Arizona (1966), 384 U.S. 436,16 L. Ed. 2d 694, 86 S. Ct. 1602). He went over a warning form with Wegman and had him initial each of six items as an indication that Wegman understood them; then Wegman signed the form at 7:29 p.m. The form was witnessed by Leming and Bivens.

Leming then read a copy of the arrest warrant to Wegman and asked if he understood what it was about. Wegman said that he did not. Leming asked if Wegman knew that his brother and Augie Haislar were dead. He said, “yes — are you going to try to pin that on me?” Wegman asked the officers, “What do you have on me?” and “Who are the witnesses?” Then Wegman told Leming “that he wanted to talk to an attorney and I [Leming] told him that would be okay.”

Leming stopped questioning Wegman at that point. No attorney was supplied to Wegman, and he apparently did not talk to an attorney until after his initial appearance before a judge in Bond County on November 9,1979.

Immediately after Leming stopped questioning Wegman on November 2, Wegman asked him, “What is my mom and dad thinking about the situation?” Leming replied that he did not know. Wegman then said that he did not care because his parents never did anything to him or for him. Leming again stopped talking with Wegman. A few minutes later Leming asked Wegman if he would give them permission to search his apartment and car. Leming read to Wegman the consent forms which stated that he had a right to refuse the search and that they would need a warrant if he did not consent. The form did not mention anything about the required showing of probable cause in order to obtain a search warrant. Wegman signed the forms, which are dated November 2, 1979. No time is indicated on the form. No other conversation took place between Wegman and the agents at that time. The entire interview, including the consents to search, only lasted about 20 minutes according to police testimony.

The officers searched Wegman’s 1978 Pontiac, which was in police custody. They seized a license plate which was lying on the floor.

Officers Leming, Bivens, and Illinois State Trooper Gross conducted a search of Wegman’s St. Charles apartment and seized two insurance policies on the life of Kenneth Wegman with Edward Wegman as beneficiary and a money order receipt. They also seized a pair of blue jeans and a vinyl jacket which had blood on them. They saw a white cotton glove which they did not seize until a subsequent search on November 5, 1979.

The question is whether the articles found as a result of defendant’s having signed a consent to search form must be suppressed because the defendant had previously invoked his right to an attorney and the police resumed questioning before the defendant was afforded his right to counsel. The question involves elements of the fourth, fifth, and sixth amendment constitutional guarantees, as extended to the States by the fourteenth amendment.

The fourth amendment guarantees against warrantless searches and seizures do not apply in cases where a valid consent to search has been obtained by the searching authorities. Wegman did execute consents to search the car and the apartment. The consent forms included an acknowledgement of the right not to consent to the search. The question is, did the fact that he was in custody, charged with a crime, and had requested a lawyer, negate his consent given without a lawyer?

In recognition of his fifth amendment guarantee against compulsory self-incrimination, Wegman was given his Miranda warnings. He said he wanted a lawyer and the police stopped questioning him. He asked them what his parents thought of the situation and they said they didn’t know. No violation of Miranda occurred, because he initiated the conversation. (Edwards v. Arizona (1981),_U.S.__,_, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1884-85.) They stopped talking again. But then the agents approached him and asked for his consent to search the car and the apartment. No lawyer had talked with Wegman. There is no indication that he was given a phone to call a lawyer himself or that the police made any effort to call one for him. The police did not interrogate him about the offense, but they did ask for his consent to searches which had the potential of turning up self-incriminating evidence.

The sixth amendment guarantees a right to counsel to an accused. Miranda required that if a defendant, in response to being told that he had a right to one, asked for a lawyer, all questioning must cease until he had talked with a lawyer. The penalty for violation of the rule was exclusion from evidence at trial of any statements or communications made by the defendant after he asked for a lawyer and before he got one. Miranda v. Arizona (1966), 384 U.S. 436, 475, 16 L. Ed. 2d 694, 724, 86 S. Ct. 1602, 1628.

Does the protection against “compulsory self-incrimination” and guarantee of right to counsel of Miranda extend beyond statements to evidence uncovered by a search? Miranda is generally thought to be limited to protecting statements and “communications.” (Schmerber v. California (1966), 384 U.S. 757, 764, 16 L. Ed. 2d 908, 916, 86 S. Ct. 1826, 1832; United States v. Lemon (9th Cir. 1977), 550 F.2d 467; People v. Phillips (1979), 197 Colo. 546, 594 P.2d 1053.) The Supreme Court has held that Miranda-type warnings, including the right to refuse consent, are not required prior to obtaining a consent to search. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 247, 36 L. Ed. 2d 854, 874, 93 S. Ct. 2041, 2058.

That court has not been presented with the question as here, however, of whether the Miranda warnings, if given, extend to the consent to search.

General rules governing validity of consents to search were set out by the Supreme Court in Schneckloth. The consent to search must be given voluntarily, that is it must not be induced by explicit or implicit means or by implied threat, force or coercion. The voluntariness of the consent is to be determined by an examination of the totality of the circumstances. Schneckloth was not in custody at the time of the consent to search, and for that reason the argument has been made that Miranda, not Schneckloth, should apply to custody consent situations. The California Appellate Court said:

“Reasonable minds may differ as to exactly what the Supreme Court attempted to achieve in Miranda.
# » #
However one interprets Miranda, what becomes subject to exclusion * * * are ‘statements, whether exculpatory or inculpatory, stemming from custodial interrogation.’
e o #
A consent to search, as such, is neither testimonial, nor communicative in the Fifth Amendment sense.
# O <*
The fact that the search leads to incriminating evidence does not make the consent testimonial ° 0 People v. Thomas (1970), 12 Cal. App. 3d 1102, 1110, 91 Cal. Rptr. 867, 872.

The Colorado Supreme Court has stated that ° rights afforded under Miranda v. Arizona, supra, do not extend to the Fourth Amendment.” People v. Phillips (1979), 197 Colo. 546, 549, 594 P.2d 1053, 1054.

If Miranda does extend to consents to search, then the agents acted improperly in eliciting the consents after Wegman had exercised his Miranda right by requesting an attorney. From our research this appears to be a case of first impression in Illinois, and we cannot find that the United States Supreme Court has made the matter clear.

“The ruling of the United States Supreme Court in Miranda v. Arizona, supra was designed as a prophylactic rule to correct and prevent abusive police practices in the area of confessions. The Supreme Court has not acted to extend the rule in Miranda to the Fourth Amendment. In the absence of such an extension of the rule in Miranda by the Supreme Court, this court shall continue to adhere to the rule that in order for a search with consent to be reasonable the consent must be voluntary, and that the question of whether the consent was freely and intelligently given is to be determined according to the circumstances in each case.” (Phillips v. People (1969), 170 Colo. 520, 527-28, 462 P.2d 594, 597.)

We agree with the Colorado Supreme Court that lacking clearer direction from the Supreme Court, our proper inquiry is into the voluntariness of the consent to search. Wegman was read aloud and had an opportunity to read silently a consent to search form which stated that he had a right not to consent to a search and that a search warrant would be required if he did not. He had not been in custody long, and had indicated his intent to exercise his right to remain silent and to consult an attorney. The agents carefully stopped questioning him when he asked • for an attorney. Wegman initiated some conversation afterwards by asking about his parents. No evidence of physical abuse or coercion was present.

We find that, under the totality of the circumstances, the defendant’s consents to search were voluntary. Therefore, the fruits of the searches should not be suppressed. Accordingly, we affirm the trial court’s decision.

Affirmed.

JONES and HARRISON, JJ., concur.


author: Mr. PRESIDING JUSTICE KASSERMAN

text:
    MERIDETH TAYLOR et al., Plaintiffs-Appellants, v. DAVID HOCKER et al., Defendants-Appellees.
    Fifth District
    No. 80-525
    Opinion filed November 9, 1981.
    Hunter and Schwartz, of Carbondale, and Harris, Lambert & Wilson, of Marion, for appellants.
    Mitchell and Armstrong, Ltd., of Marion, for appellees.
   Mr. PRESIDING JUSTICE KASSERMAN

delivered the opinion of the court:

Plaintiffs appeal from an order of the circuit court of Jackson County granting defendants’ motion for summary judgment pursuant to section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57). Plaintiffs, Merideth Taylor and Melody Beiler, instituted a negligence action against defendants, David Hocker and Alan Squitieri. The amended complaint alleged that defendants operated the University Mall Shopping Center in Carbondale, Illinois, and that on the evening of September 25,1976, plaintiffs were assaulted and stabbed by an unknown assailant in the mail’s parking lot. The plaintiffs urge that defendants were liable for the harm suffered by plaintiffs as a result of the criminal attack because defendants failed to provide adequate security or sufficient lighting and failed to warn of the danger of being assaulted while on the parking lot.

Defendants moved for summary judgment, and the trial court, after considering the pleadings, depositions, and arguments offered by the parties, concluded that defendants were entitled to judgment as a matter of law and granted defendants’ motion for summary judgment. It is from this order that plaintiffs appeal. We affirm.

Plaintiffs’ depositions disclosed that on September 25, 1976, at approximately 8 p.m., plaintiffs went shopping at the University Mall, having parked near the front of the mail’s parking area. After about an hour, the plaintiffs returned to their car, and as they were entering the vehicle, a stranger approached them and requested a ride to Southern Illinois University. When the plaintiffs refused, the stranger became more insistent and suddenly became violent. He pulled a knife and began stabbing the plaintiffs. Melody Beiler was stabbed in the chest and back, and Merideth Taylor was stabbed in the back.

Ms. Beiler stated that some lights in the parking area were burned out but that the area was sufficiently lighted that a potential assailant could not hide in the darkness. Ms. Taylor related that there were lights on in the parking lot, and that the darkness did not prevent her from seeing her attacker, but that the lighting seemed dim.

The only other deponent was Philip Favreau, who had managed the mall since it opened on October 30, 1974. He stated that University Mall employed security personnel who patrolled the common area of the mall, including the parking lot. The security employees were hired primarily for traffic and crowd control, but they also handled reported incidents of shoplifting and traffic accidents. The parking lot was also regularly patrolled by officers from the Carbondale Police Department.

Mr. Favreau further stated that the parking lot was well lighted. He related that the only criminal activities he was aware of occurring at the mall were shoplifting incidents; however, he recalled an occasion in which the manager of the J.C. Penney store, contiguous to but not a part of the mall, was struck by an irate customer at the J.C. Penney store on September 17,1976.

The lease between the defendants and the store owners, which was made part of the defendants’ answers to interrogatories, provided, in part, as follows:

“(i) Common Area Charge. In advance payable in equal monthly installments * * * an annual sum 999 shall ° ° ° be applied toward the TENANT’S proportionate share of all costs and expenses 9 9 9 paid or incurred by LANDLORD in operating, managing, cleaning, protecting, equipping, lighting, repairing, replacing and maintaining malls, whether open or enclosed, walkways, corridors, public areas, common restrooms and meeting areas, vehicle parking areas, drive-ways and other common areas 9 9 9 within the Shopping Center. Such cost and expense shall include, but not be limited to, the cost of: ° ° ° maintaining, repairing, and replacing, cleaning, lighting, snow and ice handling and line painting of all vehicle parking areas and other outdoor Common Areas 9 9 9 and maintaining security personnel in, on and about the Common Areas, including offsite traffic control on streets adjacent or contiguous to the Shopping Center * *

The plaintiffs filed a bill of particulars which suggested that defendants were put on notice of the likelihood of criminal activity by virtue of their awareness of the incident involving the manager of the J.C. Penney store on September 17, 1976, and another incident in which Mrs. Colleen Battaglia “may have been abducted” from the J.C. Penney parking lot on or about July 9, 1973, which was prior to the opening of University Mall. Plaintiffs’ counsel also submitted an affidavit stating that he intended to introduce evidence of the Carbondale Police Department reports of crime which occurred at University Mall between March and September, 1976. An attached exhibit indicated that the mall had numerous shoplifting incidents, 19 thefts from automobiles, four automobile thefts, and one bicycle theft.

After considering the pleadings, the depositions, and the affidavits, the trial court granted defendants’ motion for summary judgment, and this appeal resulted.

It is recognized that summary judgments should be rendered with great caution; however, where a plaintiff fails to establish an element of the cause of action through the pleadings, depositions, admissions, and affidavits on file, summary judgment for the defendant is proper. (Schoondyke v. Heil, Heil, Smart & Golee, Inc. (1980), 89 Ill. App. 3d 640, 411 N.E.2d 1168; Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 411 N.E.2d 229.) It is elementary that there can be no liability in tort for negligence unless defendant has breached a duty owed to the plaintiff. (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 306 N.E.2d 39.) Therefore, the primary question presented in this appeal is whether defendants had sufficient notice or knowledge of previous criminality in the area so as to give rise to a duty to protect the plaintiffs from criminal attacks of third parties. The question of whether the owners of a shopping center owed a duty to protect a patron from criminal attack was addressed by the court in O’Brien v. Colonial Village, Inc. (1970), 119 Ill. App. 2d 105, 255 N.E.2d 205. In rejecting plaintiff’s contention that the daily city-like presence of thousands of people on the premises raised a duty to anticipate and guard against criminal action, the court stated:

” ° [T]hé liability at common law is not that of an insurer, but is based on fault. [Citations.] Obviously, every risk which is foreseeable does not create a duty to an injured person. In addition, the likelihood of injury, the magnitude of the burden of guarding against it, and the desirability of placing the burden upon a defendant must also be considered. [Citations.]” 119 Ill. App. 2d 105, 107, 255 N.E.2d 205, 207. See also Annot., 93 A.L.R.3d 999 (1979); Restatement (Second) of Torts §344, comment / (1965).

Although we are aware of no Illinois case that has considered the precise issue presented by the case at bar, the court in Meyer v. Riverview Park Co. (1950), 342 Ill. App. 218, 96 N.E.2d 379, stated that the prerequisite of a good complaint in similar cases is that it must allege not only danger of assault but that the defendant had notice of such danger and reasonably should have anticipated it. Cf. Altepeter v. Virgil State Bank (1952), 345 Ill. App. 585, 104 N.E.2d 334; Moore v. Yearwood (1960), 24 Ill. App. 2d 248, 164 N.E.2d 215.

Other jurisdictions, however, have had occasion to consider factual circumstances similar to the case at bar. It has been held that general allegations that various other crimes had been committed on a shopping center’s premises are not sufficient to allow the case to go to the jury. (Cornpropst v. Sloan (1975), 528 S.W.2d 188.) At least one jurisdiction, however, has suggested that awareness of thefts occurring on the premises gives rise to a jury question on the duty to protect customers from attacks by third parties. Morgan v. Bucks Associates (E.D. Pa. 1977), 428 F. Supp. 546.

A case closely resembling the situation present herein is Shipes v. Piggly Wiggly St. Andrews, Inc. (1977), 269 S.C. 479, 238 S.E.2d 167, decided by the Supreme Court of South Carolina. There, defendant’s motion for a directed verdict was granted in a suit filed by a plaintiff who was injured in an attack by third persons in a super market parking lot. The court held that where no violent crimes were shown to have been committed in the area of the store and the manager of the store was aware only of shoplifting and thefts being committed on the premises, the store owner was not under a duty to protect its customers against criminal attacks because the store owner did not know or have reason to know of such criminal attacks. We find the reasoning in Shipes persuasive and conclude that the rule announced therein should apply in the instant case.

Here, the plaintiffs have shown only one incident of violence, and that involved an irate customer striking the manager of the J.C. Penney store at the store located next to University Mall. Although police reports indicate that there were occurrences of shoplifting and thefts in and on the premises, we reject plaintiffs’ argument that knowledge of crimes against property, commonplace in all shopping centers, is sufficient to give rise to a duty to protect customers from assaults by third persons. To hold otherwise would place liability on shopping centers regardless of the foreseeability. In this regard, liability should be imposed “only if the defendant is negligent in not guarding against the possible crime — which is to say, if the foreseeable risk is an unreasonable one, in the light of the burden of taking precautions.” Prosser, Torts §33, at 175-76 (4th ed. 1971).

In light of these relevant concerns, we conclude that defendants in the case at bar did not owe a duty to the plaintiffs to take security precautions against or warn of violent attacks of third persons in the shopping center parking lot. Our holding in this regard does not suggest that shopping center owners or operators may never be charged with a duty to protect customers, and we would here note that where there are factual allegations indicating an awareness on the part of the owners or operators of a history of assaults in the parking facilities provided to business invitees (Butler v. Acme Markets, Inc. (1981), 177 N.J. Super. 279, 426 A.2d 521), or where the facts suggest notice that the area is frequented by undesirable characters (Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497), liability may arise and summary judgment would be inappropriate. Such evidence, however, is not present in the case before us.

The fact that plaintiffs allege a duty to provide sufficient lighting does not alter the result. Assuming, without deciding, that defendants owed a duty to maintain adequate lighting to deter crime in the parking lot, there is no showing in this case that any breach of such duty existed. (See Shipes v. Piggly Wiggly St. Andrews, Inc. (1977), 269 S.C. 479, 485, 238 S.E.2d 167, 169.) Moreover, the claimed lighting inadequacy does not appear to be either the cause in fact of the criminal attack (see Shaner v. Tucson Airport Authority, Inc. (Ariz. App. 1977), 117 Ariz. 444, 573 P.2d 518), or the proximate and legal cause of the plaintiffs’ injuries. (See Altepeter v. Virgil State Bank; Cornpropst v. Sloan.) The instant case differs from Kenny v. Southeastern Pennsylvania Transportation Authority (3d Cir. 1978), 581 F.2d 351, where plaintiff established that there were no lights in the area of the train platform where she was attacked. Here, the plaintiffs’ depositions conclusively establish that the attack in the instant case did not result because the assailant was lurking in the darkness created by poor lighting and indicates that the lighting did not increase the likelihood, nor contribute to the commission, of the crime. There is an insufficient showing of any lighting inadequacy in the mail’s parking lot and no allegation whatsoever that defendants had notice or knowledge of insufficient lighting. Under these circumstances, we will not disturb the summary judgment entered by the trial court.

Finally, relying on Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596, the plaintiffs maintain that defendants had a duty based upon a voluntary contractual undertaking. In Pippin, our supreme court held that a security services corporation was liable for harm suffered by criminal attacks on premises owned and operated by the Chicago Housing Authority where the corporation specifically agreed to provide 0 0 0 protective services for the purpose of guarding [the Authority’s] properties # 0 ° and the protection of persons thereon.’ ” (Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 207, 399 N.E.2d 596, 599.) Here, the plaintiffs’ claim is based upon the “Common Area Charge” clause of the lease defendants entered into with the lessees of the. various stores in the shopping center. This provision placed responsibility upon defendants for maintaining security personnel in, on, and about the Common Areas. It is evident that the undertakings alleged in Pippin and in the present case are dissimilar. In the instant case, when broadly interpreted, the lease provision relied upon by the plaintiffs does not, as in Pippin, provide for the protection of third persons from criminal attacks.

In Stelloh v. Cottage 83 (1964), 52 Ill. App. 2d 168, 201 N.E.2d 672, the court held plaintiff’s complaint failed to state a cause of action where it did not show on its face that the negligence alleged fell within the scope of an alleged duty. The court there stated:

“The undertaking alleged (that defendant’s private police would give a special and added protection to the security and safety of its tenants) cannot reasonably be construed as insurance of absolute protection against crime. Even the assignment of an armed personal bodyguard with full police authority (which defendant did not have) could not guarantee such a result.” (Stelloh v. Cottage 83 (1964), 52 Ill. App. 2d 168, 171, 201 N.E.2d 672, 673.)

The reasoning expressed in Stelloh is applicable to the case at bar. The fact that defendants agreed to provide security personnel under a common areas care and maintenance clause found in a standard form lease cannot be construed as a voluntary undertaking to protect all shopping center customers from criminal attack. We decline to imply such a burdensome duty upon defendants under the provisions of their lease with the store owners.

For the foregoing reasons, the judgment of the circuit court of Jackson County is affirmed.

Affirmed.

HARRISON and WELCH, JJ., concur.


author: Mr. JUSTICE LONDRIGAN

text:
      In re MARRIAGE OF MARY SIMMONS, Petitioner-Appellant, and CHARLES SIMMONS, Respondent-Appellee.
    Fifth District
    No. 80-444
    Opinion filed November 10, 1981.
    Eric Robertson, of Leuders, Robertson & Konzen, of Granite City, for appellant.
    David H. Adamson, III, of Belleville, for appellee.
   Mr. JUSTICE LONDRIGAN

delivered the opinion of the court:

Petitioner, Mary Simmons, appeals the order distributing property following dissolution of her 29-year marriage to respondent, Charles Simmons.

Respondent was employed as postmaster of Venice, Illinois, for 18 years, and is currently employed as postmaster of Bronson, Texas. Respondent’s contribution toward his Federal pension was $13,000 as of February 1979. His gross income for 1978 was approximately $21,000. Petitioner was never employed outside the home during the marriage. She currently has no income, no assets, and lives with and does the housekeeping for her sister.

In May 1974, both petitioner and respondent executed a $26,500 personal note and a $25,000 mortgage note on the marital home. When respondent left the marital home in June 1975; he conveyed his interest in the marital home to petitioner and gave her a bill of sale for the equipment in the parties’ barbeque business. The barbeque business had debts of $1,800 at that time. Soon thereafter, petitioner sold the marital home for $35,000 and received $600 upon sale of the barbeque business equipment. Respondent made no contribution toward petitioner’s support from the time he left the marital home up to the time the marriage was dissolved in November 1979.

Petitioner had acquired nonmarital property by inheritance, and these assets were also sold by petitioner after respondent had left the marital home. The proceeds from the marital assets, as well as a portion of petitioner’s nonmarital assets, were paid by petitioner to retire the marital debts. The marital debts were paid in full before dissolution.

The trial court found that the marital property was sold by petitioner with the proceeds used to pay toward the marital debts and petitioner’s expenses. The nonmarital assets of petitioner were also liquidated and applied toward the marital debts. The trial court ordered respondent to pay maintenance of $60 per week to petitioner and that he pay petitioner’s attorney’s fees. It denied petitioner any interest in respondent’s pension and denied petitioner’s request that respondent be ordered to reimburse her for one-half the marital debts paid by her which exceeded the value of the marital assets.

Petitioner’s first contention is that the trial court’s refusal to order respondent to reimburse her for one-half the marital debts paid by her which exceeded the value of the marital assets is arbitrary and an abuse of discretion. We agree. It is clear that when respondent left in June 1975, the marital debts exceeded the value of the marital assets. Under the circumstances of this case, petitioner must be allowed reimbursement from respondent for debts paid by her on his behalf. The trial court’s division of property in this case does not meet the requirements that property be divided in just proportions. Ill. Rev. Stat. 1979, ch. 40, par. 503(c).

Respondent argues in support of the trial court’s distribution that because there was no marital property and no marital debts at the time of dissolution, there was simply nothing for the court to divide. He further asserts that the trial court did not abuse its discretion in refusing to order him to reimburse petitioner for paying the marital debts, and claims he is without funds to make payments to petitioner. But the inequity in the result reached below leads us to reject respondent’s argument. The parties’ debts exceeded their assets when respondent left the marital home in 1975. Under the trial court’s order, the employed respondent escaped debt-free with full interest in his pension rights. The burden of 100% of the marital debts which exceeded the value of the marital assets was left upon petitioner, who is unemployed and has now depleted her nonmarital estate. Because the marital debts exceeded the value of the marital property when respondent left the marital home in 1975, we rule that the refusal to order respondent to reimburse petitioner for one-half of the marital debts which exceeded the value of the marital property results in substantial injustice to petitioner and constitutes an abuse of discretion. In re Marriage of Clearman (1980), 85 Ill. App. 3d 584, 407 N.E.2d 189, appeal after remand (1981), 97 Ill. App. 3d 641, 423 N.E.2d 283.

The touchstone of proper apportionment of property upon dissolution of marriage is whether the directed distribution is equitable in nature. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.) This court is of the opinion that where the partners to a marriage accumulate debts exceeding the value of their assets, then that debt must be distributed equitably, the same as marital assets.

In recent opinions, our supreme court has held that the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.) does not alter the presumption of gift that arises when individually owned property is transferred into the joint names of the parties. (In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635; In re Marriage of Emken (1981), 86 Ill. 2d 164.) Respondent’s counsel referred to these cases during oral argument, although a claim that petitioner made a gift of her nonmarital assets when she paid the marital debts has never been advanced. In any case, the evidence presented herein is sufficient to overcome any presumption of gift. Petitioner’s nonmarital funds were not applied toward the purchase of a jointly owned house, as in Rogers. Nor were her nonmarital funds deposited into a joint bank account, as in Emken. Petitioner’s nonmarital assets were used to pay a preexisting joint obligation of the parties. And, petitioner’s nonmarital funds were paid toward the marital debts after the parties were living separate and apart. Any presumption that petitioner intended a gift of her nonmarital assets is rebutted by the evidence presented herein.

Petitioner also challenges the sufficiency of the $60 per week maintenance award. Although petitioner’s testimony estimated her monthly expenses as only $189, she claims the trial court improperly considered the fact that she lives on the charity of her sister, rather than making an evaluation of her independent needs. But, as respondent counters, petitioner resides with her sister in exchange for her housekeeping services. The maintenance award by the trial court is sufficient to meet petitioner’s financial needs as presented in her own testimony. Further, petitioner will have some assets of her own when she is reimbursed by respondent for paying all of the marital debts. The amount of the maintenance award lies within the sound discretion of the trial court (In re Marriage of Pickell (1979), 76 Ill. App. 3d 855, 395 N.E.2d 673), and we do not consider this award to constitute an abuse of discretion.

The marital debts paid by petitioner total $53,300. Sale of the marital assets brought $35,600. Petitioner has requested this court order respondent to reimburse her for one-half of the difference, or $8,850. The trial court’s denial of petitioner’s request for reimbursement is hereby reversed, and this cause is remanded with directions that respondent be ordered to reimburse petitioner in the amount of $8,850. The maintenance award is affirmed.

Affirmed in part, reversed in part, and remanded with directions.

GREEN and WEBBER, JJ„ concur.


author: Mr. JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROCKY WOOD, Defendant-Appellant.
    Second District
    No. 80-903
    Opinion filed November 13, 1981.
    Joseph P. Spiezer, of Spiezer, Thorsen and Ellerby, of Rockford, for appellant.

      Dennis Schumacker, State’s Attorney, of Oregon (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE VAN DEUSEN

delivered the opinion of the court:

This matter involves the appeal of the impleaded defendant Rocky Wood of a judgment entered against him in the amount of $30,000 on an alleged suretyship obligation on the purported bail bond of his son, the defendant John Wood.

The defendant John Wood was charged by information with rape, deviate sexual assault, and home invasion. Bond was originally set at $200,000. The defendant John Wood filed a motion for a surety bond or in the alternative for a reduction in bond to $15,000. On June 19, 1980, the trial court entered its order releasing the defendant on personal recognizance-surety and as a condition thereof requiring the “surety signature of Rocky L. Wood — Father.” The bond which the defendant John Wood executed and upon which he was released from custody was entitled “Bail bond for appearance with deposit of cash bail security.” In actuality, the defendant executed a 10 percent bail bond as prescribed by section 110 — 7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7), except that in a space in which the amount of the cash to be deposited is usually written the word “recog” was inserted. To the left of the signature of the defendant John Wood, the word “surety” was typed followed by a line on which the signature of the impleaded defendant Rocky Wood appeared.

The defendant John Wood failed to appear in court on July 11,1980, as scheduled and a notice of bail forfeiture was sent to him on that date indicating his $30,000 recognizance bail would be forfeited unless he appeared in court on or before August 11, 1980. On August 12, 1980, the court entered an order declaring the forfeiture of the defendant John Wood’s bail and also entered a judgment for the State and against the said defendant. Subsequently, on September 5, 1980, the State filed a motion for judgment of bail forfeiture against the impleaded defendant Rocky Wood. On September 8, the impleaded defendant was served with a summons and documents attached thereto which collectively informed him of the order of the bail forfeiture and the judgment entered in favor of the State and against his son, the defendant John Wood.

One month later, on October 8, the impleaded defendant filed a motion to dismiss the State’s petition for judgment of bail forfeiture against him. After holding a hearing on the matter on October 10, the court subsequently entered judgment on October 14,1980, in favor of the State and against the impleaded defendant in the amount of $30,000 plus costs based on Rocky Wood’s alleged suretyship obligation on the bail bond of his son. Impleaded defendant appeals from the judgment of bail forfeiture entered against him.

We vacate the judgment of the trial court in the amount of $30,000 against Rocky Wood. The court had no authority to order the defendant released on personal recognizance with surety.

Release of the defendant from custody pending trial in Illinois is governed by three basic provisions of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1979, ch. 38, par. 100 — 1 et seq.): sections 110 — 2, 110 — 7 and 110 — 8 (Ill. Rev. Stat. 1979, ch. 38, pars. 110 — 2, 110 — 7, 110 — 8). Section 110 — 2 of the Code provides, in appropriate circumstances, that the accused may be released on his own recognizance and that any failure to appear as required by such recognizance shall constitute a criminal offense and that any obligated sum fixed in the recognizance shall be forfeited and collected in accordance with subsection (g) of the section 110 — 7 of the Code. The words “personal recognizance,” or release on his own recognizance, denote the pretrial release of a defendant based on his own promise that he will appear for trial; in other words, the terms indicate a species of release in which no bond is required, and the defendant acknowledges personally, without surety, his obligation to appear in court at the next hearing or trial date of his cause. This procedure is employed when the court is satisfied that the accused will present himself without the need of a surety bond or other form of security. (Black’s Law Dictionary 1030 (5th ed. 1979).) In short, when the accused is allowed his liberty on his own recognizance, there is no surety bound to secure his appearance at court, for he is not in the custody of anyone who can surrender him to the court. People v. Barrett (1903), 202 Ill. 287, 298.

In the present case, it is obvious the trial court was attempting to release the defendant on his own recognizance while at the same time requiring the impleaded defendant to sign a bail bond surety. As we have indicated above, there is an inherent contradiction between the nature and purpose of releasing the accused on his personal recognizance and the taking of security on a bail bond. Furthermore, there is no authority for taking or requiring a surety where the defendant is released on his own recognizance.

If the court wished to admit the defendant to bail, rather than release him on his own recognizance, then the court is required to follow the provision of section 110 — 7 or 110 — 8 of the Code. Section 110 — 15 of the Code provides in relevant part as follows:

“The provisions of Sections 110 — 7 and 110 — 8 of this Code are exclusive of other provisions of law for the giving, taking, or enforcement of bail. In all cases where a person is admitted to bail the provisions of Sections 110 — 7 and 110 — 8 of this Code shall be applicable.” (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 15.)

Section 110 — 15 makes sections 110 — 7 and 110 — 8 the exclusive means of posting bonds in criminal'cases in this State. Schilb v. Kuebel (1970), 46 Ill. 2d 538, 544, aff'd (1971), 404 U.S. 357, 30 L. Ed. 2d 502, 92 S. Ct. 479, citing People ex rel. Gendron v. Ingram (1966), 34 Ill. 2d 623, 626.

If the trial court wished to require a surety for the bail of the defendant, then it necessarily had to follow the procedure set forth in section 110 — 8 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 8). It failed to do so. A bail bond taken without authority is a nullity and hence is void, and the surety on such a bond is not bound by the subsequent forfeiture" of the bond. People v. Cleaver (1897), 74 Ill. App. 210; 8 Am. Jur. 2d Bail & Recognizance §102 (1980); Annot., 34 A.L.R. 612 (1925); see People v. Wascher (1931), 263 Ill. App. 614, 624, aff'd (1932), 349 Ill. 114.

There is another reason why the impleaded defendant cannot be held liable as surety in the present case. Section 1101(b) of the Code defines “surety” as “one who executes a bail bond and binds himself to pay the bail if the person in custody fails to comply with all conditions of the bail bond.” (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 1(b).) Here the impleaded defendant merely signed his name on a line following the word “surety” in the lower left hand corner of the purported bail bond. The surety is in no way referred, to in the body of the bail bond, nor is there any statement contained therein to the effect that the impleaded defendant bound himself to pay the bail if the defendant failed to comply with all of the conditions set forth in the bail bond. The impleaded defendant did not execute an instrument establishing any contractual suretyship obligation on his part.

Reversed.

REINHARD and UNVERZAGT, JJ., concur.

       The reference in section 110 — 2 to section 110 — 7(g) of the present code is an obvious miscitation. The short correct citation should be subsection (h). Section 1 of Public Act 80-1149, effective July 1, 1978, amended prior section 110 — 7 by adding a new subsection (g); old subsection (g) was retained and incorporated in subsection (h). However, the legislature apparently failed to make the corresponding change in the language in section 110 — 2 when it did not substitute “subsection (h)” for “subsection (g).”


author: Mr. PRESIDING JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVEN ALLEN KEATH, Defendant-Appellee.
    Fourth District
    No. 16748
    Opinion filed November 6, 1981.

      Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Alan L. Sternberg, of Pratt, Larkin, Sternberg & Finegan, P. C., of Bloomington, for appellee.
   Mr. PRESIDING JUSTICE TRAPP

delivered the opinion of the court:

The prosecution appeals from the order of the trial court which suppressed evidence in the form of various controlled substances seized during the “booking procedures” at the county jail following defendant’s arrest upon the authority of a valid warrant.

The initial issue concerns the jurisdiction of this court within the context of Supreme Court Rule 604(a)(1) (73 Ill. 2d R. 604(a)(1)) as developed in People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501.

On April 28, 1980, defendant filed a written motion to suppress evidence alleged to be in violation of his rights under the fourth amendment of the Constitution of the United States, and section 6 of article I of the Constitution of Illinois. At a hearing on October 23, 1980, the trial court ordered the evidence suppressed following his statement into the record of findings of fact and conclusions of law.

At the same time the court stated into the record that he would “not contemplate filing any written order unless the People indicate a desire to appeal. If they do, I will prepare a written order.” The State’s Attorney responded that he would advise the court on that day, but his response does not appear in the record, and no written order was prepared by the trial judge. The prosecution filed a notice of appeal on October 31, 1980.

On April 20,1981, the prosecution filed, in this court, a certificate that the order of suppression substantially impaired its ability to prosecute the case. On the same date the State’s Attorney filed, in the circuit court, a written order of that date memorializing the judge’s oral ruling of October 23 signed by the trial judge. A notice of appeal from that order was filed on April 20. The latter appeal is docketed in this court as our No. 17140. Neither record suggests that a certificate as required in People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501, was presented to the trial court before either notice of appeal was filed in the circuit court.

Supreme Court Rule 604(a)(1) states that in criminal cases the State may appeal from an order or judgment suppressing evidence. The trial court’s order at issue had the effect of suppressing evidence upon the constitutional grounds of illegal search as distinguished from evidence excluded for statutory reasons, or under the rules of evidence.

We consider this record in the context of the colloquy concerning the entry of a written order by the trial court. Section 114 — 12(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 12(e)) provides:

“The order or judgment granting or denying the motion shall state the findings of facts and conclusions of law upon which the order or judgment is based.”

The language of the statute does not state that a written order of suppression is required. As noted, the court stated findings of facts and conclusions of law into the report of the proceedings of the hearing, and thus effectively complied with the purposes of the statutory provision.

The trial court minute in the docket stated “Motion to suppress allowed. See the common law record.” There was no express direction that a written judgment order be prepared and filed. The colloquy of the court with the State’s Attorney and the contents of his minute suggest that the trial judge did not deem a written order to be required unless requested for the purposes of appeal.

In People v. Deaton (1974), 16 Ill. App. 3d 748, 306 N.E.2d 695, and People v. Eddington (1978), 64 Ill. App. 3d 650, 381 N.E.2d 835, the respective courts did not have occasion to discuss the requirement of section 114 — 12(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 12(e)) in the context of a statement into the record of proceedings of findings of fact and conclusions of law. In the absence of such consideration, it appears to have been assumed that the statute required that a written order be prepared. It is reasonable to conclude here that the trial court was acting upon that assumption. It is unnecessary to review those opinions where a written order was expressly required in the announcement of the court.

In People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501, the supreme court further examined its constitutional authority to define the scope and the procedures for interlocutory appeals in criminal cases, saying:

“We hold, therefore, that Rule 604(a)(1) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State’s ability to prosecute the case. Our intention in requiring this certification is not to formulate a standard by which courts may determine the appealability of a particular order.” 82 Ill. 2d 234. 247, 412 N.E.2d 501, 507.

As we read that opinion, the rationale for requiring certification by the State’s Attorney is that the procedure of certification will in itself serve to deter improvident interlocutory appeals taken as an incident of courtroom tensions and the hurly-burly of advocacy. The merits of such determination by the prosecutor are not a matter for the trial court’s consideration.

The opinion in Young makes the requirement of certification applicable immediately, but waives certification as to “any case currently in the appellate process.” The opinion was announced on October 17, 1980, the order filed in this cause was entered on October 23,1980, and the notice of appeal was filed October 31, 1980. As a practical matter, this appeal may be said to fall between the interstices of the requirement announced and the publication of the opinion which made the required procedure generally available to the bench and bar.

In People v. Norris (1981), 101 Ill. App. 3d 664, 428 N.E.2d 987, this court determined that it had authority to review an interlocutory appeal where the prosecution first filed a notice of appeal and thereafter filed in the trial court the certificate required by Young. That opinion rejected the argument that an order suppressing evidence becomes appealable only after the certificate had been filed in the trial court.

While here the prosecutor’s certificate was filed in the reviewing court after a rule to show cause, and while we agree that strict compliance with the requirement of Young requires filing in the trial court, we conclude that within the rationale of the latter opinion the purpose of the requirement has been satisfied. It cannot be said that this appeal has been filed upon an impetuous decision made in the course of trial conflict. The record now available shows the validity of the prosecutor’s decision to appeal.

The opinion in Young carefully examines the policy factors supporting the need for interlocutory appeals from orders which exclude or suppress otherwise probative admissible evidence framed in part by the language:

“Refusing to allow interlocutory appeal from orders suppressing admissible evidence may seriously impair the State’s ability to present its case. Society also has a broader, secondary interest in the coherent development of the law. As we noted above, without the guidance and uniformity imposed by reviewing courts, erroneous interpretations and rulings may proliferate at the trial court level. That proliferation is particularly troublesome when it is based on extrapolations from the statements or reasoning in prior appellate decisions which are interpreted to compel results in different circumstances which the prior appellate decision did not contemplate. In the absence of appeal, the reviewing court may have no opportunity to clarify its earlier decisions. [Citation.] The denial of review in a particular case may thus affect not only the ability of the State to prosecute a particular case but also its ability to prosecute similar cases in the future.” 82 Ill. 2d 234, 246-47, 412 N.E.2d 501, 507.

We find certain precedent in cases concerning rules requiring comparable certificates to be filed in the trial court. Supreme Court Rule 604(d) (73 Ill. 2d R. 604(d)) requires counsel who represent defendants upon motions to withdraw a plea of guilty, to file with the trial court a certificate showing proper consultation with the defendant prior to the hearing. Each of the several appellate divisions has held that counsel’s certificate filed in the reviewing court, or as a supplement to the record, satisfied the purposes of the Rule. People v. Hummel (1977), 48 Ill. App. 3d 1002, 365 N.E.2d 122; People v. Williams (1977), 52 Ill. App. 3d 229, 367 N.E.2d 449; People v. Ward (1977), 55 Ill. App. 3d 878, 371 N.E.2d 103; People v. Chesnut (1977), 47 Ill. App. 3d 324, 361 N.E.2d 1185; and People v. Hultz (1977), 51 Ill. App. 3d 663, 366 N.E.2d 897.

Again, Supreme Court Rule 651(c) (73 Ill. 2d R. 651(c)) requires an attorney who represents a client on post-conviction proceedings to file a certificate that he has consulted with the client and has examined the record. In People v. Harris (1971), 50 Ill. 2d 31, 276 N.E.2d 327, counsel failed to file the required certificate. The supreme court granted leave to file the attorney’s certificate and, finding compliance with the Rule, affirmed the order. For the several reasons considered, we find that we may proceed with this appeal, and the rule to show cause is discharged.

Defendant was taken into custody by a State trooper upon the authority of an arrest warrant issued from another county. The trooper delivered defendant to the McLean County jail, and then departed. Defendant had not been handcuffed following his arrest but had been given a brief frisk-type search.

The booking procedure at the jail required a search of the person and clothing of the defendant for the purpose of preventing contraband being carried into the security area, for the safety of the officers and custodians, and for the safety of defendant. Such search was described as the normal, usual jail procedure.

Incident to the inventory of defendant’s property, the booking officer examined a key case taken from defendant’s pocket for the purpose of counting and recording the keys contained in the case. Upon opening the item, he observed a bulge inside of a compartment of the case and took from the compartment a wrapped opaque object. Incident to the inventory of other items, the booking officer took a closed brown paper bag from the pocket of defendant’s coat. The bag was found to contain three small brown bottles, each of which contained a pill-type of substance. From another pocket of defendant’s coat, which was closed by a Velcro fastener, the officer took a cellophane bag which he suspected to contain marijuana.

It is agreed that defendant would not have been permitted to take the clothing or any of the objects into the secured area of the jail, and that all such items would be stored in baskets in the locked property room.

Following examination of the items found, defendant was indicted for the possession of cannabis and of amphetamines. He filed a motion to suppress the evidence discovered by such search and, following a hearing on that motion, the trial court entered an order suppressing the items as evidence. The prosecution appeals.

In the trial court defendant argued that since he was not considered to be immediately dangerous, and since the items inventoried were to be stored in a property locker, the search was unnecessary and therefore unreasonable, and as such an unreasonable search it violated defendant’s rights under the fourth amendment. The trial court stated into the record his finding that an administrative search of the nature described is a proper exercise of the police power:

“[A]nd it began with a legitimate and permissible purpose, but that the conduct of the officer exceeded what was necessary and proper to accomplish this search, exceeded the permissible scope of an inventory, and accordingly, the Motion to Suppress is allowed.”

We find that defendant’s argument does not correctly state the law concerning the search of a person and of the belongings in his immediate possession when the person has been taken into custody, and we reverse and remand for further proceedings.

The argument that a search incident to custodial arrest of an individual and the belongings upon his person is unreasonable because it is unnecessary has been consistently rejected by the Supreme Court. United States v. Robinson (1973), 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467; Gustafson v. Florida (1973), 414 U.S. 260, 38 L. Ed. 2d 456, 94 S. Ct. 488; United States v. Edwards (1974), 415 U.S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234. See also Bell v. Wolfish (1979), 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861.

In Robinson and Gustafson, custodial arrests were made for traffic violations. In each, the search of the person disclosed contraband carried in the pockets of the clothing worn. In Robinson, the Court of Appeals had reversed the conviction upon a conclusion that the search was unnecessary to discover a weapon and that such search would not disclose evidence of the traffic offense. The Supreme Court reversed the Court of Appeals. In Gustafson, defendant argued that the full search of the person was unnecessary to discover a weapon and had no evidentiary purpose as to a traffic offense, and further argued that no police regulation required either a custodial arrest or a full personal search. The Supreme Court affirmed the conviction.

In Robinson, the court stated:

“A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.
* * * Since it is the fact of custodial arrest which gives rise to the authority to search,, it is of no moment that Jenks did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed. Having in the course of a lawful search come upon the crumpled package of cigarettes, he was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as ‘fruits, instrumentalities, or contraband’ probative of criminal conduct. [Citations.]” 414 U.S. 218, 235-36, 38 L. Ed. 2d 427, 440-41, 94 S. Ct. 467, 477.

In Gustafson, the court stated:

“We hold, therefore, that upon arresting petitioner * * * and taking him into custody, Smith was entitled to make a full search of petitioner’s person incident to that lawful arrest. Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that Smith did not indicate any subjective fear of the petitioner or that he did not himself suspect that the petitioner was armed. Having in the course of his lawful search come upon the box of cigarettes, Smith was entitled to inspect it; and when his inspection revealed the homemade cigarettes which he believed to contain an unlawful substance, he was entitled to seize them as ‘fruits, instrumentalities, or contraband’ probative of criminal conduct. [Citations.]” 414 U.S. 260, 266, 38 L. Ed. 2d 456, 461-62, 94 S. Ct. 488, 492.

The rationale stated by the court in Robinson is that it fundamentally disagreed with the suggestion:

” that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest. We do not think the long line of authorities of this Court dating back to Weeks, or what we can glean from the history of practice in this country and in England, requires such a case-by-case adjudication. A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” (414 U.S. 218, 235, 38 L. Ed. 2d 427, 440, 94 S. Ct. 467, 477.)

This rationale is reiterated in Gustafson, 414 U.S. 260, 265, 38 L. Ed. 2d 456, 461, 94 S. Ct. 488, 492.

In Edwards, defendant was lawfully arrested and booked. The next day his clothing was taken for examination and subsequently used as evidence. The Court of Appeals reversed the conviction upon the conclusion that the seizure of the clothing after the booking procedure violated defendant’s fourth amendment rights. The Supreme Court reversed the Court of Appeals. It was stated:

“The prevailing rule under the Fourth Amendment that searches and seizures may not be made without a warrant is subject to various exceptions. One of them permits warrantless searches incident to custodial arrest [citations], and has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained. [Citation.]
It is also plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.” 415 U.S. 800, 802-03, 39 L. Ed. 2d 771, 775, 94 S. Ct. 1234, 1236-37.

Citing Abel v. United States (1960), 362 U.S. 217, 4 L. Ed. 2d 668, 80 S. Ct. 683, as authority for holding that when the accused takes property with him to the place of detention, the same may be searched. The court stated:

“The courts of appeals have followed this same rule, holding that both the person and the property in his immediate possession may be searched at the station house after the arrest has occurred at another place and if evidence of crime is discovered, it may be seized and admitted in evidence. Nor is there any doubt that clothing or other belongings may be seized upon arrival of the accused at the place of detention and later subjected to laboratory analysis or that the test results are admissible at trial.
0 0 0 With or without probable cause, the authorities were entitled at that point not only to search Edwards’ clothing but also to take it from him and keep it in official custody. There was testimony that this was the standard practice in this city. The police were also entitled to take from Edwards any evidence ° ° including his clothing.” 415 U.S. 800, 803-05, 39 L. Ed. 2d 771, 775-76, 94 S. Ct. 1234, 1237-38.

The Illinois courts have followed the rule considered in Edwards, Robinson and Gustafson; People v. Gwin (1971), 49 Ill. 2d 255, 274 N.E.2d 43; People v. Kalpak (1957), 10 Ill. 2d 411, 140 N.E.2d 726; In re Williams (1975), 30 Ill. App. 3d 1025, 333 N.E.2d 674.

In 2 W. LaFave, Search and Seizure §5.3, at 307 (1978), the state of the law regarding search incident to post-arrest detention is summarized:

“It is customary for the booking inventory to involve an item-by-item examination of everything in the arrestee’s pockets or otherwise on his person, including looking into his wallet or into containers on the person; * *

As pointed out by LaFave, the search of the person and of items found on the person in clothing are to be distinguished from the contents of suitcases, brief cases, or other luggage in his possession, as in Arkansas v. Sanders (1979), 442 U.S. 753, 61 L. Ed. 2d 235, 99 S. Ct. 2586.

The defendant has argued in support of the order of suppression from the authority of People v. Hamilton (1979), 74 Ill. 2d 457, 386 N.E.2d 53, and People v. Bayles (1980), 82 Ill. 2d 128, 411 N.E.2d 1346. Suffice to say that search in each case was not associated with searches of the person upon custodial arrest, or incident to booking for purposes of custodial detention. Those cases were concerned solely with the inventory of baggage obtained following motor accidents.

We find that the trial court erred in ordering the suppression of the evidence seized upon the search in this case. The order of the trial court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

GREEN and LEWIS, JJ., concur.


author: Mr. JUSTICE GREEN

text:
    PATRICIA AULICH, Plaintiff-Appellee and Cross-Appellant, v. AETNA LIFE INSURANCE COMPANY et al., Defendants-Appellants and Cross-Appellees.
    Fourth District
    No. 17011
    Opinion filed November 13, 1981.
    Edward W. Huntley, of Gillespie, Cadigan & Gillespie, of Springfield, for appellants.
    Kepner and Giganti, of Springfield (Maurice W. Kepner, of counsel), for appellee.
   Mr. JUSTICE GREEN

delivered the opinion of the court:

The defendants, Aetna Life Insurance Co. (Aetna) and The Travelers Insurance Co. (Travelers), appeal from a judgment of the circuit court of Sangamon County entered January 28,1981, after the bench trial of a suit brought to recover benefits on two life insurance policies. That court awarded plaintiff, Patricia Aulich, $38,000 plus costs from Aetna and $2,000 plus costs from Travelers as beneficiary of her deceased husband, Jerry Aulich, under the policies. Plaintiff cross-appeals from that part of the judgment denying her prejudgment interest.

The suit was filed September 27, 1978. Both policies provided for triple indemnity benefits in the event the insured succumbed to an occupational accident as defined in the policies. Defendants had paid plaintiff double indemnity benefits payable because the death was accidental but denied she was entitled to triple indemnity benefits. The trial court found plaintiff was entitled to triple indemnity benefits and entered judgment accordingly. The court denied plaintiff’s request for prejudgment interest. The defendants maintain on appeal the trial court erred in holding that the decedent’s death resulted from an occupational accident. On cross-appeal, plaintiff maintains she should have received interest on the benefits from the time of proof of death from an occupational accident.

The term “occupational accident” was defined in the Travelers’ policy as “accidental body injury sustained by an Employee while doing any act or thing pertaining to his occupation or employment with the Employer and for which he is entitled to indemnity in accordance with the provisions of any workmen’s compensation or similar law.” The Aetna policy stated additional benefits will be paid “if the accident which caused the injuries occurred while the Employee was performing the duties of his occupation with the Employer ” *

The parties stipulated to the following facts. The decedent resided in the Village of Chatham, Illinois, and was employed by the Commonwealth Edison Company as a maintenance electrician in Kincaid, about a 30-minute drive from decedent’s home. He regularly worked from 7:30 a.m. to 4 p.m. Monday through Friday. On Sunday, October 2, 1977, he received a telephone call at approximately 7 a.m. requesting he report to the Kincaid plant to repair an elevator.

The decedent started work on that day at 8 a.m. and finished at 10:30 a.m. He then left the plant to join plaintiff for a noon “potluck” lunch at his church in Chatham. The decedent stopped to purchase gas for his car and then proceeded to church. His car was struck by a train at a railroad crossing approximately 40 minutes after he left the plant. He sustained injuries from which he died the same day. The accident occurred at a crossing located 3.5 miles from his home and 1.5 miles from the church.

Normally, the decedent was not compensated for the time he spent travelling to and from work, but the collective bargaining agreement between him and his employer provided for additional compensation of two hours straight time pay as a “travel time allowance” if any employee were called back to work outside his regular work schedule and worked fewer than eight overtime hours.

Simultaneous with filing the civil suit, plaintiff instituted proceedings before the Industrial Commission against Commonwealth Edison to recover worker’s compensation benefits. The primary issue before the arbitrator was whether the decedent was acting within the course of his employment when he was driving from the plant. The Commission decided affirmatively. That ruling was affirmed by the circuit court of Sangamon County and in turn by the supreme court in Commonwealth Edison Co. v. Industrial Com. (1981), 86 Ill. 2d 534.

The supreme court recognized that generally, injuries sustained by an employee in going to or returning from work do not arise out of or in the course of the employment and are not compensable. (Hindle v. Dillbeck (1977), 68 Ill. 2d 309, 318, 370 N.E.2d 165, 169.) However, the court deemed the instant situation to come within the exception existing when the employee has been paid an identifiable sum as compensation for the time spent in travel.

The Travelers’ policy expressly stated triple indemnity benefits would be paid for occupational accidents “in accordance with the provisions of any workmen’s compensation or similar law.” The Aetna policy did not directly tie these added benefits to worker’s compensation but provided triple indemnity benefits if the accident occurred “while the Employee was performing the duties of his occupation with the Employer * * It is clearly within the holding of the supreme court in the worker’s compensation case that the death was one which occurred while the employee was performing the duties of his occupation with the employer. We therefore deem the precedent of that decision to control our decision here. The trial court properly awarded triple indemnity benefits.

Plaintiff claims she is entitled to prejudgment interest on the benefits awarded her by the trial court. By virtue of section 2 of the Interest Act (Ill. Rev. Stat. 1979, ch. 74, par. 2), prejudgment interest attaches upon “all moneys after they become due on any bond, bill, promissory note, or other instrument of writing ” * In Central National Chicago Corp. v. Lumbermens Mutual Casualty Co. (1977), 45 Ill. App. 3d 401, 359 N.E.2d 797, the court held an insurance policy to be an “instrument of writing” within the meaning of the Interest Act and recognized that interest may be recovered from the time money becomes due under a policy.

Both of defendants’ life insurance policies provided that additional benefits would be paid upon receipt of due proof that (1) the death resulted from accidental bodily injuries, (2) the injuries were sustained while the employee was insured under the policy, and (3) the death occurred within 90 days after the accident. When proof of these three items was made the beneficiary was then entitled to double indemnity for loss of life which “resulted] from a nonoccupational accident” or triple indemnity for loss of life which “resulted] from an occupational accident.” The language of the policies indicated that the additional benefits became due upon proof that the injuries either did or did not occur while the employee was performing the duties of his occupation.

In paragraphs 8 of count I and 7 of count II of the complaint, plaintiff alleged she and the insured had each performed all of the conditions of the policies that they were required to perform. Defendants admitted the allegations of those paragraphs in their answer. Therefore, it is undisputed that proper proof of loss was submitted within the 60-day period required by the policies. No dispute existed as to the facts. Rather, the dispute was as to the legal question of whether the arrangement between the decedent and his employer caused the occurrence to come within the triple indemnity requirements of the policy. Prejudgment interest is due upon insurance benefits where, as here, the sum due is subject to exact computation even though the insurer has a good faith legal defense. (Central National Chicago Corp.; Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 323 N.E.2d 73.) This case differs from St. Joseph Hospital v. Corbetta Construction Co. (1974), 21 Ill. App. 3d 925, 316 N.E.2d 51, where the sum upon which interest was claimed arose out of a construction contract, had not been certified by the project architect, and was not determined until the decision of the trial court.

The plaintiff was entitled to prejudgment interest at the statutory rate of 5 percent from December 2, 1977, the end of the period within which proof of loss was made, until judgment was entered on January 28, 1981. The case must be remanded to the trial court for computation of that interest.

The portion of the judgment finding plaintiff entitled to the triple indemnity award is affirmed. The portion denying prejudgment interest is reversed. The case is remanded for further proceedings in accordance with this opinion.

Affirmed in part; reversed in part; remanded.

WEBBER and MILLS, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN THOMAS NORRIS, Defendant-Appellee.
    Fourth District
    No. 17094
    Opinion filed November 6, 1981.

      Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield for appellee.
   Mr. JUSTICE GREEN

delivered the opinion of the court:

This interlocutory appeal by the State from a pretrial order suppressing evidence raises the question of: (1) our jurisdiction under the terms of Supreme Court Rule 604(a)(1) (73 Ill. 2d R. 604(a)(1)) and People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501; (2) the standing of defendant, John Thomas Norris, to challenge the search and seizure by which the evidence was obtained; and (3) the reasonableness of the search and seizure.

Defendant had been charged in the circuit court of Vermilion County with the offenses of unlawful possession of a controlled substance (cocaine) and cannabis. The property was seized by police officers from an automobile in which defendant was a passenger, after a search of that vehicle. The suppression order was entered in that court on January 27, 1981. We hold: (1) we have jurisdiction; (2) defendant had no standing to challenge the search; and (3) the seizure was shown, as a matter of law, to have been reasonable.

Supreme Court Rule 604(a)(1) states:

“In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.” (73 Ill. 2d R. 604(a)(1).)

The question of whether we have jurisdiction arises from the requirement of Young that in order to appeal orders of suppression, the State must file a certificate setting forth that the suppression substantially impairs the prosecution. Here, the State filed timely notice of appeal on February 5, 1981, but did not file the required certificate in the trial court until May 27, 1981.

The order in Young, the appealability of which was in question, was one suppressing an accident report and other statements made by the accused pursuant to certain statutory requirements (Ill. Rev. Stat. 1977, ch. 85K par. 11 — 401). The opinion traced the development of the State’s power to appeal, in criminal cases, orders not amounting to acquittals. Particular focus was placed upon the troubled history of the development of a workable rule for determining when pretrial orders excluding evidence come within the coverage of Rule 604(a)(1). The court recognized the intolerable situation that would result from permitting State’s appeals from every order prohibiting introduction of any type of evidence. The court then stated:

“After weighing these considerations, we conclude that the State should be allowed to appeal from a pretrial suppression order which substantially impairs its ability to prosecute the case involved.” 82 Ill. 2d 234, 247, 412 N.E.2d 501, 507.

Rather than providing for the court to determine whether the suppression imposed substantial impairment upon the prosecution, the supreme court stated.

“We hold, therefore, that Rule 604(a)(1) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State’s ability to prosecute the case.” (82 Ill. 2d 234, 247, 412 N.E.2d 501, 507.)

The court noted that the procedure it was promulgating was very similar to that required for government appeals from orders of suppression in Federal criminal cases. 18 U.S.C. §3731 (1976).

The Young opinion explained how we and various other districts of the appellate court had interpreted their decision in People v. Van De Rostyne (1976) 63 Ill. 2d 364, 349 N.E.2d 16, to limit appeals by the State from orders excluding evidence to those grounded upon an illegal search or seizure or an involuntary confession. The opinion then overruled Van De Rostyne to the extent it so limited such appeals. The State maintains the opinion indicates the certification requirement is applicable only to suppression orders not appealable under the described interpretation of Van De Rostyne and is not applicable to the present appeal from an order suppressing evidence because of an unlawful search or seizure. We disagree.

We find nothing in Young indicáting an intention to limit its certification requirement to orders not previously deemed appealable. Every expression of the court’s holding is stated in terms indicating its applicability to all pretrial orders of suppression entered against the State. Its rationale is to limit such appeals to orders substantially impairing the prosecution. An order suppressing evidence because its procurement resulted from an illegal search or seizure does not necessarily do so. We hold the order on appeal to be subject to the certification requirement even though it was based on a determination the evidence was obtained by an illegal search and seizure. Cf. People v. Hoffner (1981), 99 Ill. App. 3d 516, 425 N.E.2d 738.

Defendant contends an appellate court cannot acquire jurisdiction of an appeal by the State from a suppression order when, as here, the Young certificate was not filed in the trial court before the filing of the notice of appeal. He bases much of his argument on a theory that the trial court was divested of jurisdiction to receive the certificate after the notice of appeal was filed. Supreme Court Rule 604(d) (73 Ill. 2d R. 604(d)) requires counsel representing defendants at hearing on motions to withdraw pleas of guilty to file with the trial court a certificate showing proper consultation with the defendant prior to hearing. In People v. Thompson (1977), 50 Ill. App. 3d 51, 365 N.E.2d 255, and People v. Chesnut (1977), 47 Ill. App. 3d 324, 361 N.E.2d 1185, such certificates filed with the trial court after notice of appeal had been filed were deemed to be properly before the appellate court on review. The analogy of those cases to that before us is very close. Defendant relies on cases setting forth the accepted rule that upon the filing of notice of appeal from an order, the trial court loses jurisdiction to modify, enlarge upon or set aside that order. Here, as in Thompson and Chesnut, the trial court made no change in the order on appeal but retained sufficient jurisdiction to accept the certificate of counsel. We can consider the certificate on review.

Even though the prosecutor’s certificate is now properly before us, we are still faced with the question of whether filing of the certificate before filing of the notice of appeal was required to give vitality to the notice of appeal. A logical argument can be made that under Young a suppression order becomes appealable only when the certificate has been filed and thus the notice of appeal was from an unappealable order.

However, we reject this analysis.

As we have indicated, Young was based upon Federal legislation expressly providing for interlocutory appeals by the prosecution after filing of a similar certificate. In United States v. Kleve (8th Cir. 1972), 465 F.2d 187, the reviewing court was held to have jurisdiction to review an order suppressing government evidence even though the certificate had been filed in the district court after the filing of the notice of appeal. The court reasoned that prior filing of the certificate was not necessary to jurisdiction on appeal because of Rule 3 of the Federal Rules of Appellate Procedure which provided that the timely filing of a proper notice of appeal was the only step in perfecting an appeal required to confer jurisdiction on the reviewing court. Our Supreme Court Rule 606(a) (73 Ill. 2d R. 606(a)) contains a similar provision in regards to appeals in criminal cases. Every Federal circuit passing upon this question has ruled consistently with Kleve. See Meier v. Keller (9th Cir. 1975), 521 F.2d 548; United States v. Fleming (8th Cir. 1977), 566 F.2d 623; United States v. Welsch (10th Cir. 1971), 446 F.2d 220.

We deem it appropriate to place the procedural rule pronounced in Young in the same procedural context as has been given the Federal legislation upon which it was based. We hold that we have jurisdiction.

We next turn to the question of defendant’s standing to challenge the search. The evidence at the hearing on the motion to suppress was undisputed that the items in issue were seized by a police officer from inside the front part of an automobile which he had stopped. They included substances appearing to be cannabis lying in the console on the front floor in plain view and under the seats and sun visors and substances in small folded packets also in the console. When the latter were opened, they appeared to contain cocaine. Defendant testified he was a passenger, had been in the vehicle only a short time, and did not know who owned the automobile.

Defendant does not dispute that he lacked standing under the fourth and fourteenth amendments to challenge the search. In United States v. Salvucci (1980), 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547, the automatic standing of an accused, charged with an offense based upon possession, to challenge the search for and seizure of an item he was alleged to possess (Jones v. United States (1960), 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725) was abolished. In Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421, the court refused to overturn the search of an automobile in which the accused was a passenger, holding that the accused had no standing to challenge the validity of the search because he had no legitimate expectation of privacy in the interior of the automobile. In Rawlings v. Kentucky (1980), 448 U.S. 98, 65 L. Ed. 633, 100 S. Ct. 2556, an accused was held to have no expectation of privacy as to cannabis belonging to the accused but contained in a purse possessed and owned by another. Here, the fact that defendant was an occupant in the searched automobile gave him no reasonable expectation of privacy in the console on the floor of the vehicle or in the area under the seat or behind the sun visor. The folding of the unsealed packets containing the substance appearing to be cocaine was likewise insufficient to give defendant the reasonable expectation of privacy which was held in Robbins v. California (1981),_U.S.__, 69 L. Ed. 2d 744, 101 S. Ct. 2841, to exist as to the contents of a sealed package placed in the trunk of an automobile.

Defendant maintains that he does have standing under the Illinois Constitution of 1970, article I, section 6, to challenge the search. He notes that in People v. De Filippis (1966), 34 Ill. 2d 129, 214 N.E.2d 897, our supreme court adopted a broader rule as to automatic standing than that pronounced in Jones. Although that rule was abandoned in People v. McNeil (1972), 53 Ill. 2d 187, 290 N.E.2d 602, he maintains that the holding in McNeil was to keep the Jones rule in force in regard to claims that searches violate the Illinois Constitution of 1970. He sees no need for Illinois State courts to follow the lead of Salvucci.

The rationale of Jones was that when the offense charged was the possession of the property seized, an automatic standing to challenge the rule was necessary as otherwise the accused would have to admit an element of the offense in order to have standing to challenge the search or seizure. The rationale of Salvucci was that the automatic standing rule was no longer necessary because after Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967, incriminating testimony of an accused in support of his motion to suppress could no longer be used against the accused at trial. Both De Filippis and McNeil indicate the rationale for applying the standing rule of Jones to claims of State constitutional violations is also to avoid requiring the accused to incriminate himself in order to seek suppression. Thus, because of Simmons, discard of the automatic standing rule in regard to claims of violation of either State or Federal constitutional provisions seems most logical. Because of Simmons, we hold the automatic standing rule oí Jones also to be abolished as to claims of violations of article I, section 6.

As we hold defendant to have no standing to challenge the search, we need not consider whether it was reasonable.

Defendant further maintains that even if he had no standing to challenge the search of the automobile, he had standing to challenge the seizure of the items. He cites United States v. Lisk (7th Cir. 1975), 522 F. 2d 228, where a defendant’s property interest in a bomb in the trunk of an automobile of another was sufficient to give the defendant standing to challenge the seizure of the bomb even though he had no standing to challenge the search of the vehicle. The Lisk court, however, rejected the challenge to the seizure, as the propriety of the search could not be questioned. The bomb in the trunk opened by the search was taken as being in plain view thus making its seizure clearly reasonable.

Here, once the search, which cannot be questioned, was made, the various items seized were in plain view. The console on the floorboard was visible once an officer entered the car. Cannabis was visible in the console. The wrapped packets were stated to contain a white crystalline substance. Under all of the circumstances, the officer properly considered it to be cocaine. Even the cannabis behind the sun visor and under the seat was rendered in plain view by the search. We deem the seizure of these items to have been reasonable as a matter of law. Accordingly, we need not decide whether defendant had standing to challenge the seizure.

As we (1) have jurisdiction, (2) find the defendant to have had no standing to challenge the search, and (3) rule the seizure to have been reasonable as a matter of law, we reverse the order of suppression. The case is remanded to the trial court for further proceedings.

Reversed and remanded.

TRAPP, P. J., and WEBBER, J., concur.