author: PRESIDING JUSTICE SEIDENFELD

text:
    THE VILLAGE OF LAKE BLUFF, Plaintiff-Appellant and Cross-Appellee, v. MICHAEL JACOBSON et al., Defendants-Appellees and Cross-Appellants.
    Second District
    No. 83—265
    Opinion filed September 19, 1983.
    Rehearing denied October 25, 1983.

      Peter J. Nordigian, of Lonchar, Nordigian & Radosevich, of Waukegan, and Jeffrey R. Ladd and Angelika Kuehn, both of Boodell, Sears, Sugrue, Giambalvo & Crowley, of Chicago, for appellant.
    Thomas R. Burney, of Schain, Burney & Kenny, of Chicago, and Wasneski, Kuseski & Flanigan, of Waukegan, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court;

The village of Lake Bluff (Village), a municipal corporation, pursuant to its subdivision regulation ordinance, filed an amended complaint seeking to enjoin construction of a 72-unit apartment building on property outside of but within IV2 miles of its corporate limits. The trial court denied the motion of the Village for a preliminary injunction, finding that there was no just reason for delaying enforcement or appeal of the order. The Village appeals from this order and from a prior order denying a temporary restraining order.

The defendants, the First National Bank of Lake Forest, as holder of legal title to the subject property, Marling Management Company, a proprietorship engaged in the development of the property and Michael Jacobson, an employee of Marling Management (Developer), cross-appeal from certain findings by the trial court contained in its interlocutory order.

The property is located in unincorporated Lake County, in an area referred to in the record as “Knollwood,” within IV2, miles of the Village's corporate limits. On December 14, 1982, Marling Management obtained a building permit from Lake County for construction, on the previously undeveloped site, of a three-story 72-unit apartment building with 144 parking spaces. Marling Management also obtained approval for the development from the North Shore Sanitary District, the Lake County public works department, the Knollwood fire department and the Illinois Environmental Protection Agency.

Robert W. Marling, the company’s owner, testified at the hearing on the preliminary injunction that the company had no intention of subdividing the property and intended to keep the property under its unified development and control and to manage and own the property after construction was completed. The company has not and does not intend to prepare or record any plat in connection with the construction.

As of the hearing date Marling Management had begun grading the property, laying sewer and water pipe in the sewer and water mains, constructing roads and constructing storm drains on the property.

On April 11, 1978, the Village adopted a subdivision ordinance which provided, in part:

“The provisions contained herein shall be applicable to all subdivisions in the Village of Lake Bluff and as to all subdivisions within any unincorporated area lying within one and one-half miles of the corporate limits of the Village of Lake Bluff, this ordinance shall be applicable to all regulations contained herein to the extent permitted by law and the Statutes of the State of Illinois in effect from time to time.”

On March 11, 1980, the Village adopted an amendment to the ordinance which read:

“The provisions of this Ordinance shall also apply to all Planned Developments whether Residential, Commercial, or otherwise in nature, and to any other developments whether a Subdivision is required or not under the law, statutes, ordinances or regulations of the governmental body or agency having jurisdiction or control, and regardless of whether the same is labeled a subdivision or not, it being the intent of this ordinance to apply to all types of development, both within the Village of Lake Bluff and to areas lying within one and one-half miles of the corporate limits of the Village of Lake Bluff.”

Marling Management did not seek Village approval of the public improvements at the subject property. On January 24, 1983, Robert Marling conversed by telephone with Phyllis Albrecht, the Village president. Marling testified that he told her that the Village was welcome to review Marling Management’s plans but that Albrecht declined, and that Marling Management never received any communication from the Village telling it to submit its plans to the Village or stop work on the property. According to Albrecht, she told Marling that the Village felt that it had jurisdiction over the development and that the Village was trying to procure plans from the county. She did not send or authorize sending any notice to defendants advising them not to proceed with construction.

At the hearing on the motion for a preliminary injunction, Kenneth E. Long, the Village administrator since September 1981, testified that he had had a brief opportunity to look at the plans for development of the subject property. He noted that some private streets were proposed, although the Village’s subdivision ordinance required streets to be dedicated. He was generally familiar with drainage patterns on the property and stated that generally water would flow toward the East Skokie drainage ditch located within the Village. The property was also within the Lake Bluff park district and school district and the Lake Bluff-Lake Forest high school district, all of which, by the Village subdivision ordinance, would have to receive land or cash as a condition for approval. Long did not know whether enrollment was increasing or decreasing in the school district, but admitted that there were plans to close one of the schools in the high school district. He could not say how many children the proposed development would add to the school district.

According to Long, the Village subdivision ordinance makes no provision for storm water detention. The Village building inspection is done by contract with Lake Forest, although the Village engineer inspects public improvements. Long stated that the Village did not provide sewer or water service to the property, although it did provide supplementary fire protection and very limited emergency police protection to the area. The Village does not presently maintain or service any of the streets in or about the subject property and does not provide any garbage collection or snow-plowing services to the area.

The Village filed its complaint for injunction on February 24, 1983. Its motion for a temporary restraining order with notice was denied on February 28, 1983. The Village filed an amended complaint for injunction on March 2, 1983, and a motion for a preliminary injunction. After a hearing, the motion was denied. The appeal and cross-appeal followed.

I

The question whether there was error in denying the motion for preliminary injunctive relief poses the underlying issue whether the Village may enforce its subdivision ordinance against defendants’ development.

The ordinance was passed pursuant to section 11 — 12—5(1) of the Illinois Municipal Code of 1961, which provides:

“Every plan commission and planning department authorized by this division 12 has the following powers and whenever in this division 12 the term plan commission is used such term shall be deemed to include the term planning department:
(1) To prepare and recommend to the corporate authorities a comprehensive plan for the present and future development or redevelopment of the municipality. Such plan may be adopted in whole or in separate geographical or functional parts, each of which, when adopted, shall be the official comprehensive plan, or part thereof, of that municipality. This plan may include reasonable requirements with reference to streets, alleys, public grounds, and other improvements hereinafter specified. The plan, as recommended by the plan commission and as thereafter adopted in any municipality in this state, may be made applicable, by the terms thereof, to land situated within the corporate limits and contiguous territory not more than one and one-half miles beyond the corporate limits and not included in any municipality. Such plan may be implemented by ordinances (a) establishing reasonable standards of design for subdivisions and for resubdivisions of unimproved land and of areas subject to redevelopment in respect to public improvements as herein defined; (b) establishing reasonable requirements governing the location, width, course, and surfacing of public streets and highways, alleys, ways for public service facilities, curbs, gutters, sidewalks, street lights, parks, playgrounds, school grounds, size of lots to be used for residential purposes, storm water drainage, water supply and distribution, sanitary sewers, and sewage collection and treatment; and (c) may designate land suitable for annexation to the municipality and the recommended zoning classification for such land upon annexation.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 24, par. 11— 12-5(1).

The trial court in its order interpreted the enabling statute as requiring that, because the property was not and would not be divided into separate parcels, the Village must prove a prima facie case showing that the proposed development would have a substantial “developmental impact on existing facilities protecting the health and safety of the municipal residents,” as a prerequisite to enforcement of the Village’s subdivision ordinance; and concluded that a prima facie case had not been proved. The record shows that the trial court in adopting this interpretation relied upon City of Urbana v. County of Champaign (1979), 76 Ill. 2d 63. The court’s reliance on Urbana requires our analysis of that holding.

In Urbana, the city sought to apply its subdivision requirements to a planned unit development (PUD) to be constructed within IV2 miles of the city. The trial court dismissed the city’s complaint for declaratory and injunctive relief and the appellate court reversed. The supreme court held that the ordinance as written did not apply to the PUD because it contained a definition of “subdivision” which could not include the undivided 50 acre tract involved, but rejected the view that the city could not apply subdivision regulations to the PUD pursuant to section 11 — 12—5(1) (Ill. Rev. Stat. 1981, ch. 24, par. 11— 12 — 5(1)) merely because the proposed development was unitary, with no actual subdivision of the property into parcels contemplated.

The court noted that in pure zoning matters the county’s zoning ordinance would preempt the city’s comprehensive plan and zoning regulations, and that in pure subdivision regulation matters the city’s subdivision regulations would preempt any county ordinances within the D/z-mile zone. The court stated that “[t]he demarcation of authority [here] is not so clear, however, because a PUD involves both zoning and subdivision regulations ***.” City of Urbana v. County of Champaign (1979), 76 Ill. 2d 63, 69.

Citing Petterson v. City of Naperville (1956), 9 Ill. 2d 233, for the proposition that the statute’s purpose was to enable municipalities to deal with problems of public health and safety created by the development of territory contiguous to municipalities, the court reasoned that

“[t]he statute clearly recognizes that a municipality has a legitimate interest in regulating the development of land near its borders to protect the health and safety of its people. There can be no doubt, of course, that the presence of a sizeable PUD on a city’s borders will have substantial impact on the city. This impact is not necessarily eliminated or even diminished simply because the PUD is not divided into separate parcels. In our judgment the touchstone of a city’s power to impose subdivision controls is not the division of a tract into two or more parcels but its developmental impact upon existing facilities protecting the health and safety of the municipal residents. We conclude therefore that the present development is a subdivision within the statutory meaning.” (Emphasis added.) City of Urbana v. County of Champaign (1979), 76 Ill. 2d 63, 70-71.

The trial judge read the underlined language to hold that a proposed development not divided into parcels is not a “subdivision” within the meaning of the statute unless it has a “developmental impact” on existing facilities, and that a municipality may not impose subdivision regulations on extraterritorial, nonsubdivided parcels unless it first meets its burden to show that “developmental impact.” We disagree.

The statute does not define “subdivision,” as the supreme court noted, and Urbana rejects the mechanical view that property cannot by a “subdivision” under the statute if it is unitary, rather than divided into parcels. In explaining that a city could regulate a unitary PUD, the supreme court appears to have reasoned that the city’s police power interest in imposing subdivision regulations for protection of the health, safety and welfare of its people supported extraterritorial application of the regulations to property within a l^-mile zone even where the property would not meet a technical definition of “subdivision.”

We see nothing in the statute or in Urbana as intending to impose a preliminary evidentiary burden on a municipality to show “developmental impact” before proceeding to enforce subdivision regulations over contiguous territory. Nothing in Urbana assigns a burden of proof or lays down any evidentiary requirements. The language which the parties dispute (City of Urbana v. County of Champaign (1979), 76 Ill. 2d 63, 70-71) appears to be a reference to basic principles of police power regulation, e.g., “a municipality has a legitimate interest in regidating the development of land near its borders to protect the health and safety of its people.” The court’s statement that “the touchstone of a city’s power to impose subdivision controls is *** its developmental impact upon existing facilities protecting the health and safety of the municipal residents” seems no more than a restatement of the familiar principle that the police power is derived from a governing body’s interest in protecting the well-being of its people, that regulation of extraterritorial property is within a municipality’s police power as long as that regulation is rationally related to legitimate municipal interests. The court’s language can most plausibly be seen as an application of the broad principle that the “touchstone” of all police power is protection of people’s health, safety and welfare.

This conclusion is bolstered by the fact that the court stated that “developmental impact” is the touchstone of a city’s power to impose subdivision controls in general, not merely to unitary developments. While the court noted that subdivision controls could be imposed, without consideration of “developmental impact,” on property divided into two or more parcels, we do not believe Urbana intended to set up a dual system where municipalities would be presumed to have control over extraterritorial property divided into two or more parcels and presumed not to have control over undivided extraterritorial property. The whole tenor of the opinion, and its holding that a PUD could be subjected to subdivision controls because of its undeniable, but unevidenced, impact on the city, points the other way.

The most reasonable reading of the statute, and the one most consistent with Urbana, seems to be that the statute gives municipalities the right to exercise their police power over extraterritorial developments in the same way that they exercise that power over developments within their territory, in recognition that a municipality’s concerns do not end at its borders. (See Petterson v. City of Naperville (1956), 9 Ill. 2d 233.) The lack of developmental impact would, however, support an argument in a hearing on the merits that the subdivision ordinance was unconstitutional as applied, as the lack of impact on the city would indicate that its legitimate interests were not being advanced by application of its regulations in a particular case.

Defendant’s property is apparently the type to which subdivision regulations could easily apply. The property has, or will have, streets, drainage facilities and other features which could be the subject of subdivision regulations. There is no argument that the Village is trying to apply zoning regulations or that the proposed development does not involve both zoning and subdivision regulations.

The Village has appealed from both the February 28, 1983, order of the motion judge denying a temporary restraining order (TRO), and from the March 9, 1983, order denying a preliminary injunction. The TRO was denied on the original complaint without a hearing, on the basis that the Village did not show irreparable injury. This was error. A municipality need not show irreparable injury to obtain either a temporary or preliminary injunction against the violation of its ordinances. (City of Highland Park v. County of Cook (1975), 37 Ill. App. 3d 15, 20.) The later proceedings were on an amended complaint which was complete in itself and in effect abandoned the prior complaint. (Bowman v. County of Lake (1963), 29 Ill. 2d 268, 272.) The proceedings resulting in the March 9, 1983, order supplanted the earlier proceedings, making that portion of the appeal from the February 28,1983, order moot.

We conclude that the trial court erred in denying a preliminary injunction as a matter of law.

II

We also conclude that the cross-appeal by the Developer from the March 9, 1983, order is without merit. The cross-appeal is on the theory that whether or not there is a “developmental impact,” the Village does not have subdivision jurisdiction over the Developer of the land outside of its borders and within IV2 miles because the development does not involve the division of the subject property into two or more parcels. This theory is contrary to the holding of the Illinois Supreme Court in City of Urbana v. County of Champaign (1979), 76 Ill. 2d 63, which allows a municipality to apply subdivision regulations to a unitary development such as a PUD. In Urbana there was an affidavit by the developer which was uncontested and which stated that the property had not been divided into lots and that no plat of subdivision had been or was to be prepared. (City of Urbana v. County of Champaign (1979), 76 Ill. 2d 63, 67.) The argument in behalf of the cross-appeal that Urbana allowed an application of subdivision regulations to the PUD only because of the possibility that the PUD could later be divided into individual lots is, in our view, a serious misreading of that opinion.

The judgment of the circuit court of Lake County is reversed and the cause is remanded for further proceedings consistent with this opinion. The relief requested in the cross-appeal is denied.

Reversed and remanded in part.

NASH and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE DOWNING

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WILLIAM WOLSK, Defendant-Appellee.
    First District (2nd Division)
    No. 82—1201
    Opinion filed September 13, 1983.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Matthew J. Egan, Assistant State’s Attorneys, of counsel), for the People.
    Steven Clark and Phillip J. Zisook, both of State Appellate Defender’s Office, of Chicago, for appellee.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

The State appeals pursuant to Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)), contesting the propriety of an interlocutory order entered by the trial court granting defendant’s motion to suppress evidence of weapons and various controlled substances seized from his person and automobile. A summary of the pertinent facts follows.

On February 7, 1982, at approximately 1:15 a.m., Officer Baron of the Skokie police department was dispatched to the scene of an automobile accident in the vicinity of 7606 N. Karlov in the Village of Skokie. Upon arrival, Officer Baron observed defendant, William Wolsk, seated behind the wheel of his car. In addition, he noticed an oriental gentleman standing near defendant’s vehicle. Officer Radom of the Skokie police department also responded to the report of this accident, and arrived at the scene shortly after Officer Baron. Officer Radom observed that defendant’s car, as well as the parked, unoccupied vehicle which defendant admitted he crashed into, were extensively damaged. The initial impact of this accident occurred when the right front end of defendant’s car struck the left rear portion of the other vehicle parked curbside along Karlov Avenue.

After forming the opinion that defendant was “definitely intoxicated,” Officer Radom placed him under arrest for driving under the influence of intoxicating liquor or narcotic drugs (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 501), read him the Miranda warnings, and transported him to the Skokie police department for processing. Upon arrival at the booking area of the police station, Officer Radom conducted an in-custody search of defendant which revealed several different types of narcotics, including valium, cocaine, methoqualone and tuinal.

Since the wheel well of defendant’s car was smashed against the tire, it was necessary for Officer Baron to call for a tow truck. After filling out the tow slips, Officer Baron returned to the station to report the information concerning vehicle identification. At this point, Officer Radom informed Officer Baron of the controlled substances found on defendant’s person. Officer Baron thereupon arranged for defendant’s car to be towed to the police station for inventory.

At approximately 1:45 a.m., the tow truck arrived with defendant’s car and backed it into the police garage. After the vehicle was unhooked, Officer Baron went to close the trunk lid which he had seen bouncing up and down when the car was backed into the garage. As he proceeded to slam the trunk lid shut, Officer Baron noticed a clear plastic bag, measuring approximately 16 inches long, 12 inches wide and three inches deep, which contained a “crusty plant-type” substance. A further search of the trunk revealed many other such bags filled with the crushed green plant. Two switchblade knives were also found in the trunk, along with an unlatched suitcase out of which portions of other plastic bags protruded. Inside this suitcase, Officer Baron found still more of these clear plastic bags containing the crushed green plant. A search of the passenger compartment revealed a large amount of currency found lying on the floor in front of the driver’s seat. A total of 22 bags of cannabis were recovered from defendant’s vehicle during Officer Baron’s search that night.

Defendant was thereupon charged with one count of possession of cannabis (Ill. Rev. Stat. 1981, ch. 56x/2, par. 704(c)); one count of delivery of cannabis (Ill. Rev. Stat. 1981, ch. 56^2, par. 705(e)); six counts of possession of a controlled substance (Ill. Rev. Stat. 1981, ch. 56V2, par. 1402(b)); two counts of unlawful use of weapons (Ill. Rev. Stat. 1981, ch. 38, par. 24 — 1(a)(1)); one count of driving under the influence of intoxicating liquor or narcotic drugs (Ill. Rev. Stat. 1981, ch. 95x/2, par. 11 — 501); and, one count of leaving the scene of an accident involving damage to vehicle (111. Rev. Stat. 1981, ch. 951/2, par. 11-402).

At the May 4, 1982, pretrial hearing on defendant’s motion to quash arrest and suppress evidence, defendant took the stand and asserted that, as he was driving on the early morning of February 7, 1982, he slid on ice and collided with a parked vehicle; he then circled the block; and, after stopping his car, he was approached by a man who proceeded to hit him in the face.

The trial court believed this assertion and thereby granted defendant’s motion to suppress, ruling that the police officers lacked probable cause to arrest defendant for driving while under the influence of an intoxicating substance. It is from this interlocutory suppression order that the State now appeals.

I

The threshold issue for consideration is whether a proper appeal can be taken from the suppression order entered on May 4, 1982, in light of defendant’s contention that a nolle prosequi was entered on all charges then pending against defendant.

When a defendant’s motion to quash arrest and suppress evidence is granted, and when an order of nol pros is entered on each charge pursuant to the State’s motion, the State cannot then appeal from the interlocutory suppression order where it has failed to appeal from either (1) the final order that nol pressed the complaints; or (2) the denial of the motion to vacate this final order. People v. Zeigler (1982), 106 Ill. App. 3d 783, 784, 436 N.E.2d 722.

In the case at bar, following the trial court’s suppression ruling as to the possessory offenses, it noted that two nonpossessory misdemeanor charges were still pending. Defendant thereupon entered a plea of not guilty. The State requested a continuance in order to locate the complainant-owner of the damaged parked vehicle; however, the court immediately denied this motion. It was at this point that the following colloquy took place:

“[THE STATE]: Motion State nolle pros.
[THE DEFENDANT] Defendant demands trial.
THE COURT: Motion to suppress sustained on all drug charges.
Motion nolle pros on the others.”

Two days later, on May 6, 1982, the trial court denied the State’s motion to redocket the Wolsk case for the morning call, and went on to state: “The Court considers that all charges were nolle prossed. Nothing else having been said, the Court would make that finding of fact.”

A review of the record before us manifests equivocality as to the intended application of the May 4 nol-pros motion on its face; for, no specification was provided by the State either preceding or following the statement “Motion State nolle pros.” However, the trial court’s subsequent response “Motion to suppress sustained on all drug charges. Motion nolle pros on the others,” is indicative that the order of nol pros did not apply to any of the possessory charges brought against defendant. It can reasonably be inferred, therefore, that this nol-pros order applied only to defendant’s “other” two nonpossessory misdemeanor offenses of driving under the influence of an intoxicating substance and leaving the scene of an accident. This inference is further supported by the State’s May 6 attempt to correct the trial court’s misapprehension as to the ruling it made two days earlier:

“[THE STATE]: If your Honor will recall, the People made no comment as to the felony cases whatsoever. The whole issue was on the misdemeanor cases once I was compelled to go to
trial.
* * *
*** for clarity of the record, the People never at any time on record nolle pressed the felony cases.”

As a result, we are of the opinion that, unlike the situation in Zeigler where all charges against defendant were nol pressed, the present appeal from the interlocutory suppression order is properly before us in accordance with Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)).

II

Next, we consider the State’s contention that it was improper for the trial court to enter an order suppressing the incriminating evidence seized from defendant’s person and automobile. At the outset, we note that the standard for appellate review of a motion to suppress is whether the trial court’s ruling was clearly erroneous. People v. Clark (1982), 92 Ill. 2d 96, 99, 440 N.E.2d 869.

A

The State initially maintains that the Skokie police officers had probable cause to arrest defendant for driving while under the influence of an intoxicating substance. We agree.

Probable cause for purposes of arrest is present when the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution to believe that an offense has been committed, and that the person arrested has committed the offense. (People v. Lippert (1982), 89 Ill. 2d 171, 178, 432 N.E.2d 605, cert. denied (1982), 459 U.S. 841, 74 L. Ed. 2d 85, 103 S. Ct. 92.) Although “mere suspicion” that the person arrested has committed the offense is an insufficient basis for arrest, it is well settled that the probable cause standard does not require the arresting officers to have in their hands evidence sufficient to convict the defendant. People v. Moody (1983), 94 Ill. 2d 1, 7, 445 N.E.2d 275; People v. Marino (1970), 44 Ill. 2d 562, 573, 256 N.E.2d 770.

A determination as to whether or not probable cause for an arrest exists in a particular case depends upon the “totality of the facts and circumstances known to the officers when the arrest was made.” (People v. Clay (1973), 55 Ill. 2d 501, 504, 304 N.E.2d 280, quoted in People v. Creach (1980), 79 Ill. 2d 96, 102, 402 N.E.2d 228, cert. denied, (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564.) In deciding the question of probable cause in any given case, the courts are not to be unduly technical; rather, they are to deal with probabilities— the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. People v. Clay (1973), 55 Ill. 2d 501, 505, 304 N. E. 2d 280.

Furthermore, we note that during any probable cause analysis, police officers are often required to act upon a quick appraisal of the date before them. As a consequence, the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to apprehend criminals. People v. Robinson (1976), 62 Ill. 2d 273, 277, 342 N.E.2d 356, quoting People v. Watkins (1960), 19 Ill. 2d 11, 19, 166 N.E.2d 433, cert. denied (1960), 364 U.S. 833, 5 L. Ed. 2d 59, 81 S. Ct. 57.

In the present case, the evidence adduced at trial corroborated Officer Radom’s conclusion that defendant was “definitely intoxicated” as a result of ingestion of alcohol or drugs, or both. For, when asked to produce his driver’s license, defendant was unable to comprehend the nature of this simple request; his speech was slurred and “thick-tongued”; his breath had a faint odor of what the officer believed was alcohol; his pants were unzipped and the rest of his clothes were in disarray; and, when defendant finally got out of the car, he was “wobbly,” needed help in standing up, and had to be leaned against the car so that he would not fall on the ground.

In the face of all of these undisputed facts, the trial court nonetheless reasoned that defendant’s physical condition was brought about by: (1) the accident with the parked vehicle; and (2) the man who allegedly hit defendant for running into his car and then driving away. The court thus concluded that there existed no probable cause to arrest defendant for driving under the influence of intoxicating liquor or narcotic drugs.

We disagree with this ruling, and find no basis upon which it may be sustained in light of the totality of facts and circumstances known to the Skokie police officers at the time of the arrest. (People v. Clay (1977), 55 Ill. 2d 501, 504; People v. Creach (1980), 79 Ill. 2d 96, 102.) Moreover, we find that the cases cited by defendant in support of the trial court’s ruling are readily distinguishable in that these decisions involve accidents and injuries of far greater severity than the circumstances involved herein: People v. Thomas (1975), 34 Ill. App. 3d 576, 340 N.E.2d 174, where defendant sustained intracerebral hematoma after driving over a fire hydrant and literally wrapping his car around a lightpole; People v. Winfield (1973), 15 Ill. App. 3d 688, 304 N.E.2d 693, where defendant was rendered unconscious as a result of an impact of sufficient force to detach the steering wheel and bend the left front wheel under the body of the car; and People v. Clark (1970), 123 Ill. App. 2d 41, 259 N.E.2d 636, where defendant was rendered unconscious as a result of an impact which caused his head to smash through the windshield.

It is well established that a police officer, arriving at the scene of an accident, can have probable cause to arrest a defendant for driving under the influence of an intoxicating substance despite never actually having seen him drive; for, the officer need only have a reasonable belief to form an opinion that, based on his experience, defendant was under the influence of narcotic drugs or alcohol, or both. People v. Sofia (1983), 112 Ill. App. 3d 710, 717, 445 N.E.2d 878; People v. Flores (1976), 41 Ill. App. 3d 96, 100, 353 N.E.2d 131.

From our review of the record in the present case, it is readily discernible that the trial court obstinately disregarded material facts indicative of a state of inebriation which would justify a reasonable belief, as opposed to a mere suspicion, that defendant had been driving while under the influence of an intoxicating substance. (People v. Lippert (1982), 89 Ill. 2d 171, 178; People v. Moody (1983), 94 Ill. 2d 1, 7.) Considering defendant’s physical condition, as well as his mental stupor at the time of the arrest, we believe Officer Radom and Officer Baron had probable cause to arrest defendant and, were they to refrain from doing so, the police officers would have been derelict in their duty to protect the public from such a dangerous nuisance. (See People v. Blitz (1977), 68 Ill. 2d 287, 294, 369 N.E.2d 1238, cert. denied (1978), 435 U.S. 974, 56 L. Ed. 2d 68, 98 S. Ct. 1622.) It is our opinion, therefore, that the trial court erred when it made its unduly technical finding of no probable cause to arrest.

B

The State further contends that it was manifestly erroneous for the trial court to suppress the incriminating evidence seized from defendant’s person. As we have already indicated the proper standard to be applied for appellate review of a motion to suppress is whether the trial court’s ruling was clearly erroneous. People v. Clark (1982), 92 Ill. 2d 96, 99.

When a lawful custodial arrest is effectuated, a full search of defendant’s person is not only an exception to the warrant requirement of the fourth amendment to the United States Constitution, but is also a “reasonable” search under that amendment. (United States v. Robinson (1973), 414 U.S. 218, 235, 38 L. Ed. 2d 427, 441, 94 S. Ct. 467, 477.) Such a full search of the person incident to a lawful arrest, therefore, requires no additional justification, e.g., the police actually fearing for their safety. 414 U.S. 218, 235, 38 L. Ed. 2d 427, 441, 94 S. Ct. 467, 477; see also New York v. Belton (1981), 453 U.S. 454, 461, 69 L. Ed. 2d 768, 775, 101 S. Ct. 2860, 2864.

Section 108 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 108 — 1) provides that when a lawful arrest is made by a police officer, the officer may reasonably search the person arrested for the purpose of discovering the fruits of the crime, or any instruments, articles or things which may have been used in the commission of, or which may constitute evidence of, an offense. In addition, the fact that the search is conducted at the police station, rather than at the place of arrest, does not by itself render the search invalid. People v. Seymour (1981), 84 Ill. 2d 24, 33, 416 N.E.2d 1070; see generally United States v. Edwards (1974), 415 U.S. 800, 803, 39 L. Ed. 2d 771, 775, 94 S. Ct. 1234, 1237.

Immediately folio-wing the arrest in the present case, Officer Radom read defendant the Miranda warnings, and then transported him to the Skokie police department for processing. Upon arrival at the booking area of the police station, Officer Radom conducted a routine in-custody search of defendant which revealed several different types of narcotics on his person, including valium, methoqualone, cocaine and tuinal.

Since there existed probable cause to arrest defendant for driving while under the influence of an intoxicating substance, we are convinced that Officer Radom acted properly in conducting a search of defendant’s person in order to discover anything which may have constituted evidence of the offense charged. (Ill. Rev. Stat. 1981, ch. 38, par. 108 — 1.) The police officer seized narcotic drugs from defendant’s person pursuant to a reasonable search incident to a lawful arrest. Therefore, we hold that the trial court’s interlocutory order suppressing this incriminating evidence was clearly erroneous.

C

Next, the State maintains that there existed probable cause to conduct a warrantless search of defendant’s automobile; thus, it is urged that the cannabis and weapons obtained therefrom should have been ruled admissible. We agree.

It is well recognized that when police officers have probable cause to believe that there is incriminating evidence inside an automobile, the officers may conduct a warrantless search of the vehicle, even after it is in police custody. (Colorado v. Bannister (1980), 449 U.S. 1, 3, 66 L. Ed. 2d 1, 3-4, 101 S. Ct. 42, 43; Chambers v. Maroney (1970), 399 U.S. 42, 52, 26 L. Ed. 2d 419, 428-29, 90 S. Ct. 1975, 1981.) The justification to conduct such a warrantless vehicular search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court having to surmise that the car’s contents would have been tampered with during the period required for procurement of a search warrant. Michigan v. Thomas (1982), 458 U.S. 259, 261-62, 73 L. Ed. 2d 750, 753, 102 S. Ct. 3079, 3081.

In United States v. Ross (1982), 456 U.S. 798, 823, 72 L. Ed. 2d 572, 592, 102 S. Ct. 2157, 2171, the Supreme Court held that when police have probable cause prior to instituting any warrantless vehicular search, they may search the interior compartment and trunk, as well as any luggage, container or package that might reasonably hold the object for which they had probable cause to search.

Illinois decisional law provides that to establish probable cause to search, “it must be shown that the totality of the facts and circumstances known to the officer at the time of the search would justify a reasonable person in believing that contraband was present in the automobile. [Citations.]” People v. Clark (1982), 92 Ill. 2d 96, 100, 440 N.E.2d 869, quoted in People v. Smith (1983), 95 Ill. 2d 412, 419, 447 N.E.2d 809.

Here, the evidence adduced at trial showed that Officer Baron had probable cause to search the interior compartment and trunk of defendant’s car, as well as the unlatched suitcase contained therein. The facts, as previously described in this opinion, clearly establish probable cause under Clark and Smith to believe that defendant’s vehicle contained contraband. Thus, in accordance with Ross, the police officer was entitled to search the car, as well as any closed containers carried therein that might hold drugs or drug-related paraphernalia.

Although the search involved in this case occurred almost four months before the Ross decision was handed down, we note that the Supreme Court recently held that decisions adopting new interpretations of the fourth amendment are to be applied retrospectively to all cases not yet final at the time the decision was rendered. (United States v. Johnson (1982), 457 U.S. 537, 562, 73 L. Ed. 2d 202, 222, 102 S. Ct. 2579, 2594.) Such retrospective application thereby permits us to resolve the instant case “in light of our best understanding of governing constitutional principles” (Mackey v. United States (1971), 401 U.S. 667, 679, 28 L. Ed. 2d 404, 413, 91 S. Ct. 1160, 1173 (Harlan, J., concurring in part, dissenting in part)), in order that we may further “the goal of treating similarly situated defendants similarly.” United States v. Johnson (1982), 457 U.S. 537, 538, 73 L. Ed. 2d 202, 205, 102 S. Ct. 2579, 2581.

In essence, the warrantless vehicular search in the present case was justified in view of the totality of facts and circumstances known to Officer Baron at the time of the search. (People v. Smith (1983), 95 Ill. 2d 412, 419, 447 N.E.2d 809.) We are of the opinion, therefore, that the 22 plastic bags of cannabis, as well as the two switchblade knives, recovered from defendant’s car did not violate the fourth amendment’s warrant requirement. Accordingly, the trial court’s interlocutory order suppressing this incriminating evidence was clearly erroneous. People v. Clark (1982), 92 Ill. 2d 96, 99.

Ill

Under the authority of section 8 of “An Act concerning fees and salaries ***” (Ill. Rev. Stat. 1981, ch. 53, par. 8) and People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we assess defendant $50 in costs for the State’s prosecution of this appeal, and hereby incorporate it as part of this judgment. We deny the State’s request for an additional $25 for oral argument. This denial is predicated on our interpretation of the per diem provision of the statute (“For each day actually employed in the trial of a case, $25”) as referring to an actual trial in the circuit court, not to an oral argument on appeal.

For the reasons set out herein, we reverse the trial court’s suppression order, and remand this cause to the circuit court of Cook County for further proceedings.

Reversed and remanded.

STAMOS and HARTMAN, JJ., concur.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACKIE CONLEY, Defendant-Appellant.
    First District (5th Division)
    No. 82—1465
    Opinion filed September 23, 1983.

      Barry Stewart Silver, of Chicago (L. Wolfe Finkle, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Edward Barron, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

After a bench trial, defendant was convicted and sentenced to eight years for armed robbery and five years for aggravated battery. He contends on appeal that (1) he was denied effective assistance of counsel; (2) the identification testimony of the complaining witness should have been suppressed; (3) his oral and written statements were involuntarily made and should have been suppressed; (4) he was not proved guilty beyond a reasonable doubt; and (5) the trial court abused its discretion in imposing a sentence of eight years for armed robbery.

At trial, Arlene Hrubecky testified that she was walking near Brompton and Halsted at approximately 1:30 p.m. on July 31, 1981, when a man standing near the sidewalk spoke to her. She could not distinguish what he said, and as she began to turn toward him a second man approached her from the front, took out a gun, and pointed it at her head. She heard the gun click, then the man grabbed her purse and struck her twice about the head and face with the gun. The two men ran toward a car parked on Brompton, and as they approached it the motor was started and both doors were opened. They entered the car, and as it sped away she noted that it was yellow and bore license plate number IY 7744. Immediately after the incident, she telephoned the police and gave a description of the car. She further testified that she viewed a lineup later that afternoon and identified codefendant Andrew Kahili as the man with the gun. Defendant was in the lineup, but she could not positively identify him as the second man involved because she had seen his face for only a few seconds, although she told officers that he looked like the man who spoke to her. Subsequently, Detective Graffeo took her to a room where defendant was sitting alone, and when she entered defendant approached her and apologized for what happened, stating that he was sorry he said “This is a stickup.” She admitted that she was not positive defendant was the man who spoke to her at the scene until he made this statement.

Officer Granias testified that he was on patrol at 1:30 p.m. on July 31, 1981, when an unidentified person reported hearing a woman screaming in the vicinity of the 700 block of Brompton. As he proceeded to that location, he saw a cream or yellow car with four black male occupants, and noted the license number, IY 7744. At the scene, he spoke to an unidentified woman who described the car involved in the occurrence, including the license plate number. He put out a radio call on the incident and learned that the radio dispatcher had already received the license number from the victim’s phone call, and that it was registered to Bobby Spicer. Twenty to thirty minutes later, he saw the car in question proceeding southbound on Lake Shore Drive, began pursuit, and forced it to the curb. As defendant, Kahili, and Spicer emerged from the vehicle, Kahili said “Don’t shoot, the gun is in the trunk.” Subsequently, a gun was recovered from the trunk. After being read his rights, Kahili further stated, “I walked up to her. I had the gun.”

Detective Graffeo testified that after initially denying their involvement in the incident, Kahili and defendant agreed to give statements. After being read his rights, Kahili stated orally that he, defendant, Spicer, and Gregory Connerly were driving around when they saw a woman walking down the street. He (Kahili) got out of the car, approached her with a gun, took her purse, and returned to the car. Later, they stopped again, placed the gun in the trunk, and changed drivers. They went through the purse, removed some of its contents, then discarded the purse and the remaining contents as they drove. Graffeo further testified that defendant agreed to give a written statement. He had been advised of his rights and was not physically abused or threatened in any way. After the statement was typed, defendant read it, made a correction which he initialed, and signed each page.

Defendant’s two-page written statement was admitted into evidence. He acknowledged therein that he understood his rights and waived them, then stated in pertinent part:

“CONLEY: I got out of the car and seen this lady walking down the street, as I was walking past her, I said ‘This is a Stick-Up.’ She just smiled and kept walking. And I kept walking. Then I seen the lady struggling with another person over her bag. I heard her scream, she screamed again, I heard the car pullin’ off and I ran towards the car and I got in the car.
* * *
GRAFFEO: Why did you say, — ‘stick-up’?
CONLEY: ‘Cause I guess that’s what I was fibrin’ to do, but I didn’t do it.
GRAFFEO: Did you know the person with whom the lady was struggling over her bag?
CONLEY: Yeah.
* * *
GRAFFEO: Has anyone made any threats, promises or used force on you to give this statement?
CONLEY: No.”

Gregory Connerly testified for the defense that he met his friends Kahili, Spicer, and defendant at 49th and State on July 31, 1981, at approximately 11:30 a.m. They drove to Chicago Fest, but it was crowded there, so they went to the beach at Belmont for awhile, then started driving back to Chicago Fest. When they stopped for a red light, a police car pulled in front of them and the officers got out with guns drawn and ordered them out of their car. They were told they were stopped in connection with a robbery of a clothing store, and it was not until they reached the police station that officers informed them of the robbery in question. Connerly did not recall hearing anyone say “Don’t shoot, the gun is in the trunk,” nor did he remember telling officers that Kahili and defendant got out of the car and robbed a woman; that Spicer was driving at that time, and he (Connerly) was sitting in the back seat; and that someone went through the victim’s purse, then discarded the contents as they drove. At the police station, he was placed in an interrogation room next to the defendant and could hear conversation and activity in the adjoining room. He heard defendant say several times, “I haven’t done anything,” and also heard loud noises like a chair falling to the ground.

In his testimony, Kahili essentially corroborated Connerly’s description of their activities on the date in question, although he could not describe the beach where the four men purportedly spent two hours, explaining that he never left the parking lot. He denied making any of the oral statements ascribed to him, maintaining that he was not involved in the crimes charged.

Defendant testified that he was at the beach with Kahili, Spicer, and Connerly at the time the crimes occurred. After his arrest he denied involvement, but officers repeatedly beat him, poked him with a black bar, pulled his chair out from under him, told him Kahili had confessed, and promised that he could go home if he signed some papers. He acknowledged that the signature on the second page of the statement was his, as well as the initials written next to a correction, but maintained that he did not read the statement and was not told what it said, but signed it because of the physical abuse and promises. He denied signing the first page of the statement containing an acknowledgment that he understood his Miranda rights and voluntarily waived them. Despite allegedly being poked, slapped, and kicked by officers, he had no bruises, did not seek medical treatment, and filed no complaints concerning his treatment. He admitted making the oral statement described by the victim, but asserted that he did so only after the police threatened to continue the beatings used to obtain his confession if he did not apologize.

It was stipulated that, if called, Officer Frank would testify that he spoke to the victim at the scene and was told that four black males were involved, driving a yellow car with license plate number IW 7744, registered to Bobby Spicer, and that the victim did not further describe her assailants. It was further stipulated that Officer Granias and Detective Graffeo would testify that when interviewed shortly after the incident and after being informed of his rights, Connerly stated that he was in the car with Kahili, defendant, and Spicer on the date in question; that Spicer was driving at that time, and he (Connerly) was in the back seat; that Kahili and defendant got out of the car and robbed a woman, then ran back to the car; and that, as they drove along Lake Shore Drive, someone went through the purse, then discarded it.

Opinion

Defendant first contends that he was denied effective assistance of counsel. He supports his position by alleging that his trial counsel (a) waived both opening and closing statements and failed to present oral argument on his post-trial motions; (b) failed to move for a severance; (c) jointly represented defendant and Kahili despite the existence of antagonistic defenses; and (d) failed to make pretrial motions to suppress the victim’s identification testimony and defendant’s inculpatory statements.

An accused has the right to effective assistance of counsel in State criminal proceedings pursuant to the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV; People v. Knippenberg (1977), 66 Ill. 2d 276, 362 N.E.2d 681); however, these provisions have been interpreted to mean competent, not perfect, representation (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 64); therefore, we will consider the totality of the circumstances in determining the competency of counsel rather than focusing on isolated instances (People v. Davis (1981), 103 Ill. App. 3d 792, 431 N.E.2d 1210). In order to prevail on this issue, defendant must show both that his counsel, whether retained or appointed, was “actually incompetent as reflected in the performance of his duties as a trial attorney” (People v. Martin (1983), 112 Ill. App. 3d 486, 493, 445 N.E.2d 795, 802) and that the incompetence was sufficient to affect the outcome of the trial (People v. Taylor (1982), 110 Ill. App. 3d 1140, 443 N.E.2d 699). Furthermore, we will not extend our review to areas involving the exercise of judgment, trial tactics, or strategy, even where appellate counsel or this court might have acted differently (People v. Hebein (1982), 111 Ill. App. 3d 830, 444 N.E.2d 782), nor will we indulge in mere conjecture or speculation as to the outcome of the case had representation been of higher quality (People v. Hills (1980), 78 Ill. 2d 500, 401 N.E.2d 523) or require counsel to do a futile act (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677).

With regard to defendant’s first allegation of incompetence, we note that waiver of opening statements has been recognized repeatedly as a matter of trial strategy (People v. Lewis (1981), 88 Ill. 2d 129, 430 N.E.2d 1346; People v. Vargas (1981), 97 Ill. App. 3d 347, 422 N.E.2d 1163) as is waiver of closing argument under most circumstances (People v. Miller (1980), 90 Ill. App. 3d 422, 413 N.E.2d 143; People v. McMullen (1980), 82 Ill. App. 3d 1042, 403 N.E.2d 539), particularly in a bench trial (see People v. Talasch (1974), 20 Ill. App. 3d 794, 314 N.E.2d 510). Here, the prosecutor and counsel for codefendant Spicer also waived opening argument, and when the prosecutor waived closing argument, defendant’s counsel decided to waive his argument in order to preclude the State from offering any rebuttal. Under the circumstances, we believe that counsel’s decision was a question of tactics, and while it appears in the wisdom of hindsight that a different course might have been preferrable, counsel’s strategy is not demonstrative of incompetence. (See People v. Miller.) A similar rationale is applicable to counsel’s failure to present oral argument on his post-trial motion. Furthermore, defendant has not shown how he was prejudiced, particularly in the light of the ample evidence against him; his assertion that the outcome might have been different had counsel chosen another tactic is based entirely on conjecture, and we will not speculate on what counsel’s oral argument might have added to the allegations of error contained in his written post-trial motion.

Defendant further argues that counsel’s incompetence is demonstrated by his failure to file a motion for severance. We addressed this question recently in People v. Morrow (1982), 104 Ill. App. 3d 995, 1006, 433 N.E.2d 985, 994, and held that failure to present a motion to sever “cannot amount to incompetence if the motion would have been unavailing, since there is no incompetence in failing to do a futile act.” There, we noted that “the primary issue on such a motion is whether the defenses are so antagonistic that a fair trial can be assured only by a severance,” and found no basis for such a motion where the defendants offered identical defenses. (See also People v. Nash (1980), 90 Ill. App. 3d 612, 413 N.E.2d 16.) Similar reasoning was applied in People v. Royse (1982), 107 Ill. App. 3d 326, 437 N.E.2d 679, where the court found no incompetence in failing to file a motion for severance where a codefendant’s motion had been denied, indicating that any motion by the defendant also would have been unavailing. In the instant case, as in Morrow, defendant and Kahili offered identical alibi defenses, while Spicer relied on the State’s inability to prove his participation beyond a reasonable doubt and declined to cross-examine the State’s witnesses or offer any witnesses on his own behalf. It is our view that these defenses are not antagonistic, and the failure to present a motion to sever was not incompetence where no basis appeared therefor. Furthermore, we note that, as in Royse, a motion to sever made by codefendant Spicer was denied, strongly suggesting that any such motion by defendant would have been similarly unsuccessful.

Defendant also maintains that he was denied effective assistance of counsel when his attorney represented both him and Kahili. He acknowledges that joint representation of codefendants is not per se violative of his constitutional rights, and that he must show “an ‘actual conflict of interest manifested at trial’ [citation]” (People v. Vriner (1978), 74 Ill. 2d 329, 341, 385 N.E.2d 671, 676; see also People v. Nelson (1980), 82 Ill. 2d 67, 411 N.E.2d 261), but asserts that such conflict is shown where separate counsel might have pursued a different alibi defense or advanced a coercion defense. A similar argument based on what defenses “might have been advanced” was rejected by the supreme court in People v. Echols (1978), 74 Ill. 2d 319, 327-28, 385 N.E.2d 644, 648, wherein the court noted:

“In short, we do not know what strategy independent counsel would have pursued, and this court has in the past refused to find hostility between the interests of criminal co-defendants based on the mere possibility that one strategy available to defense counsel would have helped one defendant at the expense of another.”

Similarly, here, it is not apparent from the record before us that independent counsel would have advanced a different alibi defense or attempted to establish that defendant’s participation was coerced. While in an abstract sense such defenses arguably would be possible, any finding of actual conflict of interest based thereon could only be the result of conjecture on our part, and we have repeatedly declined to indulge in such speculation. People v. Wells (1982), 106 Ill. App. 3d 1077, 436 N.E.2d 688.

Defendant’s final assertion of incompetence is based on trial counsel’s failure to file pretrial motions to suppress the victim’s identification testimony and his inculpatory statements. He argues that Ms. Hrubecky’s identification of defendant was the product of a suggestive showup, and that his inculpatory statements were “clearly” the result of coercion. However, it is well settled that “whether or not a motion to suppress should be filed in a criminal case is a matter of trial tactics and almost invariably has no bearing on the issues of competency of counsel.” (People v. Hines (1975), 34 Ill. App. 3d 97, 100-01, 339 N.E.2d 489, 492.) With regard to trial counsel’s failure to move to suppress the victim’s identification testimony, we note that her inability to identify defendant at the lineup was brought out by the prosecutor and emphasized by defense counsel during cross-examination. In fact, Ms. Hrubecky never purported to base her identification of defendant on anything other than his inculpatory statement identifying himself to her as the second person involved in the incident. It is apparent from the record that counsel chose to attack the victim’s identification through cross-examination rather than through a motion to suppress, and we have repeatedly held that such a choice is a matter of judgment and not reflective of incompetence, since either option seeks to accomplish the same result. People v. Posey (1980), 83 Ill. App. 3d 885, 404 N.E.2d 482; People v. Meadows (1980), 81 Ill. App. 3d 588, 402 N.E.2d 321; People v. Hines (1975), 34 Ill. App. 3d 97, 339 N.E.2d 489.

With regard to the alleged involuntariness of defendant’s statements, we note that it is not at all clear from the record before us, contrary to defendant’s assertions, that such a motion would have been successful. Trial counsel did raise this issue at trial, eliciting testimony from defendant and Connerly in support of his theory that both defendant’s oral and written statements were involuntary. However, their testimony was refuted by Detective Graffeo, who testified that defendant was not abused or threatened in any way, and by defendant’s own written statement wherein he acknowledged that he understood his rights, including his right to remain silent, and voluntarily waived them, and that no threats, promises, or force were used to obtain his statement. Based on this evidence, we cannot say that a motion to suppress would have been successful. We are in accord with People v. Henry (1982), 103 Ill. App. 3d 1143, 1146-47, 432 N.E.2d 359, 361, wherein the court noted under analogous circumstances:

“We have reviewed the record on appeal, including the offer of proof, and find that the record viewed in its entirety fails to disclose that the defendant’s trial counsel was incompetent. Whether the defendant’s motion to suppress, if filed timely, would have been successful or not is not so clear as to admit of only the conclusion that the motion would have been successful. We do not pass judgment on the merits of the defendant’s motion. Nor do we hold that the defendant’s counsel might not have been better advised to pursue a timely [motion] to suppress based on the facts before us. We hold merely that, based on the totality of defense counsel’s conduct at trial, the defendant was not denied his right to effective assistance of counsel.”

(See also People v. Calderon (1981), 101 Ill. App. 3d 469, 428 N.E.2d 571.) Here, we note that trial counsel presented a vigorous defense, skillfully examining his own witnesses, thoroughly cross-examining the State’s witnesses, and making timely and often successful objections. Moreover, the voluntariness of defendant’s statements was before the trial court as trier of fact. It was apparently trial counsel’s strategy to present an alibi defense, demonstrate that the victim’s identification was based entirely on defendant’s statement, and prove that his statements were the product of coercion. The fact that this strategy was unsuccessful is not proof of incompetence, nor can we say in the instant case, even in the wisdom of hindsight, that an alternative strategy might have been more successful, since it is apparent from the record before us that any motion to suppress would have been as entirely dependent upon the credibility of witnesses as was the strategy actually followed by trial counsel. For these reasons, we believe that defendant has failed to show that he was denied effective assistance of counsel.

Defendant next contends that the victim’s identification of him was the product of a suggestive showup and, as such, should have been suppressed. He acknowledges that this issue was not raised at trial or in his post-trial motion, and therefore ordinarily would be deemed waived, but asserts that we must review his contention under the plain error exception of Supreme Court Rule 615 (73 Ill. 2d R. 615(a)). Defendant’s argument rests on the premise that Ms. Hrubecky’s identification of him was the product of a showup; however, it is clear from her testimony that the sole basis for her identification was defendant’s unsolicited statement to her that “he was sorry he robbed her.” She never purported to be able to identify him from the brief glimpse she had of the second man at the scene; in fact, at trial, while she identified him as the man who made this statement, she admitted that she presumed from this statement that he was the man who spoke to her at the scene. Since, even assuming arguendo that the procedure used by the officers was meant to be suggestive, it did not produce the identification in question, we find no merit in defendant’s argument.

Defendant also contends that his statements were involuntary and should have been suppressed, again admitting that the issue was not raised at trial or in his post-trial motion, and he relies on the plain error exception of Rule 615. However, that exception is directed at legal rather than factual issues, and where we cannot determine from the evidence presented whether error occurred, “we will not speculate as to whether the admission of evidence was plain error.” (People v. Calderon (1981), 101 Ill. App. 3d 469, 476, 428 N.E.2d 571, 575.) Here, defendant’s testimony that his statements were the product of physical abuse, threats, and promises was refuted by the testimony of Detective Graffeo and defendant’s own written statement; moreover, we do not know what further evidence the State might have adduced if called upon to prove the voluntariness of defendant’s statements, or which witnesses the trial court would have found credible had it been asked to rule upon the question. It is our view that the issue must be deemed waived where, as in the instant case, the record is such that we cannot

ascertain what would have been the result of a motion to suppress. See People v. Brown (1982), 107 Ill. App. 3d 576, 437 N.E.2d 1240; People v. Calderon.

Defendant further contends that he was not proved guilty beyond a reasonable doubt, arguing that the evidence against him establishes no more than his presence at the scene, and is insufficient to hold him accountable for the actions of Kahili. We disagree. Evidence of conduct showing a design on the part of the accused to aid in a crime renders him accountable for the other participant’s actions. (People v. Rodgers (1978), 58 Ill. App. 3d 719, 374 N.E.2d 721.) Here, we have defendant’s own statements that he approached the victim along with Kahili and said “this is a stickup,” evidencing his intent to aid in the crime. His statement adds the further details that the victim smiled and continued walking, and that after the crime occurred, he ran back to the car. While it is true that a confession, standing alone, is insufficient to support a conviction (People v. Melquist (1962), 26 Ill. 2d 22, 185 N.E.2d 825), the State need not prove beyond a reasonable doubt that a crime occurred exclusively by evidence independent of the confession; rather, “if the independent evidence tends to prove that an offense occurred, then such evidence, if corroborative of the facts contained in the confession, may be considered along with the confession in establishing the corpus delicti” (People v. Willingham (1982), 89 Ill. 2d 352, 361, 432 N.E.2d 861, 865). Defendant does not dispute that Ms. Hrubecky was robbed at gunpoint, and her testimony that she was approached by two men, that one of them spoke to her but she could not distinguish what was said, and that both men then ran back to their car corroborates the facts contained in defendant’s statement, as does Kahili’s statement that defendant was present when the crime occurred. Defendant further asserts that reasonable doubt is created by the victim’s inability to positively identify him as the second man involved in the absence of his inculpatory statement to her and by the evidence presented that his statements were involuntarily made. However, these are questions of the credibility of the witnesses involved and the weight to be given the evidence, which are issues for the trier of fact (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 64), and we will not substitute our judgment thereon (People v. Hall (1982), 104 Ill. App. 3d 1064, 433 N.E.2d 1039) where, as here, the evidence is conflicting (People v. Rodriquez (1981), 100 Ill. App. 3d 244, 426 N.E.2d 586), and we have had no opportunity to observe the witnesses and assess their credibility.

Finally, defendant contends that the eight-year sentence for armed robbery was excessive. He asserts that the trial court failed to give adequate consideration to mitigating factors and the nature of his involvement in the crime.

Determination of the sentence to be imposed is a matter of judicial discretion, and where a sentence is within statutory limits, the trial court’s decision will not be disturbed absent an abuse of that discretion (People v. La Pointe (1982), 88 Ill. 2d 482, 431 N.E.2d 344; People v. Shumate (1981), 94 Ill. App. 3d 478, 419 N.E.2d 36); that is, unless the sentence fails to reflect “the seriousness of the offense and [give] adequate consideration to the rehabilitative potential of the defendant” (People v. Carlson (1980), 79 Ill. 2d 564, 587, 404 N.E.2d 233, 243). A rebuttable presumption exists that the sentence imposed is proper (People v. Kloiber (1981), 95 Ill. App. 3d 1061, 420 N.E.2d 870), and defendant must affirmatively show that the sentence was based on improper considerations (People v. Walter (1980), 90 Ill. App. 3d 687, 413 N.E.2d 542) or is otherwise erroneous in his particular situation (People v. White (1980), 86 Ill. App. 3d 19, 407 N.E.2d 572).

Armed robbery is a Class X felony, for which a sentence of not less than six nor more than 30 years is statutorily mandated. (Ill. Rev. Stat. 1979, ch. 38, pars. 18 — 2(b), 1005 — 8—1(a)(3).) Since the sentence imposed is within the lower range of the statutory limits, defendant must show that it is based on improper considerations or is somehow inappropriate in this case. He relies here on the latter argument, asserting that the trial court failed to give proper consideration to his lack of prior criminal involvement and his supportive family background. However, it appears from the record before us that the trial court specifically considered both of these mitigating factors in reaching its determination. Furthermore, the trial court noted the difference in the participation of the two men in imposing a lesser sentence on defendant than on Kahili, despite the strong similarity of the mitigating factors presented on their behalf. Given the nature of the crime and the factors considered by the trial court, we cannot say in the instant case that imposition of a sentence only two years beyond the statutorily mandated minimum constituted an abuse of discretion.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

WILSON, RJ., and LORENZ, J., concur.

      Defendant was found not guilty of attempted murder, and the trial court entered no finding on a charge of armed violence, ruling that it merged with the armed robbery conviction. Codefendant Andrew Kahili, who has not appealed, also was convicted of armed robbery and aggravated battery. Codefendant Bobby Spicer was found not guilty on all charges.

      Defendant urges that we adopt the standard applied by several Federal courts; i.e., whether trial counsel’s performance satisfied minimum professional standards for reasonably competent representation. However, that standard was expressly rejected by our supreme court in People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.


author: JUSTICE JOHNSON

text:
    THE VILLAGE OF PALATINE, Petitioner-Appellee, v. K. REINKE, JR., et al., Defendants-Appellants.
    First District (4th Division)
    No. 82—2198
    Opinion filed September 22, 1983.
    Allan Peters and John D. Kightlinger, both of Arlington Heights, for appellants.
    Littlejohn, Glass & Yowell, of Northbrook (Bradley M. Glass, G. Kent Yowell, and Michael M. Roth, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Following a petition by the Village of Palatine (the Village) seeking declaration of municipal code violations and subsequent demolition of a house, the trial court ruled in favor of the Village and this appeal was brought. Two issues are raised for review: (1) whether the trial court erred in considering evidence obtained during an inspection of the subject property, and (2) whether the trial court erred in ordering demolition of the house.

We affirm.

The defendants are Marc Stegen (Stegen), the tenant occupying the house for three years prior to and at the time of the proceedings in the trial court, Robert Dali (Dali), the owner of the property as beneficiary of a land trust, and Karl Reinke, who sold the property to Dali.

On February 26, 1981, the Village filed a petition in the circuit court of Cook County seeking demolition of the house. A hearing on the matter commenced on April 28, 1982. The facts adduced at the hearing may be summarized as follows: the subject property located on the outskirts of Palatine consists of a two-story farm house, two silos and a garage. On December 16, 1980, Gary Duchesne, code enforcement officer of the Village, inspected the exterior of the house and the surrounding property. Following a request from Duchesne, by letter, Stegen contacted Duchesne by telephone. Arrangements were made for Duchesne to inspect the house in Stegen’s absence. Stegen advised Duchesne to confine the inspection to the basement. Stegen testified that he assumed the inspection was to take place within several days of his conversation with Duchesne but that he (Stegen) did not discuss any time restrictions. Duchesne next inspected the premises on January 26, 1981, with Village health inspector Bob Roels. Sometime after that visit, Duchesne contacted Karl Reinke, by letter and telephone, concerning the condition of the property.

On February 5, 1981, Duchesne and Roels again went to the house. Stegen admitted them to the house and allowed an inspection of the interior. The next day, Duchesne and Roels returned with Cecil Kistler, Palatine director of environmental health. Stegen permitted them to inspect the basement. The trial court ruled that the inspection of January 26, 1981, was nonconsensual. The court noted that the consent given on December 16,1980, was too remote.

The following defects were some of those noted during the inspections on February 5 and 6, 1981: one of the silos on the property has no roof, is tilting, and has loose or missing siding; there are a number of junk cars in the yard; there are several broken windows in the house; a large portion of the siding is rotting; there are cracks in the foundation of the house (many of them severe); there are holes in the walls; the basement stairs are rotting and steps are missing; a supporting beam of the house is bowed and cracked; there are exposed electrical wires in several parts of the house; there is no running water; there was a gas leak; and a combination of sewage and waste water is pooled in an open trench in the basement as well as in the ground outside. Additionally, two residents of the area testified that the property was located in an area of single-family homes. Children play in the area and the property is considered unsightly and unsafe.

On June 1, 1982, the trial court ruled in favor of the Village. The court found numerous violations of the Village code, ordered eviction of the tenant within 15 days, and fines totaling $2,600. Defendants were granted 60 days to make repairs to comply with the Village code. The matter was continued to August 19, 1982, for a status report to the court. Defendants Stegen and Dali appealed the order of June 1, 1982, and on September 1, 1982, this court dismissed the appeal, ruling that the order appealed from was not a final appealable order.

On September 10, 1982, the trial court granted an order for demolition of the house. At the time of oral arguments before this court, a stay of the trial court’s order was in effect and the house had not been demolished.

Defendants argue that the trial court’s ruling cannot stand since it was based on illegally obtained evidence. They argue that such inspections as were carried out in this case significantly impinge upon Stegen’s fourth amendment rights. Similarly, Dali’s constitutional rights as the lessor of the building were violated.

Defendants make additional arguments that Stegen, as lessee, did not have authority to consent to an inspection on behalf of Dali. Defendants cite Camara v. Municipal Court (1967), 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727, and See v. City of Seattle (1967), 387 U.S. 541, 18 L. Ed. 2d 943, 87 S. Ct. 1737, in support of their arguments. They assert that the fact that Stegen permitted inspections of the premises on February 5 and 6, 1982, is meaningless, and all evidence produced as a result of those two inspections should be stricken. Furthermore, any consent given by Stegen was involuntary.

We do not agree with defendants’ arguments. Further, we find that neither Camara nor See are applicable to the resolutions of the issues here. In Camara, the United States Supreme Court held that the fourth amendment bars prosecution of an individual who has refused to permit a warrantless inspection of his personal residence. In See, the only question that the court really considered was whether the holding in Camara applies to similar inspections of commercial buildings that are not used as residences.

In the case before us, while the entries and inspections were warrantless, we do not find them to be without consent. We agree with the trial court that the inspection of January 26, 1981, was so far removed in time from Stegan’s consent of December 16, 1980, as to make it nonconsensual. However, the trial court found, and we agree, that the inspections of February 5 and 6 were made with Stegen’s consent. On February 5, 1981, Stegen allowed Duchesne and Roels to inspect the house. He did not restrict the inspection to any particular part of the house. On February 6, 1981, Stegen again permitted an inspection by Duchesne, Roels and Kistler. On that visit, Stegen restricted the three inspectors to the basement. Nevertheless, all three inspectors gave unrebutted testimony concerning the numerous Village code violations they observed on those two dates.

We find no merit in defendants’ argument that since the inspection of January 26 was improper then the other two were also improper. Stegen personally allowed the inspectors into the house on February 5 and 6 constituting new consent for those inspections.

We find unconvincing defendants’ argument that Stegen’s consent was invalid without the affirmance of the landlord, Dali. Defendants point to no authority for their position. We agree with the Village that all that was necessary was proof that Stegen as the tenant with access and control of the property consented to the inspections. Even if Dali had the use and control of the house, such use and control would have been mutually shared with Stegen. Thus, it was reasonable for the inspectors to assume that the consent given by Stegen was valid. See People v. Ford (1980), 83 Ill. App. 3d 57, 403 N.E.2d 512.

Similarly, we reject defendants’ argument that Stegen’s consent was involuntary. The rule for determining the voluntariness of a consent to a search (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248, 36 L. Ed. 2d 854, 875, 93 S. Ct. 2041, 2059; People v. Sommer (1977), 45 Ill. App. 3d 459, 460, 359 N.E.2d 1190, 1191), is that it must be shown that consent was not the result of duress or coercion, express or implied, but was in fact freely given. Whether consent has been given is a factual matter to be determined by the trial court, and that determination will be accepted by the reviewing court unless it is clearly unreasonable. (People v. DeMorrow (1974), 59 Ill. 2d 352, 358, 320 N.E.2d 1, 5.) We find that the record supports the trial court’s determination that there was consent.

Defendants’ second issue asserts that the trial court erred in ordering demolition of the house. They argue that there was insufficient evidence to support the court’s order. They cite City of Aurora v. Meyer (1967), 38 Ill. 2d 131, 230 N.E.2d 200, in support of their arguments. They also argue that the evidence on which the demolition order was based was over a year old at the time of the order and therefore was not indicative of the present condition of the building.

In City of Aurora, the Illinois Supreme Court said that a court should only order demolition if the dangerous conditions cannot be rectified in any other way and such action is necessary to protect the public. Further, the owners should be given reasonable opportunity to make repairs. In the instant case, there was evidence of serious and extensive defects in the building. In addition to the structural condition of the building, raw sewage flowed unrestricted into the ground outside and overflowed into an open trench inside the basement. There was evidence that nearby wells risked contamination. Neighborhood children sometimes played on the property near where the sewage collected.

It appears from the evidence that compliance with the Village code would necessitate extensive repairs. No estimates of the cost of repairs compared with the value of the building was submitted by defendants. See City of Chicago v. Birnbaum (1971), 49 Ill. 2d 250, 274 N.E.2d 22; City of Aurora v. Meyer (1967), 38 Ill. 2d 131, 230 N.E.2d 200.

At the time of the hearing of April 28, 1982, more than a year had passed since the inspection of the property. Defendants were aware that the Village was concerned about the condition of the property. Yet, there is no evidence of any attempts to make repairs. At a hearing in August 1982, a Village inspector testified that he visited •the property four or five times since June 1982. The condition of the property was essentially unchanged.

We note that the trial court gave defendants 60 days in which to make repairs before ordering demolition. On September 10, three weeks after the expiration of the 60 days, the parties appeared before the trial court. There was no evidence that defendants had begun any of the necessary repairs. The court then ordered that demolition proceed.

We believe the record indicates that the public welfare, health and safety of the surrounding area was endangered by the condition of the property. See City of Chicago v. Birnbaum (1971), 49 Ill. 2d 250, 274 N.E.2d 22.

We hold that the trial court did not err or abuse its discretion in ordering demolition of the house, and its ruling is therefore affirmed.

Affirmed.

LINN and JIGANTI, JJ, concur.