Appeal from the Circuit Court of Lake County; the Hon.
Lawrence D. Inglis, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, Prince Harris Gibson, a/k/a Owen Gibson, and co-defendant, Victor Johnson, were charged in Lake County with the offenses of burglary, theft of property over $150, and possession of burglary tools. (Ill. Rev. Stat. 1979, ch. 38, pars. 19-1(a), 16-1(a)(1), and Ill. Rev. Stat. 1981, ch. 38, par. 19-2.) Gibson was also charged with obstructing justice. Ill. Rev. Stat. 1981, ch. 38, par. 31-4(a).
What occurred was that a Lake Forest police officer on routine patrol on April 3, 1981, at about 10:20 a.m., observed a Cadillac bearing a Chicago vehicle sticker exiting the driveway of a Lake Forest residence. The driver was Victor Johnson. The residence was the home of Dr. and Mrs. Engelhardt and it was one of the residences shown on the officer's "vacant" list; that is, the police department had been alerted that the residents were away on vacation.
The officer radioed the Cadillac license plate number in for a check; the car was registered to "a Johnson in Chicago." The officer turned his vehicle around and began following the car. When the car exceeded the speed limit (50 m.p.h. in a 30 m.p.h. zone), the officer stopped the car. The officer was unaware until that time that defendant Gibson was a passenger in the car. When the officer went to the passenger side of the car to see Gibson's driver's license, he observed two pair of cowhide gloves and a screwdriver on the floor of the car. The officer radioed to have someone check the residence the co-defendants had been seen leaving, and was advised the sliding glass door was ajar and off the runner, and the upstairs bedroom appeared to have been ransacked. The two men were then arrested, and the car towed to the police station.
Later that evening, the Engelhardts' daughter was summoned to the home and she telephoned her parents, then in Seattle. As a result of the conversation, several specific items were discerned to be missing: some silver earrings, a cuff link box, six $100 bills, and a pillow case. When the defendants were searched at the police department, Johnson had five $100 bills, $92 in assorted bills, and various items of jewelry; Gibson had one $100 bill, $41 in assorted currency, some jewelry, and a key to the trunk of the Cadillac which fell out of his shoes when he was asked to bang them together at the police department.
The warrant authorizing the search of the Cadillac sought seizure of "items contained in the vehicle which were taken as a result of a burglary on April 3, 1981" from the residence in question. The complaint supporting the warrant set forth only that the residents' daughter stated "her parents kept a number of $100 bills on hand in their bedroom which bills were missing." When the search of the car was executed, the police found a pillow case containing credit cards, various items of jewelry, two small gold coins, and postal bonds issued in the name of "Engelhardt." The items were later identified by the Engelhardts as their property.
The possession-of-burglary-tools charge was dismissed at the preliminary hearing. The trial court denied the defendants' motions to quash the search warrant which had been issued for Johnson's car and to suppress the proceeds of the burglary found therein. That motion was grounded, inter alia, on the lack of specificity as to the particular items to be seized and lack of probable cause. The trial court also denied defendants' motion to suppress the physical evidence on the basis that the arrest was illegal.
Defendant's motion for a directed verdict on the obstructing charge was granted at the close of evidence in his bench trial. Defense counsel's renewed motions to quash and suppress were denied, and the trial court found Gibson guilty of burglary and not guilty of theft due to failure of proof of value over $150. Defendant's post-trial motion was denied, and the court sentenced him to the Department of Corrections for six years. Gibson's co-defendant, Victor Johnson, previously had pled guilty to the charge and had received a six-year sentence as well. He has not appealed.
Gibson appeals, raising four issues: (1) whether the State has waived the issue of standing on appeal; (2) whether the search warrant was valid and whether the court erred in not suppressing the physical evidence obtained by reason of the search; (3) whether he was proven guilty of burglary beyond a reasonable doubt, and (4) whether he is entitled to a new sentencing hearing.
• 1 In its answer brief, the State maintains for the first time that defendant Gibson lacked standing to challenge the admission of evidence procured pursuant to what the defendants alleged prior to trial was an invalid warrant. It argues that defendant has failed to meet the burden imposed in Rakas v. Illinois (1978), 439 U.S. 128, 58 L.Ed.2d 387, 99 S.Ct. 421, that the proponent of a motion to suppress bears the burden of proving not only that the search was illegal, but also that he had a "legitimate expectation of privacy" in the area searched.
At the suppression hearing, Gibson testified he did not know to whom the car belonged, but that when Johnson became tired of driving the car the day before they were arrested, Gibson changed seats with him and drove the car. Gibson testified he did not have a set of keys to the car, nor did Johnson ever give him a set.
The State argues the fact Gibson had a key in his shoe which fit the trunk of the car, thus evidencing Gibson was "in possession" of the proceeds of the burglary, does not exclude the argument that Gibson lacked standing. In support, it cites United States v. Salvucci (1980), 448 U.S. 83, 65 L.Ed.2d 619, 100 S.Ct. 2547, wherein the court stated that "a prosecutor may, with legal consistency and legitimacy, assert that a defendant charged with possession of a seized item did not have a privacy interest violated in the course of the search and seizure." 448 U.S. 83, 88-89, 65 L.Ed.2d 619, 626, 100 S.Ct. 2547, 2551.
The defendant finds the instant case distinguishable from Salvucci because the State's assertions are "wholly inconsistent" with each other. Defendant posits the State may not argue on the one hand that he had a possessory interest in the car for the purpose of supporting his burglary conviction and, on the other, argue he did not have a possessory interest for purposes of standing. Defendant also argues the State waived this standing issue by failing to raise it earlier, and the fact that a full evidentiary hearing was held in the case at bar distinguishes it from People v. Keller (1982), 93 Ill.2d 432.
We find the defendant's attempt to distinguish Salvucci and Keller unpersuasive. Salvucci explicitly overruled the "automatic standing" rule of Jones v. United States (1960), 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725. The Salvucci court noted one of the reasons the Jones court adopted the automatic standing rule was to prevent the "`vice of prosecutorial self-contradiction'"; i.e., where the government is allowed to assert that the defendant possessed the goods for purposes of criminal liability, while simultaneously asserting that the defendant did not possess them for the purposes of claiming the protections of the fourth amendment. (United States v. Salvucci (1980), 448 U.S. 83, 88, 65 L.Ed.2d 619, 626, 100 S.Ct. 2547, 2551.) Salvucci explicitly declined "to use possession of a ...