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People v. Miller





APPEAL from the Circuit Court of Madison County; the Hon. JOHN J. GITCHOFF, Judge, presiding.


Mr. JUSTICE JONES delivered the opinion of the court:

Defendant was indicted, tried before a jury and convicted of the crime of theft of property valued in excess of $150 in violation of section 16-1(a) of the Criminal Code (Ill. Rev. Stat., ch. 38, § 16-1(a)). The gist of the offense was that defendant had exerted unauthorized control over a 1973 International Loadstar truck, the property of another, with the intent to permanently deprive the owner of the use and benefit thereof. Defendant received a sentence of one to six years' imprisonment and brings this appeal. We affirm.

The issues defendant raises are limited to his motion to quash a People's search warrant and suppress all evidence resulting therefrom, and his motion to suppress all evidence gathered from a nonwarrant search of the vehicle named in the indictment. Those issues are: (1) whether the trial court committed reversible error in refusing to quash the search warrant and suppress all items seized thereunder because the search warrant failed to adequately particularize the items to be seized; (2) whether the trial court committed reversible error when it required defendant to stipulate to possession of the truck in order to acquire "standing" to make a motion to suppress; and (3) whether the trial court committed reversible error in failing to suppress evidence gathered from the nonwarrant search of the truck in that the State failed to establish probable cause or the exigencies of the situation.

We cannot consider the second issue raised by defendant since it was raised for the first time in his brief in this appeal. It was not raised during the hearing on his motion to suppress, during the trial when the evidence yielded by the search was presented, or in his post trial motion. Accordingly, the issue is waived on appeal. People v. Curry, 56 Ill.2d 162, 306 N.E.2d 292; People v. Cimino, 45 Ill.2d 556, 257 N.E.2d 97.

The fourth amendment to the United States Constitution provides that no search warrant shall issue except those "particularly describing the * * * things to be seized." In interpreting this provision the Supreme Court, in Marron v. United States, 275 U.S. 192, 196, 72 L.Ed. 231, 237, 48 S.Ct. 74, stated: "The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible * * *. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Defendant here argues that the warrant is violative of his rights under the constitution and at wide variance with the requirements of the Marron case since the description of the articles to be seized in the search warrant are inadequate. The description in the warrant of the things to be seized was "stolen vehicles and vehicles or parts of vehicles with the manufacturers identifying numbers altered or removed; vehicle identification number plates commonly referred to as VIN plates; tools, die stamps, and cutting paraphernalia for use to dismantle, conceal, or steal motor vehicles; improper or open motor vehicle titles."

The complaint and affidavit upon which the warrant was issued indicated that police officers had inspected and impounded a truck which was displaying a license plate issued to another vehicle and upon which the manufacturer's identifying number had been ground off and restamped. The "owner" of the truck had purchased it from defendant who was doing business from a particularly described garage which was to be searched. Another truck, a 1972 Chevrolet, was parked in front of this same garage displaying a license plate issued to defendant for use on a 1969 Chevrolet truck.

The defendant contends that the descriptions of the property to be seized are entirely generic in matter and entirely lacking in specificity; the warrant did not describe the types, makes or models of the vehicles to be seized; the vehicles were not specified to be trucks, automobiles or even motor vehicles; and furthermore, the tools, die stamps and cutting paraphernalia used to dismantle, conceal or steal motor vehicles did not describe anything. Defendant relies on People v. Prall, 314 Ill. 518, 145 N.E. 610, in which the Supreme Court quashed a search warrant describing the property to be seized as "certain automobile tires and tubes." The court commented there was no effort to identify the tires and tubes in question by name, number, color, size or material. Defendant also cites People v. Holmes, 20 Ill. App.3d 167, 168, 312 N.E.2d 748, in which the search warrant described the property to be seized as "an undetermined amount of United States Currency and the weapon used in the armed robbery of the Kroger Food Store * * * in the City of Chicago Heights." The court held both identifications were inadequately particularized.

• 1 We disagree with defendant's characterization of the description of the property contained in the warrant and do not take Prall and Holmes as controlling. The vehicles to be seized were not any vehicles but stolen vehicles or parts of vehicles where the manufacturers' identifying numbers were altered or removed. The qualifying words limit the scope of the property to be seized and curtail the discretion of the officers executing the warrant. Moreover, the search was limited to a particular premises upon which the officers could reasonably believe a vehicle theft operation was being conducted. The description of vehicle identification number plates, the tools, die stamps and cutting paraphernalia for use to dismantle, conceal or steal motor vehicles was as particular as they could be under the circumstances and could not be described otherwise or with more particularity. It has been recognized that when property of a specified nature is to be seized rather than particular property then a description of its characteristics is sufficient. (See People v. Curry.) Such is the case here.

Defendant's final issue questions the trial court's refusal to suppress the evidence seized in a nonwarrant search of a truck — an incident unrelated to the search by warrant of the garage. The factual setting of the issue is as follows: Sergeant McEuen of the Wood River Police Department received a call from an informer in which he was advised that a stolen truck was being operated in the area of the American Oil Company. The truck was described by the informant as "* * * a red International dump truck, leased to the Southern Illinois Black Truckers, Inc. and that it had a white painted grill on it." Southern Illinois Black Truckers, Inc. was a company of defendant. Sergeant McEuen directed Officer Nunn to stop a possible stolen truck which was hauling sand near the American Oil Company. The initial stop of the truck occurred around 1:30 p.m. on August 15, 1973. Officer Nunn ran a vehicle identification check on the truck which indicated that it was not a stolen truck. The check was made by viewing the vehicle identification number (hereinafter VIN) which was stamped on a plate affixed to the door. Officer Nunn noted, however, that the VIN tag on the door was attached with sheet metal screws. No further search was conducted at that time and the VIN number was checked with the driver's permission. The driver, Collins, was permitted to go on his way, the only infraction being that he was operating the truck with an improper license classification, but no citation was issued. Officer Nunn then radioed the information to Sergeant McEuen. A short time later Sergeant McEuen again radioed Officer Nunn and advised him that he had checked with the State Police and there was another place on the truck which should be checked for a VIN number.

About 2:30 p.m. on the same day Officer Nunn again stopped the truck and proceeded to look underneath the hood for the additional VIN plate, with a negative result. Nunn then radioed for Sergeant McEuen who arrived shortly on the scene. Upon McEuen's arrival he assisted Nunn in checking the truck for altered serial numbers on the frame of the truck, searching under the left front wheel. McEuen radioed the State Police for assistance in checking the truck for identification. Officer Mehrtens of the Illinois State Police arrived and checks were again made of the VIN plate on the door and numbers on the frame of the truck which Mehrtens testified had been altered with a welder. The engine number was also checked and Mehrtens testified that it too had been altered in a like manner. After it was determined that the truck had obliterated serial numbers, Collins was placed under arrest and later charged with possession of a vehicle with an altered or obliterated serial number but these charges were later dismissed.

Subsequent to the arrest of Collins the truck was impounded at the Wood River Police Station and a thorough nonwarrant search of the interior of the truck was conducted. A "line slot" or production sheet was discovered under the floor mat which enabled the police to later establish that the vehicle was stolen property.

• 2 With respect to the nonwarrant search of the truck defendant first argues that the evidence should be suppressed because the People failed to substantiate how the informer reached his conclusions, that the information supplied by the tip, standing alone, was not sufficient probable cause for the stop of the truck. He cites People v. King, 12 Ill. App.3d 355, 298 N.E.2d 715, as authority for his proposition, but that case is not germane since the informer there was a professional informer and, under the general rule, there must be a substantial, independent basis to support his credibility. (Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509.) Here, however, the tip came from a person who had never before furnished information to the police and the usual requirement of prior reliability (the ordinary "substantial independent basis") which must be met when police act upon "tips" from professional informers does not apply to information supplied by ordinary citizens. (People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466; People v. Kaprelian, 6 Ill. App.3d 1066, 286 N.E.2d 613.) Accordingly, Officer Nunn had probable cause for his initial stop of the truck for investigation.

Probable cause for the second stopping of the truck (which occurred approximately one hour after the initial stop) is found from the citizen's tip that authorized the initial stop, plus the irregular manner in which the VIN tag was affixed and the improper license ...

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