Appeal from the Circuit Court of Du Page County; the Hon.
Bruce R. Fawell, Judge, presiding.
JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
After trial by jury defendant, Theodore Flowers, was convicted of burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19-1) and possession of burglary tools (Ill. Rev. Stat. 1979, ch. 38, par. 19-2). He was sentenced to concurrent terms of imprisonment of seven years and one year, respectively, for these offenses.
Defendant appeals contending the trial court erred (1) in denying his motion to suppress evidence on the grounds defendant lacked "standing" to assert a fourth amendment interest in the vehicle searched; (2) that the evidence was insufficient to establish his guilt beyond a reasonable doubt; (3) that the court erred in denying his petition to be treated as an addict under the Dangerous Drug Abuse Act; and (4) that the court erred in refusing defendant's tendered circumstantial evidence instruction.
We consider first whether defendant, as driver of a car in which its owner was a passenger, had such an expectation of privacy in the car and its contents as to permit him to challenge the reasonableness of a search of the car.
Defendant filed a pretrial motion to suppress evidence seized after a warrantless search by police of a car in which he was riding, together with all other evidence resulting from the alleged illegal search and seizure. At the hearing of his motion defendant testified that at 11:50 p.m. on December 11, 1980, he was driving a Buick automobile owned by co-defendant, Julius Harshaw, in Oak Brook, Illinois. Harshaw was a passenger riding in the front seat. When defendant noticed the flashing lights of a police car behind him he pulled over to the curb and got out. One of the officers met defendant at the rear of the Buick where Harshaw joined them. When defendant could not produce a driver's license the officer asked for his name, address and birthdate. Harshaw was also unable to produce a driver's license but exhibited a traffic citation, apparently to show his license existed. Defendant told the officer the car belonged to Harshaw.
Defendant testified the officer returned to his squad car, without telling them why they had been stopped, and he and Harshaw returned to the Buick. Harshaw got in on the driver's side and defendant in the front passenger's seat.
The officer came back to the Buick and after speaking to Harshaw they went back to the squad car; Harshaw returned in a few minutes and again got in the driver's seat. The officer then opened the rear door, looked into the back seat of the Buick, and started to question them about items he saw there. The officer had no warrant nor did either defendant or Harshaw give him permission to go into the car.
The officer saw a brown shoulder bag on the back seat inside of which he found prescription forms. He then directed both men to get out of the car and continued his search locating hypodermic syringes and tools near the front passenger seat. The officer then told the men they were under arrest; he did not tell them why they had been originally stopped until later at the police station where defendant was given traffic citations for failure to have a driver's license and for defective brake lights.
After defendant's testimony the State moved for a directed finding denying the motion to suppress on the grounds defendant had failed to establish "standing" to assert a fourth amendment violation premised upon the search of Julius Harshaw's car. The trial court agreed and denied the motion to suppress evidence.
In considering a ruling on a motion to suppress evidence a reviewing court may also consider evidence adduced in trial following the suppression hearing. (People v. Braden (1966), 34 Ill.2d 516, 520, 216 N.E.2d 808, 810; People v. Sledge (1981), 92 Ill. App.3d 1051, 1055, 416 N.E.2d 412, 415, appeal denied (1981), 85 Ill.2d 560.) We will do so to the extent necessary to resolve the issues presented.
Officers Alan Borkover and Sue Srch of the Oak Brook Police Department testified in trial they had observed the Buick automobile after it pulled out of the driveway of a business located at 600 Hunter Drive and noticed it did not have brake lights. After stopping the car Officer Borkover asked the driver, who he identified as defendant, for his license. When defendant could not produce a license the officer made a radio check and, on learning it had expired, arrested defendant for driving without a valid license.
Officer Borkover further testified that while standing beside the car he had observed a typewriter and a space heater in its back seat and he opened the door and searched the vehicle. On the passenger side of the floor of the front seat the officer found a pair of pliers, chisel and two rocks. He also found there an envelope containing cancelled and blank checks imprinted with the name of C. David Loftus of 615 West 22nd Street, Oak Brook, Illinois, a location adjacent to the place the Buick was first seen by the officers. The officer also searched the rear seat area of the car finding two bags containing cameras and photograph equipment, an IBM typewriter, space heater, tape recorder, clock radio and a calculator. A brown shoulder bag when opened was found to contain blank prescription pads and hypodermic syringes were also located in the car.
Officer Borkover thereupon contacted another officer by radio requesting he check the building located at the address on the checks. That investigation disclosed the building had been forcibly entered that night and most of the items found in the Buick had been stolen. A button was also located at the scene of the burglary. It was compared to the buttons on defendant's coat in a crime laboratory and a witness testified they were from the same die; a button was missing from defendant's coat.
After searching the car the officers removed the items located in it and took both men to the police station where citations for failure to have a driver's license (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 6-101) and defective brake lights (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 12-208) were issued to defendant. He was subsequently charged ...