*1 149, Ill. 2d by Pеrruquet (1977), trial court. v. Further, N.E.2d is not unauthorized law or ex by sentence cessive since the potential court considered defendant’s rehabilitative in addition to the heinous the crime nature of and the circumstances 525, under which it was v. 71 Ill. 2d People committed. Heflin 545-46, 1074, cert. 439 U.S. 59 L. denied Ed. 99 Ct. 848. find, however,
We do judge regard the comments the trial ing “evening “taking” the score” and the of defendant’s life were highly improper and and constituted error inappropriate court. find, however, We that the error committed harmless. record indicates that the in imposing court considered all relevant fаctors Further, sentence. defendant failed indicate that suffered any prejudice as a result of the trial improper court’s comments.
Collins
cert. denied
88 Ed. 2d
For reasons, the foregoing judgment of the circuit court of Cook County is affirmed.
Judgment affirmed.
WHITE, P.J., J., and McNAMARA, concur. ILLINOIS,
THE THE Plaintiff-Appellee, PEOPLE STATE OF OF HOBSON, CHARLES Defendant-Appellant. Division) (3rd
First District No. 85 — 2560 Opinion 18, 1988. April 20, 1988. Rehearing May filed denied *2 RIZZI, J., specially concurring. Stohr, Chicago, J. appellant.
Daniel for Daley, Jr., Attorney, Chicago (Thomas Gainer, Richard M. State’s V. Fischer, D. Attorney, Peter Assistant counsel), State’s for the Peo- ple.
JUSTICE FREEMAN delivered the opinion court: trial, defendant, After a Hobson, bench Charles was convicted of possession of a motor 95½, stolen vehicle. (Ill. Rev. Stat. ch. par. The trial 103(a)(1).) court sentenced defendant an extended 4— term of nine in the years Illinois Department ap Corrections. On peal, he the trial contends court erred in denying pretrial motion to quash arrest and suppress evidence.
The State’s evidence at hearing the suppression revealed the fol- lowing. In the 20-day period preceding defendant’s arrest on April Chicago police the recovered two stolen and completely stripped near the autоmobiles residence defendant shared with his common law wife at 9859 S. Chicago. Woodlawn in In the morning of early April 30, Detectives Maurice McNulty Grinning and Robert con- were ducting a surveillance in the area 99th Woodlawn trails because leading antifreeze had been found the from recovered automobiles to the garage o’clock, behind defendant’s residence. At about 5 the automobile, detectives were their parked which was south facing approximately lengths one or two car the alley into behind the west Woodlawn, side of when east 99th they driving observed defendant on white, num- Street in a 1980 four-door Oldsmobile with license plate Thereafter, ALS ber 40. the detectives defendant drive to observed Woodlawn, the behind the into it garage car and close back the door. The the the east garage garage alley was next to behind side its overhead door onto 99th Street. The opened Woodlawn and plate detectives ran check on the license computer Oldsmobile’s number to a resident of registered and learned the car was Illinois, Evanston, had re- Chicago, a northern suburb of not been ported stolen.
The minutes, detectives the for 15 then drove garage observed up their As alley got walking next it and out of car. were they to the garage, standing its door saw defendant swung open Defendant the detectives but attempted get *** “grabbed him and the side- apron” on between ga- walk on The looked 99th Street. detectives then inside off rage pas- that the had two tires on and observed Oldsmobile side, crates; caps milk had been senger sitting which was hub side; had been lug removed from the on the driver’s nuts wheels wheel; column had been steering “peeled,” removed from the rear and the i.e., the side of the column had been back steering pried left lock locking “popped.” mechanism and the trunk had been exposed; miss- two tires the Oldsmobile was detectives also observed the After these observa- making a tire iron and some other tools. ing, tions, him in their car. put defendant and the detectives handcuffed cross-examination, that he had
On testified Detective while tires he looked into seen car with two off when admitted, however, he had not seen the standing of it. He outside ga- he had into the until walked “peeled” ignition of Oldsmobile out it and the detec- after had rage, which was defendant walkеd an ar- had neither him in The detectives tives had handcuffs. placed consent to search the nor nor defendant’s rest a search warrant missing that it was later from the car’s owner learned garage. They space from its in Evanston. parking Detective that, testify, if called to trial, parties stipulated
At during same substantially would be McNulty’s testimony that he tes- parties stipulated further suppression hearing. aluminum slam puller, from the he recovered tify (1) that: with a wrench, puller another gloves, chrome two pairs ratchet *4 screwdriver, pair attachment, flashlights, pliers, trunk two lock mallet; umbrellа, (2) rubber and a iron, hanger, a tire a bent coat Miranda him of his advising and under arrest placing after defendant them, them at waived that he understood indicated rights, defendant
489 stated, got Finally, they that can I You me.” say? time and “What that he testify the owner of the stipulated that Oldsmobile 1984, 29, in on at parked April approximately his car Evanston in the auto- did not defendant or to be p.m., give authority permission mobile, missing car when con- was learned April stipu- tacted him 30. Defendant early morning hours to facts to the fact the seizure of evidence subject lated these and his after a search and that Detective statement occurred “did not or slam or any damage ignition pullers any see to that” until garage after entered the and searched it.
Opinion
The is trial denial of issue before us whether court’s to suppress manifestly motion erroneous. v. 191, Brett App. 3d 460 N.E.2d The correctness rationale, of the trial is ruling, controlling. (People court’s Dyer 141 Ill. 3d The trial court ruled, relying v. Morrow of the home garage part protected and thus fourth It also amendment. found that the a right had
detain
until
defendant
discovered
further
going
“what
on.”
The trial
then
that,
court
reasoned
under all the facts known to them
the time,
including the
partially stripped condition
Olds
mobile, the detectives had
cause
arrest defendant and
could therefore search the
the Oldsmobile because the car
inwas
view.” The
court
not a
“plain
trial
found
this was
viola
tion of
Chimel v.
L. Ed.
(1969), 395 U.S.
California
We believe the issue here is whether defendant had a controlling i.e., reasonable, legitimate, actual and of expectation privacy If no such expectation pri contents. defendant had vacy, the into not a in the con “search” entry sense, i.e., stitutional there no action which prohibited IV, fourth amendment. U.S. Const. amends. XIV. In Katz v. States United 347, 351-52, 19 L. U.S. 576, 582, 507, 511, Ed. 2d 88 S. Ct. Court stated: Supreme a What protects people, places. Fourth Amendment
“[T]he home exposes to the even in own person knowingly public, office, subject protection. is not Fourth Amendment See v. States, Lewis v. United Stаtes 206, United 210; 385 U.S. Lee, 559, pri- as preserve 274 U.S. 563. But what he seeks to may be constitu- vate, public, even in an area accessible to the added.) See Rios v. United tionally protected. (Emphasis States, 253; Jackson, 727, 733.” parte U.S. Ex Fourth recognized note “once court went on to it is against unrea- protects people simply Amendment ‘areas’— —and seizures, clear the reach of that sonable searches and it becomes upon physical turn or absence presence Amendment cannot The court thus concluded that into enclosure.” any given intrusion controlling[ “thе longer regarded doctrine could no be ‘trespass’ ]” 353, at 19 L. 2d at (Katz, cases. 389 U.S. Ed. fourth amendment 583, And, stated: 88 Ct. at as Justice Harlan S. is that there rule has from decisions emerged
“[T]he
person
first that a
have exhibited
twofold requirement,
is a
and, second, that the
of privacy
(subjective) expectation
actual
as ‘rea-
recognize
society
prepared
one that
is
expectation
Thus,
is,
place
home
for most purposes,
a man’s
sonable.’
activities, or statements
but
objects,
privacy,
he expects
where
‘pro-
are not
outsiders
exposes
‘plаin
to the
view’
that he
ex-
has been
them
keep
because no intention
tected’
himself
Ed.
Katz,
What the Court what Supreme meant in Katz when it stated that a person fourth knowingly exposes subject not a public protection deduced, extent, amendment least from may be to some two, cited for cases Of the States Lee proposition. United 71 L. Ed. 47 S. Ct. is the more analo- gous Therein, to this case. the United States Coast Guard seized motor illegal boat and 71 cases of alcohol board and arrested *6 on the occupants Addressing illegal sea. the issue of an open allegedly search, stаted, the court in part: relevant
“Moreover, search, if
of
not
any
the motor boat
sea did
vi-
Constitution,
olate the
it
for was made
the boatswain as an
incident of a lawful arrest.
But no search on the high
[Citation.]
is
seas
shown. The
the
testimony of
boatswain shows that he
searchlight.
used
It is not
that there was any explora-
shown
tion below decks or under
aught
hatches. For
the
appears,
and,
liquor
cases
were on deck
the defendants,
like
were dis-
of
covered
the motor boat was
(Emphasis added.)
boarded.”
before
Lee, 274
U.S. at
In of those en say view we cannot that the try into the societal values garage infringed upon any personal and by the fourth The framers of the Constitution protected amendment. “did not intend that Amendment shelter criminal Fourth should barri- activity wherever with criminal intent choose erect persons States (Oliver United signs.” ‘No Trespassing’ ers and post n.13, 104 Ct. n.13, 214, 227 80 L. Ed. 2d was nоt in- holds, amendment And, the fourth n.13.) as Katz exposes public knowingly a person shelter that which tended to sense in the constitutional Therefore, it “search” -view. or- in its contents inspected entered the when therein. activities the nature of defendant’s investigate der to “*** that which for a hidden place into implies prying search [A] force, either with some sort concealed, quest or an invasion to observe contrast, “it is not a search In or constructive.” actual v. Slominski (Village Bridgeview to view.” is open that which Here, did not defendant 1, 5, 392 N.E.2d 3d 74 Ill. therein. As or his activities interior of hide or conceal its interior and inspect into such, entry had a crime for evidence investigate those activities we sub which presence, in their being cause to committed believe search. discuss, was in no manner a sequently on however, rely do not clear, that we must make We That into the garage. police entry doctrine to plain justify view (1) seizure of evidence where: doctrine the warrantless permits a consti an “initial intrusion” into for justification have a inadvertently evidence area; (2) discover tutionally protected to seize it while intending its location knowing of rather than by apparent immediately it is (3) as a pretext; view relying plain or other crime, contraband are view evidence items Hampshire (1971), v. New (Coolidge to seizure. subject wise 2037-41; People 564, 581-86, S. Ct. 464-71, 29 L. Ed. 608, 613, 463 N.E.2d v. Caserta itself, recognized exceptions one of not, doctrine is in and of *7 123 Ill. (Caserta, requirement warrant fourth amendment’s search Rather, the courts. 613), misapprehended 3d at a fact often App. justification supplement doctrine serves to “[t]he —-whether to incident law pursuit, it a warrant for another hot search object, uncon being present reason for arrest, legitimаte or some other ful against permits the accused—and directed a search "with nected enough justify never view is Finally, seizure.” warrantless exigent circum absent of evidence seizure search warrantless 584, 583, Ed. 2d 468, 29 L. 466, U.S. at Coolidge, stances. 2038, S. Ct. at 2039. 995, 3d Ill. App. (1982), v. Morrow
Additionally, violated 985, compel a conclusion does through to look Morrow, yard entered a In fourth amendment. the open service door of a garage and observed a car therein similar to one used in a rape. police entered the garage and opened door of the car to look inside. No one was in the garage at that time. The court noted that interior of the garage was not open “[t]he view from any public place.” (Morrow, 104 Ill. 3d at It concluded that the defendant’s expectation privacy regarding presence of the car in the garage could not bar the initial reasonably search of the garage given its However, trivial nature. the court held the search of the car illegal in view of the defendant’s expectation privacy regarding car, the contents of the evidenced the fact the car was garaged. Morrow,
In
the dеfendant publicly exposed neither the inte
rior of
nor any
to public
activities therein
view. The police
inspected the garage only by looking through a
door not
service
acces
sible to the public.
contrast,
In
defendant here
knowingly exposed
interior of the garage to public view. Even more importantly, he also
publicly exposed
ongoing
activities
the garage. Therefore, he
cannot
complain
into the
entry
garage to investigate
those
Moreover,
activities was illegal..
defendant cannot complain of
the search of the interior of
A
legitimate
the Oldsmobile.
thief has no
expectation of
in stolen
privacy
goods.
that defendant had
Assuming
a subjective expectation of
Oldsmobile,
in the
privacy
interior of the
such
expectation
with respect to a stolen
automobile
not reason
able. State v. Harding 278,
137 Ariz.
Even that defendant legitimate retained a expectation of privacy contents, any violation of his fourth amendment rights was beyond harmless a reasonable doubt. The admission of illegally obtained evidence in a criminal trial following еrroneous denial of a motion to suppress is subject the harmless error Stokes rule. citing Chapman (1967), 386 U.S. California 87 S. trial, Ct. At the parties stipulated that, testify after detaining defendant when the ga door
rage swung open into” the “upon looking garage he ob alia, inter served, on milk Oldsmobile crates and that the two tires on the right side of the car had been removed. This testimony, the stipulated testimony arrest, as to the facts preceding which were relevant him, cause to arrest establishing probable the stipulated that he testimony Oldsmobile’s owner had not *8 consent, defendant or to be vehicle
given
authority,
permission
chargеd
of the offense
be-
guilt
were sufficient to prove
such,
fourth
As
of defendant’s
yond
any
a reasonable doubt.
violation
of his conviction.
rights
amendment
does not
reversal
require
entered
defendant before
arrested
Finally,
because
cause to do
probable
must address the issue
their
garage, we
his opening
the issue of
cause in
probable
so. Defendant did
raise
he
it in his
thus hold that
has
reply
may
brief but addressed
brief. We
here,
However,
where,
it
as
we be
may
waived it.
we
also address
v. Brownell
justice
People
lieve
its consideration.
requires
Ill. App. 3d
Probable cause to arrest exists when cau known are sufficient to warrant men of reasonable per tion has committed and that the to believe that an offense been (People App. son arrested has committed it. v. Rimmer defendant asserts do not 1278.) grounds 476 N.E.2d er manifestly make the cause trial court’s determination roneous. make it homes did not single family
That Woodlawn is lined with park seen defendant physically impossible for the have ex- testified on redirect McNulty Oldsmobile in his Detective in the Olds- amination officers passed that when defendant mobile, the Oldsmobile from they got out of their car watched Thus, on this McNulty’s testimony point end of the Detective alley. assertion. was not to defendant’s inherently improbable, contrary mention the an That Detective failed to previously to defendant. Defendant notes tradings unavailing tifreeze is also a particular a witness a failure to state may by showing be discredited him to do upon fact under circumstances it either incumbent making fact, Henry if so state the true. likely Henry issue in 47 Ill. 2d 265 N.E.2d impeach laid to a witness whether a foundation had been proper state omission the classified as a inconsistent supreme court Here, wеight ment. the issue was (Henry, 319-22.) 47 Ill. 2d at impeached by properly of a who has been given testimony witness v. Delk an omission to such a statement. amounting contended a the defendant Ill. where not men he had police officer’s was incredible because testimony limi the proper tioned a fact to in his reveals police reports, testified The Delk court reasoned tation of in the context of this case. Henry sitting a matter for the trial court that the officer’s impeachment to complete the trier fact. the defendant had been allowed As Henry, unlike the court concluded impeachment, the situation (96 it for the trial court to significance. determine here, 3d at it was for the trial court to determine Similarly the significance McNulty’s of Detective failure to mention the anti officers, freeze we trailings in his or to other can reports *9 not say that it erred because it that Detective concluded still of worthy belief.
That the Oldsmobile the police stolen when ob- reported served defendant it does of driving negate probable existence cause, is the contrary Generally, defendant’s assertion. it nature of auto report theft that аn owner not know or may immediately here, his car is missing. defendant was ob- Specifically a.m., driving served at 5 a approximately giving Oldsmobile fact rise to a reasonable inference that had taken the car shortly be- fore, i.e., time during day a when most citizens not yet up are and about do not a readily things and notice such car. missing facts known to the out- when detained defendant side his garage amply supported finding a cause to arrest him. arguments such, Defendant’s are meritless. As contrary pub- lic view which the from garage, obtained without rather than standing being alone and insufficient to support probable cause finding, instead confirmed the reasonableness of that determination. reasons,
For foregoing all en- judgment of conviction tered by the circuit court of Cook County is affirmed.
Affirmed.
McNAMARA, J., concurs. RIZZI,
JUSTICE specially concurring: The majority concludes that trial court’s “denial of the motion to suppress was manifestly erroneous” because evidence admitted at trial was obtained in of the violation fourth amendment right defendant’s free and sei be from unreasonable searches However, zures. the majority also concludes that convic tion should affirmed be because violation of his any “[we believe] fourth amendment rights beyond was harmless doubt.” reasonable (169 at I cannot conclusion accept majority’s that there was harmless error beyond my opin reasonable doubt. In ion, if amendment, in evidence is obtained violation the fourth trial, is sufficiently to be admitted into evidence at probative harm- wrongful rarely admission evidence should be considered less a reasonable It not be certainly doubt. considered beyond in harmless doubt this case. beyond reasonable States Court Chapman The United Supreme California set L. Ed. 2d S. Ct. fоrth the rule constitutional violations. The Court regarding harmless error in- may unimportant stated that some errors be so constitutional constitution, be consid- significant consistent with the may, However, ered harmless error. Federal constitutional error before harmless, court must that the error was harm- declared find 22-24, (386 less a reasonable U.S. at 17 L. Ed. 2d at beyond doubt. 709-11, 827-28.) according S. Ct. at The crucial question, Court, reasonable exists that Chapman possibility is whether a the ev- contributed to the defendant’s con- complained might idence have “affect Thus, if error is one that will viction. a constitutional substan- tial defendant, of a constitutional error should not be rights” 709-11, 22-24, 17 L. 87 S. Ct. deemed harmless. U.S. at at 827-28. states that trial court’s failure to find some majority
legal for the officer’s visual examination the evi- justification that the denial of defendant’s dence it to conclude compelled seized *10 if the trial Clearly, motion to erroneous. suppress manifestly erroneous, whether court’s were manifestly question actions the there might a that the complained reasonable evidence possibility have contributed to defendant’s conviction must answered in the be Here, but for the warrantlеss arrest of defendant the affirmative. car, the the State lacked and seizure of sufficient search subsequent conclusion, the based on Thus, majority’s evidence to sustain its case. error would the The asserted premise, own is untenable. majority’s However, my opinion not it is be harmless doubt. beyond a reasonable I that did to harmless error issue. majority the not need address the had to arrest defendant police probable believe that officers cause was,in at the time. car view relevant cause to make an ar probable To if a officer has poliсe determine his or rest, shown the facts and circumstances within it must be cau her a of reasonable knowledge person are sufficient to warrant per tion that an offense has been committed and to believe son has the offense. v. Gutierrez (People arrested committed Thus, 774, 782, 3d 483 N.E.2d whether proba Ill. App. to ble of the circumstances known depends totality cause exists on the cause de arresting probable officer the time arrest. practical termination must be on measured probabilities based not be restricted techni- unduly considerations of life and everyday regulations. cal rules and Sanchez mo 240, 248, Once a trial court has denied a court cause, probable reviewing tion to an arrest for lack quash it is errone manifestly unless ruling should disturb court’s 1030, 1036, ous. Calderon 840, 844. determi- case,
In the I do not that the trial court’s present believe nation cause issue manifestly erroneous. facts are that within a two-week had been period, abandoned cars or found in There stripped ap- close to defendant’s proximity peared to a trail of an oil leading from these cars into or substance near, of, or in the direction defendant’s this garage. While area and surveillance, defendant’s were under officers saw police them; car to close for them to pass very enough defendant’s close ob- serve the license number. entered the license number plate When into their computer, check disclosed that the car was computer registered a person who lived in Evanston. The officers ob- served defendant’s car pull alley ga- into front rage go and then into the garage. The door was then closed. The po- lice up officers drove clanking door and heard sound. As thе police door, officers exited their car approached defendant came out and made some motion if It go them. past was then that defendant was stopped and on the physically detained apron that led to the garage. earlier,
As stated officers do have to have actual knowl- crime; edge only probable cause or grounds reasonable for believ- ing Here, that a crime is being committed. officers had an area under surveillance where chop-shop-type operation was sus- pected. registered saw cаr at 5 in the They morning someone who did not area. The officers anywhere live near the saw the car driven into a which had under surveillance. When the door opened, the officers nuts lug were able see floor, milk car hoisted on crates and two wheels that had been removed. Based on facts, these it would to conclude be absurd that the police right officers did not have a to make an investigation. *11 Based their upon initial investigation, coupled with their of knowledge the other existed, factors that the officers had probable cause to arrest defendant.
This analysis takes into account the fact that defendant ar- rested in a In public place. past, this court that the has held a war- rantless of arrest a defendant on porch curtilage the within the of his home governmental involves no intrusion his expectation pri-
498 v. Jones the Fourth Amendment. as would violate vacy Moreover, 615, 622, per 932-33.) in is deemed standing doorway place son the of his residence open for Amendment. “public to be in a Fourth place” purposes United States Santana S. 2406. Ct. if porch public
It to a home is deemed logically follows ga to a for so would be an place purposes, apron Fourth Amendment the in garage as the was outside of unobstructed rage. Clearly, apron view, he would same as expectation privacy long arrest as have in a and his warrantless was valid public place, conduct, or coercion did not facilitate the improper police deception Graves 727, 730, arrest.
223, 225. not co-
Here, finding the trial court’s defendant was evinces onto its exiting garage apron. erced or deceived into opened when defendant proper investigation were conducting door out lead- stepped apron and his own volition onto Therefore, correctly I the trial court ing believe determined that the of defendant was valid. warrantless arrest I cause to possessed probable
Since believe that the officers and sei- defendant, I address issue as to the search arrest shall seize an may zure of the car. The law is clear that a officer he from a (1) object item in view a warrant if views the plain without the facts circumstances place right (2) where has a be and to a give known to him at the time he acts rise reasonable belief United States the item seized evidence of criminal activity. constitutes v. Cooks F.2d (7th 1974), Cir. 670. case, of defend- conducting
In this were a surveillance opened ant’s and the area. When defendant surrounding out, car, lug missing, door and with its nuts its stepped crates, on milk tires on the was in ground, hoisted its two body officers. Since range investigating police the immediate visual view, offi- unquestionably the car and were equipment in, and even right steering cers had the walk look at the column Thus, I suspicions. look at the trunk their believe lock confirm seizure, there not violative the mandate valid search Chimel v. 23 L. Ed. 2d 89 Ct. California 2034.
I concur with the for the reasons result reached by majority that I stated, by majority. have and not for reasons stated