text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY E. PRUDEN, Defendant-Appellant.
    Fourth District
    No. 17389
    Opinion filed November 10, 1982.

      Daniel D. Yuhas and Gary S. Rapaport, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edmond H. Rees, State’s Attorney, of Carlinville (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was convicted by a jury in the circuit court of Macoupin County of the offenses of home invasion and armed robbery in violation of sections 12 — 11 and 18 — 2(a) of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, pars. 12 — 11, 18 — 2(a).) He received concurrent sentences of 30 years and 20 years of imprisonment respectively and he appeals.

Although no questions of reasonable doubt are raised, a brief sketch of the facts is helpful in understanding the issues. At trial (there had been a prior hearing on a motion to suppress identification) the first witness was a deputy sheriff who stated that in the morning hours of January 18, 1981, he received a call concerning an alleged armed robbery at the residence of Brian and Monica Brown. He obtained a description of the perpetrator and his car from the Browns and this was broadcast through the police radio. He next received information about a car which appeared to be similar to the description and he thereupon drove to the defendant’s brother’s home and there obtained a photograph of defendant; he also determined that defendant owned an automobile similar to that used in the offenses. The officer stated that he had had a prior acquaintance with defendant.

He then repaired with the photograph to the Browns’ home and exhibited it to them. They identified the individual portrayed as the offender. Further information was then received by radio that a car matching the description previously broadcast was seen at a tavern about five miles from the Brown residence. Officers then converged on the tavern and defendant, whose clothing matched the description given, was arrested as he entered a car, whose description matched that which had been broadcast.

Monica Brown was the next witness. A narrative of her testimony is as follows: she and her husband returned to their home from visiting relatives at about 12:50 a.m. on January 18, 1981; they parked their car in the driveway near their house and while they were still out-of-doors, another car pulled into the driveway and an individual got out and came up to converse with them; the area was lighted with a “dawn-to-dusk” pole light; she was carrying her five-week-old infant and left to go into the house; shortly after she entered the house and turned on the kitchen light where she and the infant were located, Mr. Brown and the man who had approached them outside entered, the man being directly behind Mr. Brown.

Mr. Brown instructed her to give the man all of their money and stated that he was holding a knife to his back; at this time she was unable to see the man and Mr. Brown switched off the light as he entered the kitchen; she obtained her purse and removed $103 from it and placed the money on the dishwasher; the man next moved into the living room where he turned on a small lamp, but Mrs. Brown was unable to see his face; he then returned to the kitchen and made some improper advances to Mrs. Brown while holding a knife to her back. During this time the infant was crying and the assailant directed her to do something to quiet the baby; she replied that the baby was hungry and she would need some light by which to feed him; the man then opened the refrigerator door and she was able to see him by the refrigerator light; he stood against a counter in the kitchen while the bottle was being warmed.

The entire episode lasted about 15 minutes; during that time the man repeatedly said that he wanted more money, inquired about any firearms which the Browns might have, stated that he did not intend to harm them or the child, but told them to sit in the living room and not move or else he would return with a pistol which he had in his car. He then left and the Browns heard a car leave the driveway at a high rate of speed, without lights, and sending gravel flying. Mrs. Brown then called the police. She gave them a description of the man, his clothing, and his car; the police returned with a photograph and she identified the person in it as the assailant. She then made an in-court identification of defendant.

These two were the principal witnesses for the State. Other officers were called and their testimony corroborated that of the deputy. Mr. Brown testified and his evidence corroborated that of Mrs. Brown. In particular, he stated that he had seen the assailant holding a knife against Mrs. Brown; he estimated that its blade was about three inches long but he was unable to observe its handle. He examined a knife which had been seized from the defendant when he was arrested and stated that its blade resembled the one he had seen on the night of the offenses.

Defense testimony centered about establishing impeachment of the Browns, particularly with reference to the knife and their ability to observe the assailant.

Other factual matters will be developed as necessary in discussion of the issues. The issues raised on appeal are: (1) error by the trial court in denying a motion in arrest of judgment for failure of the information to state the offense of home invasion; (2) error by the trial court in allowing the deputy to testify before the victims had done so; (3) error in the use of a single photograph in identification; and (4) error in denying a continuance when private counsel replaced the public defender.

The first issue requires an examination of the charging documents. An information was filed in two counts. With the omission of the formal portions, the home invasion count recited:

“that said defendant, not a peace officer acting in the line of duty, without authority knowingly entered a dwelling of Brian and Monica Brown, located at R.R.2, Gillespie, Macoupin County, Illinois, knowing Brian and Monica Brown to be present within said dwelling, and threatened the imminent use of force upon Brian and Monica Brown.”

The count of armed robbery recited:

“that said defendant, while armed with a dangerous weapon, a knife, took property, being $103 in United States currency from the person of Monica Brown, by threatening the imminent use of force.”

The language of the home-invasion statute (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11) provides:

“Sec. 12 — 11. Home Invasion, (a) A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present and
(1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs, or
(2) Intentionally causes any injury to any person or persons within such dwelling place.”

It will thus be seen that while the information alleges that the defendant threatened the imminent use of force, it omits “while armed with a dangerous weapon.”

A similar situation was dealt with in People v. Pettus (1980), 84 Ill. App. 3d 390, 405 N.E.2d 489. In that case the omission was “without authority.” It was held not to be a formal defect, curable under section 111 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 111 — 5), and the conviction for home invasion was reversed. In the case at bar the defendant filed a motion in arrest of judgment based on Pettus. The trial court denied the motion, holding that “without authority” and “while armed with a dangerous weapon” made Pettus distinguishable. We do not agree. The allegation of being armed with a dangerous weapon is, if anything, more essential to the offense than lack of authority. The trial court was in error in denying the motion.

The State argues that the element may be supplied from the second count of armed robbery. The same argument was rejected in Pettus and is again rejected here for the same reasons. Without the aliegation of a dangerous weapon, the information appears to allege only burglary or assault.

The conviction and sentence for home invasion must therefore be vacated. However, it remains to be decided whether remandment for resentencing must follow. This, in turn, depends on the extent to which, as revealed in the record, the trial judge took into consideration the home-invasion conviction in fixing the sentence for armed robbery.

If the record discloses that the trial judge considered the offenses separately and sentenced a defendant separately on each, there is no necessity for remand. (People v. Kosanovich (1979), 69 Ill. App. 3d 748, 387 N.E.2d 1061.) However, when the basis for sentencing is unclear, remand generally follows. (People v. Medreno (1981), 99 Ill. App. 3d 449, 425 N.E.2d 588.) In People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, the supreme court indicated that a sentencing judge could take into consideration evidence of misconduct which did not result in a conviction. (Accord, People v. Ely (1982), 107 Ill. App. 3d 102, 437 N.E.2d 353.) It should be noted that both LaPointe and Ely were concerned with offenses which did not result in prosecution and thus did not address with precision the question presented here.

We have concluded that remandment for resentencing in the instant case is not warranted. While the trial judge’s remarks were brief, he imposed separate sentences of differing lengths on the two charges. It is thus unlike Medreno where across-the-board sentences of 50 years each were imposed on three Class X felonies. The record here supports prima facie separate consideration of the offenses and would also indicate that the trial judge, for whatever reason, regarded home invasion as more serious than armed robbery under the circumstances.

Moreover, in view of defendant’s past history (convictions in the State of Georgia for kidnaping, rape, and armed robbery; on parole in Illinois from these at the time of the offenses here) as revealed in the presentence report, together with charges pending at the time of the offenses (rape, deviate sexual assault, armed robbery, armed violence and aggravated kidnaping) in Montgomery County, we cannot believe that the trial judge would reduce the 20-year sentence imposed on the armed robbery count.

Defendant’s second issue concerns the identification testimony of the deputy and the Browns. As noted above, the deputy testified as to a description of the assailant given to him by the Browns and his testimony was taken before that of the Browns. Objection was made to this as hearsay, but it was overruled.

The supreme court has dealt with the issue which is presented here. In People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223, the court set forth rules to govern the admissibility of out-of-court identification. The court noted that if a third person were to testify that he saw or heard A identify B as the person who committed the offense, that would obviously and clearly be hearsay testimony and would not be admissible. However, the court went on to note that if A testifies that he had previously identified B and A’s veracity is tested by cross-examination, the reason for excluding the third person’s testimony would be removed. Then, after A has testified, the third person should be permitted to testify that he heard or saw A identify B because both A and the third person would be subject to cross-examination regarding the out-of-court identification. The court expressly stated: “Before the third person is permitted to testify as to A’s identification of B, A should first testify as to his out-of-court identification.” 81 Ill. 2d 571, 579, 411 N.E.2d 223, 227.

From the record here it is at once apparent that the procedure outlined in Rogers was not strictly followed. The deputy testified first and indicated the Brown’s identification of defendant. He was followed by Mrs. Brown and then Mr. Brown. Thus, hearsay was admitted into the record.

The next inquiry must be whether such hearsay constitutes reversible error. It should be noted in passing that defendant failed to raise the point in his post-trial motion and therefore waiver could be applied. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Even in the absence of waiver, we find no reversible error. Such hearsay becomes reversible error only when it is used as a substitute for in-court identification and to strengthen weak identification. If it is merely cumulative, or is supported by positive identification and other corroborative circumstances, it is harmless. People v. Sias (1980), 91 Ill. App. 3d 1095, 415 N.E.2d 618.

In the case at bar, both Browns testified to their out-of-court identification and made a positive in-court identification of defendant; both were cross-examined on these subjects; both observed the defendant at close range for several minutes in the driveway and in the kitchen under reasonably good lighting conditions. It is therefore apparent that the purpose of the rule was satisfied. The deputy’s testimony was not substitutionary and the victim’s testimony was not weak.

We therefore hold that the error was harmless, although we are of the firm opinion that the procedure specified in Rogers should be followed by trial courts. No good purpose is served by inviting error when the supreme court has indicated a precise way to avoid it.

Defendant’s third issue relates to the single-photograph method of identification. As has been indicated, the authorities, after receiving a description of the assailant from the Browns, became suspicious of defendant and an officer obtained a photograph of defendant which he exhibited to the Browns shortly after the events occurred. Defendant contends that this was unreliable and that the trial court should have suppressed the identification, particularly since the photograph was exhibited to the Browns in the presence of each other.

Both the United States Supreme Court and the Illinois Supreme Court have established rules for a single-photograph display. (Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967; Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243; People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313; People v. Elam (1972), 50 Ill. 2d 214, 278 N.E.2d 76.) It would unduly lengthen this opinion to discuss in detail these authorities since the rules laid down in them are generally known and recognized. Briefly stated, these rules indicate that there is no per se prohibition against a single-photograph display, but the procedure is fraught with peril and must be handled with care. Each, case will be judged on its own facts and circumstances and the issue is whether the procedure is so suggestive as to give rise to a substantial likelihood of irreparable misidentification. Factors to be considered in making the judgment are the opportunity of the witness to view the offender at the time of the offense, the witness’ degree of attention, the accuracy of his prior description, the level of certainty demonstrated at confrontation, and the time between the offense and the confrontation. Manson; Manion.

As applied here, the factors weigh in favor of the trial court’s decision. While defendant argues that much of the incident took place in darkness, there is considerable evidence to the contrary; the pole light in the driveway and the refrigerator light in the kitchen. Both Browns viewed the assailant at close range; their descriptions were apparently accurate since defendant almost immediately became a suspect and when he was apprehended within a few hours, the description of his person and his automobile were closely matched to what had been said to the officers. Another important factor is that the photograph was exhibited to the Browns less than two hours after the events.

We conclude that in the totality of the circumstances the out-of-court identification, even though suggestive, was reliable. Prompt on-the-scene identifications are common in the apprehension of offenders and are necessary. (Manion.) The display to the Browns in the presence of each other is a procedure not to be encouraged, but it is only another factor in the reliability equation.

Defendant’s final contention is that it was an abuse of discretion for the trial court to deny a continuance when defendant had obtained a privately retained attorney. Some background is needed to understand this argument. He was arrested on January 18, 1981, and counsel was appointed. Following arraignment, trial was set for April 6; various continuances were allowed, some of them on defendant’s motion and others by agreement; a final trial date of June 17 was fixed.

On the day before, June 16, a privately retained attorney filed his appearance and moved for continuance. Defendant informed the court that his attorney was representing him on separate charges in Montgomery County and that he wished the same attorney to represent him in the case at bar. The attorney informed the court that he had been retained in the Montgomery County matters during the middle of May.

The trial court allowed the substitution of attorneys but denied the motion for continuance. The attorney stated that he had reviewed the prior attorney’s file but had not had the opportunity to interview witnesses. The trial court stated that he would be afforded that opportunity prior to the witnesses’ testifying.

A motion for continuance is addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant. (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 4(e).)

The granting or denial of a request for continuance is to be determined under the particular facts and circumstances surrounding the request, which is directed of the sound discretion of the trial court, and a conviction will be reversed when it appears that a refusal to grant a continuance embarrassed the defendant, impeded preparation of his defense, or prejudiced his rights. (People v. Harris (1981), 95 Ill. App. 3d 1, 419 N.E.2d 489.) However, the action of the trial court will not be disturbed on appeal absent an abuse of discretion (People v. Hayes (1972), 52 Ill. 2d 170, 287 N.E.2d 465), and whether there has been an abuse of discretion depends upon the particular facts and circumstances of each case. People v. Clark (1956), 9 Ill. 2d 46, 137 N.E.2d 54.

In applying these rules to the case at bar, we find no error in the trial court’s ruling. The defendant was not diligent. His private counsel had been retained for the Montgomery County matters approximately one month before the trial date in this case. Defendant was not embarrassed, impeded, or prejudiced. His new counsel showed himself thoroughly familiar with the case, ably cross-examined the State’s witnesses and presented his own case in chief. Counsel did not indicate, even after conviction, that any further defense evidence would have been adduced in the event of continuance. Compare Peo ple v. Sullivan (1977), 52 Ill. App. 3d 666, 367 N.E.2d 1042.

In summary, the judgment and sentence of the circuit court of Macoupin County on the count of home invasion is vacated; the judgment and sentence on the count of armed robbery is affirmed. The cause is remanded to that court with directions to issue an amended mittimus reflecting the judgment of this court.

Vacated in part, affirmed in part, and remanded with directions.

GREEN, RJ., and TRAPP, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    PATRICK CLARKE, Adm’r of the Estate of DENNIS CLARKE, Deceased, Plaintiff-Appellant, v. RURAL ELECTRIC CONVENIENCE COOPERATIVE CO., Defendant.—(Alex Jordan, Defendant-Appellee.)
    Fourth District
    No. 4—82—0187
    Opinion filed November 8, 1982.
    Gramlich and Morse, of Springfield (Charles J. Gramlich and Robert W. Dodd, of counsel), for appellant.
    Grady E. Holley and John L. Swartz, both of Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, of Springfield, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This case concerns the duty of a farm operator to inspect his premises to discover hazards that may exist therein, and the farmer’s duty to warn an employee of hazards that might have been found.

On August 16, 1978, plaintiff, Patrick Clarke, administrator of the estate of Dennis Clarke, deceased, brought suit in the circuit court of Sangamon County against defendants, Rural Electric Convenience Cooperative Co. (Electric Cooperative) and Alex Jordan, seeking damages for the wrongful death of his 17-year-old son, Dennis Clarke. Count I of the complaint was against the Electric Cooperative and is not at issue here. Count II was against defendant Jordan. On January 27, 1982, the court granted defendant Jordan’s motion for summary judgment and made a finding under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)) which made the judgment immediately appealable as a matter of right. Accordingly, plaintiff has appealed.

Count II alleged that (1) on August 13, 1977, plaintiff’s decedent was an employee of Jordan’s on a farm owned and operated by Jordan, (2) the Electric Cooperative maintained an electrical power line over a portion of the farm, and (3) on that date, the deceased was operating Jordan’s equipment, mowing grass near the power line, when the deceased made contact with the power line and was electrocuted. The count charged Jordan with (1) failing to warn the deceased that the line was sagging, (2) failing to inspect the area where the deceased was working, (3) allowing a dangerous condition to exist in the area where the deceased was working, and (4) failing to supervise the deceased.

Defendant Jordan supported his motion for summary judgment with excerpts from several discovery depositions of witnesses. Plaintiff filed no evidentiary documents in opposition to the motion. The evidence presented was not in substantial dispute and indicated a situation as hereafter explained. The deceased was mowing a grass area between a little used township road and one of Jordan’s fields. He was driving a 1966 model 40 — 20 Deere diesel tractor with a mower behind it. He had several years’ experience in doing farm work, had good eyesight, had often used mowing equipment, and had mowed the same area two times before. On the day of the tragedy, Jordan told the deceased he could either mow or do other work, and the deceased chose to mow. The deceased had mowed during the morning and continued to do so in the afternoon. About one week earlier, a storm occurred and a passerby noticed that the electric wire was sagging and a cross arm of a supporting pole was broken. Prior to the tragedy, another person passed by and also noticed that the wire was sagging and that a pole had apparently been struck by lightning. Defendant Jordan had not been told about the condition of the wire and knew nothing about it.

Late in the afternoon, plaintiff went to the Jordan farm to find his son and saw a tractor with mower attached driving in circles on the opposite side of the road. Upon approaching, plaintiff saw his son’s body slumped over the wheel with his arm caught in the wheel in such a way that the wheel was locked in a turning position. The condition of the body showed the son had been electrocuted. Plaintiff stated nothing indicated the equipment had touched the pole, and he could not tell whether it had touched the power line. Defendant Jordan had spread herbicide around the poles so that mowing near them was not necessary.

The thrust of plaintiff’s theory of recovery under count II is that defendant Jordan breached his duty to the deceased to furnish him a safe place to work because he failed to reasonably inspect the premises and failed to find and warn the deceased of the hazard created by the sagging wire. This obligation of reasonable inspection is generally an element of the duty of an employer to furnish employees a safe place to work. (Stone v. Guthrie (1957), 14 Ill. App. 2d 137, 144 N.E.2d 165; Restatement (Second) of Agency sec. 492 (1958).) This duty has been held applicable to employers who are farmers. (Stone.) “The duties of a master to his servant with respect to the working conditions of the premises upon which the servant is employed are substantially the same as those of a possessor of land to a business guest.” (Restatement (Second) of Agency, title C, Non-Delegable Duties of Master, Introductory Note, at 435 (1958).) Citing Genaust v. IIlinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, and Restatement (Second) of Torts sec. 343 (1965), defendant Jordan contends that he had no duty to the deceased because the hazard here was one which the deceased could be expected to discover and appreciate.

The facts in Genaust are somewhat similar to those in the instant case. That plaintiff was alleged to be an independent contractor who contracted with one of the defendants to install an antenna and tower on that defendant’s property. He claimed he was injured when the apparatus he was erecting came near uninsulated power lines that passed close to that defendant’s property and electricity arced from the lines to the apparatus. The plaintiff asserted in one count that defendant was liable for failure to warn him of the existence and proximity of the wire. The trial court dismissed the count for failure to state a cause of action. The supreme court affirmed relying on the Restatement (Second) of Torts sec. 343, at 215-16 (1965), which states:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.”

The Genaust court concluded, as a matter of law, that (1) the defendant to the count would not have discovered the danger of the wires in the exercise of reasonable care because they were neither on his property nor under his control, (2) the plaintiff by contracting with that defendant represented he had sufficient knowledge to perform the task, and the defendant could assume plaintiff would appreciate the danger in erecting metal apparatus near electrical wires, and (3) nothing indicated that the lines were hidden and the danger of such wires is a matter of common knowledge. The general theory of Genaust has been followed in Longnecker v. Illinois Power Co. (1978), 64 Ill. App. 3d 634, 381 N.E.2d 709, a case also involving injury from electricity and in Sepesy v. Archer Daniels Midland Co. (1981), 97 Ill. App. 3d 868, 423 N.E.2d 942, where electricity was not involved.

This case differs from Genaust in that there, the power lines were not on the defendant’s property, and the injured party was an independent contractor-electrician who was presumed to have a high degree of knowledge of the propensities of electricity. Here, the defendant was the possessor of the land, and the relationship between the parties was that of master-servant. We recognize that the danger of electricity is a matter of common knowledge (Genaust), and that plaintiff indicated that the deceased understood the dangers of electricity. However, the evidence was that the line had sagged to a point where it was not less than 10 feet nor more than approximately 16 feet from the ground. The evidence also showed that the tractor used had an exhaust pipe that extended to a height of about 10 feet above the ground. Under these circumstances, the deceased could have brought the tractor under the wire at a point where the metal exhaust pipe was in fairly close proximity to the wire and received a jolt of electricity by the arcing process. Whether we could hold as a mat-of law that under those circumstances a 17-year-old farmhand would be deemed to have knowledge of the hazard, would be a difficult question.

We need not determine whether the deceased should be held to have appreciated the hazard because under the evidence presented, defendant Jordan could not be found to have constructive knowledge of the hazard. A determination by a trier of fact that the defendant had a duty to inspect the premises in the week between the storm and the tragedy could not stand. The question of whether a person has a duty to inspect premises or has failed to make an inspection within a reasonable time after a hazard has developed is usually a question for a trier of fact. However, when the time is clearly too short to create the duty, the court should so rule as a matter of law. (Hresil v. Sears, Roebuck & Co. (1980), 82 Ill. App. 3d 1000, 403 N.E.2d 678.) Where, as in Hresil, the premises consisted of the floor of a grocery store, a period of 10 minutes between the creation of the hazard and the injury to an invitee was held, as a matter of law, to be too short a period to support a finding that the occupier of the store should have inspected and found the hazard. Here, where the premises consisted of substantial rural acreage, a period of one week between the creation of the hazard and the tragedy is similarly too short a period to raise a question of fact as to whether defendant Jordan should have inspected the area where the mowing took place and discovered the hazard.

Accordingly, we affirm the summary judgment for defendant Jordan. We do so on the basis that his failure to inspect during the week after the storm could not be deemed unreasonable rather than on the basis that, as a matter of law, the hazard was obvious to the deceased. Absent the defendant’s knowledge of the sagging line or his unreasonable failure to inspect and obtain that information, a necessary element for his liability is lacking and summary judgment was proper.

Affirmed.

MILLS and LEWIS, JJ., concur.


author: JUSTICE MILLS

text:
    THE PEOPLE ex rel. JAMES EDGAR, Secretary of State, et al., PlaintiffsAppellees, v. JAMES HAROLD MILLER et al., Defendants-Appellants.
    Fourth District
    No. 4—82—0309
    Opinion filed November 4, 1982.
    Rehearing denied December 13, 1982.

      Kristen H. Fischer and Susan A. Stratman, both of Champaign, for appellants.
    Tyrone C. Fahner, Attorney General, of Springfield (Mark S. Killion, Assistant Attorney General, of counsel), for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

A “Blue Sky Law” case.

Miller and Cooper were enjoined from illegally selling securities and their bank accounts were frozen.

We affirm.

Pursuant to the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1981, ch. 121V2, pars. 137.1 through 137.19), the Secretary of State filed verified complaints for statutory injunction and for a temporary restraining order. The trial court issued an ex parte order restraining defendants — until further order of the court — from:

“Engaging in acts related to the selling or offering for sale of securities alleged to be tax-free municipal bonds or any other security in the State of Illinois except in compliance with the [Illinois Securities Law of 1953] as amended; [and from] removing any funds from any bank account, certificates of deposit, repurchase agreements or any other like account held in the of the Defendants or for which the Defendants are named signatories in the State of Illinois.”

The matter was continued to May 12, 1982, for hearing on the request for injunction.

Defendants were served with the complaint and the temporary restraining order on May 10, 1982. They did not file any responsive pleading, but did appear and participate in the May 12 evidentiary hearing.

Testimony at the hearing was exhaustive, but may be summarized. It was established that defendants Cooper and Miller were not registered under the Illinois Securities Law of 1953 as issuers, dealers or salespersons of securities or as investment advisors, and that Continental National Associates was not registered to issue any type of security in this State and did not employ any salespersons or dealers registered to sell such securities.

Blanche Lindgren testified at the hearing that she was 76 years old and had resided with her brother, Clarence, all her life. Sometime in the late summer or early fall of 1981, she and Clarence met defendants. They met several times over the next several months and a friendship of sorts developed. According to Lindgren, defendant Miller had held himself out as having some expertise in estate planning and when she voiced concern over planning for one of her relatives, Miller filled out financial statements and confidential information forms which she and her brother signed. These were admitted into evidence. Then, on November 4, 1981, Miss Lindgren gave Miller $88,791.16 because Miller had stated that he could get her “a lot better money on your investment.” The money was to be invested in tax-free bonds — which the witness also referred to as tax-free municipal bonds, tax-exempt bonds, interest-exempt bonds or simply bonds.

Lindgren testified that she received a receipt from Miller for this money and later received some documents in a plastic envelope. She did not inspect the documents when she received them and no one explained them to her.

In January, Lindgren gave Miller additional funds totaling $30,000 for further investment in tax-free bonds. She never received any note or other documents in exchange for this money until after April 26, 1982.

Lindgren indicated that she had filled out an application for insurance and had given Miller a check for the premium, but that no insurance coverage was issued and her check had been returned. She also related that she and her brother made a $6,000 personal loan to defendant Miller and had received a promissory note bearing a stated interest rate of 10% in return.

Lindgren testified that on April 26, 1982, after conversing with her nephew, she became suspicious and inspected the documents she had received from defendants. The November 4 documents turned out to be promissory notes obligating defendants to repay her the $88,000, at a 13.5% rate of interest, 60 months after the date of the note.

Defendants’ testimony is in direct conflict with that of Miss Lindgren. They testified that they are engaged in the business of selling insurance and do some estate planning involving life insurance. Further, they testified that the transactions with the Lindgrens were always understood by all concerned to be personal loans. Miller testified that he personally delivered the November 4 notes to the Lindgrens and discussed the terms with them at that time.

Both Cooper and Miller testified that they executed a promissory note for the $30,000 they received from Blanche Lindgren in January, but that they did not know of its whereabouts. When they learned on April 26 that Blanche Lindgren had not received the note, they executed a duplicate and instructed their counsel to deliver the same.

Defendants also denied ever telling the Lindgrens that they were investing in tax-free bonds, bonds or any security.

Defendants further testified that the money received by them from the Lindgrens had been expended; that they intended to repay the money in accordance with the terms of the notes; and that the temporary restraining order had virtually made it impossible for them to carry on their business as insurance agents.

On May 12, 1982, the court issued a preliminary injunction identical in its terms to the temporary restraining order. Defendants contend that both the temporary restraining order and the preliminary injunction were improperly entered.

I

The first question which must be addressed by this court is the appealability of the temporary restraining order. We acknowledge the rule that the question of whether a temporary restraining order was properly granted is not moot simply because the order expires by its own terms long before an appeal may be heard. (Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177, 303 N.E.2d 1.) However, mootness is not the issue before this court. Rather, we are faced with a jurisdictional question. Compare Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 384 N.E.2d 1309 (a question is moot and a court will refuse to hear a case — even though it has jurisdiction — where it cannot grant effective relief).

Appeal of a temporary restraining order is permitted by Supreme Court Rule 307(aXl) (87 Ill. 2d R. 307(aXl)). However, where, as here, an interlocutory order was entered ex parte, Rule 307(b) provides that the party seeking to appeal must first file a motion to vacate the order. 87 Ill. 2d R. 307(b).

The purpose of this rule is to preclude appeals where there has been only partial or one-sided consideration below. (Bohn.) Thus, it is really the denial of the motion to vacate which is the appealable order, and not the temporary restraining order itself. Panduit Corp. v. All States Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 405 N.E.2d 1316.

The requirements of Rule 307(b) are not dispensed with by section 11(K) of the Illinois Securities Law of 1953. Section 11(K) provides that either party to a suit for injunction to enforce the act “shall have the right to prosecute an appeal from the order of judgment of the Court.” (Ill. Rev. Stat. 1981, ch. 121V2, par. 137.11(E).) As the right is not conditioned on filing a motion to vacate, defendants would have this court hold that Rule 307(b) does not preclude review.

Defendants’ argument must be rejected because it is the supreme court — not the legislature — which is empowered to make rules for interlocutory appeals to the appellate court. (Ill. Const. 1970, art. VI, sec. 6.) We decline to adopt an unconstitutional interpretation of section 11(E) and hold it to be consistent with Rule 307(b). (See People v. Phipps (1979), 79 Ill. App. 3d 532, 398 N.E.2d 650, rev’d on other grounds (1980), 83 Ill. 2d 87, 413 N.E.2d 1277 (holding section 10(b) of the Mental Health and Developmental Disabilities Confidentiality Act unconstitutional as an attempt by the legislature to usurp the power of the judiciary).) No motion to vacate was filed in this case, so we decline to consider the propriety of the temporary restraining order.

Even if the question was properly before the court, it is subsumed by the question of the propriety of the issuance of the preliminary injunction. See People ex rel. Fahner v. Steel Container Corp. (1981), 102 Ill. App. 3d 369, 430 N.E.2d 68.

We now turn to that issue.

II

The first question which arises is whether this court may consider the sufficiency of the Secretary’s complaint for the first time on appeal. Both parties agree, and it is a well-settled rule, that when a complaint totally fails to state a cause of action, it may be challenged at any time. Larkin v. Howlett (1974), 19 Ill. App. 3d 343, 311 N.E.2d 367.

Secondly, we must consider whether the propriety of the preliminary injunction is to be judged solely on the basis of the Secretary’s complaint or whether we may also consider evidence adduced at the May 12 hearing. It is error to hold a hearing and consider evidence on a complaint for preliminary injunction where defendant has not answered. (Kurle v. Evangelical Hospital Association (1980), 89 Ill. App. 3d 45, 411 N.E.2d 326.) However, defendants’ participation in the hearing below waived their right to object to evidence being considered in deciding whether to grant the preliminary injunction. Kurle.

This brings us to the major question in this case — what must the Secretary show to state a good cause of action for a preliminary injunction? Traditionally, the equitable remedy of injunction is only granted where plaintiff shows: (1) he has a right which needs protection; (2) he will suffer irreparable harm without the protection; (3) he has no adequate remedy at law; and (4) he is likely to succeed on the merits. (Illinois Consolidated Telephone Co. v. Aircall Communications, Inc. (1981), 101 Ill. App. 3d 767, 428 N.E.2d 747.) Additionally, a plaintiff must show that he will suffer greater harm without the injunction than a defendant will suffer if it is issued. See Steel Container Corp.

However, when an injunction is sought pursuant to a statute, the traditional requirements ae dispensed with and the requirements of the statute are controlling. (People v. Keeven (1979), 68 Ill. App. 3d 91, 385 N.E.2d 804 (involving a suit to enjoin defendants from violating regulations promulgated under the Illinois Environmental Protection Act). See also People ex rel. Carpentier v. Goers (1960), 20 Ill. 2d 272, 170 N.E.2d 159 (statutory authorization of injunctive relief “negatived” the traditional requirements for issuance of an injunction).) The logic behind the rule is that since the legislature has seen fit to enact legislation, it may be presumed that there is a need for injunctive remedy.

We reject defendants’ argument that sections 11(K) and 13(F) of the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1981, ch. 121V2, pars. 137.11(E), 137.13(F)) — which authorized circuit courts to issue injunctions “upon a proper showing” — impose the traditional requirements for an injunction. If the phrase is a recognition of the judicial requirements for issuance of an injunction, it is merely surplusage, as courts can issue injunctions without any direction from the legislature. A much more logical construction, which we adopt, is that the phrase refers back to the previous sentence — which speaks of persons engaging or about to engage in violations of the Illinois Securities Law of 1953. The phrase thus avoids redundancy.

We also find People ex rel. Fahner v. Steel Container Corp. (1981), 102 Ill. App. 3d 369, 430 N.E.2d 68, distinguishable. That case involved a suit by the Attorney General under section 2 of “An Act in relation to the prevention and abatement of air, land and water pollution” (Ill. Rev. Stat. 1981, ch. 14, par. 12) to prohibit defendant from transferring any of its assets. That act is not a regulatory scheme like the Environmental Protection Act or the Illinois Securities Law of 1953 and states no pleading requirements. Thus, the logic of Keeven did not apply and the State was required to plead and prove the traditional elements to obtain an injunction.

III

Given that the Secretary need not show irreparable harm or an inadequate remedy at law, the question remains whether a violation of the Illinois Securities Law of 1953 has been stated. The facts pleaded and the evidence adduced show that defendants offered to sell bonds (defined as securities in section 2.1 of the act (Ill. Rev. Stat. 1981, ch. 1211/2, par. 137.2 — 1)) and that neither defendants nor their partnership was licensed to sell securities. This is a violation of section 12(A) of the act. Ill. Rev. Stat. 1981, ch.l211/2, par. 137.12(A).

Additionally, the facts support findings that defendants had violated sections 12(F), (I), and (J) of the act in that their actions were fraudulent, deceptive, and manipulative. (Ill. Rev. Stat. 1981, ch. 121V2, pars. 137.12(F), (I), (J).) That no security actually changed hands is of no consequence. “Sale” of a security includes an attempted sale, an offer to sell, or solicitation of an offer to buy — be it direct or indirect. Ill. Rev. Stat. 1981, ch. 121V2, par. 137.2 — 5.

Thus, a violation of the Illinois Securities Law of 1953 has clearly been demonstrated. Since that is all that is necessary to support issuance of a preliminary injunction, the injunction was properly issued:

IV

The final issue before the court concerns the scope of the injunction. The purpose of an injunction is to preserve the status quo, not to punish a defendant. (Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 424 N.E.2d 719.) Sager defines status quo as the “last, actual, peaceable uncontested status which preceded the pending controversy.” (98 Ill. App. 3d 758, 761, 424 N.E.2d 719, 722.) It is improper to destroy the status quo. Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 422 N.E.2d 1166.

The first portion of the preliminary injunction here clearly does not destroy the status quo, it merely enjoins defendants from doing something which is illegal. What defendants complain of is the second portion of the order, which freezes their bank accounts.

It is true that defendants’ bank accounts were not frozen prior to the time they first met the Lindgrens. However, that is not enough to make the injunction overbroad. If all the Secretary of State could do to enforce the Illinois Securities Law of 1953 is to enjoin people from violating it, the injunction would be a rather limited weapon. Freezing the bank accounts of violators appears to be an effective way of stopping violations of the act. Defendants have suggested no way in which the injunction could have been more precisely tailored, and none is apparent to this court.

Finding no merit in any of defendants’ contentions, we affirm.

Affirmed.

WEBBER and TRAPP, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
      In re MARRIAGE OF CAROL A. MARQUARDT, a/k/a Carol A. Warhanik, Petitioner-Appellee, and EARL THOMAS MARQUARDT, Respondent-Appellant.
    Second District
    No. 82—91
    Opinion filed November 8, 1982.

      Eugene L. Bennett, of Chicago, for appellant.
    Lan McMillan, of Chicago, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The marriage of Carol A. Marquardt to Earl Thomas Marquardt was dissolved on May 30, 1979. On July 25, 1981, the wife remarried and the husband petitioned for termination of certain obligations provided in the settlement agreement incorporated in the decree. After a hearing in which no evidence was offered or adduced, the trial court found that the agreement amounted to a property settlement rather than a provision for maintenance and granted the wife’s motion for summary judgment, thereafter denying the husband’s motion for reconsideration. The husband appeals.

Portions of the decree particularly in question state:

“ARTICLE VIII
LUMP SUM SETTLEMENT IN LIEU OF MAINTENANCE FOR WIFE AND WAIVER OF MAINTENANCE OF HUSBAND
1. Husband agrees to pay wife, and wife agrees to accept as and for a lump sum settlement in lieu of maintenance or other marital rights not specifically included herein, the sum of one hundred and thirty thousand ($130,000) dollars to be paid in weekly installments of five hundred ($500.00) dollars; provided, however, that the husband shall be released from the obligation of payment as to any installment falling due subsequent to the death of the wife.
2. The foregoing payment, when made by the husband to the wife, shall be in full and complete settlement of all claims or rights held or asserted by the wife against the husband for maintenance, and she shall be forever barred from asserting such claims.
3. Husband hereby waives any and all claims for maintenance, past, present and future; and husband shall have no further claims against wife for maintenance, and he is forever barred from asserting said claims.
4. All payments made by the husband to the wife as provided in ARTICLE VIII will be in discharge of a legal obligation imposed by the husband under a written instrument incident to divorce, all within the meaning and intent of Section 71(a) and Section 215 of the Internal Revenue Code as amended and now in effect, and of similar provisions of future laws, and that such payments "will be includable in the wife’s gross income pursuant to Section 71(a) and will be deducted by the husband pursuant to Section 215 to determine their respective taxable incomes.
5. The parties acknowledge their awareness of the provisions of Hlinois Revised Statutes Chapter 40 Section 510(b) which provisions terminate the obligation of a party to pay maintenance upon the death of either party or the remarriage of the recipient of maintenance payments and the parties hereby declare their intention not to be bound by such provisions; it being the intent of the parties that the obligation of the husband hereunder shall terminate only upon death of the wife and that this Separation Agreement and the rights, duties and obligations of the parties granted and assumed hereunder shall exist independent of any decree of dissolution of marriage or separate maintenance and said rights, duties and obligations shall not be reduced, eliminated or modified by the court in any way except insofar as the court shall specifically find the provisions of this Separation Agreement to be unconscionable or shall specifically modify the provisions hereof pertaining to child support, custody or visitation.”
“ARTICLE XIII
WIFE’S EDUCATION
Husband will pay for the cost of the wife obtaining seven (7) full years of full time college education including, but not as a limitation, tuition, books and fees. The husband will pay for said college education while the wife is attending full time school upon presentation of bills or appropriate request by wife.
It is further agreed by the parties hereto that ‘full time school’ shall be defined as a minimum of twelve (12) college credits per quarter or semester.”

In interpreting settlement agreements, ordinary rules of contract construction apply. (In re Marriage of Kolb (1981), 99 Ill. App. 3d 895, 899-900.) Whether the agreement or decree is ambiguous is a question of law to be determined by the trial court. (In re Marriage of Kolb (1981), 99 Ill. App. 3d 895, 900.) The parties’ intentions must be determined from the language of the instrument itself, unless the instrument is incomplete or the language is ambiguous, in which case extrinsic evidence may be introduced as an aid to interpretation. (Sudler v. Sudler (1972), 6 Ill. App. 3d 546, 548.) An agreement is ambiguous if it is susceptible of being interpreted in more than one sense, having characteristics of maintenance but also language commonly identified with a property settlement. In re Marriage of Workman (1980), 89 Ill. App. 3d 886, 889; Sudler v. Sudler (1972), 6 Ill. App. 3d 546, 548-49.

The dissolution decree and the further proceedings in this case having taken place after October 1, 1977, the effective date of the Illinois Marriage and Dissolution of Marriage Act, that act applied in construing the provisions in question. Definitions of property settlement or maintenance in cases decided under prior law remain, however, a valuable reference to the extent they are not in conflict with the new act. (See, e.g., Ihle v. Ihle (1981), 92 Ill. App. 3d 893, 896; Potocki v. Potocki (1981), 98 Ill. App. 3d 501, 504.) Thus, in defining maintenance (formerly periodic alimony) as distinguished from a property settlement this court has adopted prior law stating:

“Periodic alimony (maintenance) has been defined as follows:
'It is for an indefinite period of time and usually for an indefinite total sum. It is based upon the husband's income and the needs of the wife determined from the standpoint of the manner in which they have been accustomed to live. It is modifiable after decree when the wife’s needs increase or decrease, or when the husband’s ability to pay increases or decreases. This is so because it takes the form of periodic allowances which do not vest until they become due. It usually terminates upon the death of the husband, although by agreement payments may be made a charge upon the husband’s estate after they become due. They are never a charge on a husband’s estate in advance of the due date because they are not, prior to that time, vested. Payments of alimony from husband to wife are not based upon any consideration moving from wife to husband, but are based upon the common-law duty of the husband to support his wife. “Alimony” in this sense of the word, is modifiable.’ Walters v. Walters (1950), 341 Ill. App. 561, 567-68, 94 N.E.2d 726, aff’d (1951), 409 Ill. 298, 99 N.E.2d 342. Also quoted in Pacione v. Pacione (1980), 81 Ill. App. 3d 600, 604-605, 402 N.E.2d 316, and Warren v. Warren (1980), 88 Ill. App. 3d 543, 546, 410 N.E.2d 915.
On the other hand, a property settlement has been defined as a sum certain, often payable in installments, passing between the parties as consideration for their release of their marital rights. Jacobson v. Jacobson (1964), 50 Ill. App. 2d 244, 247-48, 200 N.E.2d 379.” In re Marriage of Lowe (1981), 101 Ill. App. 3d 317, 319-20.

In ruling on the issues we apply these definitions so far as they are presently applicable.

ARTICLE XIII-WIFE’S EDUCATION

The trial judge, finding article XIII unambiguous, reasoned that the payments were not maintenance because the provisions did not limit the time the wife had to exercise her right to a subsidized education, did not require the wife to obtain a degree, had no limitation as to maximum cost, and specified no terminating events other than the attainment of seven years of full-time college credit.

The husband argues that the educational payments required by article XIII are essentially rehabilitative maintenance and therefore terminate upon the wife’s remarriage, pursuant to section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 510(b)). The wife argues that the payments are part of the property settlement under which the husband’s obligation to pay does not end on her remarriage.

Both parties take the position that the language in the decree is unambiguous, as the trial judge also concluded. As previously noted, however, the husband contends that the provisions unambiguously amount to maintenance, the wife that they unambiguously amount to a property settlement.

The major difference between the former divorce act and the present Illinois Marriage and Dissolution of Marriage Act in this regard is that under the old act alimony was for an indefinite time while under the new act maintenance may be for a specific number of years. (Ill. Ann. Stat., ch. 40, par. 504(b), Historical and Practice Notes, at 527 (Smith-Hurd 1980).) Further, the new act adopts the concept of rehabilitative maintenance to assist the divorced person in regaining a constructive role in society by an award limited in amount and duration to what is necessary to maintain a person through training or education. See Ill. Ann. Stat., ch. 40, par. 504(bX2), Historical and Practice Notes, at 529 (Smith-Hurd 1980).

Article XIII provides a subsidy for seven years for full-time education only, although it does not require a resulting degree. The payments are not for a sum certain, but will vary with the wife’s educational needs and expenses though the dollar amounts of the payments cannot be predicted precisely. In Balasa v. Balasa (1956), 11 Ill. App. 2d 103, the court held that payments of $150 per year for plastic eyes for the wife for an indefinite number of years were in the nature of maintenance rather than a property settlement. The court stressed that the payments were for an indefinite time and total and for a particularized expense and did not survive remarriage although the parties expressly stated otherwise.

That the wife may choose when to attend college leaves open the possibility that the payments will, at least in part, be coming out of the husband’s future income rather than present marital property. Moreover, a separate part of the overall agreement (article X) is denominated as the “Property Settlement.” (See Pacione v. Pacione (1980), 81 Ill. App. 3d 600.) Article XIII and the settlement agreement as a whole do provide other indications, however, that the payments were intended as a property settlement rather than maintenance. Article XIV provides that the husband’s obligations survive his death to become a charge on his estate. This supports a finding that the payments are not maintenance (Sudler v. Sudler (1972), 6 Ill. App. 3d 546, 549); article VIII provides that the cash payments are “in full and complete settlement of all claims or rights held or assorted by the wife against the husband for maintenance” and constótute a “settlement in lieu of maintenance”; and the settlement agreement taken as a whole strongly suggests that the parties intended to make a final, permanent adjustment of their respective rights and obligations. This is a strong indication of an intent to prevent maintenance issues from playing any role in future proceedings. See In re Support of Burks (1981), 100 Ill. App. 3d 700, 704.

Article XIII considered in all of its terms cannot be said to be unambiguously a property settlement, or unambiguously maintenance, as a matter of law. While in many of its aspects it appears that rehabilitative maintenance was intended, in more aspects the language permits an inference that the parties recognized that the wife had contributed to the opportunity for the husband’s medical education, resulting in a large productive asset for the husband, and that she was to receive an equivalent exchange in a property settlement for her education. In view of the ambiguities, however, the real intentions of the parties should be the subject of parol evidence and not decided as a matter of law.

ARTICLE VIII — $130,000 IN INSTALLMENTS

The husband also argues that the weekly payments under article VIII, although labeled a lump sum settlement in lieu of maintenance, must be characterized as maintenance under the terms of the provision.

The husband in the trial court originally requested termination of the payments upon the wife’s remarriage. However, in his motion for reconsideration in that court, and in his proceeding in this court, he has abandoned the request for termination.

Here he argues that the payments must be unambiguously characterized as maintenance, but concedes that he is still obligated to continue the weekly installments of $500 until the $130,000 sum specified has been satisfied, despite the wife’s remarriage. In taking this position he relies upon In re Marriage of Mass (1981), 102 Ill. App. 3d 984, 988, decided after the decision in the trial court but before the motion for reconsideration. In Mass it was held that the parties to a settlement agreement could provide that maintenance payments not terminate upon the dependent spouse’s remarriage despite the termination provision of section 510(b). Under prior law, the fact that the payments are for a sum certain ($130,000) to be paid over a specified time (five years) would have resulted in the characterization of the payments as in the nature of a property settlement. (Walters v. Walters (1950), 341 Ill. App. 561, 567-68, aff’d (1951), 409 Ill. 298; In re Marriage of Lowe (1981), 101 Ill. App. 3d 317, 319-20.) As previously noted, however, the new act allows maintenance for a limited time and sum, and the factors of definiteness in amount and time are not conclusive.

Additionally, the liability of the husband’s estate for payments, the description of the settlement as “a séttlement in lieu of maintenance,” the waiver of any further claim for maintenance, and the release of all obligations to each other, support an inference that the parties intended a final and permanent property settlement.

Nevertheless paragraphs 4 and 5 introduce an ambiguity into the article. Subparagraph 4 describes the payments as being “in discharge of a legal obligation” of the husband, and as includible in the wife’s gross income and deductible from the husband’s gross income. This indicates that the parties recognized and sought to obtain favorable tax treatment for maintenance payments, inasmuch as the husband may deduct payments only if these are made in recognition of a duty to support and he is legally obligated to pay under Illinois law. (26 U.S.C. secs. 71, 215 (1976); In re Marriage of Mass (1981), 102 Ill. App. 3d 984, 988.) Further, subparagraph 5 expresses the parties’ intention to continue the payments despite the wife’s remarriage or other terminating factors in section 510(b) of the Illinois Marriage and Dissolution of Marriage Act. This permits a reasonable inference that the parties intended the payments as maintenance.

Again, there are substantial indicia of both a property settlement and maintenance, and extrinsic evidence is required to resolve the apparent ambiguity.

The judgment of the circuit court of Du Page County is therefore reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

LINDBERG and UNVERZAGT, JJ., concur.

      Section 510(b) has been amended by Public Act 82 — 194 to provide that the parties may agree to continue maintenance past remarriage. This amendment went into effect January 1, 1982 (see Ill. Rev. Stat. 1981, ch. 40, par. 510(b)), and therefore does not apply here. Under the prior law there had been conflicting decisions. See In re Marriage of Bramson (1980), 83 Ill. App. 3d 657; Warren v. Warren (1980), 88 Ill. App. 3d 543, 547; Ihle v. Ihle (1981), 92 Ill. App. 3d 893, 897. See also dicta in In re Marriage of Lowe (1981), 101 Ill. App. 3d 317, 319, where our holding that the payments at issue were part of a property settlement precluded ruling on the issue directly.


author: JUSTICE LINDBERG

text:
    JAMES E. MISKE, Plaintiff-Appellant, v. THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Defendant-Appellee.—In re K.M., a Minor.
    Second District
    Nos. 82—140, 82—636 cons.
    Opinion filed November 8, 1982.

      H. Joseph Gitlin, of Gitlin & McNerney, of Woodstock, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Bernard Genis and Judith Mostovoy, Assistant Attorneys General, of counsel), for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

James E. Miske sought custody of his natural child after the circuit court of McHenry County took custody away from the child’s mother on grounds of neglect. The trial court, however, awarded custody of the child to the Department of Children and Family Services (DCFS) without hearing any evidence against Miske or making any adjudication as to his fitness. Miske on appeal insists that the Juvenile Court Act (111. Rev. Stat. 1981, ch. 37, par. 701 — 1 et seq.) requires the trial court to make findings against a noncustodial father before he can be denied custody of his natural child under the circumstances.

Miske and the child’s mother were divorced in 1973. The divorce division awarded the mother custody of the child.

In April 1980, DCFS filed an action in juvenile division against the mother for physically abusing the child. Counsel represented Miske at those hearings, petitioned for custody and offered evidence on his behalf. That court heard no allegations or evidence against Miske and made no findings as to his fitness. The court entered a dis-positional order granting custody to DCFS on a best-interests-of-the-child test. Miske did not appeal that order.

In August 1981, he brought habeas corpus proceedings alleging that his child was unlawfully detained by the order of juvenile division. Upon motion of DCFS, the trial court dismissed the action for lack of subject-matter jurisdiction. Miske appealed, the first of two appeals by Miske consolidated here for review.

In May 1982, Miske once again petitioned the juvenile court for custody of his child. This time, the court considered Miske a “custodial alternative.” But again, the court heard no allegations or evidence against Miske and made no adjudication as to his fitness. DCFS retained custody of the child. This court granted Miske permission to appeal the juvenile division’s denial of his second petition for custody.

The only other procedural maneuver of relevance occurred in October 1981, when Miske returned to the divorce division and received a modification of the divorce judgment so as to award him custody over the mother. He never attempted to enforce that modification.

The issues presented for review are (1) whether the trial court had subject-matter jurisdiction to entertain the petition for habeas corpus, and (2) whether the juvenile division erred in awarding custody of the child to DCFS without making any findings against Miske.

The first issue is disposed of easily. A court has subject-matter jurisdiction to hear a writ of habeas corpus only where the original trial court lacks subject-matter jurisdiction or where its order was void and not merely voidable. People ex rel. Lewis v. Frye (1969), 42 Ill. 2d 311; People v. Stewart (1978), 66 Ill. App. 3d 342, 383 N.E.2d 1179, cert. denied (1979), 441 U.S. 907, 60 L. Ed. 2d 376, 99 S. Ct. 1998; see also Greco v. Chicago Foundlings Home (1967), 38 Ill. 2d 289.

Miske challenges the juvenile-division order as being unlawful for failing to make the necessary findings against him. Such allegations do not make the juvenile-division order void. The failure to make necessary findings made the order merely voidable — a reviewable error. Miske properly raises that issue as reviewable error in the second appeal.

The Juvenile Court Act provides that its purpose is, in part, “to preserve and strengthen the minor’s family ties whenever possible, removing him from the custody of his parents only when his welfare or safety or the protection of the public cannot be adequately safeguarded without removal ***.” (Ill. Rev. Stat. 1981, ch. 37, par. 701— 2(1).) That same section goes on to provide, however, that the “parents’ right to the custody of their child shall not prevail when the court determines that it is contrary to the best interests of the child.” Ill. Rev. Stat. 1981, ch. 37, par. 701-2(3Xc).

The statute, then, is much like many other child-custody statutes in Illinois in that it recognizes a delicate balance between the rights of natural parents and the best interests of the child. (See In re Custody of Townsend (1981), 86 Ill. 2d 502.) In that case, the supreme court reviewed numerous statutes and concluded that generally both the superior rights of natural parents and the best interests of the child must be considered in child-custody cases.

This court, under distinguishable facts, has recognized that balance in an action arising under the Juvenile Court Act. (See In re Powers (1981), 94 Ill. App. 3d 646, 418 N.E.2d 1145.) The question remains, then, by what standards shall these interests be balanced.

One case, In re Wheat (1979), 68 Ill. App. 3d 471, 386 N.E.2d 278, would appear to resolve the issue at first glance. Except for one crucial fact, the case is on all fours with the present one.

In that case, the divorce court awarded custody of the child to the father. DCFS subsequently filed neglect proceedings against him. The mother sought custody, but the trial court found her unfit. The court then adjudicated the child a ward of the court. The mother appealed, contending among other things that either she was entitled to automatic custody or that the court first must find that she neglected the child before she could be denied custody.

The appellate court disagreed and affirmed. It analogized the case to the situation where a custodial parent dies. The court said in those cases custody “may be awarded to a third party if the surviving parent is found unfit or if such an award is in the child’s best interest.” (Emphasis added.) 68 Ill. App. 3d 471, 477, 386 N.E.2d 278, 283.

Applying those standards to the present case, no error is found in the juvenile division’s order. That court found it was in the best interests of the child to be placed with DCFS — the second part of the Wheat test. The trial court was under no obligation to make any findings against Miske — the first part of the test — before proceeding to such a determination.

The fatal flaw in applying the Wheat case is that its reference to a best-interest test is dicta since the mother in that case was found to be unfit. More importantly, that dicta is of questionable accuracy.

If an analogy is to be made to the surviving-parent cases, then let the analogy be complete. Those cases do, indeed, hold that the surviving parent, even if fit, may be denied custody if the best interests of the child require. (People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201.) Those cases also recognize, however, that the natural parent has a superior right to custody, although that right must yield to the child’s best interests. (Cebrzynski v. Cebrzynski (1978), 63 Ill. App. 3d 66, 379 N.E.2d 713, appeal denied (1978), 71 Ill. 2d 617.) And absent a showing of unfitness (63 Ill. App. 3d 66, 71, 379 N.E.2d 713, 717), “compelling reason” (63 Ill. App. 3d 66, 72, 379 N.E.2d 713, 718), “good reason” (Eaton v. Eaton (1977), 50 Ill. App. 3d 306, 313, 365 N.E.2d 647, 653), or other such showing (see In re Custody of Townsend (1981), 86 Ill. 2d 502, 510), the trial court will award custody of the child to the natural parent.

It is apparent that the juvenile division did nothing more than consider Miske a “custodial alternative.” Such an approach is suspect for two reasons.

First, it encourages a passive rather than an active examination of a parent’s petition for custody. It allows the court merely to consider a parent, not actively determine whether sufficient evidence overcomes the superior right to custody.

Second, serious constitutional problems arise when the State (here DCFS) proposes to take away the child of a natural parent without the requisite due-process safeguards. In In re Custody of Townsend (1981), 86 Ill. 2d 502, 514, the supreme court acknowledged that “the interest of a parent in the care, custody and control of his or her child is fundamental and not to be ignored or facilely swept away in the face of a competing petition for custody filed by a third party.”

Accordingly, this cause must be reversed and remanded in part to the circuit court of McHenry County. That court shall determine whether Miske’s superior right to custody can be overcome by evidence that the best interests of his child require placement with a third party. This holding is limited to cases such as this where the noncustodial parent affirmatively petitions for custody. As previously indicated, we affirm the dismissal of the writ of habeas corpus.

Affirmed in part; reversed and remanded in part.

VAN DEUSEN and HOPF) JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    JAMES ALTMAN, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF ELMHURST et al., Defendants-Appellees.
    Second District
    No. 82—145
    Opinion filed November 12, 1982.

      Stanley H. Jakala, of Berwyn, for appellant.
    Peter W. Ernst, of Elmhurst, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Plaintiff, James Altman, appeals from a decision of defendant, the Board of Fire & Police Commissioners of the City of Elmhurst (Board), suspending him from his employment with the Elmhurst police department.

Altman was charged with a violation of departmental regulations due to an incident on May 5, 1980, in which Altman allegedly placed his hand into the pants of Catherine Huebner, a civilian employee of the police department. The police chief suspended Altman without pay for five days. Altman appealed to the Board. After a hearing, the Board found Sergeant Altman did touch the bare back of Miss Huebner without her authorization and consent in violation of rules 4.22 and 4.33 of the Elmhurst police department. The Board decided, however, to reduce the suspension from five days to one day. Altman sought judicial review, and the trial court affirmed the Board’s decision.

Altman appeals, contending that the variance between the charges and the proof rendered the charges inadequate to support the suspension, that the Board’s decision was against the manifest weight of the evidence, and that the Board lacked authority to reduce the length of the suspension. This court will review the merits of the case despite the appellees’ failure to file a brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

In a disciplinary proceeding such as this one, the agency’s decision cannot be based on uncharged misconduct. (Batley v. Kendall County Sheriff’s Department Merit Com. (1981), 99 Ill. App. 3d 622, 626.) However, charges in an administrative action need not be drawn with the same precision as pleadings in court; all that is required is that the charges be sufficiently clear and specific to enable the respondent to intelligently prepare a defense. (99 Ill. App. 3d 622, 626.) This criterion is met where the charges provide effective notice of the possible bases for the agency’s decision. Kupkowski v. Board of Fire & Police Commissioners (1979), 71 Ill. App. 3d 316, 321.

The charges here were sufficient to alert Altman that he was accused of touching Huebner without her consent and to advise him of the approximate time and place of the incident. The Board’s findings were, based on the same incident that was charged and did not involve more serious conduct. Therefore, the charges were sufficient, even though not identical to the Board’s findings. Sudduth v. Board of Fire & Police Commissioners (1964), 48 Ill. App. 2d 194.

Decisions of an administrative agency on questions of fact are to be upheld unless the agency’s findings are against the manifest weight of the evidence. (Washington v. Civil Service Com. (1981), 98 Ill. App. 3d 49, 52-53.) Mere conflicts in testimony do not warrant reversal of the agency’s determination. Keen v. Police Board (1979), 73 Ill. App. 3d 65, 71.

The evidence in this case, indicates that on May 5, 1982, while three female police department employees, Catherine Huebner, Donna Doyle and Phyllis Zygowicz, were sitting in the second floor coffee room, the plaintiff entered the room. Miss Huebner testified that the first she knew of plaintiff’s presence in the room was when she felt his hand slide down the back of her pants. She explained that her blouse was slightly pulled out of her slacks and she felt his hand against her skin. She stated that after this occurred she turned to Altman and told him to keep his hands out of her pants and that he responded by telling the others present that Huebner enjoyed it.

Lieutenant Pete Smith testified concerning a statement made by James Altman shortly after the occurrence. At that time, Altman told Lieutenant Smith and Chief Monsen that when he entered the coffee room, Huebner was sitting at a table in such a manner so that her blouse was raised up to expose her back and he placed his finger on Miss Huebner’s bare back.

Altman stated that he entered the coffee room, noted that Huebner’s back was exposed, ran his forefinger from right to left across her back, stated, “Showing a lot of skin today, kid,” and then purchased a cup of coffee. At that time, Huebner responded by stating something like “Keep you hands to yourself” and he responded by stating “If I ever touch you, you would probably enjoy it.” Altman further stated that he and Huebner had had problems in the past. She had worked as a service officer under his direction, and he tried to have her fired because she was incompetent. As a result, she was transferred to the front desk as a receptionist.

On rebuttal Huebner stated that when she worked as a service officer with Altman, he had not complained about her work. In fact, on several occasions Altman had put his arms around her, kissed her, and pulled her down onto his lap. This was done without encouragement. In fact, on occasion she voiced an objection. Because she was new and Altman was her superior, she was afraid to complain. Eventually Lieutenant O’Connell heard about these incidents. Lieutenant O’Connell told Miss Huebner that he had informed the chief of Altman’s behavior. Huebner stated that she asked for and received a transfer from Altman’s supervision.

On redirect Altman characterized himself as an out-going person. He admitted that on several occasions he would put an arm around his service officer and kiss her on the cheek. He also admitted that a Lieutenant Lavenka asked him to refrain from doing so. He stated that after Lavenka’s request, he stopped. He admitted that Huebner was one of the women who was upset with the “hugging” and that on occasion she might have told him to stop it. Here, ample evidence, including Altman’s own admission, supports the Board’s factual finding that Altman touched Huebner’s bare back without her consent.

Although the Board is not given express authority to reduce the length of a suspension by the police chief (see Ill. Rev. Stat. 1981, ch. 24, par. 10 — 2.1—17), such authority may be implied. The Board is empowered by statute to review the chief’s decision to suspend an officer. (Ill. Rev. Stat. 1981, ch. 24, par. 10 — 2.1—17.) The statute explicitly provides that the Board may sustain the action of the chief, reverse it with instructions that the officer receive his pay for the period involved, or may suspend the officer for an additional period of not more than 30 days or discharge him. (Ill. Rev. Stat. 1981, ch. 24, par. 10 — 2.1—17.) The Board is not bound by the chief’s decision and may make its own independent determination on the case. (See Jones v. Civil Service Com. (1979), 80 Ill. App. 3d 74.) Because the Board has the power to sustain, reverse, or increase the sanction, it impliedly has the authority to reduce the length of the suspension.

Therefore, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

SEIDENFELD, P.J., and LINDBERG, J., concur.


author: JUSTICE "VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER SMITH, Defendant-Appellant.
    Second District
    No. 81—974
    Opinion filed November 12, 1982.
    G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE "VAN DEUSEN

delivered the opinion of the court:

Defendant was charged by information with the offense of theft (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(a)(1)), which was a Class 4 felony because the information also alleged previous theft convictions (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)(1)). The trial court entered judgment on the defendant’s guilty plea and sentenced the defendant to the maximum term of three years with the Department of Corrections. On appeal, the defendant contends that the three-year sentence is excessive and that, when determining the defendant’s sentence, the trial court improperly considered the fact that defendant received a two-year term of imprisonment for a prior theft conviction. The defendant requests that his sentence be reduced or in the alternative that the cause be remanded to the trial court for a new sentencing hearing.

We first address defendant’s contention that the trial court improperly considered the defendant’s previous two-year sentence. Twice during the sentencing hearing, the trial judge referred to a two-year sentence the defendant had received in 1979. When referring to this earlier prison term, the trial court emphasized that the defendant was paroled after serving less than a year of the two-year term and that within a few months thereafter the defendant was arrested on the instant charges. After referring to this earlier sentence, the trial judge stated that when imposing a sentence in the present case, it would not “make any sense” and it would not be “reasonable” to impose a lesser sentence than the one the defendant received in 1979.

The defendant asserts that these comments indicate that the trial judge imposed the three-year sentence because he erroneously believed that he was compelled to impose a higher sentence than that which was imposed in 1979. The defendant concludes that the trial court erred in basing the sentence, not on the facts and circumstances of the case, but on the length of a prior prison sentence. The defendant characterizes the length of the earlier prison sentence as an extraneous and arbitrary factor.

The defendant cites People v. Short (1978), 66 Ill. App. 3d 172, as authority for this position. In Short, the reviewing court vacated the defendants’ sentences on the ground that the trial court had heard incompetent and irrelevant testimony. During the sentencing hearing in Short, the trial court heard testimony from the victims and from members of the community as to what would be appropriate sentences for the defendants. In vacating the sentences, the reviewing court stated that the trial court erred in considering this opinion testimony which was incompetent evidence for a sentencing hearing. The defendant asserts that the consideration of the opinion testimony in Short is analogous to this trial court’s consideration of the length of the defendant’s 1979 sentence also imposed on a charge of theft.

In this case, unlike Short, the trial court did not hear incompetent opinion testimony. At first reading, the trial court’s statements concerning the length of the earlier sentence do seem to indicate that the trial judge considered it to be an opinion of an appropriate sentence for this case. However, the trial court considered not only the length of the prior sentence, but also noted that within a few months after being paroled from the previous two-year sentence the defendant committed the instant offense. When read in context with the trial judge’s other remarks, it is apparent that he did not consider it as an opinion of the appropriate sentence. In this case, the trial court considered the two-year term not as a measuring tool or as a limitation on the sentencing alternatives, but rather as an indication that a two-year sentence had little or no effect on the defendant’s rehabilitation. Consideration of those factors which indicate the defendant’s rehabilitative potential is proper. (People v. Ward (1980), 80 Ill. App. 3d 253, 259.) As was stated in People v. Short (1978), 66 Ill. App. 3d 172, 180, during a sentencing hearing the trial court may “inquire into the defendant’s general moral character, mentality, habits, social environment, etc.” The judge’s consideration of the prior sentence in light of its effectiveness as a deterrent to further criminal behavior and his subsequent behavior on parole was merely a proper inquiry into his moral character and rehabilitative potential.

Next, the defendant contends that the three-year sentence is excessive and should be vacated. The scope of review of sentences is limited. Where, as in this case, the sentence imposed is within the statutory limits, the standard of review is whether the trial court has abused its discretion. (People v. Shumate (1981), 94 Ill. App. 3d 478, 484.) Absent such an abuse of discretion, a court of review should not upset the sentence imposed by the trial court. (People v. Perruquet (1977), 68 Ill. 2d 149, 153.) A sentence must, however, be proportioned to the nature of the offense and it must also measure the possibilities for rehabilitation. (People v. Shumate (1981), 94 Ill. App. 3d 478, 484-85.) An abuse of discretion will be found to exist if the sentence imposed is greatly disproportionate to the nature of the crime. People v. Smith (1980), 81 Ill. App. 3d 764, 774.

The defendant asserts that the three-year sentence is disproportionate and bears no reasonable relationship to the theft of one bottle of liquor valued at less than $150; therefore, the sentence is excessive and must be vacated. (People v. Odom (1980), 82 Ill. App. 3d 853.) If the defendant had been charged only with the theft of the bottle of liquor, the sentence would not only be disproportionate to the offense, it would be in excess of the statutory maximum term. The maximum sentence for the Class A misdemeanor of theft of an item valued at less than $150 (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)(1)) is any term less than a year imprisonment (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—3(a)(1)). The information, however, charged the defendant, not only with the theft of a bottle of liquor, but it also charged that the defendant had previously been convicted of theft. A subsequent offense, after a conviction of any type of theft, including retail theft, is a Class 4 felony (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)(1)) punishable by one to three years imprisonment (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(7)).

Here, the defendant was charged under the Class 4 felony provision; therefore, when considering the nature of the offense, the trial judge was required to look at not only the act of theft as charged, but he must also look at the fact that prior theft[s] had been committed by the defendant. The issue is not whether the sentence was disproportionate to the mere theft of a bottle of liquor, but whether the sentence was disproportionate to the theft of a bottle of liquor by a person with a history of theft convictions.

In People v. Odom (1980), 82 Ill. App. 3d 853, 855, the defendant received a 364-day sentence, the maximum sentence, for criminal trespass to property. The defendant was found guilty of intentionally spraying black paint on his neighbor’s freshly painted white picket fence. The court concluded that notwithstanding the defendant’s record of 23 misdemeanors and traffic violations and his antisocial attitude, the sentence imposed bore no reasonable relationship to the crime. In vacating the sentence, the appellate court stated that the sentence imposed must bear some relationship to the offense committed and that the relationship between the conduct and the sentence or punishment has to be such as not to bring the system of the administration of criminal justice into serious question, if not disrepute.

We deem Odom to be distinguishable from the case at bar. Here, the offense was a felony not a misdemeanor, and an element of the offense was the proof of at least one prior theft conviction. Furthermore, this defendant’s record contains numerous felony and misdemeanor convictions, ten of which were for theft. Moreover, a reasoned judgment as to the proper sentence requires the court to consider not only the nature of the offense, but also other factors. As was stated in People v. Kosanovich (1979), 69 Ill. App. 3d 748, 751:

“A reasoned judgment as to the proper sentence must be based on the particular circumstances of each individual case. [Citation.] Such a judgment depends on many factors including the defendant’s demeanor, general moral character, mentality, social environment, habits, age, inclination to commit crimes and the stimuli which motivated his conduct [citation], in addition to the defendant’s past criminal record [citation] and his degree of activity and participation in the crime [citation]. Moreover, both the Illinois Constitution and the design of the Unified Code of Corrections require that penalties be determined not only according to the seriousness of the crime but also according to the rehabilitative potential of the offender with the intent to restore him to useful citizenship. [Citations.]”

In this case, the trial court did balance those factors. The trial judge noted that the defendant was accused of the theft of one bottle of liquor, but also noted that the defendant had an extensive record. The presentence report and its addendum indicated that in the past 20 years the defendant has been convicted of 18 crimes. Of those prior convictions, 10 were for theft, four were for burglary, one was for robbery, and one was for attempt murder. According to the presentence report, the defendant admits to a long and extensive history of drug abuse. At the time of the report, the defendant stated that he was using heroin daily. That report further stated that the defendant was of the opinion that his past criminal involvement was primarily to support his illegal drug use.

Here, the sentence imposed is within the statutory limit, and the trial court had before it materials which indicated extensive criminal activities on the part of the defendant. In view of the total circumstances disclosed by the record in this case, the sentence was not excessive. See People v. Masini (1979), 78 Ill. 2d 17.

The judgment of conviction and sentence are affirmed.

Affirmed.

SEIDENFELD, P.J., and NASH, J., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES C. BEIL, Defendant-Appellee.
    Second District
    No. 81—645
    Opinion filed November 12, 1982.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of eounsel), for the People.
    Stephen M. Deitsch and Thomas Galium, both of Galium, Anderson & Deitsch, of Wheaton, and Jay Messinger, of Chicago, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State appeals from a pretrial order suppressing evidence seized from the trunk of defendant’s car after a warrantless search alleged to have been conducted in violation of defendant’s constitutional rights. We reverse.

On October 6, 1980, Detective James Romani of the Oak Brook Police Department was stationed in an unmarked squad car in the Oak Brook Shopping Center parking lot. At approximately 8 p.m., Romani observed a maroon Cadillac with three occupants driving in the parking lot and stop near the officer’s car. The driver of the maroon Cadillac exited the car and opened its trunk; Romani could not observe the driver’s further actions while at the trunk. Romani made a radio check of the license plates which revealed that the car was registered to defendant, James Beil, at 4820 South Keeler in Chicago. The car was not reported as stolen nor was it wanted for any reason; however, Romani recalled that he had heard the name “Beil” on a prior occasion with regard to auto thefts in Chicago.

Subsequently, the driver got back into the maroon Cadillac and drove out of the parking lot. Romani was aware that parking lots in the area had a relatively high incidence of auto theft, and he followed the Cadillac across 22d Street and into the parking lot of the nearby Sheraton Hotel. There, Romani observed the maroon Cadillac parked in a driving aisle behind a 1967 white Cadillac convertible which was in “exceptional condition.” A man wearing a plaid shirt was standing next to the maroon Cadillac in apparent conversation with the driver. Romani parked his car nearby and entered the hotel where he contacted another detective, Michael Golz, who was apparently watching that parking lot. The two detectives exchanged their observations and Golz informed Romani that he had seen the man in the plaid shirt duck down between the two Cadillacs. Romani left the hotel and noticed that the maroon Cadillac had backed up and that the white Cadillac was pulling out of its stall. Both cars, with the white Cadillac leading, then proceeded towards the 22d Street exit of the parking lot; at that time there were two persons in the maroon Cadillac and one person in the white Cadillac.

Romani and Golz stopped both cars at the exit and identified themselves as police officers. While defendant and the other passenger of the maroon Cadillac were producing identification, Romani went to the white Cadillac where he observed that its ignition had been pulled and that there was a “slam hammer” still attached to it; there was a screw driver on the front seat.

Romani made a radio check of the license plates of the white Cadillac and learned it was registered to a Joseph Klingler, who was not one of the three men in the two cars. Romani returned to the Sheraton Hotel where he contacted Klingler who stated he had not given anyone permission to use his car. Upon returning to the automobiles, Romani noticed a vise grip and an Allen type wrench on the back seat of the maroon Cadillac. The three men were thereupon arrested and were taken to the police station with the two cars.

At the station, Romani and Golz searched the maroon Cadillac, in-eluding the trunk, and discovered additional burglary tools and other items; the search was conducted without a warrant and without Beil’s consent. He was subsequently charged with felony theft and possession of burglary tools based upon his alleged accountability for the theft of the white Cadillac and constructive possession of those tools found in the white Cadillac.

Prior to trial, defendant moved to suppress the introduction of the property taken from his car trunk contending that the initial stop and subsequent search of his automobile were in violation of the fourth and fourteenth amendments to the United States Constitution. After an evidentiary hearing, the trial court determined that the initial stop of the defendant and seizure of those tools found in the back seat of his car met constitutional standards; however, the court suppressed those tools and other property found in the trunk of Beil’s car.

Generally, the fourth amendment requires police to obtain a warrant prior to the search or seizure of persons or property. However, it is recognized that a police officer may stop and temporarily detain a person for the purpose of a limited investigation absent probable cause to arrest him if the officer is able to point to specific and articulable facts which, taken together with reasonable inferences drawn from the officer’s experience, would reasonably warrant the extent of the intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; Beck v. Ohio (1964), 379 U.S. 89, 13 L. Ed. 2d 142, 85 S. Ct. 223; Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280.) In the case of an automobile, if the officer’s investigation uncovers facts which give probable cause to believe that a crime has been committed and that evidence of that crime is contained in the vehicle in which the suspect is riding, the officer may conduct a search of the vehicle without a warrant. (Michigan v. Thomas (1982), 458 U.S. 259, 73 L. Ed. 2d 750, 102 S. Ct. 3079; United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157; Chambers v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975; Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280.) Given probable cause, the permissible scope of such a warrantless search is as broad as that which a magistrate could have legitimately authorized by warrant. Thus, the search may extend to every part of the vehicle, and its contents, that may conceal the object of the search. (United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157; People v. Clark (1982), 92 Ill. 2d 96.) The permissible areas of search include the trunk of the vehicle. (United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157; People v. Carter (1967), 38 Ill. 2d 496, 232 N.E.2d 692, cert. denied (1968), 391 U.S. 965, 20 L. Ed. 2d 877, 88 S. Ct. 2033.) The fact that the suspect may have been arrested and is without access to the vehicle or that the vehicle has been immobilized and taken to the station house does not obviate the justification to conduct the warrant-less search. The probable cause that develops at the scene still obtains at the station house. Michigan v. Thomas (1982), 458 U.S. 259, 73 L. Ed. 2d 750, 102 S. Ct. 3079; Texas v. White (1975), 423 U.S. 67, 46 L. Ed. 2d 209, 96 S. Ct. 304; Chambers v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975; People v. Joyner (1972), 50 Ill. 2d 302, 278 N.E.2d 756.

We conclude that the initial stop of the defendant and the subsequent search of his car met constitutional standards. Prior to the stop, Officers Romani and Golz each observed defendant and his companions engage in a course of conduct which caught their professional attention as police officers. This included stopping in the shopping center parking lot and opening the trunk of the car, then immediately exiting that lot and proceeding to another parking lot. There defendant parked his car behind the white Cadillac convertible and engaged in conversation with a man standing by the two cars who then ducked down between them. When the white Cadillac was then driven towards the exit defendant followed it in his car. At that point, based upon these observations and Romani’s association of Beil’s name with auto thefts, the officers had specific and articulable facts upon which to base a belief that further investigation was warranted. Their stop of defendant for that purpose was therefore proper.

After the stop, upon seeing the pulled ignition in the white Cadillac and the tools used to remove it, the officers verified with its owner that no one had permission to drive the car. The officers then had probable cause to believe that defendant was engaged in the theft of the white Cadillac and further upon seeing the additional tools on the back seat of defendant’s maroon Cadillac, the officers also had probable cause to believe that evidence relating to the theft of the white Cadillac may be contained in defendant’s car. The officers were then justified in searching the entire car, including the trunk, for such evidence. (United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157.) Neither the fact that the officers delayed the search until the car was safely at the station nor that they obtained additional information regarding defendant’s identity and ownership of the maroon Cadillac diminished the justification for the search. (Michigan v. Thomas (1982), 458 U.S. 259, 73 L. Ed. 2d 750, 102 S. Ct. 3079.) We conclude the trial court erred in suppressing those items found in the trunk of defendant’s car.

Defendant has relied upon People v. Reincke (1980), 84 Ill. App. 3d 222, 405 N.E.2d 430, and People v. Rinaldo (1980), 80 Ill. App. 3d 433, 399 N.E.2d 1027, appeal denied (1980), 81 Ill. 2d 586, to support his argument. However, the facts presented by those cases are inapposite and the analysis applied preceded and is inconsistent with the definitive rulings of United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157, and People v. Clark (1982), 92 Ill. 2d 96.

For the foregoing reasons the order of the circuit court of Du Page County is reversed and this cause remanded for further proceedings.

Reversed and remanded.

UNVERZAGT and VAN DEUSEN, JJ., concur.