text:
    CHARLOTTE K. CLEMENT, Assignee of Linda King, Plaintiff-Appellant, v. HOWARD H. PRESTWICH, Defendant-Appellee.
    Second District
    No. 82—570
    Opinion filed May 3, 1983.
    Joseph D. Olsen and Raphael E. Yalden, II, both of Downey, Yalden, Shriver and Yalden, of Rockford, for appellant.
    Robert K. Clark, of Clark and Heaslip, of Rockford, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Charlotte K. Clement, appeals from an order dismissing with prejudice her complaint for legal malpractice against defendant, Howard H. Prestwich, an attorney. Plaintiff brought suit based on a purported assignment of a legal malpractice claim against defendant, which plaintiff had received from Linda King. The trial court granted defendant’s motion to dismiss, ruling that a claim for legal malpractice could not be assigned. The issue plaintiff raises on appeal is whether a cause of action for legal malpractice is assignable.

The facts, as alleged in plaintiff’s complaint, are set out below. These facts must be taken as true on a motion to dismiss. Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 284, 402 N.E.2d 599.

Plaintiff was seriously injured in an automobile accident with King on March 21, 1977. A cause of action in her favor arose against King from this accident. King retained defendant, an attorney, to represent her in bankruptcy proceedings. Defendant filed a petition in bankruptcy for King which listed plaintiff as an unsecured creditor based on the cause of action arising from the accident. Defendant allegedly breached his duty of care in representing King and, as a result of this alleged breach, plaintiff’s claim against King was not discharged in bankruptcy. Plaintiff, therefore, was later able to file an action at law and to pursue her claim against King. Plaintiff obtained a $21,000 judgment on this claim against King. On November 6, 1981, plaintiff received from King a purported written assignment of King’s legal malpractice claim against defendant arising from defendant’s allegedly negligent handling of King’s bankruptcy matter.

Defendant moved to dismiss plaintiff’s complaint, claiming that a cause of action for legal malpractice was not assignable and that therefore the complaint failed to state a cause of action. (Ill. Rev. Stat. 1981, ch. 110, par. 45.) The trial court granted this motion, relying on Christison v. Jones (1980), 83 Ill. App. 3d 334, 405 N.E.2d 8.

In Christison, the court held that the right to file an action for legal malpractice was not an asset of the bankrupt’s estate which the trustee in bankruptcy could pursue in court. The court stated that the essential question in deciding the case was whether a cause of action for legal malpractice was assignable. (83 Ill. App. 3d 334, 337, 405 N.E.2d 8.) For public policy reasons, well stated therein, the court held that a cause of action for legal malpractice was not assignable. (83 Ill. App. 3d 334, 338-39, 405 N.E.2d 8.) We find the reasoning in Christison persuasive and applicable to the case at bar. The fact that Christison involved an involuntary assignment, while this case involves a purported voluntary assignment, does not alter the public policy reasons for barring the assignment of a cause of action for legal malpractice. See Goodley v. Wank & Wank, Inc. (1976), 62 Cal. App. 3d 389, 133 Cal. Rptr. 83.

The attorney-client relationship is a fiduciary relationship as a matter of law. (In re Schuyler (1982), 91 Ill. 2d 6, 11, 434 N.E.2d 1137.) This relationship is a confidential one which must be highly honored and guarded by the attorney. (Rose v. Frailey (1957), 10 Ill. 2d 514, 517, 140 N.E.2d 711; Christison v. Jones (1980), 83 Ill. App. 3d 334, 338, 405 N.E.2d 8.) The confidence reposed in an attorney is of a personal nature and cannot be delegated by the attorney without the client’s consent. (Cornelius v. Wash (1825), 1 Ill. (Breese) 98, 100; Christison v. Jones (1980), 83 Ill. App. 3d 334, 338, 405 N.E.2d 8.) A client’s claim for malpractice arises from this personal relationship and is a claim that his attorney has breached a personal duty to the client (Christison v. Jones (1980), 83 Ill. App. 3d 334, 338, 405 N.E.2d 8), and that the client has been injured as a result of the breach. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 18, 440 N.E.2d 96; Cook v. Gould (1982), 109 Ill. App. 3d 311, 314, 440 N.E.2d 448.) We believe that sound public policy prohibits the assignment of these claims since an assignee would be a stranger to the attorney-client relationship, who was owed no duty by the attorney and who suffered no injury from the attorney’s actions.

The court in Goodley v. Wank & Wank, Inc. (1976), 62 Cal. App. 3d 389, 133 Cal. Rptr. 83, persuasively sets out the potential perils of allowing the assignment of legal malpractice claims:

“It is the unique quality of legal services, the personal nature of the attorney’s duty to the client and the confidentiality of the attorney-client relationship that invoke public policy considerations in our conclusion that malpractice claims should not be subject to assignment. The assignment of such claims could relegate the legal malpractice action to the market place and convert it to a commodity to be exploited and transferred to economic bidders who have never had a professional relationship with the attorney and to whom the attorney has never owed a legal duty, and who have never had any prior connection with the assignor or his rights. The commercial aspect of assignability of choses in action arising out of legal malpractice is rife •with probabilities that could only debase the legal profession. The almost certain end result of merchandizing [sic\ such causes of action is the lucrative business of factoring malpractice claims which would encourage unjustified lawsuits against members of the legal profession, generate an increase in legal malpractice litigation, promote champerty and force attorneys to defend themselves against strangers. The endless complications and litigious intricacies arising out of such commercial activities would place an undue burden on not only the legal profession but' the already overburdened judicial system, restrict the availability of competent legal services, embarrass the attorney-client relationship and imperil the sanctity of the highly confidential and fiduciary relationship existing between attorney and client.” 62 Cal. App. 3d 389, 397, 133 Cal. Rptr. 83, 87.

We concur in these concerns, as did the court in Christison v. Jones (1980), 83 Ill. App. 3d 334, 339, 405 N.E.2d 8, and hold that a cause of action for legal malpractice is not assignable. See also Chaffee v. Smith (1982), _ Nev. _, 645 P.2d 966; but see Oppel v. Empire Mutual Insurance Co. (S.D.N.Y. 1981), 517 F. Supp. 1305; Collins v. Fitzwater (1977), 277 Ore. 401, 560 P.2d 1074.

McGill v. Lazzaro (1978), 62 Ill. App. 3d 151, 379 N.E.2d 16, and Jones v. Siesennop (1977), 55 Ill. App. 3d 1037, 371 N.E.2d 892, cited and relied on by plaintiff, are inapposite. The issues decided in those cases were that an action for professional negligence does not abate with the death of the attorney (McGill v. Lazzaro (1978), 62 Ill. App. 3d 151, 379 N.E.2d 16), and that an action for professional negligence against an attorney does not abate with the death of the plaintiff and may be pursued by the administrator of her estate. (Jones v. Siesennop (1977), 55 Ill. App. 3d 1037, 371 N.E.2d 892.) The secondary basis of decision in McGill, that legal malpractice claims are assignable, was only briefly analyzed by the court and is not persuasive.

Plaintiff also maintains that in Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96, our supreme court expanded an attorney’s liability to nonclients and that this decision weakened the rationale of Christison v. Jones (1980), 83 Ill. App. 3d 334, 405 N.E.2d 8. However, Pelham held that a nonclient could maintain a cause of action only if he were able to prove that “the primary purpose and intent of the attorney-client relationship itself was to benefit or influence the third party.” (92 Ill. 2d 13, 21, 440 N.E.2d 96.) It is clear that plaintiff was not the intended beneficiary of the attorney-client relationship between defendant and King since the purpose of that relationship was to achieve the discharge of King’s debts, including her debt to plaintiff, in bankruptcy.

For the foregoing reasons the order of the circuit court of Stephenson County dismissing plaintiff’s complaint is affirmed.

Affirmed.

HOPF and TO DEUSEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    PATRICIA ANN WILLIAMS, Plaintiff-Appellant, v. ALFRED N. KOPLIN & COMPANY et al., Defendants-Appellees.
    Second District
    No. 82—607
    Opinion filed May 3, 1983.

      Steven J. Rosenberg, of Chicago, for appellant.
    Barry L. Kroll, Jean Christie Harris, Thomas H. Neuckranz, and Lloyd E. Williams, all of Jacobs, Williams & Montgomery, Ltd., of Chicago, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Patricia Ann Williams, appeals from an order which granted the motion for summary judgment of the defendants, Alfred N. Koplin & Company and Hinsdale Management Company. The only issue raised on appeal by plaintiff is whether the trial court erred in granting summary judgment where a genuine issue of material fact existed.

Plaintiff’s second amended complaint alleged in count I that on February 21, 1979, at approximately 6 p.m. and prior thereto, defendants owned the building in which plaintiff’s employer was a tenant and where plaintiff worked; that it was defendants’ duty to exercise ordinary care to keep the stairway and entrance in a reasonably safe condition; that defendants negligently shoveled ice and snow from the entrance and stairway leaving more than one-half of the entrance and stairway covered with ice and snow without any lighting; that defendants had notice of the dangerous condition, or by the exercise of ordinary care should have had such notice; and that plaintiff was injured when she slipped and fell while attempting to walk down the stairway.

Count II alleged substantially the same facts as in count I, but pleaded the wilful and wanton conduct of defendants or their agents in shoveling the ice and snow. This count further alleged defendants’ recklessness in employing unfit agents and defendants’ ratification of the acts of those agents. Subsequent to filing their answer, defendants filed a motion for summary judgment and, attached thereto, a copy of climatological data for February 1979 and excerpts from plaintiff’s deposition. Plaintiff, in response, filed her affidavit stating that “on February 21, 1979, she began to walk down the narrow path shoveled down the middle of the stairway of the premises *** and that at said time and place, the handrails alongside the stairway were inaccessible to individuals walking down the shoveled, narrow path.” She also filed excerpts from her deposition.

The excerpts from plaintiff’s deposition reveal that at the time of the accident there were 16 inches of snow accumulated on the ground in the Chicago area and that there had been additional snowfall the morning of the accident. The stairway upon which plaintiff fell was normally wide enough to accommodate three persons walking abreast. Although defendants had shoveled snow from the stairway, they did so only in the center of the stairs, creating a path about the width of a shovel. The stairs were not cleanly shoveled, and contained patches of impacted snow, on the shoveled portions of the stairs, caused by pedestrian traffic. Toward the sides of the stairway, in its unshoveled portions, the snow was approximately one foot deep. Plaintiff, who was walking down the shoveled portion of the stairs, slipped on the top step of the stairway and fell down the remaining steps. Plaintiff saw snow on the stair on which she slipped.

The thrust of plaintiff’s argument on appeal is that defendants were negligent by shoveling a narrow, slippery path down the center of a stairway, from which handrails were inaccessible, and which gave plaintiff the unreasonable choice of either taking the shoveled path, from which handrails were inaccessible, or walking down the stairs through the deep snow next to the handrails.

We first point out certain circumstances which are not disputed by the plaintiff on appeal. While plaintiff alleged in her complaint inadequate lighting, there are no facts in either plaintiff’s affidavit or the excerpts from her deposition to support that allegation. Further, there is no evidence that the unshoveled portion of the stairway was in any way altered from its natural state by the addition of snow shoveled from the middle of the stairway. Finally, plaintiff did not allege in her complaint or contend on appeal that the patch of snow she slipped on was an unnatural or artificial accumulation of snow and ice resulting from defendants’ conduct which caused her injury.

Summary judgment should be granted only where there is no genuine issue of material fact. (Ill. Rev. Stat. 1981, ch. 110, par. 57, recodified at Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005.) The court is to determine the existence or absence of a genuine issue as to any material fact from the affidavits, depositions, admissions, exhibits, and pleadings in the case. (Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 380, 313 N.E.2d 457.) A motion for summary judgment and its supporting documents must be strictly construed and must leave no question of the movant’s right to summary judgment. Bak v. Burlington Northern, Inc. (1981), 93 Ill. App. 3d 269, 272, 417 N.E.2d 148.

A landlord’s duty to his tenants pertinent to the issue raised here is as follows. Where only a portion of the premises is rented and the landlord retains control of other parts of the same such as stairways, passageways, or cellarways, or where he rents the premises to several tenants, retaining control over a part of the same for the common use of the several tenants, he has the duty of exercising reasonable care to keep the premises in a reasonably safe condition and he is liable for an injury from failure to perform such duty. (Murphy v. Illinois State Trust Co. (1940), 375 Ill. 310, 313-14, 31 N.E.2d 305; Hiller v. Harsh (1981), 100 Ill. App. 3d 332, 336, 426 N.E.2d 960; Seago v. Roy (1981), 97 Ill. App. 3d 6, 8, 424 N.E.2d 640; Gilbreath v. Greenwalt (1980), 88 Ill. App. 3d 308, 310, 410 N.E.2d 539.) The status of the injured person on such premises is important only to the extent that that person is lawfully on the premises since the duty of reasonable care has been imposed upon the landlord whether the injured person was a tenant, an employee of a tenant, a business invitee of a tenant, or a social guest of a tenant. (Hiller v. Harsh (1981), 100 Ill. App. 3d 332, 336, 426 N.E.2d 960.) The landlord’s duty is not to insure the safety of his tenants, but to exercise reasonable care. Murphy v. Messerschmidt (1976), 41 Ill. App. 3d 659, 663, 355 N.E.2d 78, aff'd & rem. (1977), 68 Ill. 2d 79, 368 N.E.2d 1299.

Generally, a property owner is under no obligation to clear the snow from sidewalks adjoining his premises (Riccitelli v. Sternfeld (1953), 1 Ill. 2d 133, 115 N.E.2d 288), or sidewalks maintained by the property owner (Kittle v. Liss (1982), 108 Ill. App. 3d 922, 924, 439 N.E.2d 972). It is the general rule that in the absence of a special agreement, a landlord owes no duty to his tenants to remove natural accumulations of snow and ice from common areas which remain under his control. (Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 1004, 365 N.E.2d 80; Gehrman v. Zajac (1975), 34 Ill. App. 3d 164, 340 N.E.2d 184; see also Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 145, 407 N.E.2d 1031.) A landlord incurs no liability for injuries to his tenants by the natural accumulation of ice and snow on his property. (Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 144-45, 407 N.E.2d 1031.) The mere removal of snow, which leaves a natural accumulation of ice on the surface, does not of itself constitute negligence. (Timmons v. Turski (1981), 103 Ill. App. 3d 36, 38, 430 N.E.2d 1135; Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 145, 407 N.E.2d 1031.) For a landlord to be liable, it must be shown that he in some way caused an unnatural accumulation of ice and snow or that he aggravated a natural condition. Lewis v. W. F. Smith & Co. (1979), 71 Ill. App. 3d 1032, 1037-38, 390 N.E.2d 39.

Applying these principles to the facts of the instant case, we conclude that plaintiff has neither alleged in her complaint negligence premised upon an unnatural accumulation of snow or ice on the stairway caused by defendants, nor presented by her affidavit or deposition a question of fact of such a condition. Although some snow apparently accumulated after shoveling which may have caused her to slip, this was a natural accumulation and does not itself establish negligence. Timmons v. Turski (1981), 103 Ill. App. 3d 36, 430 N.E.2d 1135; Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 407 N.E.2d 1031.

Plaintiff, however, maintains that a separate basis for liability exists for which her affidavit and deposition present a genuine issue of material fact which make summary judgment inappropriate. She contends that “defendants’ negligence inhered [sic]” once defendants undertook to shovel the stairway in a manner which created a narrow path from which a handrail was inaccessible.

While defendants assert that this is a new theory not pleaded in the trial court, any objection to the lack of specificity in pleading this allegation has been waived by defendants’ failure to object below when the facts to support this theory were raised in plaintiff’s affidavit and specific argument was made to the trial court on this basis by plaintiff in opposition to defendants’ motion for summary judgment. See Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 303, 393 N.E.2d 1223.

Although no independent duty exists upon a landlord to shovel a natural accumulation of snow on his property, liability can arise from the negligent performance of a voluntary undertaking. (See Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74, 199 N.E.2d 769; Cogswell v. Norfolk & Western Ry. Co. (1976), 43 Ill. App. 3d 444, 448, 357 N.E.2d 217.) Also, in Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596, our supreme court held that the Chicago Housing Authority, which owed no duty by statute or common law to protect its tenants from criminal acts, may impose liability upon itself when it voluntarily undertakes the hiring of a firm to provide security services, but performs the undertaking negligently, if the negligence is the proximate cause of the injury. (78 Ill. 2d 204, 209, 399 N.E.2d 596.) These cases are analogous to the situation here.

By voluntarily shoveling a path on the stairway, the defendants then obligated themselves to perform the undertaking with reasonable care. The plaintiffs affidavit and deposition evidence established that the handrail was inaccessible from the shoveled path and that she slipped on the first step where snow had accumulated. At this stage of the proceedings, plaintiff need show only some factual basis which would arguably entitle her to judgment. (Gehrman v. Zajac (1975), 34 Ill. App. 3d 164, 166, 340 N.E.2d 184.) The facts here are sufficient to raise a genuine issue of material fact as to defendants’ negligence. Although defendants argue that there is no showing “that the supposed inaccessibility of the handrails in any way caused plaintiff to fall,” reasonable inferences from the stated facts raise questions of fact whether an accessible handrail would have prevented plaintiff from falling or aided her when she began to fall. (See Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, 86-87, 368 N.E.2d 1299.) Also, if different inferences can be drawn by a reasonable man from facts evidenced, an issue of fact is considered to exist and summary judgment must be denied. Unzicker v. Chambers (1972), 8 Ill. App. 3d 992, 996, 291 N.E.2d 231.

It is further argued by defendants that plaintiff elected to walk down the shoveled portion of the stairway and fell on the slippery step for which condition the defendants were not responsible. Whether plaintiff had a choice of routes down the stairs, one through a foot of snow next to the handrail and another through the shoveled portion inaccessible to the handrail, and whether she chose a safe or unsafe path are questions of material fact on the issue of defendants’ negligence and plaintiff’s comparative negligence. (See Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill. 2d 153, 162, 125 N.E.2d 47.) Thus, summary judgment for defendants should not have been granted.

Reversed and remanded.

LINDBERG and VAN DEUSEN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PRINCE HARRIS GIBSON, Defendant-Appellant.
    Second District
    No. 81—902
    Opinion filed May 3, 1983.

      G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan, and Frank Weiss, of Chicago (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Prince Harris Gibson, a/k/a Owen Gibson, and co-defendant, Victor Johnson, were charged in Lake County with the offenses of burglary, theft of property over $150, and possession of burglary tools. (Ill. Rev. Stat. 1979, ch. 38, pars. 19 — 1(a), 16 — 1(a)(1), and Ill. Rev. Stat. 1981, ch. 38, par. 19 — 2.) Gibson was also charged with obstructing justice. Ill. Rev. Stat. 1981, ch. 38, par. 31 — 4(a).

What occurred was that a Lake Forest police officer on routine patrol on April 3, 1981, at about 10:20 a.m., observed a Cadillac bearing a Chicago vehicle sticker exiting the driveway of a Lake Forest residence. The driver was Victor Johnson. The residence was the home of Dr. and Mrs. Engelhardt and it was one of the residences shown on the officer’s “vacant” list; that is, the police department had been alerted that the residents were away on vacation.

The officer radioed the Cadillac license plate number in for a check; the car was registered to “a Johnson in Chicago.” The officer turned his vehicle around and began following the car. When the car exceeded the speed limit (50 m.p.h. in a 30 m.p.h. zone), the officer stopped the car. The officer was unaware until that time that defendant Gibson was a passenger in the car. When the officer went to the passenger side of the car to see Gibson’s driver’s license, he observed two pair of cowhide gloves and a screwdriver on the floor of the car. The officer radioed to have someone check the residence the codefendants had been seen leaving, and was advised the sliding glass door was ajar and off the runner, and the upstairs bedroom appeared to have been ransacked. The two men were then arrested, and the car towed to the police station.

Later that evening, the Engelhardts’ daughter was summoned to the home and she telephoned her parents, then in Seattle. As a result of the conversation, several specific items were discerned to be missing: some silver earrings, a cuff link box, six $100 bills, and a pillow case. When the defendants were searched at the police department, Johnson had five $100 bills, $92 in assorted bills, and various items of jewelry; Gibson had one $100 bill, $41 in assorted currency, some jewelry, and a key to the trunk of the Cadillac which fell out of his shoes when he was asked to bang them together at the police department.

The warrant authorizing the search of the Cadillac sought seizure of “items contained in the vehicle which were taken as a result of a burglary on April 3, 1981” from the residence in question. The complaint supporting the warrant set forth only that the residents’ daughter stated “her parents kept a number of $100 bills on hand in their bedroom which bills were missing.” When the search of the car was executed, the police found a pillow case containing credit cards, various items of jewelry, two small gold coins, and postal bonds issued in the name of “Engelhardt.” The items were later identified by the Engelhardts as their property.

The possession-of-burglary-tools charge was dismissed at the preliminary hearing. The trial court denied the defendants’ motions to quash the search warrant which had been issued for Johnson’s car and to suppress the proceeds of the burglary found therein. That motion was grounded, inter alia, on the lack of specificity as to the particular items to be seized and lack of probable cause. The trial court also denied defendants’ motion to suppress the physical evidence on the basis that the arrest was illegal.

Defendant’s motion for a directed verdict on the obstructing charge was granted at the close of evidence in his bench trial. Defense counsel’s renewed motions to quash and suppress were denied, and the trial court found Gibson guilty of burglary and not guilty of theft due to failure of proof of value over $150. Defendant’s post-trial motion was denied, and the court sentenced him to the Department of Corrections for six years. Gibson’s codefendant, Victor Johnson, previously had pled guilty to the charge and had received a six-year sentence as well. He has not appealed.

Gibson appeals, raising four issues: (1) whether the State has waived the issue of standing on appeal; (2) whether the search warrant was valid and whether the court erred in not suppressing the physical evidence obtained by reason of the search; (3) whether he was proven guilty of burglary beyond a reasonable doubt, and (4) whether he is entitled to a new sentencing hearing.

In its answer brief, the State maintains for the first time that defendant Gibson lacked standing to challenge the admission of evidence procured pursuant to what the defendants alleged prior to trial was an invalid warrant. It argues that defendant has failed to meet the burden imposed in Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421, that the proponent of a motion to suppress bears the burden of proving not only that the search was illegal, but also that he had a “legitimate expectation of privacy” in the area searched.

At the suppression hearing, Gibson testified he did not know to whom the car belonged, but that when Johnson became tired of driv: ing the car the day before they were arrested, Gibson changed seats with him and drove the car. Gibson testified he did not have a set of keys to the car, nor did Johnson ever give him a set.

The State argues the fact Gibson had a key in his shoe which fit the trunk of the car, thus evidencing Gibson was “in possession” of the proceeds of the burglary, does not exclude the argument that Gibson lacked standing. In support, it cites United States v. Salvucci (1980), 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547, wherein the court stated that “a prosecutor may, with legal consistency and legitimacy, assert that a defendant charged with possession of a seized item did not have a privacy interest violated in the course of the search and seizure.” 448 U.S. 83, 88-89, 65 L. Ed. 2d 619, 626, 100 S. Ct. 2547, 2551.

The defendant finds the instant case distinguishable from Salvucci because the State’s assertions are “wholly inconsistent” with each other. Defendant posits the State may not argue on the one hand that he had a possessory interest in the car for the purpose of supporting his burglary conviction and, on the other, argue he did not have a possessory interest for purposes of standing. Defendant also argues the State waived this standing issue by failing to raise it earlier, and the fact that a full evidentiary hearing was held in the case at bar distinguishes it from People v. Keller (1982), 93 Ill. 2d 432.

We find the defendant’s attempt to distinguish Salvucci and Keller unpersuasive. Salvucci explicitly overruled the “automatic standing” rule of Jones v. United States (1960), 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725. The Salvucci court noted one of the reasons the Jones court adopted the automatic standing rule was to prevent the “ ‘vice of prosecutorial self-contradiction’ i.e., where the government is allowed to assert that the defendant possessed the goods for purposes of criminal liability, while simultaneously asserting that the defendant did not possess them for the purposes of claiming the protections of the fourth amendment. (United States v. Salvucci (1980), 448 U.S. 83, 88, 65 L. Ed. 2d 619, 626, 100 S. Ct. 2547, 2551.) Salvucci explicitly declined “to use possession of a seized good as a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area searched.” 448 U.S. 83, 92, 65 L. Ed. 2d 619, 628, 100 S. Ct. 2547, 2553.

Salvucci emphatically rejected the assumption that possession of a seized good imports any measure of entitlement to the protection of the fourth amendment.

“[W]e must instead engage in a ‘conscientious effort to apply the Fourth Amendment’ by asking not merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched.” (448 U.S. 83, 93, 65 L. Ed. 2d 619, 629, 100 S. Ct. 2547, 2553.)

The record here not only fails to reveal that Gibson had a “legitimate expectation of privacy” in the car, but that he did not even know to whom the car belonged.

Defendant suggests in a footnote in his brief that the State waived the issue of standing because the instant case is distinguishable from People v. Keller (1982), 93 Ill. 2d 432. In Keller, the court held the State had not waived the issue of standing by raising it for the first time on appeal. The court there found it would be unfair to hold that the State, which had prevailed below when the trial court denied the defendant’s motion to suppress, had waived any reason it “might conceivably have argued” in support of the trial court’s favorable ruling. (93 Ill. 2d 432, 437.) As noted by the defendant here, a distinguishing feature is that an evidentiary hearing on the motion to suppress was held and the State did present argument in opposition to the motion. In Keller, there was neither an evidentiary hearing, nor did the State argue the motion. The court there took the motion under advisement at the beginning of the trial, and ruled on it during the next day of trial without argument from the State.

The court in Keller analyzed the issue before it according to the criteria enunciated in Steagald v. United States (1981), 451 U.S. 204, 68 L. Ed. 2d 38, 101 S. Ct. 1642. The instant question may be analyzed per Steagald as well.

In Steagald, the court noted that aside from arguing that a search warrant was not constitutionally required (which was also the argument made by the State here), the prosecuting agency risks losing its right to defend on the basis of other types of factual issues {e.g., lack of reasonable expectation of privacy, consent or exigent circumstances) under certain conditions. Specifically, the right to raise those types of factual issues may be lost where the prosecuting agency has made contrary assertions in a court or courts below, when it has acquiesced in contrary findings in those courts, or when it failed to raise such questions in a timely fashion during the litigation. Steagald v. United States (1981), 451 U.S. 204, 209, 68 L. Ed. 2d 38, 43-44, 101 S. Ct. 1642, 1646.

We believe the record here does not support the conclusion that the State waived its right to raise the issue of standing in this court.

The suppression hearing was held to consider jointly two separate motions filed by counsel representing both Victor Johnson and Prince Gibson. The first motion was entitled “Motion to Quash Search Warrant and to Suppress Evidence Illegally Seized.” More particularly, the movants (Gibson and Johnson) moved the court to quash the warrant for search of the vehicle “of VICTOR JOHNSON” and “to suppress any evidence against him.” (Capitalization in original; emphasis added.)

In the second motion, entitled “Motion to Suppress Evidence Based on Illegal Arrest,” movants (Gibson and Johnson) moved the court to suppress evidence based upon the illegal arrest “of VICTOR JOHNSON.” (Capitalization in original.)

It would appear that the motions to quash and suppress below were advanced on behalf of the defendant’s codefendant, Victor Johnson. Any arguments advanced by the State at that hearing were directed toward opposing the motions insofar as Johnson’s fourth amendment rights were concerned. The State was not presented with what fourth amendment rights of Gibson may or may not have been violated.

The conditions under which Steagald determined waiver occurred cannot fairly be imputed to the State on the basis of its argument made at that suppression hearing.

Additionally, after all the evidence was presented at Gibson’s trial, defense counsel renewed the motions to quash the warrant for lack of specificity and to suppress physical evidence based on illegal arrest, which the court again denied. Although the prosecutor was given the opportunity to argue, she did not do so, but merely asked the court to deny the motions. We note here that the general rule is that it is not error for a trial judge, without a hearing, to deny a motion to suppress which has previously been ruled upon, in the absence of an indication of exceptional circumstances or some evidence in addition to that which was presented at the earlier hearing. (People v. Burrows (1980), 84 Ill. App. 3d 533, 535.) The record fails to reveal any exceptional circumstances or additional evidence presented at trial which was not presented earlier.

Although the passenger of a car detained illegally for lack of probable cause has standing to contest the validity of the arrest (People v. Bradi (1982), 107 Ill. App. 3d 594; People v. Kunath (1981), 99 Ill. App. 3d 201), in the absence of a showing that he had a. reasonable expectation of privacy in the area searched, defendant here lacked standing to claim the protection of the fourth amendment. (People v. Flowers (1982), 111 Ill. App. 3d 348.) The arguments made by the prosecutor concerning defendant’s “control of” or “possessory interest” in the car by virtue of the trunk key found in his shoe were in the first instance relevant for purposes of establishing criminal liability, which arguments are not synonymous with establishing that the defendant had an expectation of privacy. Therefore, the prosecutor may not be held to have made “contrary assertions” or “acquiescences” in the trial court which would have constituted waiver of the standing issue, particularly in light of the fact the defendant never once asserted he had a legitimate expectation of privacy in the area searched. (People v. Keller (1982), 93 Ill. 2d 432, 437-38.) Clearly, Gibson had no standing to challenge the search.

In light of our resolution of the first issue presented, we need not address the issue as to the validity of the warrant.

The defendant next argues his guilt of burglary was not proved beyond a reasonable doubt since his conviction was based on his “mere presence” at the scene, and that there was no evidence that he was aware of and/or participated in the burglary. Further, defendant asserts the key found in his shoe should be given little weight in determining the sufficiency of the evidence, because the key was not admitted in evidence, nor even a photo of it, it was not mentioned in the officer’s report, and the arresting officer could not testify to the present location of the key.

It has been held that, standing alone, a defendant’s exclusive and unexplained possession of recently stolen property is not sufficient to sustain a conviction for burglary. (People v. Housby (1981), 84 Ill. 2d 415, 423.) However, the legal presumption which arises when a defendant is found to be in the exclusive and unexplained possession of recently stolen property does not offend the due process concept of proof beyond a reasonable doubt:

“[I]f: (i) there was a rational connection between his recent possession of property stolen in the burglary and his participation in the burglary; (ii) his guilt of burglary is more likely than not to flow from his recent, unexplained and exclusive possession of burglary proceeds; and (iii) there was evidence corroborating [the defendant’s] guilt.” 84 Ill. 2d 415, 424.

The record at bar supports the defendant’s conviction for burglary. When the car was first observed exiting the driveway by the arresting officer, he did not notice Gibson in the passenger seat. Gibson was perhaps ducking down, hiding, or possibly the officer simply failed to see him. Whatever the reason, the officer continuously observed the car for a distance of about one mile after it exited the driveway. No one was picked up or dropped off during the interim, yet when the officer stopped the car for speeding, the defendant was observed therein. Two, not one, pair of gloves and a screwdriver were found in the front of the car. If the gloves were for warmth (it was early April), they were not being worn; the screwdriver arguably facilitated removal of the sliding glass door from its hinges. When searched at the police station, defendant had one folded $100 bill in his pocket. Victor Johnson had five $100 bills. Six $100 bills were testified to have been taken from the residence. The defendant had only $41 in other currency on his person when arrested; that amount was returned to him after sentencing.

Lastly, of course, the defendant had in his shoe a key which fit the trunk of the car. The weight given to that evidence and the credibility of the witness were matters peculiarly within the discretion of the court, and its judgment will not be set aside on review unless it is based on insufficient or unsatisfactory evidence. (People v. Crenshaw (1959), 15 Ill. 2d 458; People v. West (1958), 15 Ill. 2d 171.) Additionally, it is well established that joint possession with another can be considered “exclusive” possession within the operation of the legal presumption. (People v. Wheeler (1955), 5 Ill. 2d 474, 485.) Finally, we note the defendant’s possession of the stolen goods was unexplained. We conclude the defendant’s guilt of burglary was proved beyond a reasonable doubt.

Lastly, the defendant contends he is entitled to a new sentencing hearing on the basis the court improperly considered the opinion of the author of the presentence report in denying the defendant probation where that person was not available for cross-examination in court.

The State argues that the defendant has waived this issue for failing to raise it in his post-trial motion. (People v. Jackson (1981), 84 Ill. 2d 350.) We find such contention to be without merit, since the defendant’s post-trial motion was filed and argued before the sentencing hearing was ever held. Further, the defendant objected during the hearing to the court’s consideration of the probation officer’s opinion that the defendant would be “an extreme risk to probation and society” due to his past criminal history. The court indicated it would not disregard the probation officer’s opinion, but would “give it whatever weight a half-hour interview would be.”

Consideration by a sentencing judge of a probation officer’s assessment of the defendant’s potential for successful completion of a term of probation is not improper. (People v. Young (1977), 52 Ill. App. 3d 671, 675.) The presentence report shows the defendant’s prior criminal history consisted of convictions of, fines and/or sentences to, State and Federal institutions for 14 offenses during the period 1964 to 1974 in Illinois and Utah, and that he had been arrested twice for disorderly conduct, once for battery and once for simple assault just since his arrest for the instant offense.

We cannot say that the trial court abused its discretion in any manner in sentencing the defendant to the Department of Corrections rather than imposing a term of probation.

The judgment of the circuit court of Lake County is affirmed.

Judgment affirmed.

LINDBERG and NASH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFERY CHIANAKAS, Defendant-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RENE L. LaMAGNA, Defendant-Appellant.
    Second District
    Nos. 81—934, 81—935 cons.
    Opinion filed April 25, 1983.

      William E. Sisler, of Madden and Sisler of Freeport, for appellant Jeffery Chianakas.
    Julius Lucius Echeles and Caroline Jaffe, both of Chicago, for appellant ■ Rene L. LaMagna.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko, Judith M. Pietrucha, and Martin Moltz, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendants, Jeffery Chianakas and Rene L. LaMagna, were charged by information in the circuit court of Winnebago County with knowing and unlawful delivery of a controlled substance under section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56V2, par. 1401(a)(2)). A third defendant, Terry Forbes, was charged with possession of a controlled substance under section 402 of the Act (Ill. Rev. Stat. 1979, ch. 56V2, par. 1402). All three were charged with calculated criminal drug conspiracy (Ill. Rev. Stat. 1979, ch. 56V2, par. 1405(b)).

Each of the defendants filed a motion to suppress evidence which had been taken from them by police officers following their warrant-less arrests. Hearing was had on these motions prior to trial and the motions were denied.

The three defendants were then tried in a joint jury trial. Forbes was directed out at the close of the People's case and the conspiracy charges were dropped. Chianakas and LaMagna were convicted of unlawful delivery of more than 30 grams of a substance containing cocaine. Each was sentenced to six years’ imprisonment. Their appeals were consolidated in this court.

Three briefs were filed by the defendants. Chianakas filed a brief; LaMagna’s original appellate counsel filed one; and his subsequent appellate counsel filed a supplemental brief. The issues raised in those briefs may be summarized as follows: (1) Whether evidence seized at the time of the defendants’ arrests should have been suppressed; (2) Whether LaMagna’s request that his case be severed should have been granted; (3) Whether dismissal of the conspiracy charge against the defendants should have resulted in a mistrial; (4) Whether the State proved beyond a reasonable doubt that the defendants were guilty of delivering a substance under section 401(a)(2); (5) Whether the State sustained its burden of proof as to the amount of the substance delivered; (6) Whether LaMagna was deprived of the effective assistance of counsel; and (7) Whether the jury was properly instructed on the law of accountability.

The following evidence was adduced at a pretrial suppression hearing. Shortly after midnight on December 18, 1980, Agent Mason of the Illinois Division of Criminal Investigation went to the Albert Pick Motel in Rockford, Illinois, in response to a phone call from defendant Chianakas. Mason went to Room 229. Defendants Chianakas and LaMagna were there, as well as a third individual who was never identified. LaMagna and the unidentified person left the room, with LaMagna carrying a brown suitcase. They were observed by surveillance officers as they walked north and west from the room. About five minutes later they drove east in a yellow Cadillac that was found to be registered to Rene LaMagna. When LaMagna entered the Cadillac he was carrying a blue and white athletic-type bag. About 20 to 30 minutes later the same car returned to the Albert Pick Motel with LaMagna and a man later identified as Terry Forbes. LaMagna went to Room 407, empty-handed. Forbes drove the Cadillac from the scene, eastbound.

According to Agent Mason, he was supposed to buy eight ounces of cocaine from Chianakas. After LaMagna and the unidentified person left the room, Chianakas showed him a drawer in which there was a bag purportedly containing one ounce of cocaine but said there was a delay in completing the deal because one of Chianakas’ men had been stopped by the State police. Agent Mason went outside to an unmarked squad car to get $1,800 from Detective Kuparski. The cocaine was left in the drawer. Upon Mason’s return, Chianakas told him that the price had increased to $1,900. Chianakas said he had put up $8,000 for the cocaine for the deal and “Rene” put up the other half of the money; that “Rene” was one of the people who had left the room shortly after Mason arrived. Agent Mason went to the car to get the additional $100, and at Chianakas’ request Deputy Kuparski came in from the car. Chianakas pocketed the $1,900 and then left the room, saying he was going to get more cocaine. This occurred after LaMagna had returned to the motel in the yellow Cadillac. Chianakas was observed leaving Room 229, walking north and west to the rear of the complex, and entering Room 407. While he was gone, Deputy Kuparski returned to the car. Agent. Mason informed the Illinois State Police that, since he would be unable to buy all of the cocaine due to the price increase, the other subject who had left should have part of the cocaine with him. Chianakas returned after 15 to 30 minutes, placing a clear plastic bag with white powder on the wheel well of the unmarked squad car, in which Deputy Kuparski was sitting, before he reentered Room 229. Chianakas told Agent Mason that he had left four ounces on the car’s wheel, and at his direction Agent Mason retrieved the bag and gave it to Deputy Kuparski. Chianakas followed him outside, they got money from the trunk, which Chianakas instructed him to hide, and Deputy Kuparski gave an arrest signal. Agent Mason followed Chianakas back to his room, No. 229, and arrested him as they were opening the door.

LaMagna was registered in Room 407 at the Albert Pick Motel, which is on the northwest end of the motel complex. He was arrested there at about the same time Chianakas was arrested in Room 229.

When a person later identified as Terry Forbes left the Albert Pick Motel alone in the yellow Cadillac, he was followed by Agent Young east to a restaurant, where he was. observed entering the restaurant. After two or three minutes, he returned to the car and drove to the Colonial Inn Motel, where he parked in the parking lot. Agent Young returned to the Albert Pick Motel area, and shortly afterward the arrests of Chianakas and LaMagna were made. Agent Young and three other officers then went to the Colonial Inn Motel. After being informed by the motel office that an “R. Magna” was registered in Room 315 and had paid for two persons to stay there, they proceeded to that room, where they arrested Terry Forbes.

The arrests of both LaMagna and Forbes were executed similarly, LaMagna at Room 407 of the Albert Pick Motel and Forbes at Room 315 at the Colonial Inn Motel. Each room had only one door. Room 315 was on the second or third floor. Room 407 was on the first floor. The testimony of the law enforcement officials is that, in each case, four officers were present. They knocked and gave a false identity when asked who was there. When the door was opened slightly by the occupant, they forced it open wider and entered, identifying themselves as police officers and informing each suspect that he was under arrest. They had their guns drawn while entering. The door to Room 315 was chained when it was opened. Each suspect was secured and handcuffed. In each room the police observed and seized open suitcases whose contents were visible.

The brown suitcase that LaMagna had earlier taken from Chianakas’ room was found in plain view in Room 407 on a small suitcase stand to the right of the door. Various officers observed in it a bowl, mixer, plastic bags, bottle of mix, a gram scale, a mortar and pestle with white powdery residue on it, an empty jar, and a green tote bag. There was a blue and white athletic-type bag in Room 315. A manilla envelope was sticking out of it, and the tops of four ziplock plastic bags in the envelope were visible. The plastic bags contained a white powder, and there was also a brown bottle of white powder in the bag. The brown suitcase and the blue and white bag and their contents were seized as evidence. Also seized were two bundles of money in the amount of $1,900 in marked currency and $870, taken from LaMagna’s person in the course of pat searching him. There was no warrant for any of the arrests or for any seizure of evidence, nor was there any attempt to obtain an arrest warrant or search warrant.

The defendants told a different story. Forbes testified that the blue and white bag was on a dressing table under a wall mounted television set, that it was zipped closed, and that the manilla envelope was not visible. He also denied opening the door to the room. LaMagna testified that the brown suitcase was standing upright, behind the open door, fully zipped closed.

The trial court denied the motions of each defendant to suppress the physical evidence. The court found that there was probable cause to secure the rooms in that the police had a reasonable basis to believe that contraband would be in the rooms, they determined that a person was in each room, and the nature of the contraband was that it could be easily destroyed.

The defendants argue that the warrantless seizure of evidence from LaMagna’s and Forbes’ rooms and from LaMagna’s person was unconstitutional in that there were no exigent circumstances and that the search exceeded the proper scope of a search incident to a valid arrest. The State argues that Chianakas has no standing to challenge the constitutionality of the seizure of the evidence from LaMagna’s and Forbes’ rooms and that LaMagna has no standing as to Forbes’ room, in that they had no legitimate expectations of privacy in those places. The State concedes that it did not raise the issue of standing below but urges that it be considered on appeal since the record contains the necessary factual basis for a determination of this question, citing Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141. However, the decision in People v. Holloway (1981), 86 Ill. 2d 78, 91-92, is controlling. There, the State did not challenge the standing of the defendant when he joined in his codefendant’s motion to suppress evidence. The court held that the State had waived the issue of standing by not raising it at the trial level, reasoning that a timely objection by the State would have afforded the defendant an opportunity to try to show a possessory interest in the premises from which the evidence was taken. In the instant case, not only did the State fail to raise the issue, but it expressly waived it in response to defense counsel’s query. The State is therefore barred from raising this issue for the first time on appeal.

There was ample evidence presented that the brown suitcase and blue and white bag were both open and that they and their contents were in plain view. Although the defendants denied those assertions, the visibility of the suitcases and their contents is a question of fact, and we find there is no basis for overturning the trial court’s finding on that question. If the police were legitimately on the premises, then it was proper to seize the evidence. Items inadvertently discovered in plain view in a place where the police have a right to be may be seized if there is probable cause to believe they constitute the proceeds or instrumentalities of a crime. (People v. Harris (1982), 104 Ill. App. 3d 833, 845.) As to the money seized from LaMagna, a full search of one’s person incident to a valid custodial arrest is also permissible without additional justification. (People v. Seymour (1981), 84 Ill. 2d 24, 34-36.) The initial inquiry then is whether the officers properly entered and arrested the defendants.

In Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, the United States Supreme Court held that the fourth amendment of the United States Constitution prohibits warrantless entry into the home of a suspect, for the purpose of arrest, unless there is consent to the entry or there exist exigent circumstances that justify proceeding without a warrant. Payton was followed by our supreme court in People v. Abney (1980), 81 Ill. 2d 159. In Abney, the hospitalized victim of a beating told police officers the name and address of his assailant and that the assailant had walked in the direction of his home after the beating. The police proceeded directly to the suspect’s home, knocked, identified themselves, and entered the home when the door swung open. In holding that exigent circumstances were present, the supreme court found it important that “the officers who entered defendant’s home were presented an unusual opportunity to quickly apprehend an armed suspect and thereby prevent his escape, avoid exhaustion of law-enforcement resources, and help ensure against further endangerment to thé community.” (81 Ill. 2d 159, 169.) The court articulated several factors that evidenced exigent circumstances: (1) the immediacy with which the officers proceeded to the suspect’s residence upon learning his identity (circumstances within the spirit of the “hot pursuit” exception), (2) the absence of deliberate or unjustified delay by the officers during which a warrant could have been obtained, and (3) the belief that the suspect was armed and exhibited some sign of a violent character. All of these factors indicated that there was a need for prompt action, and therefore exigent circumstances were present. The court also determined that the officer’s actions in response to the exigent circumstances were reasonable in light of the following factors: (1) a clear showing of probable cause based on reasonably trustworthy information necessary to justify the warrantless procedure, (2) clear identification of the suspect, (3) a reasonable belief that the suspect was in the premises entered, and (4) a peaceful entry. 81 Ill. 2d 159, 169-72.

In People v. Eichelberger (1982), 91 Ill. 2d 359, our supreme court examined a different factual basis for exigent circumstances sufficient to justify entry to make a warrantless arrest. There, a police officer, having been advised the previous day that the defendant was suspected of selling contraband at a particular hotel, positioned himself in a room next to the defendant’s room, observed the defendant and another person enter the defendant’s room, and overheard the defendant say he had some “grams” the person could have and expected to get some “coke” in a few days. The door to the defendant’s room was open at least a crack, and the officer was aware that it was open. He gave an arrest signal, and the defendant was arrested and searched. The supreme court noted that residents of a hotel are entitled to the same constitutional protection against unreasonable searches as are enjoyed by residents of private homes. The fact that the door was cracked open did not amount to a waiver of the defendant’s fourth amendment rights or justify a warrantless entry, although it was relevant to the peaceful nature of the entry. Rather, the warrantless entry could be justified only by exigent circumstances. The court stated that the factors enunciated in Abney were not exclusive and that each case must be decided on its own facts. The court held that the officers’ reasonable belief that a felony was being committed in their presence demanded prompt police action and constituted an exigent circumstance that justified the warrantless entry into the hotel room and the arrest. Since the warrantless arrest was valid, the officers had the right to conduct a contemporaneous search of the defendant’s person and the area within his immediate control. 91 Ill. 2d 359, 370-71.

In the case at bar, there was neither consent nor a warrant for the entry into the motel rooms to arrest LaMagna and Forbes, and therefore there must be exigent circumstances to justify the entry. An examination of the Abney guidelines shows that the police proceeded promptly to effect the arrest and there was no delay during which they could have procured a warrant. However, recentness of the offense alone cannot give rise to exigent circumstances, absent a need for prompt action, such as where delay to obtain a warrant would impede a promising investigation and conceivably provide the time needed to avoid capture altogether. People v. Klimek (1981), 101 Ill. App. 3d 1, 5.

In this case, the officers visually witnessed Chianakas enter Room 407, where LaMagna was waiting, leave there and deliver four ounces of cocaine to Agent Mason. Such an offense is a felony. (Ill. Rev. Stat. 1979, ch. 56V2, par. 1401.) The fact that the officers reasonably believed that a felony was being committed in their presence demanded prompt police action and constituted an exigent circumstance which justified the warrantless entry into the hotel rooms and the arrests. (People v. Eichelberger (1982), 91 Ill. 2d 359.) The fact that the arrest of LaMagna was made minutes after the officers reasonably believed he committed a felony establishes the reasonableness of the warrantless entry and arrest. This is further supported by the fact that prior to the controlled buy there was no probable cause to support the issuance of a warrant. There was no unjustified delay on the part of the police, and the immediacy of the arrest would minimize the risk that evidence would be lost.

LaMagna had driven out for one night, renting rooms at two different motels. It was reasonable for the officers to believe that LaMagna had either witnessed the arrest of Chianakas or heard the commotion incident to it. Before that arrest, the police had reason to believe that LaMagna had the remaining cocaine in his possession and that he was waiting for Chianakas to return with the money. Clearly, prompt police action was called for. Two of the three exigent circumstances enunciated in Abney were present here. The third factor, whether the defendant was armed, is not clear although the police had reason to believe Chianakas allegedly carried a weapon when he did his dealing. They had little or no information on either LaMagna or Forbes. However, the amounts of money and drugs involved would lead to a reasonable belief that the perpetrators might well be armed and dangerous so as to lead the police to concern for the safety of their undercover officers.

We determine it was reasonable for the trial court to conclude that the evidence was seized incident to a valid arrest and in plain view. Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034; Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022.

Also at issue is whether the evidence seized from Forbes’ room should have been suppressed. However, where there is sufficient, competent evidence establishing a defendant’s guilt beyond a reasonable doubt and it does not appear that the error complained of was the basis of the jury’s verdict, that error is harmless and reversal is not required. (People v. West (1981), 102 Ill. App. 3d 50, 54.) Here, the cocaine found in the blue and white bag in Forbes’ room was not necessary to the convictions of Chianakas and LaMagna. The delivery charges against them were based on the four ounces of cocaine placed on the wheel well of the squad car and the one-ounce bag in the dresser drawer. Since there was ample evidence to sustain their convictions aside from that seized during Forbes’ arrest, any error that would have resulted from the wrongful introduction of that evidence would have been harmless, and we need not consider whether it should have been suppressed.

The next issue presented is whether LaMagna’s request that his case be severed should have been granted. Following the individual charging of the defendants, the State moved for consolidation of the three cases pursuant to sections 111 — 4 and 114 — 7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, pars. 111 — 4, 114 — 7), and the report of proceedings reflects that the cases were joined. Section 114 — 7 permits the joinder of related prosecutions if the offenses and the defendants could have been joined in a single charge. Section 111 — 4 provides that two or more defendants may be charged together if they are alleged to have participated in the same act or in the same comprehensive transaction out of which the offense or offenses arose. The offenses with which the defendants in the instant case were charged clearly arose from the same comprehensive transaction, and the cases were therefore properly consolidated initially.

Section 114 — 8 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 8) provides for severance when a defendant is prejudiced by a joinder of related prosecutions. It is incumbent upon a defendant moving for a separate trial to demonstrate prior to trial how he would be prejudiced by a joint trial. (People v. Stevenson (1980), 90 Ill. App. 3d 903.) Mere apprehensions of prejudice are not enough. (People v. Yonder (1969), 44 Ill. 2d 376, 386.) A defendant must actively and specifically point out the antagonism of the defenses and so demonstrate the prejudice that will result from a joint trial. Such prejudice may occur in the State’s introduction of the admission of a codefendant that implicates the defendant but denies the defendant the right of confrontation if the codefendant does not take the stand. People v. Lee (1981), 87 Ill. 2d 182, 189.

LaMagna’s motion for severance was filed prior to trial, alleging that neither LaMagna nor his counsel was present for the hearing of the State’s motion for consolidation; that LaMagna and the other defendants had substantially different defenses, particularly as to the evidence involved; that joinder would make a fair and impartial trial impossible for LaMagna in that the jury would hear evidence inadmissible as to LaMagna but admissible as to the other defendants; and that a joint trial could be prejudicial in light of the criminal conspiracy charge. He suggested that numerous statements made by Chianakas to law officers would not be admissible against LaMagna and should not be heard by his jury. The State’s Attorney acknowledged that a statement attributed to Chianakas could be prejudicial but proposed that he simply warn his witness not to disclose that statement at trial. This was permissible under People v. Lee (1981), 87 Ill. 2d 182, 187.

The trial court found that there was no danger of prejudice to the defendants and denied the motion for severance. The decision to grant a separate trial is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. (87 Ill. 2d 182, 186.) It is apparent that the trial court took steps to protect LaMagna from potential prejudice by having the witness forewarned not to mention certain prejudicial information, the substance of which is unclear from the record. LaMagna did not further specify just how his defense would vary from the others or what other particular evidence might be inadmissible as to him, and we find no basis for error in the trial court’s denial of the motion for severance.

The next issue is whether dismissal of the conspiracy charge against the defendants should have resulted in a mistrial. At the close of the State’s case, Forbes was granted a directed verdict as to the conspiracy charge against him. In light of the statutory requirement that there be three actors in a criminal drug conspiracy (Ill. Rev. Stat. 1979, ch. 56V2, par. 1405(b)(2)), the conspiracy charge was also dismissed as to Chianakas and LaMagna.

LaMagna argues that the State’s failure to sustain the conspiracy-charge was grounds for a mistrial in that evidence was adduced at trial that was relevant to the criminal conspiracy charge but not to the separate charges against the three defendants. He cites for support the denial of the motion in limine to exclude conversations between Agent Mason and Chianakas and also cites the objections at trial that certain inadmissible or highly prejudicial statements implicating LaMagna were being heard by the jury. He argues that, since Chianakas did not take the stand, LaMagna was unable to cross-examine him and consequently was denied his right of confrontation guaranteed by the sixth amendment to the Constitution of the United States. However, nowhere does LaMagna point to any such statements that actually were presented to the jury. He simply states that “objectional evidence” was allowed to stand after the court dismissed the criminal conspiracy charge and that “the constant flow of testimony from Agents Mason and Kuparski to the jury concerning conversations were too prejudicial.”

An examination of Agent Mason’s testimony reveals the following references to a conversation with Chianakas:

“Q. [By Mr. Prorok, State’s Attorney] After Mr. LaMagna and the other individual left Room 229, what happened between you and Mr. Chianakas?
A. [Agent Mason] We exchanged just a brief conversation.
Mr. Schirger [Attorney for defendant LaMagna]: Your Honor, I’m going to object at this point on the basis of hearsay. I don’t believe as far as my client is concerned any testimony about conversations between Officer Mason and Mr. Chianakas is admissible as far as Mr. LaMagna is concerned.
MR. GAZIANO [Attorney for defendant Forbes]: I would also join in that objection, Your Honor.
THE COURT: The fact that they had a conversation may be elicited from the witness. You may continue.
MR. PROROK [State’s Attorney]: What was the subject matter of this conversation?
MR. GAZIANO: Objection.
MR. SCHIRGER: I object to the subject matter.
THE COURT: Objection is noted and sustained.
MR. PROROK: After you had this conversation with Mr. Chianakas, what happened?
* * *
[Agent Mason] At that time, he picked up the money, counted it, put it in his right pants pocket, and we engaged in a conversation.”

This in no way implicates LaMagna. The objections were made and sustained before the substance of the conversation was elicited. Agent Mason did testify at the suppression hearing as to statements made by Chianakas implicating LaMagna, but none of that conversation was entered at the trial.

LaMagna also posits that defendant Forbes’ election to testify of itself made codefendants LaMagna and Chianakas appear guilty because they did not testify. However, Forbes did not implicate the others in his testimony. He simply acknowledged driving to Rockford with LaMagna and that the blue and white bag was in the motel room. Moreover, he was subject to cross-examination by both codefendants. The mere fact that he testified cannot be said to have prejudiced the other defendants.

LaMagna further states that the conspiracy charge against the three defendants was the only proper basis for joinder and that, when it was dismissed, there was no longer a proper basis for the joint trial. The offenses with which the defendants were charged allegedly arose from the same comprehensive transaction, furnishing a basis for joinder independent of the common charge of conspiracy. Since there has been no showing of prejudice arising from the joint trial, LaMagna’s argument that he should have been granted a mistrial is without merit. Schaffer v. United States (1960), 362 U.S. 511, 513, 4 L. Ed. 2d 921, 924, 80 S. Ct. 945, 947.

The next issue is whether the State proved beyond a reasonable doubt that the defendants were guilty of delivering a substance under section 401(a)(2). The defendants construe that section of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56x/2, par. 1401(a)(2)) to apply only to free-base cocaine. If this interpretation is correct, in order to sustain its burden the State must have proved beyond a reasonable doubt that the substance seized from the defendants contained free-base cocaine. The defendants contend that the State did not meet its burden in that there was convincing evidence that the substance found was cocaine hydrochloride, a salt of cocaine, rather than free-base cocaine.

The statute provides:

“Except as authorized by this Act, it is unlawful for any person knowingly to manufacture or deliver *** a controlled substance. Any person who violates this Section with respect to:
(a) the following controlled substances and amounts, notwithstanding any of the provisions of subsections (b), (c), (d) or (e) to the contrary, is guilty of a Class X felony. The fine for violation of this subsection (a) shall not be more than $200,000:
* * *
(2) 30 grams or more of any substance containing cocaine;
* * *
(b) any other amount of a controlled substance classified in Schedules I or II which is a narcotic drug is guilty of a Class 2 felony. The fine for violation of this subsection (b) shall not be more than $25,000.” (Ill. Rev. Stat. 1979, ch. 56V2, par. 1401(a)(2), (b).)

The defendants argue that salts of cocaine are governed by subparagraph (b) rather than by subparagraphs (a)(2). Subparagraph (b) refers to schedules I and II. (See Ill. Rev. Stat. 1979, ch. bQ1^, pars. 1204, 1206.) The term “cocaine” does not appear in either schedule I or II, which lists controlled substances.

It is axiomatic that a statute must be construed in its entirety and in light of its objectives. (People v. Ikerd (1963), 26 Ill. 2d 573, 578, cert. denied (1963), 374 U.S. 850, 10 L. Ed. 2d 1071, 83 S. Ct. 1915.) As the State points out, section 206 of the Act (Ill. Rev. Stat. 1979, ch. 56V2, par. 1206) should be considered in determining the meaning of section 401(a)(2). That section provides:

“(a) The controlled substances listed in this section are included in Schedule II.
(b) Unless specifically excepted or unless listed in another schedule, any of the following substances whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:
* * *
(4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves, which extractions do not contain cocaine or ecgonine ***.” Ill. Rev. Stat. 1979, ch. 56V2, par. 1206(a), (b)(4).

In People v. Phelan (1981), 99 Ill. App. 3d 925, the court considered whether the use of the term “cocaine” in a charge adequately apprised the defendants of the crimes of which they were charged. The court noted that the statutory deletion of the term “cocaine” from schedule II did not remove cocaine from statutory control and that the schedule II provision of coca leaves and their derivatives related to cocaine. The court concluded that the schedule II language defines the “1” isomer of cocaine, which in street language is known simply as cocaine. (99 Ill. App. 3d 925, 930-31.) In People v. Royse (1982), 107 Ill. App. 3d 326, 330, the court rejected the argument that certain forms of cocaine are not controlled by the Act. Relying on these cases, the State urges in the instant case that, since the schedule II language is the only reference to cocaine to be found in the schedules, it can be deemed to define cocaine. Since that subsection expressly includes salts, the State suggests that the very definition of “cocaine” for purposes of schedule II includes any salt, compound, derivative, or preparation of coca leaves and that salts of cocaine are therefore intended to be included in section 401(a)(2)’s “substance containing cocaine.” This argument is persuasive.

The defendants rely on testimony at trial that there is a chemical distinction to be made between cocaine and cocaine hydrochloride. However, legislative definitions commonly create a narrower or broader meaning of terms for the purposes of the statute than would other definitions commonly used. (People v. McCarty (1981), 86 Ill. 2d 247, 254.) Thus salts of cocaine could properly be included in the statutory term “cocaine” itself, notwithstanding contrary scientific usage.

The defendants also argue that section 401(a)(2)’s phrase “substance containing cocaine” refers to a pharmaceutical mixture and not a chemically bonded compound. However, as the State correctly notes, that proposition fails in view of the statutory construction cross-referencing section 401(a)(2)’s use of.the term “cocaine” to the schedule II subsection (b)(4). Moreover, when a similar argument was made concerning another schedule II substance, the court thought it unreasonable to believe that the legislature intended a technical pharmaceutical interpretation-. (People v. Otten (1980), 91 Ill. App. 3d 692, 697.) That case also stated that the purpose of the statute is to curb drug abuse and deter the unlawful and destructive use of controlled substances. That; purpose would be effectuated by the construction urged here by the State.

In light of this statutory construction of section 401(a)(2), the contention that the State did not prove beyond a reasonable doubt that the substance was free-base cocaine rather than cocaine hydrochloride need not be discussed.

The defendants also argue that the State did not prove beyond a reasonable doubt the weight of the substance. The weight of all the bags seized was 249.6 grams. However, there was no evidence presented as to the weight of each individual bag. The bags introduced into evidence were from the two separate alleged deliveries made by Chianakas and from Forbes’ room. The defendants contend that the failure to show the individual weights of the bags resulted in indefinite proof, since the bags found in Forbes’ room were not a part of the delivery charge, and that their convictions were wrongfully based on speculation by the jury. The defendants liken the lack of evidence of individual weights to a case where a failure to adequately test separate bags of heroin for their content amounted to a failure to the State to meet its burden of proof. (People v. Ayala (1981), 96 Ill. App. 3d 880.) The defendants also argue that there is no indication in the record that the bags appeared to be approximately the same size.

Even without the individual weights of the bags, however, there was sufficient information to support a finding that the substance delivered was equal to or greater than 30 grams. The State points to testimony that Chianakas had indicated the first bag he delivered weighed one ounce and the other four bags four ounces. Since one ounce is approximately 28.8 grams, five ounces would easily satisfy the requirement of section 401(a)(2). Furthermore, the jury’s opportunity to view the bags, coupled with the chemist’s testimony regarding the total weight, provides an acceptable basis for the jury to believe the delivered amount to be 30 grams or more. (People v. Tonaldi (1981), 98 Ill. App. 3d 528, 532.) It cannot be said that the evidence here is so improbable as to raise a reasonable doubt of the defendants’ guilt, and the defendants’ convictions will not be overturned on the basis of this issue. 98 Ill. App. 3d 528, 532.

The next issue is whether LaMagna was deprived of the effective assistance of counsel.

In order to establish ineffective assistance of counsel, a defendant must show that his attorney was actually incompetent and that this incompetence produced substantial prejudice to the defendant without which the jury’s verdict would probably have been different. (People v. Pugh (1982), 106 Ill. App. 3d 901, 908.) LaMagna points out several instances that he alleges exemplify inadequate representation, but nowhere does he show any resulting prejudice, and a review of the record discloses no such prejudice. Without an indication of prejudice, this argument fails.

The last issue is whether the jury was properly instructed on the law of accountability.

LaMagna argues that, although there is insufficient evidence to establish that he was a participant in the alleged delivery of the controlled substance, the only possible theory on which he could have been found guilty is by accountability for the sale consummated by Chianakas. He states that his conviction is wholly improper because the jury was not instructed on this theory in any manner, shape, or form. The State correctly notes that an instruction directed specifically to accountability was tendered to the jury. Therefore, the defendant’s contention of error is wholly without merit.

For the foregoing reasons, the judgments of the circuit court of Winnebago County are affirmed.

Judgments affirmed.

SEIDENFELD, P.J., and REINHARD, J., concur.