author:
JUSTICE UNYERZAGT
      SCHNAKE, J., JUSTICE LINDBERG,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LARRY W. EYLER, Defendant-Appellee.
    Second District
    No. 84—126
    Opinion filed April 26, 1985.

      LINDBERG, J., dissenting.
    Fred L. Foreman, State’s Attorney, of Waukegan (Raymond McKoski, Assistant State’s Attorney, and Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    David P. Schippers & Associates, of Chicago, for appellee.
   JUSTICE UNYERZAGT

delivered the opinion of the court:

We are required in this cause to determine whether the circuit court of Lake County properly applied the precepts of the fourth amendment to the Constitution of the United States in holding that Larry W. Eyler, the defendant, was illegally detained at the time he and his motor vehicle were searched and he made statements and, therefore, whether the circuit court was correct in suppressing the evidence emanating from that detention and search.

The defendant was charged in a three-count indictment with the August 31, 1983, murder of Ralph Calise in Lake County, Illinois. The defendant pleaded not guilty and filed nine pretrial suppression motions. The circuit court granted five of the motions. The State filed a certificate of impairment pursuant to People v. Young (1980), 82 Ill. 2d 234, and then brought this appeal under the authority of Supreme Court Rule 604(a) (87 Ill. 2d R. 604(a)), contending that the circuit court erred in suppressing the evidence.

The key to all of the suppression motions was the warrantless search and seizure conducted by the Indiana State Police at a point on Interstate Highway 65 near Lowell, Indiana, on September 30, 1983. The defendant was traveling south on Interstate Highway 65 in northern Indiana when he was stopped by an Indiana State trooper for a traffic violation. The initial stop extended to a 12-hour station house detention of the defendant regarding his involvement with homosexual murders in Indiana. The defendant’s truck and a bag inside the truck were searched, and the defendant’s boots were seized.

After a lengthy evidentiary hearing, the circuit court ruled that although the initial traffic stop of the defendant in Indiana on September 30, 1983, was proper, the 12-hour detention of the defendant was not supported by probable cause. The circuit court found that the defendant’s statement and consent to search his vehicle were voluntary, that both were tainted by his illegal seizure, and that the resulting evidence must be suppressed.

The facts are not in dispute, and we will summarize them as they were revealed at the suppression hearing.

Close to 7 a.m. on September 30, 1983, Indiana State Trooper Kenneth Buehrle was patrolling northbound in an unmarked squad car on Interstate Highway 65 in the northwestern part of Indiana. He observed two men emerging from the ditch on the southbound side of the interstate. One of the men carried a bag. A silver pickup truck was parked on the shoulder of the road about 15 yards south of the men. Parking along the interstate was prohibited.

Buehrle crossed the median and entered the southbound lanes. Since the pickup truck was driving away, the trooper activated the car’s red lights and stopped the truck. As Buehrle approached the truck, he noticed the vent window on the passenger side was missing.

The trooper advised the driver, who was the defendant, of his reason for stopping the vehicle. Buehrle asked for the defendant’s driver’s license and for the truck’s registration. He also asked the passenger, Dari Hayward, for identification. When Buehrle asked what they were doing in the ditch, the defendant explained that he was going to the bathroom. Buehrle asked Hayward about the bag he was carrying and Hayward said it contained toilet paper. The trooper asked if he could look inside the bag. Buehrle observed that the bag contained personal items but no toilet paper. Hayward said they used all of the paper. Buehrle knew that the nearest restroom facilities were six miles south and two miles north.

The defendant produced an Indiana driver’s license and proper truck registration. Hayward had identification as well. Buehrle asked the defendant to accompany him to the squad car in order to check on the license. While the defendant sat on the passenger side of the squad car, Buehrle called on the radio for a warrant check on the defendant and Hayward. Buehrle wrote a warning ticket for illegal parking on the interstate. The dispatcher requested Buehrle’s location in code, which indicated to Buehrle that there was some sort of problem. However, he did not know what the trouble was.

Sergeant Peter Popplewell was at the Lowell police post when Buehrle called the dispatcher. The dispatcher told Popplewell that he believed the defendant was the suspect listed on the information sheet regarding certain murders and that the truck’s description was the same. Popplewell then drove to where Buehrle was located. En route he received information that the defendant was a suspect in certain murders and that the defendant and Hayward should be brought in for interrogation and the truck impounded.

Popplewell arrived at Buehrle’s location and showed Buehrle the information sheet. They were joined by Sergeant William Cothran, also of the Indiana State Police. Popplewell told Buehrle that he was bringing the defendant and Hayward in for questioning and impounding the truck. The defendant was then removed from Buehrle’s squad car, placed in the straddle position, and patted down for weapons. The defendant was handcuffed and locked in Buehrle’s car. The seat belt was also secured around him.

Hayward, who was still sitting in the defendant’s truck with the engine running, was also patted down and handcuffed. He was placed in Popplewell’s squad car. Cothran looked in the truck’s interior to see if there were any weapons when Hayward was removed.

Buehrle said the bag Hayward showed him was not the same bag he saw the men carry from the ditch. Cothran then returned to the truck and searched the interior. He removed a second bag, lighter in color than the one Buehrle examined, from under the seat. The bag contained various lengths of rope and white tape. Cothran returned the bag to the truck.

The defendant was then transferred to Cothran’s car. Before he was removed from Buehrle’s squad car, Buehrle read him the Miranda warnings.

Buehrle drove to the area, where he first saw the defendant and Hayward. He was joined there by another trooper. They conducted a 10-minute search. While the ground covering indicated that people had walked in the area, no toilet paper was found.

Cothran, who was taking the defendant to the Lowell police post, stopped at the location where Buehrle was searching. He asked that defendant what he was doing under the bridge and how the defendant got down there. The defendant said he “took a crap” and indicated the location. Buehrle was apparently searching in the wrong area. Cothran informed Buehrle of this, but a further search revealed nothing.

Cothran then drove the defendant to the Lowell police post and Buehrle followed in his car. They arrived at about 7:30 a.m. The defendant’s belt and boots were removed and he was asked to empty his pockets. The handcuffs were removed, and he was placed in a holding cell.

During the time the defendant was in Cothran’s car, Hayward was secured in Popplewell’s car. Popplewell was waiting for the tow truck at the initial detention site. He asked Hayward for identification. Hayward asked what was going on, and Popplewell advised him that the defendant was a suspect in some homosexual killings. Popplewell told Hayward that he was a possible accomplice. Hayward said that he had just met the defendant and knew nothing of any killings. Popplewell interrupted Hayward to read to him the Miranda warnings and repeated his earlier comments. Hayward indicated that he was willing to tell Popplewell anything he knew.

Hayward told Popplewell that he was hitchhiking from Chicago to Indianapolis when the defendant picked him up. While they drove from Illinois to Indiana, the defendant repeatedly offered Hayward $100 if Hayward would allow the defendant to tie up Hayward for sexual purposes. Hayward refused. He said that the defendant made the offer while in Indiana.

The defendant and Hayward stopped along Interstate 65 because the defendant wanted to go to the bathroom. The defendant repeated his offer near the ditch and displayed a $100 bill. Hayward again refused. The defendant asked Hayward to pull up his shirt and Hayward complied. The defendant said Hayward “looked great.” Hayward admitted to Popplewell that he was a homosexual.

The conversation with Hayward lasted about 20-25 minutes. The tow truck arrived and the defendant’s pickup truck was transported to the Lowell police post, where it was secured with tape. Popplewell drove Hayward to the police post, where Hayward made a second tape-recorded statement and gave a written statement.

The Indiana State Police testified that the defendant was not under arrest. However, the defendant testified he believed he was under arrest. The defendant stated that although he repeatedly asked the officers at the initial stop what was happening, he was not told anything. Later, at the Lowell police post, the defendant was told he was a suspect in a “major felony case.” Still later he was told that he was being held for questioning with regard to homosexual murders. When he asked if he would be allowed to leave, the defendant was told that he could be held for “pandering, prostitution.”

It was stipulated that the law in Indiana at the time made it a crime to patronize a prostitute.

While the defendant was at the Lowell police post, three officers from the Central Indiana Multi-Agency Investigative Team (task force) arrived from Indianapolis to question the defendant. The task force was formed to review eight murder cases in the central Indiana area and to assist surrounding counties in murder investigations. It was assisting in the investigation of three murders in Lake County, Illinois, as well. The defendant was a suspect in certain homosexual murders because of a telephone call received from someone who knew the defendant and other information gathered in investigating that call. However, there was no warrant for the defendant’s arrest, and a task force officer said they lacked probable cause to arrest the defendant for the murders at that time. The officer claimed that there was probable cause to arrest on the prostitution charge.

The task force had given information to Detective Sergeant John Pavlakovic of the Indiana State Police concerning the murders prior to the defendant’s detention. The murders were of young males who were bound, stabbed, their pants taken down, and left in remote rural areas. A description of the defendant was given to the Lowell post with instructions to contact Frank Love, the assistant commander of the task force, if there was information on the defendant. Instructions were, however, that the defendant was not to be arrested.

The defendant was questioned by the task force and he made a statement. He waived his Miranda rights and consented to a search of his truck. The defendant asked if he could leave at about 5 p.m. and was told that he could but that his truck was still being searched. The defendant eventually left the post at approximately 7 p.m. He was not charged with any crime. Although the police said he consented to being photographed and fingerprinted before leaving, the defendant claimed he was not given a choice.

Some of the items found in the defendant’s truck included the bag with the rope and white tape. A hunting knife with blood was discovered. Tire prints were made as well. The defendant’s boots were taken and kept because the soles were similar to the soles that appeared in boot prints found at a Lake County, Illinois, murder scene.

The State presents four issues on review. However, all four issues involve the initial determination by the trial court that the defendant was illegally seized for the purpose of interrogation regarding certain murders. The issues are: (1) whether probable cause to arrest the defendant arose during a proper Terry stop; (2) whether probable cause to arrest the defendant for a separate crime arose based on the statement of Hayward during the illegal seizure of the defendant; (3) whether evidence found in the defendant’s truck should not have been suppressed because its discovery was inevitable; and (4) whether the search warrant stated probable cause.

Arrest is a mixed question of fact and law. (People v. Loftus (1983), 111 Ill. App. 3d 978.) Since the facts of the defendant's seizure were not disputed, the trial court’s determination that an illegal arrest occurred based on the facts presented was a legal one which is subject to de novo review. People v. Sain (1984), 122 Ill. App. 3d 646.

The trial court provided a detailed explanation of its rulings on the motions. The essential finding, upon which the others rest, was the court’s determination that the September 30, 1983, seizure of the defendant by the Indiana State Police was illegal. Although the initial stop for a traffic violation was valid, the court found that the defendant was subsequently taken into custody for the purpose of interrogation without probable cause. The defendant was patted down, handcuffed and placed in a squad car. These facts were noted by the trial court when it determined that for all purposes the defendant was under arrest and there was no probable cause to support the seizure nor sufficient justification for a Terry investigation.

The State asserts that Trooper Buehrle’s initial stop of the defendant for a parking violation was valid (*People v. Flowers (1982), 111 Ill. App. 3d 348), and during the valid stop the defendant was recognized as a suspect in certain murders. This information allowed for a Terry stop in order for the police to further investigate. (People v. Vena (1984), 122 Ill. App. 3d 154; People v. Ellis (1983), 113 Ill. App. 3d 314.) While the defendant was lawfully detained, the police learned of facts which provided probable cause to arrest the defendant for the crime of patronizing a prostitute. The probable cause to arrest allowed the defendant to be taken into custody, thus making the 12-hour station house detention proper.

The defendant concedes that the initial traffic stop was valid. However, he suggests that Buehrle exceeded the bounds of a Terry stop by requesting a warrant check. A warrant check conducted pursuant to a valid Terry stop is permissible and does not convert the stop into a full-fledged arrest. (People v. Ellis (1983), 113 Ill. App. 3d 314.) Buehrle’s request for a warrant check was proper.

Having determined that the initial stop was proper, the State contends that the further detention of the defendant was justified as a Terry stop. Although Buehrle did not personally possess the information sufficient to detain the defendant for investigation, Sergeants Pavlakovic and Popplewell had information which identified the defendant as a murder suspect. The knowledge of each officer was the knowledge of all. People v. Peak (1963), 29 Ill. 2d 343.

Although the defendant does not specifically contradict the State’s reliance upon the imputed knowledge of the officers, he does claim that Buehrle had no suspicion regarding the defendant’s possible involvement with any murders. The defendant states that the trial court was required to look at the facts known to the officer making the arrest.

In United States v. Lomas (9th Cir. 1983), 706 F.2d 886, the court held that the officer who coordinates the investigation does not have to have personal knowledge of all of the facts necessary for an arrest. A group of agents acting in concert can pool their information and supply the requisite probable cause. In the instant case, the knowledge of Sergeants Pavlakovic and Popplewell regarding the defendant as a possible murder suspect was also the knowledge of Trooper Buehrle, as the officers were acting in concert. People v. Wain (1983), 120 Ill. App. 3d 73; People v. Johnson (1982), 104 Ill. App. 3d 572.

The State claims that at the time the Terry stop began, the officers could stop and temporarily detain the defendant when they became aware of specific and articulable facts which, taken together with reasonable inferences drawn from the officers’ experience, reasonably warranted the extent of the intrusion upon the defendant. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. Beil (1982), 110 Ill. App. 3d 291.) It further contends that searching, handcuffing, and placing the defendant in the squad car to be transported to the search scene were actions that did not constitute an arrest. The State concedes that at this point in time there was no probable cause to arrest the defendant. The detention of the defendant while a search of the ditch was conducted was a proper Terry stop. The State asserts that the limits of a Terry stop were not transgressed. In support of this contention the State relies upon People v. Lippert (1982), 89 Ill. 2d 171; People v. Vena (1984), 122 Ill. App. 3d 154.

The defendant argues in response to the State’s position that he was under arrest when he was searched, handcuffed, and placed in the squad car. He contends the officers exceeded the limits of a Terry stop if, indeed, a temporary detention was valid.

A stop is considered a seizure for purposes of applying the fourth amendment. (People v. Roberts (1981), 96 Ill. App. 3d 930.) Whenever a person’s freedom has been restrained in some way by a police officer, a seizure has occurred. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. Kiser (1983), 113 Ill. App. 3d 501.) The instant defendant was definitely not free to walk away from the officers. The issue is whether this was a proper Terry stop.

The United States Supreme Court established a limited exception to the requirement that seizures be based upon probable cause in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. (People v. Lippert (1982), 89 Ill. 2d 171.) An investigatory stop is proper under Terry when the police officer can point to specific and articulable facts which, taken together "with rational inferences therefrom, reasonably warrant the intrusion of the stop. (Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880; People v. Long (1983), 99 Ill. 2d 219, 228.) Probable cause is not required for an investigatory stop. (People v. Mills (1983), 115 Ill. App. 3d 809.) A Terry stop involves the “stop” or detention of a person based upon a reasonable, articulable suspicion of criminal activity and the “frisk” or pat-down search for weapons of the person detained. (People v. Martin (1984), 121 Ill. App. 3d 196, 204.) An objective standard is applied to determine whether the stop is reasonable and a mere suspicion or hunch is insufficient. (People v. Vena (1984), 122 Ill. App. 3d 154.) The Terry rules have been codified in the Illinois Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, pars. 107— 14,108-1.01). People v. Ellis (1983), 113 Ill. App. 3d 314.

Whether a Terry stop was justified in the case at bar must be determined from the particular facts. (People v. Mills (1983), 115 Ill. App. 3d 809.) The officers knew that a person matching the defendant’s description was “wanted” as a possible suspect in some murders of a homosexual nature. The defendant’s name was similar to the suspect’s name, which was written as “Larry Eyle” on the information sheet. The defendant’s truck also matched the description provided. The murder victims’ ages approximated that of the defendant’s passenger, Hayward. The victims, having been bound and stabbed, were found in rural, remote areas of Indiana. The defendant and Hayward were seen emerging from a ditch along an Indiana interstate at about 6:50 a.m. Hayward was carrying a bag. The area was similar to the locations where the victims were found. The defendant’s explanation for parking along the road was to go to the bathroom. However, the defendant had just passed a restroom facility and there was another within a few miles.

The information was gathered from an investigation by the task force. An identified male contacted the police with information concerning the defendant’s possible involvement in the murders. The person, who knew the defendant, was interviewed by the police. Further investigation showed that in 1978, the defendant was arrested for stabbing a male he had tied up and disrobed while in a secluded, wooded area in Indiana. The defendant was also involved in an incident in 1982, but not charged, when a male hitchhiker was picked up by the defendant, given drugs and alcohol, and abandoned in a secluded, wooded area of Indiana. The police maintained surveillance of the defendant in July-August 1983, and observed him frequent gay bars and pick up hitchhikers. He was observed picking up a hitchhiker in a section of Indianapolis where two of the victims had lived. Certain murders in Illinois resembled the murders in Indiana. The defendant lived in Terre Haute, Indiana, but also went to Chicago frequently.

The defendant was only named as a possible suspect in the murders. The record shows no known criminal activity, other than the parking violation, at the time of the seizure. (People v. Reynolds (1983), 94 Ill. 2d 160.) While in some cases the report or suspicion of criminal activity is more immediate and closer in time and place to the Terry stop (see People v. Pruitte (1984), 125 Ill. App. 3d 580; People v. Wain (1983), 120 Ill. App. 3d 73; People v. Kincy (1982), 106 Ill. App. 3d 250), there are situations where no current criminal activity was reported but the stop was permissible. (People v. Vena (1984), 122 Ill. App. 3d 154; People v. Martin (1984), 121 Ill. App. 3d 196; People v. Ellis (1983), 113 Ill. App. 3d 314.) The defendant was “wanted” as a suspect prior to the stop along the interstate, and it seems likely that the police would have brought the defendant to the police post regardless of whether Hayward was present, a factor which the State argues served to amplify their suspicions. In fact, contrary to the State’s argument, the evidence indicated that the police initially thought of Hayward as an accomplice, rather than as a possible victim.

The facts available to the officers warranted a person of reasonable caution to believe that an intrusion for further investigation was necessary. (People v. Vena (1984), 122 Ill. App. 3d 154.) However, a very limited intrusion was called for under these facts. The facts demonstrate, though, that the defendant had already been seized for the purpose of bringing him to the police post for questioning on the murders before a search of the area was conducted or Hayward made his statements. The defendant was en route to the police post when Cothran, of his own volition, stopped at the search area. In Vena, the court sanctioned the brief, station house detention of the defendants under a Terry stop analysis because the transportation to the station house was not for the purpose of interrogation. Also, since there were blizzard-like conditions outside, the station house served to protect the defendants and police while an investigation of the area the defendants were seen in could be made. 122 Ill. App. 3d 154,163.

The brief detention of a person for investigatory purposes and a search for weapons was deemed reasonable in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, because the governmental interest justifying the seizure outweighed the intrusion upon the individual’s fourth amendment interest. (People v. Long (1983), 99 Ill. 2d 219, 227.) However, Terry provided only a limited exception to the general rule that seizures require probable cause to arrest. (Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319.) A custodial detention for purposes of interrogation was found to require probable cause to arrest in Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248. Illinois has followed Dunaway when the totality of the circumstances shows the defendant was taken into custody despite a disclaimer by the police that there was no intention to arrest. (People v. Reed (1982), 104 Ill. App. 3d 331.) Whether a custodial arrest is made depends upon the degree of the intrusion made upon the interest protected by the fourth amendment. People v. Klein (1983), 115 Ill. App. 3d 582.

Over the years the distinction between an investigatory or Terry stop and an impermissible seizure amounting to an arrest has become blurred. (People v. Lippert (1982), 89 Ill. 2d 171.) As noted by the Lippert court, there exists a “middle ground” (89 Ill. 2d 171, 182), where the minimal intrusion is justified when compared to the benefit of immediate investigation. (People v. Vena (1984), 122 Ill. App. 3d 154; see People v. Lippert (1982), 89 Ill. 2d 171.) The courts have sanctioned the limited transportation of a suspect on less than probable cause to arrest for the purposes of an immediate show-up. (People v. Lippert (1982), 89 Ill. 2d 171; People v. Kincy (1982), 106 Ill. App. 3d 250.) The physical restraint of -suspects during a brief detention has also been permitted. People v. Vena (1984), 122 Ill. App. 3d 154.

Generally, every arrest and every seizure having the essential attributes of a formal arrest is unreasonable absent probable cause. (People v. Kiney (1982), 106 Ill. App. 3d 250.) Whether an arrest has occurred is not simply a question of whether the police acted reasonably under the circumstances, but whether a reasonable, innocent person would have considered himself under arrest if in the same sitúation as the defendant. (People v. Reynolds (1983), 94 Ill. 2d 160, 165.) Two essential elements of an arrest are the intent of the officers and the understanding of the arrestee. (People v. Clay (1984), 124 Ill. App. 3d 140, 148.) While the subjective beliefs of the defendant are irrelevant to a determination of whether the defendant was arrested, a disclaimer by the police of any intention to arrest does not mean the defendant was not taken into custody. (People v. Reed (1982), 104 Ill. App. 3d 331.) Relevant factors considered in determining the officers’ intent include the absence of a declaration of arrest as well as the lack of such routine procedures as handcuffing, fingerprinting and photographing. (People v. Clay (1984), 124 Ill. App. 3d 140, 148.) Surrounding circumstances also looked at to determine whether the defendant was free to leave are the threatening presence of several officers, the display of a weapon by an officer, the physical touching of the defendant’s person, or the officer’s language or tone of voice which indicates that compliance with the officer’s request could be compelled. People v. Cart (1981), 102 Ill. App. 3d 173,183-84.

Trooper Buehrle was joined by Sergeants Popplewell and Cothran, who arrived at the scene in separate cars. The defendant was taken from Buehrle’s squad car, where he had been waiting for Buehrle to complete a warning ticket and to conduct the warrant check. He was searched after being placed in the straddle position but no weapons, contraband or other items of a suspicious nature were found. The defendant was then handcuffed, restrained in the squad car with the seat belt, and the door was locked. The defendant’s truck was searched and was going to be impounded.

The circumstances surrounding the defendant’s detention indicates that he was under arrest despite the officers’ disclaimers to the contrary. (People v. Reed (1982), 104 Ill. App. 3d 331.) The defendant was not told that he could leave or that he was not under arrest. (People v. Townes (1982), 91 Ill. 2d 32.) It is absurd to consider whether the defendant was free to leave when the amount of physical restraint used to detain him is viewed. Cf. Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, wherein the defendant would have been physically restrained if he attempted to leave.

An important feature of the defendant’s detention was handcuffing. In People v. Gabbard (1979), 78 Ill. 2d 88, the State admitted and the supreme court agreed that handcuffing the defendant therein constituted an arrest. Handcuffing was a serious restraint upon the instant defendant’s liberty. (People v. Hobson (1983), 117 Ill. App. 3d 191.) Nor did the defendant consent to being handcuffed, a distinguishing feature relied upon by the Hobson court. See generally People v. Clay (1984), 124 Ill. App. 3d 140; People v. Reed (1982), 104 Ill. App. 3d 331.

The State argues that handcuffing the defendant, placing him in a squad car and transporting him to the search area were within the limits of a Terry stop under People v. Vena (1984), 122 Ill. App. 3d 154. This court in Vena (Nash, J., dissenting) sanctioned handcuffing, placing the defendant in a squad car and transporting him to a police station in order to investigate whether a crime occurred as a proper Terry stop. However, the defendant Vena had fled from the police when ordered to “freeze” and physically resisted the officer when he was caught. Also, the defendants in Vena were temporarily detained at the police station for the limited purpose of investigating whether a crime had been committed in the area. In the instant case the defendant was transported to the police post in order to interrogate him concerning certain murders. While the Vena decision offers support to the State’s position that the defendant was legally detained within the limits of a Terry stop, we believe the Vena decision is distinguishable from the case at bar for the reasons noted.

In the case at hand, the defendant was restrained by being strapped in the squad car and the doors locked, his truck was searched and was towed to the police station. The defendant was read the Miranda warnings, and was then to be transported to the police station by Sergeant Cothran.

The defendant’s detention resembles a traditional arrest. (People v. Townes (1982), 91 Ill. 2d 32.) As in Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, the officers were ordered to bring the defendant in for questioning. (Cf. People v. Sanders (1981), 103 Ill. App. 3d 700, wherein the officers were not under orders and the defendant agreed to accompany them.) The defendant was not given a choice to leave. The officers were also or- ■ dered to impound the defendant’s truck. The circumstances indicate that the defendant was taken into custody for the purpose of interrogating him on the murders and not because he patronized a prostitute. His written statement shows that the defendant was not questioned on this offense. The police had already decided to bring the defendant in for questioning on the murders and were in the process of doing so when the State claims that probable cause to arrest the defendant arose on the separate crime. The defendant was already under arrest (without probable cause to support it) when Hayward made the incriminating statements. The seizure of the defendant without probable cause was an improper “ ‘expedition for evidence.’ ” Dunaway v. New York (1979), 442 U.S. 200, 218, 60 L. Ed. 2d 824, 839, 99 S. Ct. 2248, 2259; accord, People v. Townes (1982), 91 Ill. 2d 32, 37; People v. Fitzpatrick (1982), 107 Ill. App. 3d 876, 879.

The officers could have asked the defendant to come to the Lowell police post. A voluntary consent to accompany officers to a station house for interrogation has been used by the courts to distinguish permissible station house interrogation on less than probable cause to arrest from the illegal custodial interrogation found in Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248. People v. Reed (1982), 104 Ill. App. 3d 331; People v. Cart (1981), 102 Ill. App. 3d 173.

Therefore, the foregoing analysis supports a finding that the defendant was illegally seized for the purpose of custodial interrogation. Although a Terry stop was justified, the bounds were exceeded, and the defendant was under arrest without probable cause.

The last part of the State’s argument in the first issue rests upon the assumption that the defendant was being held pursuant to a valid Terry stop when probable cause to arrest him for patronizing a prostitute arose. The State relies upon Hayward’s statement to Popplewell as evidence of probable cause. It claims that the existence of probable cause to arrest the defendant on the other crime allowed the police to take the defendant into custody.

We have already determined that the permissible bounds of a Terry stop were exceeded and the defendant was illegally seized by the time Hayward made the statement. The fact that probable cause to arrest the defendant on a separate charge arose after the defendant was illegally arrested cannot be used to justify the illegal arrest in this case. (People v. Nash (1979), 78 Ill. App. 3d 172.) However, the effect of Hayward’s statement must be examined in the context of the second issue.

Having concluded that the defendant was illegally seized, the second issue is whether probable cause to arrest the defendant for a separate crime arose based upon the statement of a live witness during the illegal seizure. The State claims that Hayward’s statement was an independent action which intervened to attenuate the taint of the defendant’s illegal arrest by providing probable cause to arrest for the offense of patronizing a prostitute. (United States v. Brown (7th Cir. 1980), 628 E2d 1019; United States v. Greer (5th Cir. 1978), 566 F.2d 472.) Although the trial court found that Hayward’s statement was tainted by the defendant’s illegal detention, the State argues that the statement was attenuated from any taint because it was the product of a live witness subject to the exercise of free will. United States v. Ceccolini (1978), 435 U.S. 268, 55 L. Ed. 2d 268, 98 S. Ct. 1054.

Popplewell testified that while Hayward was restrained in Popplewell’s car he asked Popplewell what was going on. Popplewell explained the situation and told Hayward he was a possible accomplice. When Hayward began to talk, Popplewell read the Miranda warnings to him. Hayward said he would be more than willing to tell Popplewell anything he knew. Popplewell decided to take the opportunity to discover what Hayward knew, so he asked Hayward questions about himself and his association with the defendant. Hayward provided answers which included the defendant’s offer to Hayward of $100 in exchange for a sexual act. Hayward made a recorded and written statement also at the Lowell police post.

The question to be decided is whether Hayward’s statement to Popplewell was obtained by exploitation of the defendant’s illegal arrest. (People v. Finch (1980), 86 Ill. App. 3d 493.) The facts demonstrate that Hayward was removed from the defendant’s truck, searched, and handcuffed after the defendant was illegally arrested. Confronted with the knowledge of being a “possible accomplice” in homosexual murders, Hayward began “cooperating.” While Hayward expressed a desire to assist the police, his statement was not sufficiently the product of free will to have dissipated the taint from the defendant’s illegal arrest. (United States v. Ceccolini (1978), 435 U.S. 268, 55 L. Ed. 2d 268, 98 S. Ct. 1054.) Hayward made his statement within minutes of the defendant’s illegal arrest while restrained in a police car. There was evidence that Popplewell questioned Hayward with the intent of obtaining information regarding the murders.

The trial court’s finding that there was a direct “nexus” between the illegal arrest of the defendant and the subsequent statement made by Hayward is supported by the evidence. Hayward’s statement was obtained by exploitation of the illegal arrest and not by means sufficiently distinguishable to be purged of the primary taint ■ from the illegality. (People v. Dangerfield (1979), 78 Ill. App. 3d 1046.) The tainted statement cannot be used to establish probable cause to arrest the defendant on a separate crime.

Having determined that the circuit court was correct in suppressing the evidence as a result of the illegal seizure and search on September 30, 1983, the remaining issues presented by the State need not be addressed because the issues rest on the assumption of a valid arrest.

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

Judgment affirmed.

SCHNAKE, J.,

concurs.

JUSTICE LINDBERG,

dissenting:

I dissent. In so doing I acknowledge my agreement with the majority that defendant was initially arrested without probable cause and therefore in violation of the proscriptions of Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248. Additionally, I agree with the majority that the facts in People v. Vena (1984), 122 Ill. App. 3d 154, 460 N.E.2d 886, are inapposite if for no other reason than the fact that the removal of defendant in the instant case to the police station, as in Dunaway, was for the purpose of interrogation. In Vena, the majority did not view the removal of the defendants to the police station as more intrusive per se than detaining them in the open field or in the squad car. In fact, both the squad car and the station house protected the defendants and the police officers from the blizzard-like weather conditions. It did not appear that the transportation of the defendants to the station house was for interrogation or any other intrusive actions beyond awaiting completion of the investigation of the area just traversed by the defendants. (122 Ill. App. 3d 154, 163, 460 N.E.2d 886, 892.) Therefore, Vena is clearly distinguishable from the instant case.

However, I dissent from the majority opinion, because in the instant case I conclude the circuit court of Lake County prematurely determined the question of whether the police had probable cause to arrest defendant for the Indiana solicitation offense. I would reverse the order of suppression and remand the cause for trial and for a new determination of probable cause during the course of the trial or conclude as a matter of law that Hayward’s statements were not the product of police illegality.

The lynchpin of the majority’s reasoning in denying probable-cause-to-arrest status to Dari Hayward’s statement accusatory of defendant is that it was not sufficiently the product of free will to have dissipated the taint from defendant’s illegal arrest. (132 Ill. App. 3d at 806, citing United States v. Ceccolini (1978), 435 U.S. 268, 55 L. Ed. 2d 268, 93 S. Ct. 1054; People v. Finch (1980), 86 Ill. App. 3d 493; People v. Dangerfield (1979), 78 Ill. App. 3d 1046.) I disagree with my colleagues for several reasons. I believe they unreasonably construe Hayward’s statement to be involuntary. They appear to misapply the “free will” test of Ceccolini. They do not follow the law relating to live-witness testimony established by Ceccolini. Finally, Hayward’s statements against defendant were not the product of defendant’s illegal arrest.

Factually, I do not believe that the colloquy between Sergeant Popplewell and Hayward leads to the conclusion that Hayward’s statement was not the product of his free will. The majority discusses the manner in which Hayward was both arrested and accused of being an accomplice before he “cooperated.” Yet, it was Hayward who first inquired about the reason for the police action. While undertaking to respond, Popplewell took the precaution of giving Hayward the Miranda rights and answered that defendant was a suspect in some homosexual killings and that Hayward was suspected as a possible accomplice. Popplewell asked no questions of Hayward other than his identification and his understanding of the Miranda rights. Hayward then said, “Hey, I have nothing to do with it, I just met the man, *** I am more than willing to tell you anything I know,” whereupon Hayward disclosed defendant’s offer to him of $100 for a sexual act. I conclude that Hayward’s statements were made of his free will in the sense that they were voluntary.

As a second factual consideration I note that the majority seems to equate the circumstances under which Hayward made the accusation as being relevant to a Ceccolini “free will” analysis for determining the existence of attenuation of the taint of illegal police activity. As I will discuss next, the factors underlying Hayward’s statement as a live witness appear not to be determinative of that issue. See United States v. Ceccolini (1978), 435 U.S. 268, 276-77, 55 L. Ed. 2d 268, 277-78, 98 S. Ct. 1054,1060.

The legal basis for my disagreement with the majority in the instant case lies in the striking factual parallels the instant case bears to Ceccolini and in the Supreme Court’s identification and resolution of its dispositive question. A brief comparison discloses that the police illegality in Ceccolini was Officer Biro’s unwarranted search of an envelope leading to his discovery of the money, policy slips and live-witness evidence. In the instant case, the illegality was defendant’s initial arrest without probable cause. Whether this illegality “led to” Hayward’s live-witness testimony is discussed later in this dissent. In Ceccolini, the illegal search and Officer Biro’s immediate questioning of flowershop-clerk Hennessey is acknowledged by the Supreme Court to be the incident which “requires us, over three years later, to decide whether Hennessey’s testimony against respondent Ceccolini should have been suppressed in his trial for perjury.” (435 U.S. 268, 270, 55 L. Ed. 2d 268, 273, 98 S. Ct. 1054, 1057.) We are confronted with precisely the same exclusionary-rule question as was decided in Ceccolini, although there the illegality was a search and here it is an arrest.

Significantly, however, the Supreme Court in Ceccolini appears not to have relied upon the proximate relationship between the incident of police illegality (Biro’s search) and the questioning of clerk Hennessey, which were virtually contemporaneous, but rather upon the continued willingness of Hennessey to cooperate by testifying against Ceccolini at trial many months later. The court said:

“The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness’ willingness to testify.” (Emphasis added.) (435 U.S. 268, 277, 55 L. Ed. 2d 268, 277, 98 S. Ct. 1054,1060.)

And later in its opinion, the court noted:

“The evidence indicates overwhelmingly that the testimony given by the witness was an act of her own free will in no way coerced or even induced by official authority as a result of Biro’s discovery of the policy slips. Nor were the slips themselves used in questioning Hennessey. Substantial periods of time elapsed between the time of the illegal search and the initial contact with the witness, on the one hand, and between the latter and the testimony at trial on the other.” (Emphasis added.) 435 U.S. 268, 279, 55 L. Ed. 2d 268, 279, 98 S. Ct. 1054, 1062.

In making these observations, the court stated that the particular knowledge to which Hennessey testified at trial logically could be traced back to Biro’s discovery of the policy slips. Nonetheless, the court appears to have resolved the attenuation question on the basis of the witness’ free-will testimony at trial after substantial periods of time had passed.

The only conclusion that can be drawn from Ceccolini, which controls the instant case, is that the temporal proximity of defendant’s arrest and Hayward’s live-witness accusatory statement is not determinative of the admissibility of the challenged evidence where the live-witness testimony attenuation of the initial taint is at issue. Under Ceccolini, a determination of the existence of probable cause to arrest defendant on the solicitation offense would have to be determined at trial and would turn on whether Hayward would testify of his own free will to facts establishing probable cause for defendant’s arrest for solicitation. On this analysis, therefore, the final resolution of the probable cause issue by the circuit court of Lake County was premature. I would reverse the order of the circuit court of Lake County and remand the determination of the issue of attenuation for trial.

I dissent for the further reason that I conclude that the police had probable cause to arrest the defendant for solicitation of prostitution. My disagreement with the majority on this point stems from my belief that Hayward’s statements were not the fruit of defendant’s illegal arrest, and so may properly be considered in making the probable cause determination.

The initial traffic stop and the warrant check pursuant to it were both proper. (132 HI. App. 3d at 798.) Consequently, the police legally learned that defendant was a suspect in some homosexual murders. Based on that knowledge, the police took certain actions. They illegally arrested defendant. They also illegally arrested Hayward. The police questioned Hayward about defendant. It was this questioning of Hayward which resulted in the statements giving rise to probable cause to arrest defendant for solicitation for prostitution. Defendant Eyler lacks standing to rely upon the illegal arrest of nondefendant Hayward in seeking suppression of Hayward’s statement. (Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421.) Defendant’s illegal arrest thus played no part in the chain of causation resulting in Hayward’s statements, so those statements are admissible in deciding the probable cause question. When they are so considered, it is obvious that probable cause for defendant’s arrest for solicitation for prostitution existed.

A hypothetical situation will serve to highlight the point to be made here. If, after the warrant check, the police had correctly concluded that they lacked probable cause to arrest defendant for murder, the proper course would have been to release defendant. However, it would also have been proper to question Hayward about defendant to obtain any information he would be willing to give. Since the police knew defendant was a suspect in some homosexual murders and Hayward was with him, the police almost surely would have questioned Hayward in this way. Upon being informed of the suspected involvement of defendant in homosexual murders, it is likely that Hayward, an apparently law-abiding person, would have told the police what he knew. Defendant then could have been arrested for solicitation for prostitution, and the evidence would have been seized pursuant to a lawful search of the pickup truck.

There remains to be considered the consequences of concluding that the police had probable cause to arrest defendant for solicitation for prostitution. Defendant was illegally arrested and, for a time, illegally detained. Probable cause to arrest arose from Hayward’s statements, a source independent of the illegal arrest, so defendant’s subsequent detention was lawful. This also served to purge the taint of the illegal arrest, making evidence properly seized after probable cause arose admissible. (United States v. Brown (7th Cir. 1980), 628 F.2d 1019, 1022.) Under this analysis, the evidence seized pursuant to search warrants on October 1, October 31, and November 22,1983, was admissible.

The evidence seized on September 30, 1983, was apparently seized before Hayward made his statements and thus before probable cause arose. This evidence was found in a paper bag inside defendant’s pickup truck. That truck was later searched, after probable cause had arisen, with defendant’s consent. Since the consent was obtained after probable cause had arisen, the consent was not tainted by the prior illegal arrest. (United States v. Brown (7th Cir. 1980), 628 F.2d 1019, 1022.) The search, being consensual, thus was lawful. Since the evidence had been easily discovered during the illegal search, it is clear it would have been discovered during the subsequent consensual search. Therefore, the evidence seized on September 30, 1983, should have been admitted under the inevitable discovery rule. Nix v. Williams (1984), 467 U.S. 431, 81 L. Ed. 2d 377,104 S. Ct. 2501.

I would reverse the suppression order of the circuit court of Lake County.


source: Caselaw Access Project

author:
JUSTICE McCULLOUGH GREEN, P.J.,
      JUSTICE MILLS,

license: Public Domain

text:
      In re L.A.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. L.A.S., Respondent-Appellant).
    Fourth District
    No. 4—84—0594
    Opinion filed April 24, 1985.

      MILLS, J., dissenting.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Jeffrey K. Davison, State’s Attorney, of Decatur (Robert J. Biderman and Gwendolyn Klingler, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The respondent-minor, L.A.S., age 16, was found in direct criminal contempt for her failure to reappear in the courtroom after a recess during her hearing on a report of violation of probation. She was ordered to spend 30 days in the county jail. The minor appeals from the judgment of the circuit court of Macon County, arguing that her failure to reappear in the courtroom after the recess did not constitute direct criminal contempt.

On April 30, 1984, L.A.S. was adjudicated a delinquent minor and made a ward of the court for having committed retail theft. She was placed on 18 months’ probation "with conditions including her participation in the Unified Delinquency Intervention Services Program and performance of community service through the Probation Plus Program. On May 9, 1984, a detention warrant was issued on the basis of a report that the minor had left her home on May 6, 1984, and had not returned. The minor was detained on the warrant on May 31, 1984. A detention hearing was conducted on June 1, 1984, and the minor was ordered released to the custody of her mother pending a hearing scheduled for June 8, 1984, on the report of violation of probation connected with her leaving home.

The record reflects that the minor was next detained without a warrant on June 2, 1984, in connection with an armed robbery. A detention hearing was conducted on June 4, 1984, and the minor was ordered detained in the juvenile detention quarters pending a hearing scheduled on June 8, 1984. A second report of probation violation was filed in connection with the armed robbery. At the hearing on June 8, 1984, the minor denied the allegations of each report of violation of probation, the cause was allotted for a hearing on the reports set for July 24, 1984, and the minor was ordered released to the custody of her mother.

Later in the month of June 1984, the minor absented herself from her placement in the home of her mother without authority, and a detention warrant was issued on July 2, 1984. The minor was taken into custody on June 30, 1984, by authorities in the State of Kansas. On July 5, 1984, the detention warrant was filed, showing it had been executed, with the minor detained on July 3, 1984. A detention hearing was conducted on July 6, 1984, and the minor was ordered detained in the juvenile detention quarters pending a hearing set for July 13, 1984. At hearing on July 13, 1984, the minor’s motion to be released to the custody of her mother pending a hearing on the reports of violation of probation was denied, and the minor was remanded to the custody of the sheriff pending the hearing. On July 24, 1984, the cause was continued due to the unavailability of material witnesses, and the cause allotted for hearing on August 2, 1984. The minor was released to the custody of her mother, and the conditions of the minor’s probation were modified so she was not to be outside her residence unless in the company of her parent or another responsible relative.

On July 25, 1984, a petition to terminate the minor’s probation was filed, stating as grounds that (1) on or about May 6, 1984, L.A.S. left home without permission until taken into custody about May 31, 1984; (2) she committed the offense of armed robbery on or about June 2, 1984; and (3) on a date after June 8, 1984, she left home without permission and was taken into custody in the State of Kansas on June 30,1984.

On August 2, 1984, the cause was called for hearing on the probation violation report based on the armed robbery of June 2, 1984. The minor was present with her mother. L.A.S. was identified by police officer witnesses and the victim of the armed robbery. Following the testimony of these witnesses, the court stated it would take a 10-min-ute recess. After the recess, the judge accepted a stipulation regarding the minor’s age and then questioned the assistant public defender and the minor’s mother as to the minor’s location. Neither knew where she was. The judge ordered a detention warrant to issue and recessed the cause until service of the warrant, concluding that he could not proceed in the minor’s absence.

The record shows that the minor was detained pursuant to the latter warrant on August 12, 1984, and a detention hearing was set for August 14, 1984.

At the inception of the detention hearing, the judge stated that he was going to find the minor in direct criminal contempt of court. Respondent’s counsel argued that the minor’s failure to return to the courtroom on August 2 was not direct criminal contempt of court, but, at most, if wilful and proved by extrinsic facts, indirect criminal contempt, and that respondent could not be summarily punished without the opportunity to exercise her due process rights. Counsel cited People v. McNeil (1976), 42 Ill. App. 3d 1036, 356 N.E.2d 1073, involving an attorney charged by petition for a rule to show cause why he should not be held in contempt of court for his failure to appear at the time allotted for trial in a cause in which he was the attorney of record. The circuit court rejected counsel’s argument:

“In this particular case we were in the middle of the trial, and it was in the presence of the Court that she failed to appear. Obviously *** she doesn’t *** come into court and then just leave when she feels up to it. The actions were done subsequent to the trial starting. Her conduct was done in effect in the presence of the Court, and it is direct criminal contempt of court, and I am going to so hold.
* * *
Show first of all, On August 2, 1984, at the conclusion of the Petitioner’s case and prior to the commencement of the Respondent minor’s case, the minor wilfully absented herself from the courtroom, Court House and was later detained pursuant to warrant issued. It is the further finding of the Court that such conduct was calculated to, and in fact did embarrass, hinder and obstruct the Court in its administration of justice and did derogate from its authority and dignity and did bring the administration of justice into disrepute.”

Criminal contempt of court is generally defined as conduct which is calculated to embarrass, hinder, or obstruct a court in its administration of justice or derogate from its authority or dignity, thereby bringing the administration of law into disrepute. People v. Javaras (1972), 51 Ill. 2d 296, 281 N.E.2d 670.

A direct criminal contempt is one which takes place in the very presence of the judge, making all of the elements of the offense matters within the personal knowledge of the judge, and tending directly to obstruct and prevent the administration of justice. (People v. Howarth (1953), 415 Ill. 499, 114 N.E.2d 785.) Where a direct contempt is committed in open court, it is competent for the judge to proceed upon his personal knowledge of the facts and to punish the offender summarily without entering any rule against him and without hearing any evidence. (In re Estate of Kelly (1936), 365 Ill. 174, 6 N.E.2d 113.) The Illinois Supreme Court noted in People v. Loughran (1954), 2 Ill. 2d 258, 263,118 N.E.2d 310, 313:

“In a direct criminal contempt proceeding, that is, for con-tempts committed in the presence of the judge, in court, which he observes and has personal knowledge of, no formal charge is filed and no plea, issue or trial is required.”

By contrast, indirect criminal contempt occurs outside the presence of the judge and is, therefore, dependent for its proof upon evidence of some kind or upon facts of which the court has no judicial notice. (People v. Howarth (1953), 415 Ill. 499, 114 N.E.2d 785.) An indirect contempt is one which in whole or in essential part occurred out of the presence of the court and is, therefore, dependent for its proof upon evidence of some kind. People v. Pomeroy (1950), 405 Ill. 175, 90 N.E.2d 102.

In arguing that her conduct did not constitute direct criminal contempt, the minor-respondent cites People v. Pincham (1976), 38 Ill. App. 3d 1043, 350 N.E.2d 67, People v. McNeil (1976), 42 Ill. App. 3d 1036, 356 N.E.2d 1073, and People v. McDonnell (1940), 307 Ill. App. 368, 30 N.E.2d 80, aff’d (1941), 377 Ill. 568, 37 N.E.2d 159. In Pincham, an attorney faced a scheduling conflict in two murder trials. He sent his law clerk to the judge to explain that his absence was caused by his engagement before another judge. After a summary hearing on a rule to show cause, the attorney was found guilty of wilful contempt for his failure to appear in court, thereby delaying the start of the previously scheduled trial for an entire day. Our sister appellate court reversed the trial court’s finding of direct contempt on the following reasoning:

“The courts in Illinois have held that the unexplained absence of an attorney at trial may be grounds for indirect, but not direct, contempt. (Geraty v. Carbono, Products Co., 16 Ill. App. 3d 702, 306 N.E.2d 544; People v. Westbrooks, 242 Ill. App. 338.) Among the reasons advanced for classifying such conduct as grounds for indirect contempt are: (1) a court confronted with such conduct on the part of an attorney is unable to ascertain by its own observation and without inquiry the operational facts from which an inference of wilfulness or of wrongful intent can be drawn, and (2) it is illogical for a court to determine that an attorney’s failure to be present constitutes a contempt committed in the court’s presence when by the very nature of the offense the offender and his acts are not in the court’s presence. These are valid reasons and in applying them to the instant case, we hold that defendant’s absence could not have constituted direct contempt and the trial court’s judgment was erroneous.
It is obvious from the record that the trial court was dependent for its knowledge upon the report of its bailiff. The finding of guilt at least in part was necessarily based upon facts outside the personal knowledge of the judge, which facts would not come within his judicial knowledge, but must be determined by the taking of testimony. The contempt therefore, if any, was an indirect contempt, entitling defendant to the constitutional rights of advance notice, a full hearing, counsel, and confrontation. Being given only the opportunity to testify in one’s own behalf falls short of satisfying the requirement. See People v. Jashunsky, 51 Ill. 2d 220, 282 N.E.2d 1, cert, denied, 409 U.S. 989, 34 L. Ed. 2d 256, 93 S. Ct. 332, and 409 U.S. 984, 34 L. Ed. 2d 249, 93 S. Ct. 333.” (Emphasis added.) 38 Ill. App. 3d 1043,1045-46, 350 N.E.2d 67, 69.

In McNeil, an attorney either failed to appear or sent an associate in his place on four or five occasions in the context of one case in which he was the attorney of record. On the last occasion, his associate was misdirected to the wrong courtroom. A petition for a rule to show cause was filed against the attorney and, after the hearing, he was adjudged in contempt of court. The reviewing court reversed the finding of contempt, adopting the reasoning of Pincha/m. Although the trial court had complied with the procedural due process requirements of the fourteenth amendment, the reviewing court held that the attorney’s conduct did not constitute even indirect contempt, as it was not wilful or calculated to hinder the court in its business.

In McDonnell, the appeal was from a judgment on a petition for rule to show cause against an attorney who failed to return to court during trial, thereby causing a mistrial by having absented himself from court without leave or explanation during the ongoing murder trial — during which he had been temporarily excused in order that he might take care of a civil motion pending in another court. The respondent-attorney was afforded the procedure in McDonnell which the respondent-minor was denied below.

All courts are vested with an inherent power to punish for contempt as an essential incident to the maintenance of their authority and the proper administration and execution - of their judicial powers. (People v. Loughran (1954), 2 Ill. 2d 258, 118 N.E.2d 310.) As stated in Javaras, the procedural requirements for judicial punishment for criminal contempt of court depend upon whether the contempt is “direct” or “indirect”:

“Previous decisions of this court have recognized two types of direct criminal contempts — those which are personally observed by the judge and those which are not personally seen by the judge but take place in an integral or constituent part of the court and are thereby deemed to have occurred in the constructive ‘presence of the court.’ *** A direct criminal contempt *** which occurs in the constructive ‘presence of the court’ may call for the hearing of extrinsic evidence (People v. Howarth (1953), 415 Ill. 499; People v. Harrison (1949), 403 Ill. 320; People v. Andalman (1931), 346 Ill. 149), although, again, the proceeding may be essentially summary in nature. If, however, such evidence is necessary to establish the contempt, notice and hearing are required. ***
Indirect criminal contempts are those in which the whole or an essential part of the contemptuous acts occur out of the presence of the court; i.e., they are not personally observed by the judge or do not occur in an integral or constituent part of the court. In a proceeding to punish for indirect contempt, the alleged contemner must be informed of the charges against him by information, notice, citation, or rule to show cause, and he must be given an opportunity to file an answer thereto and receive a full hearing thereon ***, together with a jury trial, when demanded, in cases involving serious contempts.
* * *
The determination of what constitutes a contempt committed ‘in the presence of the court’ necessarily depends not only on the physical location but also on the nature of the act. *** The case at bar involves facts which are more analogous to those in People v. Pomeroy (1950), 405 Ill. 175; People v. Whitlow (1934), 357 Ill. 34; and People v. McDonald (1924), 314 Ill. 548. Those cases dealt with assaults or disturbances in a court anteroom, a courtyard directly outside a courtroom, and a corridor fifty feet from the courtroom, respectively. In each case, it was held that the conduct did not occur in the presence of the court so as to justify summary direct contempt proceedings.” (Emphasis added.) (People v. Javaras (1972), 51 Ill. 2d 296, 299-301, 281 N.E.2d 670, 672-73.)

The finding of direct contempt was, therefore, reversed.

Here, the conduct regarded by the trial court as contemptuous was the act of the minor in absenting herself from court without leave or explanation, in that she failed to reappear in the courtroom after a duly granted recess taken during a hearing on a report of violation of probation, an ongoing proceeding. This conduct, by its nature, amounts to a non-act. It is not similar to such affirmative acts as a defendant, bolting from a courtroom during an ongoing proceeding or blurting out remarks in the presence of the court. The term “criminal act” is defined as:

“External manifestation of one’s will which is prerequisite to criminal responsibility. There can be no crime without some act, affirmative or negative. An omission or failure to act may constitute an act for purpose of criminal law.” (Black’s Law Dictionary 24 (5th ed. 1979).)

Although the failure to act may, in certain circumstances, result in legal consequences, an essential element of any contempt is the wilfulness of the conduct (People v. Wilcox (1955), 5 Ill. 2d 222, 125 N.E.2d 453; People v. Patrick (1980), 83 Ill. App. 3d 951, 404 N.E.2d 1042). It is not evident how the wilfulness of the minor’s absence from the courtroom following a recess is a matter in the personal knowledge of the trial judge. Simply put, although the fact of her absence was before the court, the reasons therefor were not.

The petitioner points out that section 115 — 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 115 — 4.1) provides that, after arraignment, the court may commence and continue trial in a defendant’s absence, whereas no similar provision is found in the Juvenile Court Act. We are aware of no authority, nor has any been cited to us, that would permit a minor in a juvenile proceeding to be tried in absentia. Nevertheless, and although the minor’s absence halted the proceeding, we conclude that the reasoning of Pincham is likewise applicable here.

Any manner of things might befall an individual during a recess in court proceedings, and it is precisely the facts surrounding and causing that absence to which the court must direct its inquiry in contemplating the exercise of its contempt power, for those facts will dictate whether or not the requisite wilfulness arises from the circumstances of the absence. It defies both logic and the case authorities that the statute under which the proceeding is being conducted, here the Juvenile Court Act, rather than the facts surrounding the absence, should control the determination of the procedural requirements for judicial punishment of criminal contempt of court.

The minor’s failure to appear before the court and explain her absence does not do away with the necessity of bringing forward extrinsic evidence, nor with the required observance of procedural formalities prior to an adjudication of guilt. We conclude that allegedly contemptuous “conduct” in the case at bar occurred outside “the presence of the court” and required the taking of testimony to culminate in a finding of guilty. Therefore, the contempt, if any, constituted indirect contempt, and direct criminal contempt proceedings were, therefore, improper.

In so holding, we do not pass on the question of whether the minor’s conduct in this case was contemptuous, nor do we suggest that we will not approve sanctions imposed where appropriate. The circuit courts of Illinois cannot be held hostage to actions of juveniles who deliberately stop or prevent court proceedings under the Juvenile Court Act. However, in contemplating judicial punishment of juveniles for criminal contempt of court, the procedural requirements are the same as for all others before the court, and are simply a function of whether the contempt is “direct” or “indirect.” As the procedural requirements for indirect criminal contempt were not complied with below, consistent with Javaras, the judgment of the circuit court of Macon County must be reversed.

Reversed.

GREEN, P.J.,

concurs.

JUSTICE MILLS,

dissenting:

I cannot buy it.

The majority concludes that the juvenile’s conduct occurred outside the presence of the court and therefore did not constitute direct criminal contempt.

But the punishment was not imposed for any conduct occurring outside the court’s presence. The juvenile was before the court. A brief recess was called and the juvenile was required to return. She did not. This was the conduct for which she was punished and the court had personal knowledge of it. Whatever the juvenile did outside the presence of the court has absolutely no significance here.

The majority is concerned that the conduct was not wilful and posits “[a]ny manner of things might befall an individual during a recess in court proceedings.” Yet the majority does not hypothesize as to what manner of thing befell this juvenile during the 10-minute recess which would have been unknown to both her mother and her counsel. A reasonable explanation for this conduct is not easily conceived.

Even more significant is the fact that neither the juvenile nor her counsel offered any explanation, reasonable or no, for the absence-even though the trial court provided counsel with an opportunity to argue against the contempt order.

Under the circumstances of this case, I would place the burden on the juvenile to give an account of herself. If some calamity had befallen her — as the majority fears — let her speak out!

There can hardly be a greater insult to a court, or challenge to its authority, than to simply walk out in the middle of proceedings without explanation when a party is required to be there. Even more so here, where the juvenile was before the court because she had repeatedly violated the court’s probation order.

Such conduct requires stern measures. Yet the cautious treatment the majority would require of the trial court in dealing with such a juvenile casts the court more in the role of a doting guardian than a court of justice.

I dissent.


author:
JUSTICE TRAPP
      McCullough, j., PRESIDING JUSTICE GREEN,

text:
      In re MARRIAGE OF SAM P. CANNON, Petitioner and Counterrespondent-Appellee and Cross-Appellant, and MARLENE CANNON, Respondent and Counterpetitioner-Appellant and Cross-Appellee.
    Fourth District
    No. 4—84—0537
    Opinion filed April 24, 1985.
    GREEN, P.J., dissenting.
    Arthur M. Lerner, of Greaves, Lerner & Kirchner, of Champaign, for appellant.
    Robert I. Auler, of Auler Law Offices, P.C., of Urbana, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

In December 1983 the trial court entered an order dissolving the marriage of the parties and in July 1984 entered an order making a property division and awarding maintenance. Respondent, Marlene Cannon, appeals urging that her property award was insufficient. Petitioner, Sam Cannon, cross-appeals contending that the award of maintenance was too great. In light of the disposition which we find to be required, it is unnecessary to review the extent of marital property, evidence of its value, and its capacity to produce income for the respective parties.

The order of the trial court for maintenance includes:

“Sam [petitioner] is hereby ordered to pay to Marlene [respondent] as maintenance the sum of $2,500.00 monthly, commencing forthwith. In addition, Sam is ordered to provide for Marlene, and pay for, the health insurance policy which he testified would cost $120.00 per month. The Court orders this for a period of two years from the date of this order. The Court intends that this be reviewable no later than the expiration of two years and sooner if the circumstances of the parties change significantly.” (Emphasis added.)

The court indicated that if petitioner’s business prospered the maintenance provision could be raised. On the contrary, if the business deteriorated and the respondent obtained employment or circumstances changed, these changes would be taken into consideration.

Section 504(b) of the Illinois Marriage and Dissolution of Marriage Act provides that an award of maintenance shall be “for such periods of time as the court deems just.” (Ill. Rev. Stat. 1983, ch. 40, par. 504(b).) We note that certain appellate courts have recognized orders of the trial court which make an award of maintenance for a stated period but reserve jurisdiction to modify or change the award at the end of the period. (In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748; In re Marriage of Asch (1981), 100 Ill. App. 3d 293, 426 N.E.2d 1066.) The rationale appears to be that such form of order permits the trial court to modify the terms of maintenance without the necessity of showing a substantial change in circumstances as is required by section 510(a) of the Act. Ill. Rev. Stat. 1983, ch. 40, par. 510(a).

Implicit in the order is the conclusion that the language of the trial court was not deemed to be final but that the trial court retain jurisdiction “to review” the order within no more than two years. If the award is interpreted as temporary maintenance for a stated term of two years, it is, nevertheless, reserved for review by the trial court in not less than two years. If interpreted as an award of permanent maintenance, it is still reserved for review by the trial court within the same term. A third interpretation is that it will be determined, upon review in the trial court in not less than two years, whether the maintenance is to be temporary or permanent. While such form of order may be a highly useful procedural tool, it avoids the mandate of section 510(a) of the Act that provisions for maintenance be modified “only upon a showing of a substantial change in circumstances.” Upon either interpretation there is no actual attempt at present finality, but only an incomplete property settlement. As so reserved in the trial court’s order, that court may act within the equitable standards of a property settlement rather than the statutory standard of “substantial change.”

We must conclude that the issue of the appealability of the order of the trial court is controlled by the rationale of In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137, and the opinion of this court, in In re Marriage of Rosenow (1984), 123 Ill. App. 3d 546, 462 N.E.2d 1287, and is not an appealable order.

In Leopando the trial court entered an order awarding permanent custody of a minor child but reserved the issues of property division, maintenance, and attorney fees. The order included a finding as provided in Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)).

In examining the issues of whether or not such order was final and appealable, the court said:

“A petition for dissolution advances a single claim; that is, a request for an order dissolving the parties’ marriage. The numerous other issues involved, such as custody, property disposition, and support are merely questions which are ancillary to the cause of action. [Citation.] They do not represent separate, unrelated claims; rather, they are separate issues relating to the same claim.” In re Marriage of Leopando (1983), 96 Ill. 2d 114,119, 449 N.E.2d 137, 140.

In Rosenow the trial court entered an order for dissolution and property settlement, reserving, however, the apportionment of the rights of the parties in the pension which would become payable to a spouse in the future. In reliance upon Leopando, this court held that the reservation of such issue prevented the order from becoming final even as to a claim in the case.

In Rosenow this court interpreted the quoted language of Leopando to mean:

“In the absence of a complete resolution of all issues present in a dissolution of marriage proceeding, an order entered in such a proceeding deciding such an issue is not a final order even as to a claim and thus is not appealable except in accordance with the Supreme Court Rules specifically applicable to interlocutory appeals.” (In re Marriage of Rosenow (1984), 123 Ill. App. 3d 546, 548, 462 N.E.2d 1287, 1288.)

Thus, an order which reserved to the trial court the apportionment of attorney fees is not appealable. In re Marriage of Derning (1983), 117 Ill. App. 3d 620, 453 N.E.2d 90.

By reason of the authorities cited, this appeal is dismissed.

Appeal dismissed.

McCullough, j.,

concurs.

PRESIDING JUSTICE GREEN,

dissenting:

This is the latest in a series of cases following Leopando which reveal a critical problem concerning the appealability of decrees entered pursuant to the Illinois Marriage and Dissolution of Marriage Act (IM-DMA) when the trial court has entered a decree which leaves some issue in the case pending for future determination. Decrees have been held to lack finality when questions have been reserved in regard to (1) pension rights (In re Marriage of Rosenow (1984), 123 Ill. App. 3d 546, 462 N.E.2d 1287), (2) attorney fees (In re Marriage of Derning (1983), 117 Ill. App. 3d 620, 453 N.E.2d 90), and (3) support, maintenance and property distribution (In re Marriage of Koch (1983), 119 Ill. App. 3d 388, 456 N.E.2d 644). On the other hand, decrees have been held to be final although matters were reserved in two cases. In that of In re Marriage of Parks (1984), 122 Ill. App. 3d 905, 461 N.E.2d 681, an in rem decree dissolving the marriage and awarding custody was final although questions of property division, maintenance, and child support were reserved, because the court did not have personal jurisdiction of the respondent. In the case of In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 465 N.E.2d 151, the issue of maintenance was reserved because of the uncertain prognosis of a serious illness of a spouse. The appellate court deemed the decree final, because the court had ruled on all matters it could reasonably decide.

Absent finality in the decree, appealability of the IMDMA order described can seldom be obtained. It is unlikely to meet the extraordinary requirements of Supreme Court Rule 308(a) (87 Ill. 2d R. 308(a)), by the terms of which an interlocutory order can become appealable upon the combined action of the trial and appellate courts if the trial court certifies that the decree “involves a question of law as to which there is substantial ground for difference of opinion.” The only other possibility of appeal is that available in regard to orders of child custody under Supreme Court Rule 306(l)(v) (87 Ill. 2d R. 306(l)(v)). If the instant decree is deemed to lack finality, neither party can appeal until the lapse of two years unless the maintenance order is changed. No doubt such a procedural morass strains the tolerance of litigants. Possible change of Supreme Court Rules to provide for appeal in some of these cases would seem to be worthy of consideration.

While disagreement with the logical analysis of the majority is difficult to justify, I respectfully do so under the conditions of this case. The decision of the court to award maintenance to the wife rather than to give her a larger division of the marital property appears to be a wise one. The method by which this was to be done, however, was somewhat ambiguous. The thrust of the theory of the majority appears to be that the language of the order implies an intention on the part of the court that it retain power to change the maintenance award without the necessity of a showing of a substantial change in circumstances as required by section 510(a) of IMDMA (Ill. Rev. Stat. 1983, ch. 40, par. 510(a)). I would give a different interpretation to the order.

Clearly, the mere fact that the award of maintenance was for a term would not prevent the award from being final. Rather, it is the provision setting the matter for “review” not later than at the expiration of the two-year term that causes concern. The majority correctly points out that several courts may have used the device of an award for a term, with a further provision that either sets the matter for a later hearing or makes a statement that the court retained jurisdiction, in order to be able to modify the order without compliance with section 510(a) of IMDMA. However, the published notes to sections 504 and 510 show another possible reason for a court to enter an order reciting matters indicating a reservation of jurisdiction. Those notes to section 510 state in part:

“Where the court has not expressly reserved jurisdiction to extend the term of a maintenance award but has remained silent on the subject, it would appear that the court retains authority to extend the maintenance beyond the original term in view of the court’s power under this section to modify maintenance judgments. See In re Marriage of Trohn, 531 R2d 985 (Colo. App. 1975). But compare Lindsay v. Lindsay, 115 Ariz. 322, 565 P.2d 199 (Ariz. App. 1977). Since Illinois courts of review have not addressed this question, the preferred practice is to eliminate any uncertainty by expressly addressing the issue in the initial judgment.” (Ill. Ann. Stat., ch. 40, par. 510, Historical and Practice Notes, at 700 (Smith-Hurd 1980).)

The notes to section 504 contain substantially the same language. Ill. Ann. Stat., ch. 40, par. 504, Historical and Practice Notes, at 528 (Smith-Hurd 1980).

As section 510(a) requires a showing of a substantial change in circumstances before a maintenance award can be modified, the inclusion in the publisher’s notes to that section of the suggestion that it is desirable to make an express reservation of retention of jurisdiction in order to have power to later modify a grant of maintenance for a term, indicates a theory that the reservation is necessary even to modify the grant upon a showing of a substantial change in eireumstances. The majority correctly set forth that the order here indicated possible modifications of the maintenance provisions upon a showing of a substantial change in circumstances. I interpret the court’s intention here to have been to set the matter for “review” so that it might change the maintenance benefits to the wife if a substantial change in circumstances was shown. Thus, I conclude that the trial court intended to give res judicata effect to its order.

It seems axiomatic that a provision in an order in a matrimonial case which has res judicata effect is final for purposes of appeal even though the court retains jurisdiction to modify the order when circumstances change. (See Nye v. Nye (1952), 411 Ill. 408, 416, 105 N.E.2d 300, 304.) Despite the provision in the order whereby the trial court set the matter of maintenance for further “review,” I interpret the intent of the court to be to give the order res judicata effect and to intend to “review” only the question of whether a substantial change in circumstances had taken place.

Accordingly, I would hold that we have jurisdiction and would decide the merits of the appeal.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE W. BURNSIDE, Defendant-Appellant.
    Third District
    No. 3—84—0654
    Opinion filed May 2, 1985.

      Robert Agostinelli and Stephen Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Howard R. Wertz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, George W. Burnside, was convicted of aggravated battery and battery. The sole issue on appeal is whether the defendant was denied effective assistance of counsel at trial. We affirm.

The defendant was convicted as the result of an assault on two individuals, Earl Wells and Joel Shaw. Before trial, appointed counsel for the defendant informed the court that two years earlier she had previously represented Earl Wells, one of the victims in the instant cause. In the earlier representation, counsel was the public defender representing Wells in a criminal prosecution.

Counsel stated to the court that her prior representation would not compromise her position in representing the defendant. In response to the court’s inquiry, the defendant stated that he accepted counsel’s continued representation. The court found no per se conflict of interest and allowed counsel to continue to represent the defendant.

On appeal, the defendant argues that the court erred in finding no per se conflict, and that counsel’s continued representation while laboring under a conflict deprived him of the effective assistance of counsel. The defendant asserts, therefore, that his conviction must be reversed.

This court was presented with a similar issue in People v. Kloiber (1981), 95 Ill. App. 3d 1061, 420 N.E.2d 870. The State presented the testimony of Robert Nichols, who had been incarcerated with Kloiber. Nichols testified to incriminating statements made by Kloiber during their incarceration. The attorney representing Kloiber had represented Nichols in an earlier proceeding which resulted in Nichols’ incarceration. On review, this court found no per se conflict of interest arose out of counsel’s prior representation, where counsel terminated his representation of the State’s witness and the crime with which the State’s witness was charged was unrelated.

The defendant correctly notes that this court held in People v. Cunningham (1984), 126 Ill. App. 3d 637, 643, 467 N.E.2d 404, 408, appeal allowed (1984), 101 Ill. 2d 584, that a conflict may arise even when the defendant’s attorney no longer represents the State’s witness. However, in Cunningham, counsel had represented two codefendants prior to terminating his representation of one of the defendants.

In the instant cause, defense counsel’s representation had terminated two years prior to the defendant’s trial. She represented Wells on a completely unrelated charge. On the instant facts, and based on the decision in Kloiber, we find that no per se conflict existed. The fact that the State’s witness in the instant cause was the victim rather than merely a witness is not sufficient to distinguish the instant case from Kloiber.

Because we find that no per se conflict existed, and no claim of any actual prejudice is made by the defendant, we do not address whether the defendant’s statement was sufficient to waive any conflict.

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

Affirmed.

HEIPLE, RJ., and WOMBACHER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD ALLEN KUJAWA, Defendant-Appellant.
    Third District
    No. 3-84-0604
    Opinion filed April 25, 1985.

      Robert Agostinelli and Stephen Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Ronald Allen Kujawa, appeals from the trial court’s denial of his motion to vacate a guilty plea. The defendant pleaded guilty to residential burglary and armed violence based upon residential burglary. He was sentenced to concurrent terms of imprisonment of 20 years for armed violence and 15 years for residential burglary.

On appeal, the defendant asserts that his sentence is excessive and that the conviction for residential burglary must be vacated. Because we find that the residential burglary conviction must be vacated and therefore remand for resentencing, we do not address the defendant’s assertion that the sentence was excessive.

It is well established that a defendant may not be convicted of both armed violence and the felony on which the charge of armed violence is predicated. (People v. Payne (1983), 98 Ill. 2d 45, 456 N.E.2d 44.) The alleging of the predicate felony in the armed violence charge has the effect, upon conviction, of making the predicate felony a necessarily included offense. (People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477, 479.) Where judgment is entered on both armed violence and the predicate felony, the conviction for the lesser included offense must be vacated.

The State asserts that the residential burglary conviction need not be vacated because the defendant consented to the conviction as a part of the plea agreement. We find, however, that the defendant’s consent does not cure the improper nature of the multiple convictions. The defendant may not agree to have done what the State cannot lawfully do.

We, therefore, vacate the defendant’s conviction of residential burglary. Because we vacate the conviction, we remand the cause for re-sentencing on the armed violence conviction alone. Accordingly, we do not now consider whether the sentence imposed in the instant cause was excessive.

The judgment of the circuit court of Will County is vacated as to the conviction for residential burglary, the conviction of armed violence is affirmed, the sentence imposed on the armed violence conviction is vacated and the cause is remanded for resentencing.

Affirmed in part; vacated in part and remanded.

BARRY and WOMBACHER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE PALIEMAR et al., Defendants-Appellants.
    Third District
    No. 3-84-0507
    Opinion filed April 25, 1985.
    Shelley A. Bannister, of Bannister & Byrne, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Jill Wine-Banks, Solicitor General, and Kathryn A. Spalding, Assistant Attorney General, both of Chicago, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Appellant, Mara Siegel, appeals from an order for payment of fees of the circuit court of Will County. Siegel, an attorney, was appointed to represent two criminal defendants, Dennis Williams and Jose Paliemar, charged with offenses that arose from a hostage-taking incident at Stateville Correctional Center. Williams’ case was dismissed and Paliemar was subsequently tried and acquitted of all charges except unlawful restraint. He was sentenced on January 18, 1983. Siegel filed her petition (later amended) for legal fees on January 13, 1983. .The trial court entered an order for payment of fees on February 6, 1984. Siegel filed a motion to clarify on May 9, 1984, which was denied May 31,1984. Siegel appeals from that denial and from the fee order itself.

Supreme Court Rule 303(a) states, inter alia, that “notice of appeal must be filed *** within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed *** within 30 days after the entry of the order disposing of the last-pending post-trial motion.” (94 Ill. 2d R. 303(a).) A post-trial motion is timely if it is “filed within 30 days after the entry of judgment ***, or within any further time the court may allow within the 30 days or any extensions thereof.” Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1202(c).

In the instant case, the judgment awarding Siegel attorney fees was entered on February 6, 1984. Her post-trial motion was not filed until May 9, 1984, and was not ruled upon until May 31, 1984. Pursuant to statute, the trial court lacked jurisdiction to rule on the post-trial motion because it was filed more than 30 days after judgment was entered. Therefore, notice of this appeal had to” have been filed within 30 days from February 6, 1984. The record discloses that this appeal was filed on June 27, 1984. We, therefore, lack jurisdiction to consider the merits of the issues raised by Siegel, because her appeal was not timely filed.

Siegel argues that her failure to file anything within the statutory period was due to the delay and purposeful procrastination of the Department of Corrections and, further, that Judge Orenic and his order of May 31, 1984, declared that order to be the final order for the purpose of appeal. Neither of these arguments is sufficient to negate the express language of the statute and rule. Because Siegel neither filed a notice of appeal nor an appropriate motion within 30 days from February 6,1984, her appeal is barred.

For the foregoing reasons the appeal is dismissed.

Appeal dismissed.

HEIPLE, P.J., and BARRY, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    EDITH L. BANDY, a/k/a Edith L. Stacker, Plaintiff-Appellant, v. JAMES BOSIE et al., Defendants-Appellees (Charles M. Bandy, Plaintiff).
    Fourth District
    No. 4—84—0794
    Opinion filed May 2, 1985.
    Robert F. Scott, of Scott, Beeman & Scott, P.C., of Springfield, for appellant.
    Anthony J. Manuéle, of Springfield, for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On March 22, 1982, plaintiffs, Edith L. and Charles M. Bandy, filed a four-count complaint in the circuit court of Sangamon County against defendants, James Bosie and Becky Bosie. The complaint alleged that (1) plaintiffs and defendants owned adjoining city lots; (2) certain maple and Chinese elm trees on defendants’ lot dropped sap and leaves on plaintiffs’ property, and roots from these trees have entered and damaged plaintiffs’ sewer line, causing water to back up in their basement; and (3) the foregoing have caused plaintiffs substantial expenditures and have caused irreparable damage to plaintiffs’ sewer line. Counts I and II sought injunctive relief, while counts III and IV sought damages. On October 28, 1984, the circuit court allowed defendants’ motion to dismiss counts I and II for failure to state a cause of action. After the trial court made a finding pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)), plaintiff Edith L. Bandy appealed. We affirm.

Plaintiff’s theory as to counts I and II is that defendants’ trees constitute a nuisance which is causing continuing damage to plaintiffs’ property for which there is no adequate remedy at law. She contends that defendants should be ordered to cut down the trees. Defendants maintain that the trees do not constitute a nuisance and that, in any event, plaintiff is not entitled to equitable relief. The two Illinois cases most closely in point are Merriam v. McConnell (1961), 31 Ill. App. 2d 241, 175 N.E.2d 293, cited by defendants, and Mahurin v. Lockhart (1979), 71 Ill. App. 3d 691, 390 N.E.2d 523, cited by plaintiff.

We consider first the earlier case of Merriam. There, the plaintiff sued for an injunction to restrain the defendants from growing box elder trees, as they annually became infested with box elder bugs which migrated to plaintiff’s property. The court in that case found that the entire problem was one of natural origin and concluded that equity could not be used to control or abate natural forces as if they were a nuisance. The Merriam court discussed the fact that there were no allegations in that complaint that would support a finding of a nuisance, citing with approval the Massachusetts case of Michalson v. Nutting (1931), 275 Mass. 232, 175 N.E. 490, where it was stated that an owner of land is entitled to grow trees on any or all of his land and their natural growth reasonably will result in extension of roots and branches into adjoining property. The Massachusetts court dismissed a suit for injunction where roots clogged the sewer of an adjoining landowner.

The Merriam court concluded that (1) the effects of nature such as the growth of tree roots cannot be held within boundaries; (2) the risk of damage from roots on other lots is inherent in suburban living; and (3) to allow suits of this nature would bring about substantial litigation over matters that should be worked out between the lot owners. Merriam v. McConnell (1961), 31 Ill. App. 2d 241, 244, 175 N.E.2d 293, 295.

The Mahurin court took a somewhat different approach. There, the plaintiff sued an adjoining lot owner for damages resulting when a dead limb on a tree on defendant’s property fell on plaintiff’s property, injuring plaintiff. The complaint was held to state a cause of action. The defendant contended that she had no liability for damages occurring off of her land resulting from the existence of natural conditions on her land. The appellate court rejected that view as being outmoded. The court described that earlier theory as arising from an era when most land was heavily wooded and sparsely settled and when the burden of inspecting those larger properties for natural defects would have been unreasonable. In a more modem urban setting, the court considered the burden of inspecting for unsound trees which might injure persons off of the owners’ property to be reasonable.

The Mahurin decision appears to be in line with a trend to place greater responsibility upon the owner of the lot where the tree is located. Several decisions indicating the trend were cited in Mahurin. (See Barker v. Brown (1975), 236 Pa. Super. 75, 340 A.2d 566; Dudley v. Meadowbrook, Inc. (D.C. App. 1961), 166 A.2d 743.) However, as pointed out in a leading text on torts (Prosser, Torts sec. 57, at 391 (5th ed. 1984)), most of these cases concern situations where, unlike under the allegations here, the tree is in a dangerous condition.

There is mention of a situation such as complained of by the Bandys in Restatement (Second) of Torts (1979). An illustration is given to section 840 whereby one landowner takes possession of property on which certain trees have been planted whose roots grow into a neighbor’s land, causing the neighbor injury. The trees in this instance are said not to be a natural condition as they have been planted and, therefore, qualify as a nuisance which can subject the trees’ owner to liability if abatable. (Restatement (Second) of Torts sec. 840, comment a, illustration 4 (1979).) The complaint here is silent as to when arid how the trees gained life. That is one reason why we conclude that the complaint fails to allege a nuisance.

In addition, even if counts I and II had stated that the allegedly offending trees had been planted, the counts would still have failed to state a cause of action for injunctive relief. We do not consider trees that drop leaves on neighboring lands or trees that send out roots that migrate to neighboring lands and obstruct drainage to necessarily constitute a nuisance. We recognize that some decisions in other States are to the contrary. (Holmberg v. Bergin (1969), 285 Minn. 250, 172 N.W.2d 739; Mattos v. Mattos (1958), 162 Cal. App. 2d 41, 328 P.2d 269; Forbus v. Knight (1945), 24 Wash. 2d 297, 163 P.2d 822.) However, we note that here, unlike in Mahurin and in Fabbri v. Regis Forder, Inc. (1975), 114 R.I. 207, 330 A.2d 807, there is no allegation that the trees constituted a danger or that they were negligently maintained. We agree with the Merriam court that, under the circumstances here, to permit the falling of leaves or the migration of the roots to give rise to injunctive relief would unduly promote litigation over relatively minor matters. Usually, the damage from the offending leaves would be minimal, and the accurate locating of the source of the offending roots would be difficult and expensive.

Accordingly, we agree with the trial court that counts I and II should have been dismissed. We affirm its decision to do so.

Affirmed.

TRAPP and MORTHLAND, JJ., concur.