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People v. Sullivan





APPEAL from the Circuit Court of Peoria County; the Hon. STEPHEN J. COVEY, Judge, presiding.


After a bench trial the defendant, William Sullivan, was found guilty of burglary and sentenced by the circuit court of Peoria County to a term of not less than 2 nor more than 4 years in the penitentiary. On petition for rehearing, the previous opinion has been withdrawn and modified and consequently, the petition for rehearing is denied.

On June 10, 1977, at approximately 1 a.m., Officer Chris Lavin of the Peoria Police Department was patrolling west on Lake Street. As he passed the front parking area of the Sheridan Village Shopping Center, he observed a car off to his left. The car, parked with its lights on, was approximately 10 yards from three or four semitrailers. The trailers were parked end-to-end parallel to Lake Street, but had no tractors attached. Although there was a carnival set up in the immediate area, Officer Lavin did not know to whom the trailers belonged. He saw no other persons or vehicles in the immediate area.

Upon seeing the parked car, Officer Lavin stopped his car across from the lot, approximately 25 yards away, and turned his lights off in order to observe the car and any activities relating to it. After seeing the car back up and start across the parking lot, Officer Lavin shined his spotlight towards the rear of the trailers to see if any of them had been tampered with. He noticed that one trailer was open about two feet, but did not notice any signs of forcible entry or disturbance otherwise.

The vehicle pulled out of the parking lot onto Lake Street, made a right turn and began to proceed eastbound at a reasonable rate of speed. At no time did the driver violate any traffic regulations.

Officer Lavin stopped the car approximately 25 yards from the parking lot exit it had used. He approached the driver's side of the motor vehicle and asked the driver, the defendant, for some identification. The driver was unable to produce any identification or driver's license. While so positioned, Lavin observed a 12-pack of Busch beer on the floorboard of the passenger side of the car. He asked the driver to step out of the vehicle. As the driver left the vehicle, he noticed an open can of beer on the floorboard of the driver's side of the car. He placed the open can of beer and 12-pack on top of the car. He then made a search of the area of the car under the passenger seat and discovered a blue vinyl box with the name of a "Doctor Heer" imprinted on the front. Officer Lavin then radioed the Communication Division of the Peoria Police Department. He later phoned Dr. Heer at home and determined Dr. Heer's office had been burglarized. A further detailed search of the entire vehicle, including its trunk, was then conducted. Items found in the car were identified by Dr. Heer to have been stolen from his office which had been burglarized sometime between the evening of Tuesday, June 7, 1977, and 7:30 a.m. of the following day. After a search of the car had been made, an inspection of the trailers was made by assisting officers. They found nothing had been disturbed.

A motion was filed to suppress evidence regarding the items seized in the search of defendant's car, alleging that the officers conducting the search had no warrant for arrest or search and that no probable cause existed to stop the defendant or search his vehicle. This motion was denied.

After defendant waived his right to a trial by jury, a stipulated bench trial was held. At the proceeding, the State presented its case by stating the various facts it felt would be brought out in the testimony of its witnesses. These facts were sufficient to establish beyond a reasonable doubt a burglary of the doctor's office by the defendant. The defense presented no evidence at the proceedings.

On this appeal the defendant makes two assignments of error. First, the stipulated bench trial amounts to a plea of guilty and should be vacated because of the trial court's failure to admonish him of his constitutional rights as required by Supreme Court Rule 402 (Ill. Rev. Stat. 1977, ch. 110A, par. 402), and second, the court erred in refusing to suppress the evidence because the search and seizure was not incident to an arrest for probable cause and the officer did not have either an arrest warrant or a warrant to search the vehicle. We affirm.

In support of his contention that a stipulated bench trial is tantamount to a plea of guilty requiring admonishment by the court in accord with Supreme Court Rule 402 (Ill. Rev. Stat. 1977, ch. 110A, par. 402(a)), defendant relies primarily on three cases: People v. Smith (1974), 59 Ill.2d 236, 319 N.E.2d 760; People v. Stepheny (1974), 56 Ill.2d 237, 306 N.E.2d 872; and People v. Ries (1975), 28 Ill. App.3d 698, 329 N.E.2d 243. The People on the other hand have called our attention to such cases as People v. Ford (1976), 44 Ill. App.3d 94, 357 N.E.2d 865; People v. Collins (1976), 37 Ill. App.3d 202, 345 N.E.2d 730; People v. Fair (1975), 29 Ill. App.3d 939, 332 N.E.2d 51; and People v. Young (1974), 25 Ill. App.3d 629, 323 N.E.2d 788, in which stipulated bench trials were not considered pleas of guilty requiring admonition.

Since a guilty plea waives all errors except those of a jurisdictional nature (People v. Jackson (1970), 47 Ill.2d 344, 265 N.E.2d 622), interest has developed in the stipulated bench trial procedure. This procedure avoids the waiver rule, but still permits the parties to proceed with the benefits and conveniences of a guilty plea procedure. This is particularly true where a defense depends upon the admissibility of evidence and the issue has been disposed of adversely to the defendant in a pretrial procedure.

In People v. Russ (1975), 31 Ill. App.3d 385, 334 N.E.2d 108, a case discussed by both parties, the court held the stipulated bench trial did not constitute a plea of guilty, and the court attempted to fashion a rule which would both harmonize the precedents and form a framework for determining whether stipulated bench trials were or were not tantamount to pleas of guilty. The general principle which the opinion in Russ seeks to implement is the notion that if the trial court is exercising its function of determining guilt or innocence, then no guilty plea is involved. Conversely, if the court is not deciding guilt or innocence, then the procedure is tantamount to a guilty plea. According to Russ, if there is a genuine defense or a purported defense either actually established or included in the stipulation, then the proceeding is not equivalent to a plea of guilty. If no defense is revealed either actually or by the stipulation, then there is nothing for the court to decide and the procedure is tantamount to a plea of guilty.

In People v. Ford (1976), 44 Ill. App.3d 94, 357 N.E.2d 865, and People v. Fair (1975), 29 Ill. App.3d 939, 332 N.E.2d 51, a rationale consistent with that employed in People v. Russ (1975), 31 Ill. App.3d 385, 334 N.E.2d 108, was employed to support the conclusion that pretrial proceedings to suppress evidence were included in the stipulation so that errors in the rulings should be deemed a defense and the procedure did not constitute a plea of guilty.

• 1 In the instant case the stipulation included what the arresting officer would have testified to about the initial arrest, discovery and seizure of the stolen property and included the issue whether such evidence was admissible even though the defendant's claim to the contrary had been previously denied. We believe the reasoning and results in such cases as Ford and Fair offer ample ...

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